“A Massive Fraud of this type and magnitude,” former US president Donald Trump wrote on his pet social media platform, Truth Social, “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” In reference, of course, to his fantasy that the 2020 presidential election was “stolen” from him.

Cue outrage from all sides, including prominent members of his own party. Throw out the Constitution? Just so some politician can get the outcome he wants? Unprecedented! Unthinkable! Out of bounds!

Well, no, not really. “Terminating” constitutional requirements when they’re inconvenient is pretty much par for the course. Not just with Trump, both now and when he actually possessed some political authority (see, for example, his unconstitutional misappropriation of funds for the “border wall”), but with presidents and Congresses going back to at least as early as 1798.

That was the year Congress passed, and president John Adams signed into law, the Alien and Sedition Acts, which clearly and unambiguously “terminated” both the First Amendment’s speech/press protections and Article I, Section 9’s prohibition on federal regulation of immigration.

Current president Joe Biden has a habit of candidly admitting the unconstitutionality of his own executive orders on, for example, the COVID-19-era “eviction moratorium” and his “student loan forgiveness” vote-buying scheme. Yeah, the courts will probably overturn it, but Constitution be damned, he’s going to do it anyway.

In between the Adams and Biden eras, we’ve seen any number of US wars waged without the required congressional declarations, constitutionally questionable kludges implemented to resolve presidential elections (Hayes versus Tilden in 1876 and Bush versus Gore in 2000), and laws passed with nary a constitutional hook to hang them upon.

The Constitution is, and always has been, a convenience to justify the  exercise of political power, and an inconvenience quickly discarded whenever it gets in the way of exercising political power. While it’s uncertain that former president George W. Bush actually called it “just a goddamned piece of paper,” his actions demonstrated that that’s how he, like his predecessors and successors, regarded it.

If there’s anything unique about Trump’s outburst, it’s the credence and publicity he’s receiving for it despite his complete lack of ability to  act on it. He’s no longer the Terminator; these days he’s just a piece of that film franchise’s forgettable roadkill. He’s saying the quiet part out loud, but if he’s the loudest, he’s also far from the first.

As American anarchist Lysander Spooner noted in 1870, “[w]hether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it.”

“In either case,” Spooner continued, “it is unfit to exist.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Since his acquisition of Twitter, Elon Musk has styled himself the very avatar of “free speech,” descending from on high to defend us against the forces of “censorship.” On the whole, I think he’s sincere in his approach to the issue. I also think he’s in error as to what, precisely, “free speech” means.

To be fair, Musk benefits from a great deal of support in his misunderstanding — even more from his opponents than his supporters.

Take, for example, Guardian columnist Nesrine Malike, who tells us that “free speech is not simply about saying whatever you want, unchecked, but about negotiating complicated compromises. … for some speech to be free, other speech has to be limited.”

Unsurprisingly, Malike wants speech she agrees with to be “free,” and speech she disagrees with to be “limited,” with law as the instrument of “limitation.”

Musk agrees: “By ‘free speech,'” he tweeted on April 26, “I simply mean that which matches the law.  I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.”

Speech regulated by law — even law that embodies “the will of the people,” were there such a thing — isn’t free speech.

Free speech is simply an absence: The absence of threats of force (by law or otherwise) to forbid or punish speech.

I’m a big fan of free speech. The moral principle underlying it is that people aren’t property, and their thoughts and expressions are thus no one else’s to rightfully control. The practical value of it is that freedom to debate makes it possible for us to solve problems instead of just obeying orders.

I’m also a fan of what Musk is actually defending:  Twitter as a permissive platform.

Just as your right to keep and bear arms imposes no obligation on my part to provide you with an AR-15 or let you use my back yard as a firing range, your right to free speech imposes no obligation on Elon Musk’s part to provide you with a Twitter account or let you use his servers as your soapbox.

He’s indicated his intention to let pretty much anyone have a Twitter account, and to let Twitter account holders say as much (or at least almost as much) as the law allows them to say.

That’s not free speech, but (assuming he means it) it’s about as close as he’s allowed to get to free speech, and he deserves our thanks for it. A poke in the timeline with a sharp tweet is better than a poke in the eye with a sharp stick.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

The 2022 midterm election results “stand as an expression of overwhelming lack of confidence in the major parties,” J.D. Tuccille writes at Reason magazine, “with a resulting breather for the country resulting from the split decision’s ensuing, and quite welcome, gridlock.”

Tuccille’s sigh of relief is only partial. While Republicans’ slight majority in the House of Representatives and 40+ seat “filibuster-capable” Senate minority means the most ambitious Democratic legislation won’t make it to President Joe Biden’s desk to be signed into law, he notes, “[t]he increasingly autocratic nature of the presidency allows enormous room for the nation’s chief executive to act unilaterally.”

Like his predecessors, Biden has a pen and a phone. And he’s proven himself at least as, if not more, inclined to use them to buy time (and more importantly, as columnist James Bovard notes with regard to “student loan forgiveness,” buy votes) even when he freely admits in advance that the courts will likely overturn his orders.

I’m even less optimistic than Tuccille about the potential benefits of gridlock — because it just ain’t what it used to be.

Once upon a time, and not that long ago, Congress at least occasionally fought real battles, over real issues, with winners and losers. Legislation passed or it didn’t. The Current Thing got done, or it got thrown into the dustbin (until after the next election, anyway).

These days, ideas that can’t pass as stand-alone bills get slipped into “must-pass” omnibus bills.

Take, for example, Democrats’ desire to add women to the Selective Service System’s draft registration requirements. That’s in the current “National Defense Authorization Act.”

“The defense bill isn’t the place for Democrats to indulge the wild ideas of their latest social experiments, like forcing women to register for the draft,” US Senator Tom Cotton (R-AR) complains.

It looks like Cotton may have to either give up his love of big military spending — fat chance — or vote for a bill including said “social experiment.”

And Senate Majority Leader Charles Schumer (D-NY) seems to be planning to fold the NDAA into an even larger end-of-year spending package, forcing other members of Congress to make such all-or-nothing decisions.

That’s the problem with the current version of “gridlock”: Instead of neither side getting anything it wants, both sides get the WORST things they want, even before the president pulls out his pen and starts fiddling with his phone.

That’s not “gridlock” — it’s unlimited government.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY