Thank Goodness for Jennifer Krouse

Thank goodness for Jennifer Krouse. While we thought we were only electing her to the Jefferson County Commission, she has grown into so much more. She has become the protector of our children at this critical time when we have so miserably failed in our own responsibilities. We must now recognize her with a new title – Leader of the Jefferson County Morality Squad.

Of course, I mainly write in praise of Leader Krouse for her role in the enactment by the County Commission of an ordinance prohibiting a parent (or anyone else) from taking a child to an “adult live performance,” which everyone knows means drag shows. Drag shows are where men dress up like women and make jokes about it.

I remember reading some Shakespeare plays as an assignment in high school. There were men dressing up like women and women dressing up like men. Oh, the inhumanity! This just shows what we get when we allow artists to run amok.

A friend showed me a letter she had written to the County Commission complaining that there had been no public hearing before the ordinance was enacted. She pointed out that Commissioner Stolipher advocated for holding a public hearing but was overruled.

The Leader responded to my friend’s letter by saying that “Only someone with an irredeemably damaged moral compass would be against protecting children from such material. Given that, there was no need to open this up to an extraordinary level of debate.”

Now that’s what I call enlightened leadership!

I looked up the ordinance and it uses an entire paragraph to define “adult live performance.” The definition was confusing and maybe that’s the point! If parents are unsure what it means, they won’t take the chance of being fined. They won’t dare take a 17-year-old child to entertainment where anything about sex could possibly be mentioned. That’s what we want, right?

I did understand that you can’t take kids to any show that is obscene and lacks serious literary and artistic value – and everyone knows what that means. Don’t they?

I must confess that I once went to a drag show in Palm Springs with some friends. The queens were flamboyant, but they didn’t take themselves seriously. They laughed and made fun of the audience. The whole thing was, well . . . very funny.

I know that this is totally disgusting and that I should be ashamed of myself. Because we know that there is only one way to think about gender and sexuality and you are showing us that way. We were meant to be very strict about these things, and our children should be stopped from thinking that they are humorous in any way.

So, Leader Krouse, the parents of Jefferson County will be forever grateful to you and the other members of the Morality Squad for passing an ordinance that fines us if we expose our children to moral corruption. We have so needed your firm hand on our shoulder. You have helped us identify that corruption even though, in our weakness, we could not see it on our own.

And blowing off a public hearing to discuss the ordinance spared us from unnecessary discussion and irrelevant points of view. Who knows what could have come from that?

But whatever else you and the Squad do, please protect our children from Shakespeare!

Trump Fans Want to Talk About Anything But This — He’s Guilty

It  started immediately after Donald Trump’s indictment. First there was the “whataboutism” and false equivalencies. What about Hillary’s emails? What about the classified documents Joe Biden had? Then the claim that the Justice Department has been weaponized to prosecute only Republicans. Then the claim that the communist, Democrat deep state is determined to take down the leading candidate to oppose Joe Biden in 2024.

This is all deflection. Just like Trump himself, his supporters are grasping at shiny, manufactured grievances but don’t want to talk about the big issue — he is guilty of the serious crimes charged in the indictment.

Whataboutism is the practice of responding to an argument, not with a counterargument, but with an attack that requires the opponent to go on the defensive about another issue. This avoidance maneuver happens often in political debate driven by partisan bias. Sometimes, and our present situation is one of those times, whataboutism is calculated wholly to avoid acknowledging an opponent’s valid point.

We shouldn’t reward whataboutism by taking it seriously. But, okay, what about Hillary’s emails and Biden’s documents? That’s where false equivalency comes in. The gist of Trump’s indictment is that he intentionally retained classified documents, repeatedly refusing to return them or even acknowledge he had them. Then he covered up and lied about having done so. Neither Clinton nor Biden was ever accused of that kind of conduct.

In fact, both Clinton and Biden fully cooperated when asked to do so. Biden actually self-disclosed that he had some classified documents from his time as Vice President. Nevertheless, Biden’s Attorney General Merrick Garland has appointed a special counsel to investigate. The conclusion of the Clinton investigation was that she had been careless but had no criminal intent. So no crime and no indictment. The investigation into Biden’s handling of classified documents has not reached a conclusion.

And here is another key point — Trump has not been criminally charged for taking to Mar-A-Lago any of the classified documents he returned when requested to do so, even though he had no right to possess them. If he had simply given all the documents back he wouldn’t be in this fix.

A person who claims that the Justice Department has been “weaponized” by the Democrats to indict Trump simply does not understand the special counsel mechanism. Or perhaps doesn’t want to understand. A special counsel like Jack Smith operates without political interference.

Special counsel are appointed by both parties. In fact, Trump’s Attorney General William Barr appointed John Durham as special counsel to investigate intelligence gathering and law enforcement activities directed at the 2016 election. The Biden Administration did not interfere with Durham’s investigation after Biden took office. Likewise, the Biden Administration has not influenced Jack Smith’s charging decisions.

The weaponization charge boils down to the fact that Donald Trump has been indicted, as if he is some sacred cow. The allegation is really driven by the result of Smith’s investigation, not the misuse of the process. But after reading the indictment, it is hard to imagine any other result.

The one serious argument made against indicting Trump is that in an evenly divided and polarized country a sitting President should not be seen as prosecuting his predecessor and current rival. The claim is that indicting Trump is political overreach by the Biden Administration of the sort common in third world countries. I am not persuaded.

In the first place, the argument loses steam in light of the independence of the special counsel. Jack Smith is a career prosecutor with an international reputation, not a political tool. Yes, there will be a cost to taking action against Trump — our exemplary system of justice will lose legitimacy among enraged Trump supporters. But where issues of grave national importance are involved there is also a cost in not acting. We would be more like a third world country if we failed to hold Trump accountable as any normal person would be. In the end, if he pays a price for his criminal behavior it will be a triumph for democracy and the rule of law, not a stain.

And by the way, why does the fact that Trump is the leading candidate for the Republican nomination matter? He has been the leading  candidate for months, even announcing early so he could be in the race when the expected indictment came down. Evidently, he thought this would protect him, but he has learned that being a candidate doesn’t give him a pass for crimes committed.

As far as the Democrats worrying about him as a candidate, nothing could be further from the truth. Biden’s advisors are crossing their fingers in hopes that Trump will be Biden’s opponent in 2024. As the Wall Street Journal aptly put it, if Republicans nominate Trump again, they won’t “own the libs,” the libs will own them.

