As America bleeds out, we split constitutional hairs.
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How does the scandal of one groper, Lauren Boebert, relate to the fate of another groper, Donald Trump?
Well, both the gun-slinging saloon-keeper-turned-firebrand-congresswoman from Colorado and the old rapscallion from Queens are masters of redeeming Get-Out-of-the-Doghouse-Free cards.
Although they are both incessantly on the hot seat for one misdeed or another, these self-described moral crusaders always find ways to wriggle out of accountability.
Boebert and Trump continue to prove remarkably agile, lucky, even blessed with impunity over the kind of behavior that in the past would have instantly destroyed other public figures.
Al Franken went down in a minute flat for some minor “jokey” sexual gestures, and plenty of Bob Menendez’s colleagues and fellow Democrats demanded that he step down within hours of his indictment.
Here’s the long and short of how this works for Lauren and Don: They’ve successfully enrolled in a movement that — like Scientology and other cults — defends its adherents through an unabashed and relentless barrage of transparently hypocritical pronouncements, distractions, and general mayhem. No one can keep up.
And such characters also benefit from the hairsplitting of well-intentioned — but ineffectual — academics who, in their pursuit of objectivity and fairness, provide a variety of escape hatches.
I kind of wondered if I was alone in thinking we are too slavishly giving credence to these “experts” who cite the Constitution’s most arcane interpretations as a kind of ideological whitewash.
But after I began working on this, I heard our WhoWhatWhy podcast with Harvard professor Daniel Ziblatt, co-author of the new book Tyranny of the Minority, which takes a hard look at the political extremism that is threatening the future of American democracy, and at the institutional inertia that slows down and exacerbates the extremism.
This reassured me to keep after the point I was grappling with, so… onward!
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Hypocrites, of course, try to distract from their hypocrisy by attacking others. And hypocrites love “fine print” that somehow allows them a free pass.
Consider these two cases of high-falutin’ experts splitting hairs while the country bleeds out:
Does the Constitution prohibit Trump from running?
What should we consider beyond-the-pale “filth” to which children should not be exposed?
Insurrection or….?
So much of our democracy dangles by a very thin thread. How thin? Well, read this short discussion of flip-flopping interpretations of a key passage in the 14th Amendment.
The debate is familiar terrain: Can Trump be barred from another presidential bid for his role in an attempt to undo an election result?
A constitutional law professor, Steven Calabresi (whose uncle Guido is a celebrated legal scholar and a liberal but himself was a co-founder of the corporate-dominated Federalist Society), thought Trump could be barred and said so — until he was persuaded by something written by George W. Bush’s attorney general, Michael Mukasey – after which Calabresi announced that he had changed his mind. This sudden intellectual conversion got a lot of media attention, not always positive.
“Let me be clear,” Akhil Reed Amar, a law professor at Yale, said on his podcast about the Mukasey interpretation that won Calabresi over: “This is a genuinely stupid argument.”
Shortly after, Calabresi issued a clarifying blog post, this one called “Donald Trump Should Be on the Ballot and Should Lose.”
Spoiler alert: Citing 14th Amendment language relating to who may be barred from office for egregious behavior in office, some scholars including Mukasey, now backed by Calabresi, assert that Trump as president was technically not a US government “officer” — and therefore cannot be barred from said office.
Got that?
I’m no expert on democratic governance, but if this country cannot protect itself against bad actors in office because of competing interpretations of what amounts to semantic fine points— then it’s time we got everyone on the same page about the survival of democracy, even if this means re-writing a few key passages.
The Constitution is our most hallowed historical document and the foundation of our democracy. Yet disagreements over this talisman have crept into everything, and prompted similarly Talmudic questioning in all manner of dispute. As Bill Clinton famously said when accused of having lied over his relationship with Monica Lewinsky, and the presumed meaning of his use of a two-letter word:
It depends on what the meaning of the word “is” is. If the — if he — if “is” means is and never has been, that is not — that is one thing.
The Second, and parts of the 14th Amendments (gun rights and insurrection and rebellion) are probably the most frequently debated linguistic arenas in which hairs are endlessly split. But we all can probably think of other parts of the Constitution where paralyzing debate rages.
Critics of my even raising this point will say that the Constitution should not be tampered with — or will point out how difficult it is to amend the Constitution to achieve a more modern document or to make it less ambiguous. And that Constitutional viscosity is a safeguard against dangerous changes — and has kept the nation from the tyranny of the minority.
Still, I’d argue that intent and determination are what create change in the most intractable of circumstances.
Unless we try to do something about this, what hope do we have that the course of human events won’t further bifurcate the two Americas, ready to square off against each other over two sets of opposing “facts”?
What would King Solomon do? He was the Biblical king who feigned an offer to split a baby between two women who argued over whose baby it was. He understood that the real mother would let the other woman have the baby, rather than harm her child with such a “compromise.”
Endless debate over fine points of the arcane language in an old if rightfully revered document provides a convenient “cover” for the most determined of miscreants. Donald Trump is a master of this.
The entire rickety house of MAGA is constructed of shoddy materials, including the escape hatches and the intellectual bias toward self-defensive hairsplitting. At this point, it is the default setting for the MAGA core.
Hair-Raising Hypocrisy
One recent example comes from the endless roster of hypocritical MAGA moralists, about whom I wrote previously.
Presumably you have heard the tale of Lauren Boebert’s lewd antics at a family-friendly event. As The Guardian recounted:
Lauren Boebert has issued a second apology for her now infamous theater date which saw her get ejected from watching a Beetlejuice: The Musical performance after she openly vaped in the audience, groped her companion, and was graphically felt up in kind.
In an interview on Sunday with the conservative One America News Network, the far-right Colorado congresswoman attributed the behavior — recorded on security camera footage — to what she described as her being “maybe overtly animated.” Boebert, 36, thus implied that her extrovertedness had somehow fused with a stage production that the New York Times reviewed as “a jaw-dropping funhouse.”
“I was laughing, I was singing, having a fantastic time, was told to kinda settle it down a little bit, which I did, but then, my next slip up was taking a picture,” she told the network about her date a week earlier. “I was a little too eccentric … I’m on the edge of a lot of things.”
Here, she spins behaving in an explicitly sexual manner in public as a positive: being “on the edge of a lot of things.”
And One America Network gave her a platform to wriggle out of trouble, as reported by Huffpost:
“I was a little too eccentric. I am very known for having an animated personality. Maybe overtly [sic] animated personality,” the far-right congresswoman told One America News Network’s Dan Ball.
“Me too,” responded Ball, who then appeared to wink at the far-right lawmaker.
“I was laughing, I was singing, having a fantastic time, was told to kind of settle it down a bit, which I did,” Boebert recalled, claiming she was only told off when she began taking photographs inside the auditorium.
“I’ve done it too. I’ve snuck ’em. Shhhh,” replied Ball, who later suggested Boebert was targeted by liberal members of the audience.
To be sure, several right-wingers have condemned Boebert’s behavior.
The choicest remarks came from commentator Ann Coulter:
Can’t Colorado find some Republican not trashy and stupid to represent them in the 3rd congressional district? [She is] a totally embarrassing bimbo.
And corporate lawyer Heath Mayo took it further:
Between Boebert, Paxton, & Noem, the “culture warriors” are doing the most to destroy our cultural mores. They preach morality as they publicly degrade it. If you want to win some culture war, find better people whose example others want to follow. Actions are louder than words.
Now, we can debate whether such “overly animated” actions in a public setting actually warrant righteous condemnation or even deserve so much media attention.
But you cannot overlook such behavior from someone who ran for office promising to return America to “traditional” family values, who weaponizes an audience aghast at our changing mores, and who worries about the books teachers choose for their students or whether a drag brunch is harmful to society.
And for every pro-GOP Boebert critic like Coulter and Mayo, there are dozens of others who remain silent. It’s the game: Say nothing and let the latest outrage from our side blow over, while giving no quarter to the other side.
Which Brings Us to…Filth!
Can you guess where this line came from:
There she lusted after her lovers, whose genitals were like those of donkeys and whose emission was like that of horses.
You might think that’s still part of the Guardian piece on Boebert, but no: That comes from the Bible. Ezekiel 23:20 to be exact. And that’s just a bit. Yes, truly. You can look it up.
It’s worth noting that Boebert and company want to encourage families to make sure their kids all read the Bible – but not the 874 different books banned for classrooms in the first half of the last school year in America. Those books included material that attempts to teach children about domestic violence, varied sexual orientations, and racism.
One cannot really defend exposing children to all the porn in the Bible but not support legitimately educating kids about the world they live in. To do so would require… hairsplitting.
Or hypocrisy. Like “I can say whatever I want with my kids, but I don’t like other parents saying whatever they want with their kids — like if they support their kids’ sexual orientation and gender decisions.” Or “Do what cops tell you, but don’t give teachers any independence or authority.” Or “Donald Trump cannot be barred from running a country he tried to overthrow because of a squinty-eyed reading of a Constitutional passage that lists what behaviors should disbar a person from holding high office.”
As for Boebert, she introduced an amendment to the annual defense authorization bill that prevents Department of Defense Education Activity (DoDEA) schools “from purchasing and having pornographic and radical gender ideology books in their libraries.”
“Speaking as a mother of four boys, enough is enough. I don’t send my boys to school to receive indoctrination from the woke mob or to be sexualized by groomers,” Boebert said when introducing the amendment. She cited examples of books she found in DoDEA libraries that she claimed include sexually explicit material, as well as multiple LGBTQ-themed books.
Given the gap between her remarks and her behavior, how is it that this woman remains standing?
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Somehow, we are told, certain debilitating national problems cannot be solved because doctrinaire readings of the Constitution rule out common-sense solutions, and this in turn means that anti-democratic actions that undermine trust in our national institutions cannot be addressed.
Even a document as revered as the Constitution needs intense scrutiny and discussion — and not just by insiders and wonks — to ensure that its most important principles, the very foundation of our democracy, are not undermined. We need to take up this important work now.
We might begin with the recognition that the Constitution and the law itself have always turned on “fine points,” with legal interpretations more often than not driven by desired outcomes — and lightly or heavily cloaked in hairsplitting, if not outright specious, “jurisprudence.” This is unfortunate and leads to a lot of bad results (both ways, but more often in service to the powers that be), but the “solution” is far from simple.
And let’s also keep in mind that the US Constitution (unlike most state constitutions — which can be amended without great difficulty) was designed to be “flexible” but hard to change— a living, vague, stubborn document. Before we blow it up, let’s make sure we have thought about how to reform it, in ways that won’t just play into the hands of a Trump or Bannon — or an American Taliban. We should be careful what we wish for and very precise about what it is we are proposing.
At the same time, let’s not continue, as we have for so long, doing nothing — and soothing our conscience by saying that nothing can be done.
