Sunday, December 13, 2020

Trump Was Defeated by the Constitutionalism of Trump's Judges

"There is an extraordinary case."

That is how U.S. District Judge Brett Ludwig began and ended his decision in the case of Donald Trump v. The Wisconsin Elections Commission, et al. in the U.S. District Court for the Eastern District of Wisconsin.  At a hearing for the Trump suit last week, Judge Ludwig used the word "bizarre":  "the request to remand this case to the Legislature almost strikes me as bizarre."

Yesterday, Judge Ludwig ordered Trump's complaint to be "dismissed with prejudice," adding to Trump's long list of losing lawsuits.  What is remarkable about many of these cases is how often the judges ruling against Trump were appointed by Trump.  Judge Ludwig was confirmed by the Senate (in a 91-5 vote) only three months ago--on September 9.  I have written about the lawsuit in Pennsylvania and the opinion written by Judge Stephanos Bibas for the U.S. Court of Appeals for the Third Circuit.  Bibas was one of Trump's first judicial appointments, and yet he ruled against Trump in this case, using strong language in dismissing the suit as without merit.  Similarly, the refusal of the U.S. Supreme Court to take up a Trump lawsuit sent to them by the Attorney General of Texas was supported by all three of Trump's appointees--Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.  

Senator Dick Durbin of Illinois attacked Barrett during her confirmation because she was "being sent on assignment to the Supreme Court by President Trump" in order to "be there if the president needs her on an election contest."  If that was Trump's expectation, he failed because Barrett and the other judges he has appointed do not regard themselves as "his" judges who must serve his interests.

Without understanding fully what he was doing, Trump has picked his judges from lists given to him by The Federalist Society.  This is a group of conservative lawyers who want federal judges to be constitutionalists who will follow the original meaning of the law and thus enforce the rule of law without partisan political bias.  Trump did not understand that this meant that they would exercise impartial legal judgment without the personal loyalty to him that he demands from everyone he appoints.

When Senator Ron Johnson of Wisconsin supported the confirmation of Judge Ludwig, he said: "Judges, like Judge Ludwig, who are committed to applying the law as written and not acting like superlegislators from the bench are critical in upholding our system of checks and balances."  And, indeed, Ludwig has shown that he is willing to check the demands of the president who appointed him and thus vindicate the constitutional principle of separation of powers.

In 2016, Trump won Wisconsin by a narrow margin of about 22,700 votes.  This year, Biden won the state by a similarly slim margin of over 20,600 votes.  Trump's lawsuit in Wisconsin was based on the claim that this election was unconstitutional because it violated the clause in the Constitution declaring that "Each State shall appoint, in such Manner as the Legislature thereof may direct" the presidential electors for that state (Article II, section 1).  Trump's complaint quotes language in Chief Justice Rehnquist's concurring opinion in Bush v. Gore (2000) stating that "a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question."  

The argument is that the Wisconsin Elections Commission (WEC) did depart from the election laws enacted by the Wisconsin legislature.  The WEC did this in three ways.  It directed election clerks to "do all that they can reasonably do to obtain any missing part of the witness address" on an absentee ballot.  It allowed for a broad interpretation of what counted as "indefinitely confined status" in the COVID-19 pandemic for voters requesting absentee ballots.  And it allowed setting up many absentee ballot drop boxes.  These rules allowed for a huge increase in the number of mail-in ballots, and one can assume that many of those ballots were votes for Biden, which accounted for Trump's narrow loss in Wisconsin.  Trump's complaint asked that Judge Ludwig throw out the voting results and then ask the Republican-controlled Wisconsin Legislature to appoint their own slate of presidential electors.

These same arguments were made by Texas Attorney General Ken Paxton in his lawsuit filed with the U.S. Supreme Court.  Although the Court refused to rule on the case because they decided that Texas had no constitutional standing to sue, we can imagine that if they had ruled, they might have agreed with Judge Ludwig.  Moreover, in both cases, Trump's lawyers did not provide any evidence that anyone committed voter fraud.  Amazingly, John C. Eastman, a lawyer affiliated with the Claremont Institute, who wrote Trump's Bill of Complaint in Intervention for the Texas lawsuit, wrote: "It is not necessary for the Plaintiff in Intervention to prove that fraud occurred" (p. 13).

Judge Ludwig decided that Trump's lawyers had not shown a "significant departure" by WEC from the rules set down by the Legislature, because the WEC was explicitly given a broad discretion in clarifying the statutory rules for conducting the election.  