Should the U.S. Lease St. Helena Island?

Recent legal events have led me to recall St. Helena, one of the most remote places in the world. St. Helena is a small volcanic island in the Atlantic, about 1,200 miles off the coast of Africa and 4,000 miles from the coast of Brazil. The island was, of course, the final place of penal exile for Napoleon Bonaparte, the self-crowned Emperor of France.  St. Helena is now a British Overseas Territory, and I’m sure the Brits would welcome a new revenue stream from an old business — a small but very special penal colony.

St. Helena wasn’t the first place the world sought to stash Napoleon. In 1814 he was exiled to Elba, an island in the Mediterranean. Elba had a population of 12,000 and Napoleon was allowed the somewhat humiliating title of Emperor of Elba. Arriving at Elba he immediately began plotting his escape, which he accomplished in 1815 by slipping past his guards and eluding British ships.

Once back in France Napoleon began drawing huge crowds. French police forces were sent to arrest him, but upon arriving in his presence, they kneeled before him. Does this remind you at all of the fealty shown to a certain political cult leader in America today?

It wasn’t until after his defeat at Waterloo in 1815 that Napoleon was exiled to St. Helena.undefined That island was chosen because it was believed that escape was virtually impossible since the British Royal Navy controlled the Atlantic. Still, the British put Napoleon under armed guard, stripped him of most of his companions and placed him a lonely, windswept house named Longwood.

While at Longwood House, Napoleon constantly complained about the damp and windy structure, alleging that his captors were trying to kill him by means of the rather primitive conditions. Finally the British agreed to improve things and built him a new residence, but he died from complications from an ulcer in 1828 before it was completed.

Penal exile is not an option under the federal criminal statutes of the United States, but it is an intriguing idea for a President who fomented an insurrection and coup attempt. We may simply have to be satisfied with the thought that he could make new friends at a prison within the country.

Riley Moore’s Political Stunt Will Cost West Virginia Money

Riley Moore is a nice young man from a prominent political family. He was elected to the House of Delegates in 2016 from the old 67th District (Harpers Ferry and Shepherdstown) and was on his way to becoming the House Majority Leader in 2018 when a funny thing happened – Jefferson County voters turned him out of office.

Trying another path to public office, Moore ran for West Virginia Treasurer and was elected in November 2022. One wonders why Treasurer is a political office, for which the successful candidate need only demonstrate political skills not financial ones.  Good thing for Moore, because he had no financial education or demonstrated financial skills. Before trying his hand as a politician Moore received a degree in Government and International Politics and had a job with a defense contractor.

As Treasurer, Moore has relentlessly pursued a political agenda. In the last eighteen months, he has taken credit for two “culture war” policies that became laws after approval by the Republican super-majority in the Legislature. No surprise there. Let’s call them Moore’s Law No. 1 and No. 2. Both laws attack considering “ESG” factors (environmental, social, governance) in the investment of state funds. In case you hadn’t heard, ESG investing is the latest boogeyman of the political right.

West Virginia needs easy access to the municipal bond market to fund its needs and also has $34 billion in pension funds to invest. It retains respected banks and investment companies to create a market for its bonds and to invest the pension funds. Like any other investor, the state wants to get a reasonable return on its investments while minimizing unnecessary risks. Consideration of ESG factors that have a material impact on a company’s health is an important part of a sound investment policy. To ignore these risks would be irresponsible.

Considering ESG factors is not political, it’s just smart business. For example, if we invest in a coal company, will that investment have eroded in five or ten years? What if the market for coal dries up because of tougher government regulations or cheaper gas and renewable energy sources? On the other hand, does a company that develops clean water technology give us the return we want and provide a safer long term place for our money? Considering ESG factors does not undermine the pursuit of return on investment — ESG investors still seek the best returns. But it also better protects those returns from risk.

Nevertheless, Moore and his allies insist on making investing state funds a political issue. To them even considering ESG factors is a practice of “woke” liberals that West Virginia should reject. In one of his shrill press releases, Moore told West Virginians that “the ESG crusade being perpetrated by the liberal elites must be stopped!” This is just nonsense politics about culture, not economics.  In this posturing for right-wing votes, Moore has threatened the stability of state investments and will cost West Virginians money in the bargain.  He either doesn’t understand why it is important for investment managers to consider ESG factors or doesn’t care.

Moore’s Law No. 1 was enacted in 2022.  It empowers Moore as state Treasurer to create a list of financial institutions that, in his opinion, unreasonably “boycott” or limit commercial relations with any company engaged in the fossil-fuel based energy business.  Moore is authorized to disqualify firms on the restricted list from competitive bidding for state banking contracts or refuse to enter a banking contract with such firm, regardless of how financially advantageous to the state that contract might be.

Moore’s restricted list includes five of the largest, most sophisticated financial institutions in the United States — BlackRock Inc., Goldman Sachs Group Inc., JPMorgan Chase & Co., Morgan Stanley, and Wells Fargo & Co. They provide banking services by generating a market for bonds issued by West Virginia state governmental units. The non-profit Sunrise Group commissioned a study of the costs to states who adopt anti-ESG legislation like Moore’s Law No. 1. The study estimated that in a single year of refusing to do business with these five firms, West Virginia would have to pay increased interest on its bonds of between $9 million and $29 million.

How have the five financial institutions targeted by Moore “boycotted” fossil-fuel energy companies to justify disqualification from doing business with West Virginia? Moore’s press release concerning BlackRock explained it – and you’d better cover your children’s ears for this one. BlackRock was disqualified because it “has urged companies to embrace ‘net zero’ investment strategies.” Seriously?

Isn’t this simply an effort to use politics to interfere with market forces, a practice free-market Republicans are supposed to hate? According to Dana Milbank, writing in the Washington Post, Moore and fellow Republican treasurers in other states are determined to “stop the free market no matter how much it costs.”  He reported that the Kansas Public Employees Retirement System expects that anti-ESG legislation could cause more than $1 billion in losses from early sale of assets and reduce returns by $3.6 billion over a decade. Arkansas public pension authorities said anti-ESG legislation there would cause them to lose $37 million per year.

West Virginia’s Treasurer doesn’t control the investment decisions for state pension funds. These funds are invested on the state’s behalf by banks and mutual funds at the direction of the West Virginia Investment Management Board and the Board of Treasury Investments. Periodically, our investments require these investment boards to vote as a shareholder on the direction of the corporations into which our funds have been invested. Moore’s law No. 2 requires these boards to consider only “pecuniary” factors when casting these shareholder votes. The law specifically states that “environmental, social, corporate governance, or other similarly oriented considerations are not pecuniary factors” unless they have an immediate financial impact.

