David Hume, Rubber Stamps, and Cognitive Inequality

[Today we welcome our colleague Reilly Stephens as our newest contributor here at LDB. Our agreement with him states that he will be providing insight and analysis of law, politics, and whatever else we demand, except for modern interpretive dance and ERISA, about which he knows nothing…he was particular about those last two for some reason.

–The Management, LDB.]

The current Kulturkampf regarding the dismissal of FBI Director James Comey once again suggests that we are not mature enough a species to be playing with the toys we’ve been given. Removal of an inferior federal official by the President was immediately declared, inter alia, a “coup,” a “constitutional crisis,” and the first step in the rise of modern American authoritarianism (a step we seem to be putting our jackboot down on fairly regularly these days, one wonders where the second one comes).


These were not the idle ravings of the unwashed, these are the reactions of such august sinecures as The Atlantic, Gentleman’s Quarterly, and the college blog formerly known as The New Republic Magazine. That the President’s actions were in fact troubling does not change the reality that these periodic meltdowns have become a sort of weekly church attendance for the type of people who, one imagines, had found such observance missing from their lives until now. And so it is presently the case that our commentariat is completely incapable of processing important information into coherent analysis.

Some time ago, Mother Jones’ Kevin Drum captured our current predicament quite well:

The internet makes dumb people dumber and smart people smarter. If you don’t know how to use it, or don’t have the background to ask the right questions, you’ll end up with a head full of nonsense. But if you do know how to use it, it’s an endless wealth of information. Just as globalization and de-unionization have been major drivers of the growth of income inequality over the past few decades, the internet is now a major driver of the growth of cognitive inequality. Caveat emptor.

Drum might well have been thinking of his colleagues as being on the beneficial side of this particular bell curve, but that conclusion is becoming less obvious. As others more qualified than I have pointed out, it’s odd to talk of a “constitutional crisis” when the constitution, well, hasn’t actually been violated.

David Hume long ago argued that it was impossible to determine an “ought” from an “is.” I will leave it to the philosophy majors to digest that particular chestnut, but it is certainly true that you cannot derive an unconstitutional act from a merely imprudent one. Mr. Comey’s job was not protected from removal. If the President’s fundamental reason for the dismissal were the FBI Director’s habit of wearing his neckties at a normal length, it would be perfectly sufficient. It is from this principle that the late Justice Scalia devised his famous stamp: “Stupid, but Constitutional.”

That the actual reasons may be more pernicious is well worth our attention, but that is fundamentally a political conflict, and one that is well within our power to corral. As Orin Kerr points out, this actually represents an excellent opportunity for Congress to assert its constitutional prerogatives: Any replacement for Comey must be Senate-confirmed, and it requires only a handful of Republican defections to leverage the endeavor into a large-gage speculum that might provide more insight than would previously have been gained. Of course, that would require the exercise of congressional competence, but it is difficult at this point to look upon the President’s move as the embodiment of wisdom.

This bloviation, moreover, is not all together harmless. The consternation surrounding the current administration has led to overreach across every sector, including in the courts. The Executive Order on Immigration is terrible policy, and it certainly raises serious questions regarding the scope and virility of presidential powers. Its initial roll-out, in particular, was a travesty. But, as others have pointed out, the aggressive push-back here has gotten out of hand. The ACLU has essentially retreated to the position that the EOs are unconstitutional because the guy who signed them is a bad person. There are good reasons why we don’t build our constitutional theories on the basis of personal taste — or at least why we shouldn’t.

Indeed, the most likely outcome is fast becoming not a denouement for presidential authority, which many of us would welcome, but a retrenchment issued by a Supreme Court disenchanted with the ability of lower courts to address these questions responsibly.

It may be true that hard cases often make bad law, but it is undeniably true that stupid cases consistently do. They force the court, rather than considering the issues concretely, to play wac-a-mole until they finally throw up their hands and abdicate the field. They are, generally, allergic to stupid, and there is a lot of stupid going around.


  1. Damon R Porter · ·

    My apologies — none of those links showed up on my phone, I’m seeing them on my desktop now. But if you’d said “Keith Olbermann, sports journalist, isn’t particularly good at identifying constitutional crises,” I think most liberals would probably agree with you.

    I still think doing such a deep dive into a misused phrase, rather than addressing the actual question (political independence of an FBI investigation) articulated by most liberals does a disservice to both them and your readers. Call out hyperbole if you must, but deep diving into whether Keith Olbermann precisely uses language seems ludicrous — he never has. Moreover, it’s ridiculous to tar a publication like the Atlantic based on a one-word tweet by an editor — especially because the Atlantic gave proper treatment to the actual question in a full article:


    Regardless though, the mistake on missing your sourcing was mine, and I should have checked on a desktop PC before commenting. My apologies for the error.

  2. I did quote the source, and then link to it: Olberman uses it in the linked video, which is literally framed as a broadcast to the world from occupied territory. the three descriptions of the events i set up in the first paragraph are sources linked in the second, in the same order. I’m confident they are fairly quoted, and representative of the hyperbole that’s floating around. I do not deny there are people who have made more measured commentaries, I cite some of them.

    I don’t see how I waive the concerns away, they’re quite real, i simply point out that as methods of obstruction go, this doesn’t appear a very clever one.

    if you need examples of crazy though, a number of fun ones are collected here:


  3. Damon R Porter · ·

    If your entire initial argument is based on the claim liberal media are misusing the phrase “constitutional crisis,” (and I agree that this is not such) perhaps it would be useful to quote the source? Most of the discussions I’ve seen (including the Politico back-and-forth) don’t seem to suggest the current situation qualifies either, though they do think it could precipitate one. Which means they’re making the same argument about the “pernicious” justifications acknowledged (and largely waived away) in this article. The only difference is liberals’ (and some traditionally conservative columnists) are tending to focus on the potentiality that this decision was made for the purpose of obstructing the investigation. Hopefully the author would recognize that obstructionary purpose, if shown, would make this more than a political dispute (even if not, itself, a constitutional crisis).

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