Is A President Above the Law, or only beneath Contempt?

Some people in the US keep telling us that "no one is above the law, even the president." But then the in next sentence they tell us that (at least according to DOJ policy) the president cannot be indicted of a crime. Every time I hear these two claims side by side my brain explodes into a giant WTF?

Not being subject to a criminal indictment is the very definition of being above the law. There is no more "above the law" than being unindictable. The president, it seems to me is the best available example we have of being above the law.

Ok, so the counter argument would be that the Congress can hold the president accountable. The House can "indict" (referred to as impeachment). And the Senate can (in theory, though it's never been done) come down with a verdict of guilty, and (again in theory) remove him from office. But I think that one has to make a serious stretch to say that such a process indicates that someone is legally accountable. After all, the only punishment that the Senate is legally sanctioned to impose is to fire the president from his job. If the only punishment that can be imposed for a crime is to change a person's employment status, I don't think that this can be said to be legal accountability.

"But wait!" someone might say. After the president is removed from office he can be indicted for a crime. Well, that statement is itself an admission that the president is above the law, because the person you are now talking about indicted for a crime is NOT the president!

"Oh, but that's just a technicality," you might say. The president might be technically above the law, but the individual that is in office can eventually (if all the stars align and people can put partisanship aside) be subject to the law. The problems with this position are numerous. First of all, a very unusual (and unlikely) set of circumstances would have to prevail even for the individual in the oval office to be held legally accountable even to a minimum degree. Secondly, and more importantly, if a president were ever removed from office (and remember that this has never happened), the Vice President (who is supposed to be the president's closest ally) can simply pardon him. And, of course, Nixon (who was not technically removed from office but was only pressured to leave) was pardoned directly by Ford so he, as an individual could not be legal held to account.

I think it is pretty clear that, regardless of what Nancy Pelosi tells us, the president is, in fact, above the law. Of course, the executives in many countries are de facto above the law. Prime Minster Harper was clearly guilty of two counts of bribery (and we have clear physical evidence of these crimes in both cases), but he was never indicted for either. The fact is that the political establishment of most countries will go to great lengths to protect both the high placed individuals of their system as well as the office of the executive itself from any real legal accountability. But as far as I know, the US president is the only national executive in "genuine" democratic states who is not only de facto but de jure above the law. If  I were American I would definitely want to look into this.

Begging the Question and acting Appropriately. . .

The phrase "beg the question" has recently begun to be widely misused, at least in relation to its strict traditional meaning. People now will often say something "begs the question" when it simply raises another question or problem. Such a phrase can obviously have a very wide application. For example, we might say that recent events in the US are undermining democracy and promoting racism. However, this "begs the question," hasn't the US been democratically problematic  and racist all along, and aren't recent events simply making obvious what people have been routinely ignoring? Maybe so. However, the traditional or strict meaning of the phrase "to beg the question" means something different. To beg the question means, in a sense, to answer a problem with itself or to make a circular, tautological claim. A simple example that I have seen used in a number of places is: "Chocolate is good for you because it's healthful." At a more technical level we can say that "begging the question" is a logical fallacy in which the conclusion of an argument is assumed in its premise. A good example of such a fallacy that we have probably all heard actively used is this - "God exists because the bible says he does, and the bible is the word of God so it must be true."

The new, now more common use, of the phrase "to beg the question" is fine as far as it goes. It is a useful, practical, everyday phrase and people seem to like to use it. But I think it is good to be aware of the strict definition of the phrase because, though "begging the question" is not strictly speaking, a logical contradiction (rather it's a useless, tautological statement), it is an example of logical fallacy, and logically fallacious statements have taken on special significance in this age of "truthiness."  Nixon famously said to David Frost "When the president does it, that means it's not illegal." This is an active and frightening example of a logical fallacy that is similar to "begging the question. Fleshed out, this fallacy would be expressed as "if the president did something illegal he would be breaking the law, but if the president breaks the law he hasn't done anything illegal." Fallacy, contradiction, and begging the question, have all become so ubiquitous in our current political context that it is almost overwhelming. And the danger with this circumstance the existence of the cognitive bias called the "availability cascade."  This is the tendency for a statement or proposition to become more believable the more it is repeated. The availability cascade is a dangerous cognitive bias to which we can all to easily fall victim.