When Moore’s Law No. 2 was enacted in 2023, he boasted by saying that the law was “leading the way to fight back against woke activists who want to use our state investments and retiree pension dollars to advance extreme political and social agendas.” Presumably he means saving the planet from catastrophic climate change.

The problems with Moore’s Law No. 2 are many, but the most significant is that it requires state investment board members who cast our votes to ignore long-term, systemic factors that, as fiduciaries, they can’t ignore. A 2021 study by the insurance giant Swiss Re estimated that by mid-century the world stands to lose 10% of its economic value from climate change. Moore’s Law No. 2 requires that our investment board trustees ignore this looming crisis and puts them in jeopardy of violating other state and federal laws regarding fiduciary duty.

Not to be unkind, but Riley Moore couldn’t think this stuff up on his own. Key features of Moore’s Law No. 2 are lifted straight from a template provided by the American Legislative Exchange Council to conservative legislators around the country. ALEC’s mission is to protect fossil-fuel energy industries at all cost, while instead claiming to be interested in small government. Moore’s Law No. 1 is based on a similar template that now even ALEC won’t support after complaints by the American Bankers Association that “government should not be dictating business decisions to the private sector.”

The point is that Moore’s legislative efforts do not spring from his own genuine concern about protecting West Virginia, as he claims, but rather from an ideological platform used by ultra-conservatives around the country. Other Republican-dominated states have passed nearly identical laws. Moore is taking advantage of this tool to become a Ron DeSantis clone, slaying the “wokeness” dragon. That plays to a certain crowd.

This all comes into better focus when you consider that Riley Moore is running for Congress. When the time comes, he will trot out his anti-ESG efforts to prove his conservative credentials. But his aggressive attack on the “liberal elites” and their evil conspiracy to halt climate change is just a boneheaded political stunt undertaken for the sake of publicity, without consideration of the costs it will impose on the average West Virginians Moore claims to protect.

The Framers Never Intended to Bind Us Forever to 1789

The essence of the doctrine of originalism is that the only proper way to interpret the Constitution is to determine the original intent of the Framers. Our conservative Supreme Court is in thrall to this doctrine, despite the reluctance of the Justices honestly and consistently to apply originalism. They know that a strict application of originalism would lead to absurd, politically disastrous results that would further undermine the legitimacy of the Court. But what if the original intent of the Framers was actually that the Constitution should live and breathe in each period of our history and not be limited to what it meant in 1789? There is considerable reason to believe that this is exactly what the Framers intended.

The first point to make is that the Constitution itself contains no rules or guidelines for its own interpretation. The Framers started with a clean slate and their task was to devise a plan for a radically new form of government that existed nowhere else in the world at the time. But they gave us virtually no instructions or guidance on how we were to interpret the Constitution’s meaning. What’s more, our founding document does not even give the Supreme Court the authority to rule on whether federal or state legislation complies with the Constitution. That power was simply declared to belong to the Supreme Court in 1803 by the Court itself. It is pure nonsense to say that the Framers intended the Constitution to be forever interpreted according to its meaning in 1789 or for us to be locked into any other interpretive theory. There is just no evidence for it. Accordingly, the doctrine of originalism cannot be supported by applying originalist principles.

While we know the arguments and positions on key issues taken by the delegates to the Convention, the actual words of the Constitution were drafted by a Committee of Detail that was appointed midway through the summer of 1789. The Committee’s task was to take the various agreements in principle that had been reached by delegates and commit them to writing. The Committee of Detail consisted of five members – not including James Madison — and was chaired by Virginian James Randolph. The first draft of the Constitution was in Randolph’s hand and contains two rules he followed in the drafting task. They were:

to insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events, and

to use simple and precise language, and general propositions, according to the example of constitutions of the several states. (For the construction of a constitution of necessarily [sic] differs from that of law.)

It would be a mistake to view Randolph’s second rule as committing the delegates to textual precision so that the Constitution’s meaning would be fixed. That is completely clear from the repeated use of terms and concepts that invited interpretation. Here are just a few.

  • Congress shall have the power to provide for the “general welfare” of the United States – Art. I, Sec. 8, Clause 1.
  • Congress shall have the power to make all laws which shall be “necessary and proper” to carry into execution any of the enumerated powers and all other powers vested by the Constitution – Art. I, Sec. 8, Clause 18.
  • Congress shall have the power to make all “needful rules and regulations” respecting the territory or other property of the United States – Art. IV, Sec. 3, Clause 2.
  • No person shall be deprived of life, liberty or property without “due” process of law – Amend V and Amend XIV.

What could the Framers have been thinking when they used these open-ended and malleable concepts? Surely they understood that they were leaving to us the job of providing meaning.

There is no question that among the Framers were many men of political genius. They were well-versed in the history and weaknesses of various forms of government, including republics. Yet originalists argue that these men bequeathed to us a brittle, inflexible Constitution that with each passing year becomes more difficult to fit to contemporary issues. Could the Framers have been so vain and unable to see the danger of this approach? Unlikely. Without a supple Constitution, that very document risks creating the conditions for its own replacement, and how that happens may not be pretty.

Jefferson was not at the Constitutional Convention in 1787-89, having been sent by Congress on a diplomatic mission to France. But his views were broadly known through his correspondence with delegates. He was certainly one of the most agile and far-reaching thinkers of his age. He wrote later in his life that

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, suppose what they did to be beyond amendment. . . .  But I know, also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

Our Constitution, interpreted through the lens of originalism, cannot keep pace with the times. When the Supreme Court makes that policy choice — because originalism is not required by the Constitution or any law — they render us painfully, dangerously stuck in the past. I feel fairly certain that if somehow we could explain to the Framers what this originalism is all about, they would laugh at us for being so foolish.

Our Supreme Court in the Grip of Originalism

Legal doctrines don’t usually make the news, and rarely have a direct effect on anyone beyond the participants in a particular case. But our Supreme Court is in the grip of a doctrine that is having a profound, pernicious effect on the whole country and there is no end in sight. That doctrine is originalism. Originalism was the doctrine relied upon by the Supreme Court to find a Second Amendment right for individuals to own and carry guns and for overturning Roe v. Wade.  What I hope to show is that originalism is not an effective or even honest means of interpreting the Constitution. Rather, it is a tool employed to reach results satisfactory to the political right.

