14 February 2017

Your Dominoes Will Fall in 30 Minutes or Less

If you're reading this heavily overintellectualized blawg, you've probably heard of the "domino theory" in international relations — a (frankly misbegotten and culturally arrogant) model of how the commies would take over our allies. We're less than a month into a different attempt to impose a dictatorship, and dominoes are already falling the other way... or, at least, we can say so for amusement's sake.

  • The most-definitive domino — not the first in time to begin falling, but the first to make definitive thud in public — is Trump's National Security Advisor, who resigned because even before the inauguration he was unable to resist an opportunity to show others how Important he was. Which, unfortunately, is not inconsistent with... ok, that's perilously close to my NDA, which will outlast the heat-death of the universe.
  • Another domino is falling very softly, and I thoroughly expect that after the next stage of oral argument the Drumpf administration will attempt to make it go away by replacing the policy. Briefing continues even now on the purportedly "urgent" need to ignore due process in excluding certain religions from entering the US. By the way, under the wording of that policy, Saul-who-became-Paul would be excluded... he met the definition of "Syrian refugee," and because he started organized xtianity only after entering Syria he couldn't have been a member...
  • Then there's poor little Ivanka, whose less-than-haute-couture brand failed to support profit expectations and was axed by Nordstrom. This is only an indirect domino, representing (similar to the National Security Advisor, who does not now and never will get the privilege at this blawg of being mentioned by name) a rejection of another attempt to impose branding on reality instead of vice versa.
  • One domino that isn't falling yet is the legacy of a New England governor two centuries ago: partisan gerrymandering. And here, I'm afraid, the courts have — to use the technical term — fucked up with their own allegiance to domino theory, by holding that mere partisanship in elections is a "political question" and therefore not within the competency of the courts. The problem with this theory is that by the time it gets to the courts, there is no one left to answer it who is not a far worse danger to separation of powers and representative democracy... so by abrogating purported "political questions" when they relate to electoral process, the courts are actually undermining judicial independence.

    Bush v. Gore presented a clear, partisan, political question. However, much as I hate to say it given the consequences (which included needless casualties and a near-Depression), it's a very close legal question, because it involved the exercise of a particular executive-branch elected official's discretion when that official had sworn to uphold the law. I understand and acknowledge on those facts (however much I disagree with it based on facts that have only become known since the proceedings) the rationale that absent a smoking gun of intentional disloyalty, the courts simply should not have intervened. Gerrymandering, however, is different precisely because its very nature undermines the rule of law in favor of the rule of factions. And although that is, in some sense, "political" and therefore purportedly beyond the capacity of the courts to deal with, it is "political" in a process and structural capacity in that — unlike the exercise of discretion in Bush v. Gore — it seeks to suppress the dissent that is the foundation of democratic institutions by pre-electoral rpressive action concerning legislative (and not executive) selection. If there's one unbroken thread of reasoning in all of US electoral law, it's that all interests are entitled to representation in law-passing parts of the government... and that everyone has an equal right to vote on the single winner of elections for the law-refining-and-implementing part of the government. And that's why partisan gerrymandering is not a "political question"; the clothing of the "political question" is cross-dressing of a much nastier beast.

And now off to the doctor for another post-surgical follow-up. I don't have time (or energy) this morning to show how "domino theory" is affecting intellectual property law and/or authors'/musicians'/artists' rights... plus, as the Emperor of Austria noted once, that would have too many notes. (Of course, he was wrong, but that's for another time — even if an entirely ironic counterpoint to the current refusal to footnote anything coming from 1600 Pennsylvania Avenue.)