When a proposition or system of thought relies only (or largely) on itself for justification we can run into serious social problems. But it is not only lying politicians who are our enemies here. We can become easily deluded about how decisions are (or should be) made. For example, the German sociologist and philosopher Max Weber and many of those who followed him like Jurgen Habermas, have spent a great deal of intellectual power devoted to the problem of the tendency for technical rationality to dominate our important social discourse. Rationality is a system that suffers from a significant internal problem in as much as to justify rationality one must use rationality itself. This means (to use Feyerabend's words) belief in the truth of rationality is a 'pre-rational' decision. Feyerabend's point here actually goes back at least to Montaigne's rational skepticism (and perhaps earlier, I am not sure). But the paradox of rationality (I am not using this term in the sense that it is used in Economics or Games Theory here) is, for most people, a purely theoretical problem. People use rational method and thought to perform all sorts of practical operations and (as with many logical paradoxes) pointing out the problem won't help us in these practical matters. Fair enough I suppose.

However, there is something else going on here that was brought up in a comment to my last blogpost in which the commentator complained that I was "politicizing" childrearing and some things (like, say, childrearing or climate change) shouldn't be politicized. This complaint illustrates, I think, what has become a very widely used logical fallacy and speaks directly to the work of thinkers like Weber and Habermas. The fallacy is that certain areas of thought are somehow beyond socio/political discourse. This is illustrative of the tendency talked about by Habermas for our normative discourse to become colonized by technical-rational thought. A widespread belief is growing that suggests that somehow must simply organize our normative (sociopolitical) structures to facts. This is, of course, just another example of Thatcher's famous TINA (there is no alternative). However, technical-rational questions are largely separate from our normative questions. This is because of Hume's famous IS?OUGHT problem - that is we cannot derive an ought from an is. Even if we can agree on certain facts, that doesn't mean have to design our normative beliefs on those facts. We may agree on the facts of climate change, say, but those facts don't compel us to any particular social policy. (Of course, certain facts will preclude certain courses of action) Even if we agree that human induced climate change will destroy the earth, it doesn't mean that we have to pursue a policy to stop it. The assumption that we should attempt to save humanity is not a technical-rational one, it is a normative and ethical one. We don't have to actively politicize our social/normative questions because they are already politicized by their nature. Though certain decisions are precluded by the facts, those options that are open to us are purely a matter of normative and ethical choice and the effort to portray them as purely technical and rational is not only an attempt to colonize our ethical realm with technicality it is often a disguise for pursuing goals that benefit the rich and the powerful. We might (and should) use certain facts to influence our normative decisions but it is becoming a widespread fallacy to believe that those facts are or must be inextricable from our normative and ethical principles. However, when our politicians are actively lying in open and blatant ways, or when they are telling us that we must act in certain ways regardless of important ethical discourse, the biggest challenge becomes the ability to distinguish facts about the world from the ethical decisions we make and to act appropriately. And that, as the phrase goes, begs all sorts of questions.

My Socialism Includes Kids. . . .

After a lifetime of observation and thought, it increasingly seems to me that failures on the left are often not a result of leftists being too radical, but of them not being radical enough. That is to say, leftist who are supposed to oppose the arbitrary uses of power that are infused in society, all too often abandon one set of power structures for another. Now, this is historically obvious in the disastrous cases of many large-scale socialist projects like the Soviet Union. I think that most people on the left who are appropriately reflective understand that power (whether institutional or personal) tends to be self-replicating and that it gets out of hand easily and with often terrible consequences. We didn’t necessarily need Michel Foucault to point this out, there has been a solid tradition of leftists who have grappled with the issues of power, doubted parts of the Marxist or socialist traditions because of their (all too often) failure to make liberation a central part of their creed. But these liberatory threads of leftist thought were mostly marginalized by the mainstream socialist tradition that (for reasons that I could never fathom) hitched themselves to the wagon of Leninist (or even Stalinist) Marxism.

Unfortunately, we on the left are still paying for this colossal historical/intellectual error, and we still haven’t properly begun to reformulate (at least in the public mind) the real case for a liberatory socialism. So it goes.

Even more unfortunate is, I believe, that you don’t really have to look too far to see why leftism continues to be self-crippling. Leftist, as much as anyone else on the political spectrum continually fall victim to romanticizing the past. All too often, leftist, like those on the right, reason by nostalgia. The depth of this romanticism struck me recently while watching an exchange between Fran Leibowitz and Bill Maher. Both of these public figures (who are ostensibly considered to be left – at least in American terms) are so quick to hop on the band wagon of “good ol’ days” thinking that it is little wonder we are ideologically stuck. Leibowitz and Maher have fallen into the all too prevalent belief that one of the primary problems with today’s society is that we are too easy on kids. You hear this kind of talk all the time from people on every part of the political spectrum. “We are too soft with kids nowadays.” “In my day kids learned from the life of hard knocks, and it if was good enough for me it is good enough for them.” Leibowitz actually said that “we don’t punish kids enough” any more!