Most originalists assert that the only proper way to interpret the Constitution is by determining the original intent of the Framers concerning the language at issue. One scholar has called this a severe case of ancestor worship. Because of fatal defects in this approach, other originalists now claim to base Constitutional interpretation on the “original public understanding” of the words and phrases at issue. The two approaches differ slightly but both call on judges (or their 25-year-old law clerks) to be historians, which they are most certainly not qualified to be.

One unique aspect of the American legal system is that our Constitution is treated by courts as a legal document, not a political one. It is not interpreted in special constitutional courts, but rather in federal and state courts much the same way as any other law. When presented with a question requiring the interpretation of either a statute or the Constitution, judges normally consider the original meaning of the provision. But when interpreting the Constitution, they do so side by side with other factors such as how courts have previously interpreted the provision, the present meaning of the words, how the provision can be applied to situations unimaginable in 1787, and more.

But not originalist judges. They disregard all other interpretive factors entirely. They stop looking when they divine the original meaning. They do so ostensibly to prevent unelected judges from making up law as they go along, which they claim is legislating — a task reserved by the Constitution to Congress. In fact, however, originalist judges themselves make up law as they go along by their choice of one history over another, one Framer’s intent over another.

The Fool’s Errand of Originalism

The problem with tethering constitutional interpretation to original meaning is obvious. Some provisions of the Constitution are clear and need no interpretation. The provision that the President must be at least 35 years old is one of these. Other provisions are notoriously lacking in clear meaning — by design. For example, the provision that says Congress may make all laws “necessary and proper” for carrying out its enumerated powers.  It is these ambiguous provisions that require interpretation.  Judges start with the text but quickly realize that text consists of words that may have had different meaning in 1787. Just one example is the impeachment provision in Art. I, Sec. 3 disqualifying a convicted official from any “Office of honor, Trust or Profit under the United States.” What is an office of honor and how is it different than an office of trust?

Originalism not only depends on determining the 1787 meaning of words but, when that meaning is unclear, on determining the intent behind their use. How can we know this intent? Often this comes from the contemporaneous statements and writings of the delegates to the Constitutional Convention. What could possibly go wrong with that?

We all know that two observers of the same event will describe it differently. Which of the two understandings is correct? Only James Madison’s notes comprise a relatively thorough and consistent account of the Convention. But none of the Framers – especially Madison – was unbiased. Madison did not attempt to record speeches verbatim, and his notes tend to summarize fully arguments with which he agreed and to give short shrift to those he opposed. He could not speak and take notes at the same time so the “notes” from his own speeches are suspect. Furthermore, Madison repeatedly revised his notes during and after the Convention. This reliability problem is even worse when we use later expressions from the delegates. Can John Adams’ recollections of the events at the Constitutional Convention written thirty years later be relied upon for anything?

Then there is the problem of whose intent is conclusive. Altogether there were 55 delegates to the 1787 Convention, but only 39 signed the document. While each provision was adopted by a majority vote of those present, these majorities shifted by issue. Some delegates who voted on early provisions went home before the whole document was voted on. Some delegates were fiercely opposed to the adoption of certain provisions and would have refused to sign the whole document if to do so meant consent. A compromise was devised so that a delegate’s signature meant only that he had witnessed the unanimous action of the assembled states in adopting the draft.

Under these circumstances, how can a single original meaning for any of the document’s ambiguous provisions be distilled? The truth is that there were as many meanings, aspirations, and intentions as there were delegates. Picking one and declaring it to be the original meaning to the exclusion of competing ones is a results-oriented process that undermines public confidence in the Court.

How Originalism Could Change American Society

There is no reason to speculate about how life in American society could retreat if an originalist Supreme Court continues to have its way. A woman’s right to avoid compelled pregnancy, involuntary childbirth and forced parenthood – a right recognized in Roe v. Wade fifty years ago – was declared to be without support in the Constitution in the recent case of Dobbs v. Jackson Women’s Health Organization. There is no reason for an originalist Supreme Court to stop there. Indeed, Justice Thomas in his concurring opinion in Dobbs identified several established rights that are vulnerable, including the right to contraception and the right to same-sex marriage.

So where will this all go? I am not predicting any of the following. What I am doing is showing that honestly and consistently applied originalism can lead to absurd results, and that it is a threat to established legal and societal norms.

  1. Racial segregation of public schools. Segregation has been outlawed since Brown v. Board of Education in 1954. Under an originalist approach school segregation would be constitutional. Segregation was found unconstitutional in Brown under the Equal Protection Clause of the Fourteenth Amendment. But that was not the Amendment’s original meaning. When the Fourteenth Amendment was adopted after the Civil War it was not understood to forbid segregation in public schools. At that time even northern states segregated their schools. The very same Congress that proposed the Fourteenth Amendment passed a law segregating the schools in the District of Columbia. An intellectually honest and consistent originalist Supreme Court would have difficulty reaching the same result as the Brown Court did 68 years ago.
  2. Discrimination against women. The only thing in the Constitution specifically protecting women’s rights is the Nineteenth Amendment establishing a woman’s right to vote. The Equal Rights Amendment, which would have extended all rights to women on an equal basis with men, was not ratified. Since the 1970’s the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment substantially limits legislative power to discriminate against women. But virtually no one in 1868 when that Amendment was adopted understood it to apply to women. At that time discrimination against women was widespread. Indeed, in 1872 the Supreme Court itself upheld an Illinois decision to deny a woman a law license on the basis of her sex. There is no way that an originalist today could argue that the original meaning of the Constitution prohibits the federal government or the states from discriminating against women.
  3. Application of the Bill of Rights to the States. The Bill of Rights was added to the Constitution to address concerns that individual rights and liberties were not clearly protected in the original document. But the Bill of Rights as written and originally understood restrained only the federal government. States were not prohibited from abridging religious freedom, the freedom of speech, conducting unreasonable searches and seizures, and so on. Since 1868, the 14th Amendment has been the vehicle for applying the Bill of Rights to the states. It prohibits states from denying “liberty” without “due process of law” and infringing the “privileges and immunities of citizens.” But the Amendment does not specifically apply the Bill of Rights to the states. To get there required interpretation by the Supreme Court in a series of cases in the 1960s that originalists today would reject. They argue that if Congress intended the full Bill of Rights to apply to the states it would have been easy to say so.

Despite all the rhetorical bluster from originalist Supreme Court Justices and conservative legal scholars, the worst of the foregoing parade of horrors is unlikely to happen. Why will the Supreme Court not undertake a wholesale originalist revision of our laws? The answer is that originalism is a political tool to be used to achieve political goals. It is merely dressed up as a serious doctrine of Constitutional interpretation. Our originalist Supreme Court Justices know that an honest and consistent application of originalism would not be politically possible. Instead, they have begun a process of altering only those rights fervently desired by, or specially despised by, the conservative fringe in America. And they do this simply because they can.

Can Trump Pardon Himself?

The stink from the pile of Trump’s pardons is palpable – it is the stink of corruption and abuse of power.  A high percentage of Trump’s pardons have gone to those with a personal or political connection to him.  Those receiving his favor include murderers, dishonest politicians, fraudsters, thieves, and liars. Still, it is widely believed that a president’s pardon power is unlimited, that he or she can pardon anyone for virtually any crime. The question of the moment, one that our nation has never had to answer, is whether a president can pardon himself.

The pardon power is a creature of the Constitution.  Article II, Section 2 states that the President “shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no limitation on self-pardons here. Yet the power to pardon has been exercised by presidents over 20,000 times and never once has anyone attempted to pardon himself.

Certainly, a self-pardon has been considered.  In August 1974 President Nixon met with senior staff to discuss options for concluding his presidency.  White House lawyers had prepared a memo in which they advocated the legality of a self-pardon and, according to Gerald Ford who was in the meeting, Nixon believed he had that power. Nevertheless, he resigned.

The strongest argument in favor of the power to self-pardon is the simple, textual one. The Constitution mentions pardons in only one place, where it seems to give a president plenary power to pardon.  In Schick v. Reed (1974), Chief Justice Burger wrote “we therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.”  It is noteworthy that the Court did not say “in the clause itself.”

There are only two limitations stated in the Pardon Clause – a president may not pardon in cases of impeachment or for state crimes.  This probably means that a president could not pardon himself for the crimes that are the basis of an impeachment proceeding against him.  Nothing elsewhere in the Constitution expressly forbids the power to self-pardon.  In such a case the rule of construction called expressio unius may apply. This rule holds that the expression of one limitation excludes any others not expressed.

But not so fast. The Schick case, still the leading case on the meaning of the pardon power, tells us that the pardon power is not quite complete and self-contained:

In light of the English common law from which such language was drawn the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution . . . .

If we stop at a mere textual reading of the Pardon Clause, which the current Supreme Court might well do, we don’t reach the question of whether a self-pardon would offend the rest of the Constitution. That method of interpretation is called the structural approach.

Self-judging is a subset of self-dealing and the Constitution is full of limitations on self-dealing. Here are a few examples.  A member of Congress cannot simultaneously hold another federal office and cannot resign to take a job that was created, or the pay for which was increased, during that term of Congress. Congress cannot legislate a pay raise for itself that takes effect before the next congressional election. A president’s salary cannot be increased without an intervening presidential election.

Perhaps more to the point is the question of who presides at an impeachment trial.  When the president is tried in the Senate the chief justice presides, not the vice president who is obviously self-interested.  On the one hand he has been elected on the same ticket as the president and might wish the president to be acquitted for that reason.  On the other hand, the vice president would be elevated to president if the sitting president is convicted. The Constitution does not specify who would preside if the vice president were impeached but it certainly would not be the vice president himself.

But neither the textual nor the structural approach to interpreting the Pardon Clause can tell us whether there are inherent limitations in the term “pardon.” For that we have to adopt the approach called originalism, which looks at the how the Framers understood the term at the time it was used in the Constitution.

The Supreme Court has repeatedly stated that the primary source for interpreting the pardon power is the English common law known to the drafters at the time the Constitution was adopted. One should expect, then, that any limitations that existed at common law should be a part of the meaning of the term “pardon” and incorporated into the interpretation of the Pardon Clause, even though not expressed in the text of that clause.  This, indeed, has happened.

The president can issue a pardon at any time after a crime is committed, even before arrest or indictment. But no pardon can issue before a crime is committed. Otherwise, it would amount to an indulgence to commit the crime and be void. Another example is found in Burdick v. United States (1915), in which the Supreme Court ruled that a pardon is only valid if accepted by the defendant. Furthermore, acceptance of the pardon conveys acceptance of guilt, much as in the common practice of plea deals.  After Nixon’s resignation, President Ford gave him terms on which a pardon would be granted. One was an admission of guilt and a statement of contrition. Nixon finally said that he had been wrong in the handling of the Watergate scandal and that fair-minded people could consider his actions “intentionally self-serving and illegal.”

One common law pardon requirement has not yet been recognized by the Supreme Court, perhaps because it has never been properly raised — the requirement of specifying the crime being pardoned.  We know this requirement was part of the English common law just before the Revolution because it was clearly described in Blackstone’s Commentaries, the most influential treatise on law in the 18th Century.

In practice, the rule requiring specificity is followed to this day. For example, the Justice Department maintains on its website the details and actual text of each pardon Trump has granted.  Each one refers to specific crimes.  The Nixon pardon in 1974 is the one significant exception. It read that Nixon was being pardoned “for all offenses . . . which he . . . has committed or may have committed or taken part in” during the period of his presidency.  That pardon went unchallenged by Leon Jaworski, the Special Prosecutor at the time.

Now, imagine that Trump is about to pardon himself.  He is not likely to specify what crimes he is pardoning and certainly not inclined to admit that he has actually committed a crime.  Instead, he is most likely to use a self-pardon to insulate himself from further investigation and prosecution for obstruction of justice during the Mueller investigation and perhaps income tax crimes that may be revealed when his tax returns are disclosed.  Suppose he issues a general pardon of himself and his immediate family for “any and all federal offenses that are alleged to have been committed by him or them at any time preceding the date of the pardon.” Who can challenge the validity of that self-pardon, including its lack of specificity, in what context and to what effect?

The validity of a self-pardon cannot be tested unless Trump asserts it as a bar to prosecution for the crimes allegedly pardoned.  A political decision will have to be made by President Biden to commence a prosecution against his predecessor for federal crimes, perhaps committed while in office, and a legal decision will have to be made by the prosecutors that the arguments against the pardon are likely to prevail.  These are both substantial hurdles.