It is interesting to me that people who otherwise criticize the arbitrary exercise of power over people, are suddenly “all in” when it comes to parenting. I have heard many leftists who claim that punishment and negative reinforcement is counterproductive with adults, and then turn around and believe that it is the very best way to handle children. As though we can be harsh with children, treat them as though we are wardens governing over little prisoners, and then expect them to be soft, forgiving, equity-seeking, non-aggressive adults! The very idea seems patently absurd to me, and its falsity shockingly obvious.

There are a number of things to unpack about these kinds of beliefs. The first is to question whether they even true? Are children actually being treated more “indulgently” than in the past, say, sixty years? The second thing to ask ourselves is, if we do treat children significantly differently, is that demonstrably something that leads to undesirable behaviors now or later on?

Now, at one level, it is obvious that kids are treated differently than in the past. If you go back past the 1960s (at least in North America), schools and home-life was very different for the majority of kids. Children and young people often couldn’t express themselves in many ways. If they spoke up in classrooms or to their parents about what they thought, they could be treated shockingly harshly. But I have help to raise four kids and I don’t think much has changed since the 1960s. I don’t think kids are significantly more “indulged” than they were when I was growing up, and in many cases I am shocked to see the parents of my kids’ friends considerably stricter than the parents of my friends were.

 There is a widespread perception that things have changed radically in the past 30 or 40 years and I just don’t believe that is true. But again, as people age, they seem to inflate the changes that have taken place in their lifetimes and bemoan the perceived changes as progress run amok. Thus you will hear older people say, “In my day we didn’t talk back to our parents” as though having the capacity and/or right to say what you think is a bad thing. Furthermore, such a claim is mostly bollocks. In my day kids spoke back to their parents all the time. They might have got smacked for it, but they did it. And for those who think that hitting kids is totally fine, my simple question is “How did that work out for us?” You know, besides the World Wars the constantly lynchings, and the abundance of systemic violence everywhere? When I was young teachers could still hit kids in school in parts of North America. And let’s just observe that as it has become unacceptable to hit children the crime rates have consistently dropped.

So, while I will admit that some changes have taken place over the past 75 years concerning how we treat children, these changes haven’t gone nearly far enough, and rather than being a problem, such changes are actually one of the things that is driving us toward a more tolerant and equitable society. How is that any leftists let themselves fall into an idealization of our past treatment of children?? Particularly when it is the leftists who have always said that it is in our treatment of the most vulnerable, those without much of a voice, that we will be judged? Surely it is partially nostalgia, and partially the fact that many leftists simply aren’t (and never have been) actually committed to the principles of liberation. They only want a tidy revolution, they only want changes where it enhances their status and power.

As I said, I have helped to raise four kids, and if I have learned anything as a socialist it is that schools continue to be prison-houses for kids, plying them with competitive, power-driven ideologies. If kids speak up and say “fuck this,” I will do nothing but cheer them on. And if a young person wants me to call them by another pronoun, I will happily oblige. And if a child is grieved by some kind of loss (anything from a perceived academic failure to a loss in little league), I will be glad to commiserate with them. And if a child thinks that they should be able to wear what they want, I would not only allow it, I would encourage it, even I think (in my fuddy-duddy years) that it is a little wacky! And if kids want to be heard I will give them a bullhorn to be heard louder. And I will do these things for kids because I would do them for anyone! That’s not indulgence, that’s liberation.

Some nostalgic folks say that kids aren’t learning to deal with failure nowadays. I can’t think of a bigger load of nonsense. If you even vaguely observe a child today you know that they continue to deal with failure everyday; they struggle to be accepted by their peers, despite not being “thin enough” or “cool” enough. They continue to be pushed into activities by their parents that they don’t really want to do, and they struggle and often “underperform.” They struggle to get good grades in school because “success” is more than ever determined by your long-term career prospects. We are not indulging kids too much. If anything, we aren’t indulging them enough, we aren’t being honest enough about our own shortcomings and failures, and (certainly in the case of girls) we aren’t encouraging them enough to speak their minds and be who they really want to be.

The socialist project will move forward when we actually embrace tolerance, inclusion, and liberatory attitudes. And what better place to start than with kids? Let’s not bemoan the idea that kids have too much space to be themselves, let’s encourage it.