Much can be said against a sitting president pursuing a criminal case against his predecessor. The objective now should not be revenge, but rather to re-establish the guardrails and norms of democracy.  Our country is too polarized at this moment to absorb what would be interpreted by many as a political hit job.  If Trump is to be prosecuted, let it be by the New York authorities who apparently already have him in their sights.  His self-pardon would not block a state prosecution.

In England before the American Revolution there was never controversy over self-pardons because the king was thought to be above the law and incapable of violating it. But our Constitution rejected kings and kingly power.  It just seems wrong and contrary to our sense of justice for an elected official to be able to pardon himself. We often hear that no man is above the law, but if a president can pardon himself then he is the law.  The argument for commencing a prosecution against Trump, aside from bringing him to justice for his crimes, is to attack the idea of a presidential self-pardon at its first appearance so that the practice cannot take hold.

In summary, will Trump try to pardon himself?  I would bet on it. He has always been a norm-buster, particularly when it benefits him directly. Will he specify what crimes he has committed and what is being pardoned?  Unlikely. Will President Biden authorize a prosecution against Trump for federal crimes and attack the validity of the self-pardon?  I doubt it, but it depends on what evidence is developed and whether he receives a recommendation to do so from a special prosecutor.  What will the Supreme Court say about a self-pardon?  I am worried about the answer to that question, but it certainly would be an opportunity for the Court to establish once and for all that this is a country of laws and not strongmen.

Finding Where Your Rights End and Mine Begin

I get annoyed by inane government rules and being told what to do by officious clerks. I have always had a small authority problem. I’ll wager I am not alone in this, but one of my developmental tasks toward adulthood was recognizing this as a personal failing. It is not evidence of some natural or constitutional right to be ornery.

Let me cut to the chase. “Individual rights” extremists have distorted what it means to live within a society of other people. Yes, this is America, the land of liberty. But an individual – even an American – has no constitutional right to live his or her life in such a way that it endangers or injures another person. When we choose to live among other people, we surrender some of the liberty we would otherwise retain if we lived in the wilds of Idaho.

Take property rights, for example. In Jefferson County one often hears that people have the right to use their own property the way they see fit. This is as much wishful thinking as anything, but it is wrong. It flies in the face of 500 years of Anglo-American legal history. A person has the right to use his property as he sees fit only so long as it doesn’t destroy the quiet enjoyment of his neighbor’s property.

Most of us have a grip on this concept — not even the most ardent rights fanatic would claim a constitutional right to locate a nuclear waste dump on his property. People who move to fancy subdivision communities with architectural restrictions know they can’t even paint their house the color they choose – but this is the price for living in that community.

Mandatory vaccination is another area where the community’s right overcomes even a sincerely held belief that vaccinations might be harmful to the individual. Mandatory vaccination laws have been upheld against constitutional challenge since 1905, when the Supreme Court upheld a law requiring smallpox vaccination. In Jacobson v. Massachusetts the Court said

[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

And how about highway speed limits?  Anyone who claims a constitutional right based in personal liberty to drive 110 miles per hour on the public highways would rightly be considered a dangerous crank.

There are no more important rights in America than those created by the First Amendment. In the First Amendment, the Constitution explicitly says that the government shall not infringe the right of free speech. The text sounds absolute but, in fact, free speech rights have always been regulated as to time, place and manner of exercise. This is an infringement. Furthermore, whole categories of speech have simply been declared “not protected” by the First Amendment. Hate speech and obscenity are two examples.

The right to personal liberty, which is not explicitly created in the Bill of Rights and has no clear contours, is not absolute either.  It must give way to limitations like all other constitutional rights. The only mention of a right to liberty is in the Fifth and Fourteenth Amendments, which deal with how a person may be deprived of that right – by due process of law. These Amendments don’t tell us where the right might actually apply.

This leads me to the subject of guns.  Yes, there is a Second Amendment, but gun ownership and display have been traditionally limited and controlled by the federal and state governments in the public interest.  An example is the 1938 National Firearms Act imposing a $200 tax and a registration requirement on machine gun ownership, which was upheld by the Supreme Court against a Second Amendment challenge. The Amendment makes clear that the militia, and thus the gun ownership that supports them, are to be “well regulated.” Gun rights fanatics like to ignore this first clause of the Amendment because it is inconvenient to their personal rights argument.

By a one-vote majority in The District of Columbia v. Heller (2008), the Supreme Court found an individual right to possess a firearm and to use it for traditionally lawful purposes, such as self-defense within the home.  This case invalidated gun control legislation for the first time in American history.

But if a right exists to own or brandish military-style assault weapons, it is not a product of the Second Amendment. And it is not supported by any constitutional right of personal liberty. Even the West Virginia Bill of Rights provides no support.  It says only:

A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

Neither the West Virginia nor federal constitutions create a right to parade around in public with assault rifles just for the hell of it. So if you are a gun-packing Second Amendment enthusiast, we need to know where your rights end and mine begin. This language from the Heller opinion will help:

The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . . . [This] opinion should not be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The Supreme Court’s 2022 decision in New York State Rifle and Pistol Ass’n. took pains to point out that only handguns could be considered historically protected as weapons appropriate for personal self-defense.

So whatever right you have to own and brandish AR-15 assault rifles does not come from the Second Amendment.  It comes completely from West Virginia’s Republican-led Legislature. On this point, like so many others, this current bunch in Charleston is out of step with most Americans — Republican and Democrat. Fifty-four percent of all registered voters nationwide support banning assault-style weapons.

For the moment, nobody in the West Virginia Legislature has the courage to stand up to the loud mouths who peddle Second Amendment mythology. But if you’re one of those people who think that your “liberty” to walk around intimidating people in public with an AR-15 assault rifle over your shoulder is secure forever, think again. It is only a matter of time before we come to our senses on guns and when we do, your snake flag won’t help you.

The Electoral College: How it Works – and Doesn’t Work.

I apologize from the start. There is no way to make a discussion of the Electoral College short and snappy. The only way to do this topic justice is to cover it top to bottom. So that is what I have tried to do. Anyone hoping for a short read should quit now while they are ahead.

Let’s start with a simple proposition with which most everyone these days would agree – the President of the United States should be elected by a majority of voters. Over this nation’s more than 240-year history, our understanding of democracy has come to mean one person one vote, with each of those votes being equally valuable. Nowhere should that be more important than in the election of the President. But our Founders had a different notion of how the election of the President should work.

  1. Adoption of the Electoral College. 

During the constitutional convention in 1787, some delegates were in favor of direct election of the President. But the more influential of them, including James Madison, were not. There were several reasons for this. Some delegates felt that the country was too large for voters in one region to know the worth of candidates from another region. The party system, which allows factions to organize candidates into slates recognizable in all regions, did not yet exist.

But the most persuasive reasons were based in power politics. Direct election of the President would permit areas with the majority of voters to dominate this important choice. The delegates had already performed a complicated balancing act with respect to the legislative branch to ensure that small states did not get steamrolled by large ones – the Senate would consist of two Senators from each state regardless of size. A method was needed to permit majority selection of the President that still respected the new federal system. Just how to do this was a difficult decision that occupied most of the summer of 1787.

The Electoral College was a last-minute compromise that was no one’s first choice. Madison said that because the final adoption of it took place in the latter stage of the convention “it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies.” We can all recognize this – they wanted to get out of town.

An uglier truth about this process is that slavery played a large part in the reluctance of southern states to support direct election of the President. The Virginia delegates feared that the North had a greater number of voters because slaves in the South obviously could not vote. Representation in the House of Representatives had presented a similar issue. The pernicious compromise reached was that when allocating seats in the House, which is based on population, slaves would count as 3/5 of a person. Wanting to have its cake and eat it too, the South ensured that this same fiction was utilized in the Electoral College mechanism.

  1. How the Electoral College Originally Worked.

The Electoral College provisions are found in Article II, §§ 2-4.  Sections 2 and 4 are in their original form.  Section 3 was amended by the Twelfth Amendment in 1804.

In essence, when voters cast their ballots for President they are actually voting for a slate of electors who will cast votes for President. A state has the same number of electors as it has Representatives and Senators. In this way, the fiction that slaves were 3/5 of a person when allocating Representatives sneaked into the voting procedure for President.

Each state decides how its electors are chosen – over time this has evolved from appointment by legislatures, to direct election of electors, to the system we have now where political parties propose a slate of electors pledged to that party’s candidate. The winning candidate’s electors are then “chosen” by the state. The names of electors don’t appear on the ballot at all. Nearly every state, including West Virginia, operates this way.

Originally, each elector voted for two candidates, with each vote having equal weight. The candidate with the most votes, so long as it was also a majority of all electoral votes, was the President and the candidate with the next highest number was the Vice President. This worked fine while there was general consensus on who should be President. It blew up in 1800 when the race between John Adams and Thomas Jefferson was hotly contested.

In 1800 Jefferson, a Republican, received 73 electoral votes (a majority of all votes) and Adams, a Federalist, received 65. But Jefferson’s electors around the country also cast their second 73 votes for Jefferson’s running mate Aaron Burr. Basically, someone forgot to ensure that Burr received one fewer vote than Jefferson. The Constitution required that this tie be sent to the House of Representatives for resolution. The procedure, which still exists, gives each state one single vote. Jefferson, Burr, and Adams were all possible choices. To make a long story short, Alexander Hamilton — a Federalist who loathed Burr — interceded on Jefferson’s behalf. But the system clearly needed fixing.

  1. The Twelfth Amendment.

The Twelfth Amendment, ratified in 1804, created what is called by scholars the “Jeffersonian Electoral College.” It dispensed with electors casting two votes for President and replaced that with electors casting one vote for President and one for Vice President on distinct ballots. In each state a list is to be kept of everyone receiving electoral votes for President and for Vice President. After the electoral votes are cast in each state, they are transmitted to the House of Representatives for counting. If there is a tie, or if no candidate for President receives a majority of electoral votes, then the House votes to resolve the situation, each state getting a single vote.

The essence of the Jeffersonian model is that no President should be elected without a majority of majorities.  That is, each state should choose electors in a way that reflects a majority of voters in that state. Then a majority of all electors so chosen would be required to elect the President. While there is no direct election of the President by the people, the theory is that this model both reflects a majoritarian choice and respects the importance of states in our federal system.

But this system too has broken down, primarily because now almost all states award their electoral votes to the candidate receiving the largest number of votes in the general election, whether or not that number is a majority. Where there are three or more candidates, this often amounts to a winner-take-all plurality system. While no President can be elected with less than a majority of electoral votes, any Electoral College majority can be made up of a number of states in which that candidate did not receive a majority of the popular vote.

The 2016 election is an example. Trump was unable to achieve the Jeffersonian majority of majorities because he received only 197 electoral votes (less than a 270-vote majority) from states in which he received a majority of the popular vote. Trump received all the electoral votes from seven states in which he won only a plurality of the popular vote. These states were North Carolina, Florida, Pennsylvania, Arizona, Michigan, Wisconsin and Utah.

This result was produced because third-party candidates Jill Stein and Gary Johnson also received a share of the popular vote in these seven states. It is not at all clear that Trump would have received a majority of the popular vote in these states if he and Clinton had been the only two candidates, or if there had been a runoff election between them. 

  1. A National Solution?

Of course, it is widely known that Trump also lost the overall popular vote in 2016 by some 3,000,000 votes. But this elides the fact that Clinton herself did not win a majority of the national popular vote – according to the Federal Election Commission she only won 48.18 percent of that vote. Under any democratic, majoritarian system she would not be entitled to the Presidency.

Much of the negative focus on the Electoral College comes from its failure to ensure that the winner of the popular vote is elected President, even though the Founders never intended for this to happen. One proposal for change is a Constitutional amendment eliminating the Electoral College in favor of the popular vote. This is a pipe dream in today’s political climate – no such amendment could command the necessary two-thirds majority in Congress and it is completely unrealistic to expect that the states which benefit from the current system would ratify such an amendment.

Another idea is the National Popular Vote Multistate Compact. This is a deal among participating states to award their electoral votes to the winner of the national popular vote, regardless of who wins the popular vote in that state. This doesn’t replace the Electoral College it simply produces a state’s electoral votes in a different manner than originally intended. The Compact wouldn’t be activated until enough states join to constitute the 270 electoral vote majority. At present ten states and the District of Columbia have joined representing 165 electoral votes.

This Compact idea has some problems. In the first place, who knows what the Supreme Court would do with a scheme that so obviously changes the connection between state voting and electoral votes without a constitutional amendment? Then as a practical matter, how would the Compact be enforceable against a state that backs out when its electoral votes would have to be cast for a candidate who didn’t win a majority of votes in that state? Finally, any interstate compact is required by Article I, § 10 to be approved by Congress. It is hard to conceive of this happening in the current political environment.

Here is the real problem with these proposed solutions. Because of the likelihood of third-party candidates in the future we may rarely have a majority winner of the national popular vote. Replacing the Electoral College by constitutional amendment or interstate compact with a strict popular vote system without a runoff feature will lead us repeatedly in the direction of national leadership that cannot command a majority of voters, a result no one wants.

  1. States to the Rescue? 

In his recent book Presidential Elections and Majority Rule, election law expert Edward Foley argues that individual states can solve the Electoral College problem by adopting legislation calling for a runoff election if no candidate achieves a majority on the first ballot. Those states would assure that the winner could not walk off with all the state’s electoral votes without being the state’s true majority choice. Although electors are required to be chosen on election day, Congress has provided this safety valve:

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. 3 USC §2.

An alternative to holding a runoff election after the nationwide general election day is to hold a first election around Labor Day and advance the two top candidates to the general election. This system is now in use in California and Washington.

But a two-election system, however constructed, would be costly for the state and the candidates.  Turnout would also suffer.  Foley suggests that a better solution might be the instant runoff election, a variant of ranked choice voting.

Voters would be asked to rank in order of preference all or a limited number of candidates for a particular office, say three. The candidate with the fewest first place votes is eliminated and then for all the voters who ranked the eliminated candidate first their votes would be recounted as if they voted for their second choice first. The process stops when a candidate accumulates a majority.

It would be possible for reforms like these to make a major difference nationally even if adopted only in a handful of states. For example, if Florida had used instant runoff voting in 2000, Ralph Nader would have been eliminated as a candidate before the final choice between George Bush and Al Gore. It would have meant that Gore, not Bush, would have been elected President.

  1. Conclusion. 

In Federalist No. 68, Alexander Hamilton said of the electoral college provision in the proposed 1787 Constitution that “if not perfect, it is at least excellent.”  How wrong this turned out to be. The Electoral College procedures have led us into contested elections and constitutional crises on several occasions, and often present us with non-majority Presidents.

While many people clamor for an amendment that would allow direct popular voting for President, this is probably an unrealistic hope. A constitutional amendment would have slim prospects. In any event, a national popular vote without a runoff feature would still be defective in those years when there were third party candidates because the candidate favored by most voters could still fail to attract a majority.

State legislative solutions to ensure that electors only go to the majority candidate are probably the better alternative because they can be quickly adopted and do not have to be universally adopted to render our quirky Electoral College truly democratic.

Regulating Hate Speech in Social Media

Recently, Facebook released an audit of its policies relating to hate speech and other troubling forms of speech. The audit blistered Facebook for being too slow and too tepid in its response. Facebook has traditionally been a proponent of “free expression” and its reluctance to regulate any kind of speech is laudable in many ways. But this is not a First Amendment issue. Facebook is a non-governmental actor not subject to the First Amendment. It can create whatever rules it wants for its platform. Facebook’s decisions on what speech to forbid or regulate are heavily influenced by the desires of its advertisers and other stakeholders – you and I. So what speech is permitted on Facebook is really the product of community self-regulation.

Whenever Americans talk about regulating speech it ought to make us uncomfortable. Facebook is correct that the default social and legal norm in this country is free speech. But even when a government actor is involved, free speech has well-defined limits consistent with the First Amendment. One of those limits is on hate speech.

Hate speech is speech or expressive conduct that conveys a viewpoint of hostility and hatred against another person or group. It is speech that does more than stimulate debate or discomfort. It attacks others on the basis of a characteristic or viewpoint in such a way as to threaten them. It is not speech directed at ideas, but at people, and often endangers peace and order.

The component of potential violence has always been the key. In Virginia and West Virginia “fighting words” statutes have existed for over 200 years forbidding face-to-face statements to another likely to result in violence. This concept forms the basis of many U.S. Supreme Court cases upholding statutory language that forbids speech likely to result in violence and rejecting statutory language regulating speech that merely creates controversy or discomfort.

But the devil is in the enforcement details. Facebook’s policy defines hate speech as a

direct attack on people based on protected characteristics – race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity and serious disease or disability. . . . We define attack as violent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation.

Deciding whether speech is or is not “dehumanizing” involves a lot of subjectivity. And there is considerable room for disagreement about whether a “statement of inferiority” promotes or risks violence. But remember, Facebook’s policy is not governed by the First Amendment and it can prohibit speech on its platform that could not be prohibited by a government.

The display of a noose is expressive speech that conveys a threat of violence played out over hundreds of years of experience. NASCAR acted swiftly and appropriately to investigate what was first reported to be a noose hung in a black driver’s garage stall. Can anyone doubt that if a Facebook user posted a page showing nothing more than a noose, it would send a palpable threatening message to a large community in America? The point is that some alleged hate speech can be the subject of debate. Some can’t.

Public mores about speech are in powerful flux. Take sexual matters for example. My parents told me that when they were growing up even mention of sexually transmitted diseases was socially inappropriate. That has certainly changed. So too, the kind of racist or homophobic comments and jokes that were common in “polite” society in the not-too-distant past now mark out the speaker as an ignorant buffoon, or worse.

In our daily lives we collectively exercise social disapproval and shame to prevent inappropriate or harmful speech. We decide what we will tolerate. And it is no different when it comes to Facebook’s grudging move toward more active policing of the speech on its platform. This was forced upon Facebook by the complaints of advertisers, employees and platform users. It was not the product of government regulation, but rather regulation by we the people. It is a good thing.

I am ready for the ration of grief I will get from my libertarian friends. They will say that my position invites the kind of hair-trigger political correctness so prevalent on today’s college campuses. First off, I will say that I was not aware offensive speech had its own political party. What we are talking about is not political correctness so much as social correctness. As far as excessive college speech codes go, the fault lies with the immature students and weak college administrators who permit the ”microaggression” and “safe space” nonsense. Yet the basic idea that speech can threaten and harm is still sound.

I am opposed to uninviting speakers because of their viewpoint, or shouting down unpopular ideas. But one argument in favor of college speech codes resonates in today’s environment. Free speech is important, but it is not the only civic and democratic value to consider. Fairness and inclusiveness are two others. When a public university issues a speech code, it must hew to the First Amendment. But when Facebook issues and enforces its hate speech policy, it can and should be more sensitive to the evolving public understanding of the harm that kind of speech does to our country.