Ludwig declared: "Plaintiff's Electors Clause claims fail as a matter of law and fact."  He concluded:

"This is an extraordinary case.  A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred.  This Court has allowed plaintiff the chance to make his case, and he has lost on the merits.  In his reply brief, plaintiff 'asks that the Rule of Law be followed.'  It has been."

Thus, Trump was defeated because his own judges are devoted to the constitutional rule of law. 


A few hours after I originally wrote this post, the Wisconsin Supreme Court ruled against a Trump lawsuit making almost exactly the same arguments made in the case before Judge Ludwig.  This was a 4-3 decision in which Judge Brian Hagedorn cast the deciding vote and wrote the opinion for the majority.  

This is remarkable because Hagedorn was elected to the Supreme Court in 2019 for a 10-year term in a fiercely partisan election, in which Hagedorn was supported by conservative Republicans.  Hagedorn had been chief legal counsel for Republican Governor Scott Walker.  He is a member of the Federalist Society.  In 2016, he founded a private school that forbids same-sex relationships among its employees and students.  So when he won election to the Court by a narrow margin, many people assumed that his decisions would favor the partisan political positions of conservative Republicans.  Since he is one of the 4 justices on the Court identified as conservative Republicans, the Trump lawyers thought this was their last best hope to finally win a court decision to overturn the election of Joe Biden.

Contrary to this expectation, Judge Hagedorn voted with the 3 justices identified as liberal Democrats.  The other three 3 justices identified as Republicans wrote scathing dissenting opinions with personal attacks on Judge Hagedorn.  Many Republicans in Wisconsin and across the country have denounced him as a traitor.  Some have said that he should be tried before a military tribunal once Trump declares martial law.

The New York Times has just published an interview with Judge Hagedorn.  He was asked: "What is your response to Wisconsinites who supported you when you ran for the court and now are deeply unhappy with some of the decisions you've made?"  He answered:

"When I ran, I was pretty consistent that I believe deeply that law and politics are not the same thing.  Most of us probably have some hope that our preferred candidate or our preferred policies, that the law runs in the same direction, but that isn't always the case.  And I said I was going to be a textualist and an originalist.  I believe very deeply in those things."

"And I think my decisions have reflected that.  And I made clear even when I was running that I would make decisions that I'm sure some folks, certainly conservatives, may not like from a policy outcome and that when I do, I was just following the law.  People should know that."

When he was asked whether he had voted for President Trump, he refused to answer.  "Why not?" was the next question.  He answered:

"Number 1, who I voted for didn't impact my decision and wouldn't impact my decision.  Number 2,  I don't think it's appropriate for judges to take positions on partisan candidates for office.  We also have canons of judicial ethics on not endorsing candidates.  We're a nonpartisan court.  I mean, I certainly was elected with the support of many conservatives, but I am not a Republican justice on the court."

What is most impressive about this is how it confirms the constitutional principle of separation of powers, in which judges should exercise impartial legal judgment without partisan political bias, even when judges have been elected by voters in a partisan contest to a limited judicial term. 

"I am not a Republican justice on the court."  Judges like Justice Hagedorn show that it is possible to adhere to a genuine jurisprudence of textualism and originalism, and that this conservative jurisprudence is not an insincere profession hiding a partisan political agenda.  And yet the vehement Republican denunciation of judges like Justice Hagedorn also shows the moral corruption of Republican Trumpism, which dishonestly professes a conservative jurisprudence of law separated from politics while demanding that judges manifest political loyalty to Trump.


Trump's record of failure in the courts continues.  On Christmas Eve, a three-judge panel of the Chicago-based U.S. Seventh Circuit Court of Appeals unanimously dismissed the arguments of Trump's lawyers appealing the decision against them in the Wisconsin case.  Once again, their claim that the Wisconsin Election Commission violated the Constitution was rejected.  These judges were all Republican appointees, and the author of the opinion--Judge Michael Scudder--was appointed by Trump.


Thursday, December 10, 2020

Can COVID-19 Vaccines End the Pandemic? Does This Vindicate the Baconian Liberal Enlightenment?

Now that Pfizer's COVID-19 vaccine has been approved for use in Great Britain and Canada, with approval in the U.S. likely to come in a few hours, we have to think about the likelihood that this and other vaccines on the way will end the pandemic.  

We need to think about whether the pandemic shows the limits of our human mastery of nature.  We also need to consider the history of how these vaccines have been developed by reviewing the basics of how vaccines work, the eight types of COVID vaccines that have been studied, and the accelerated development and emergency use authorization for these vaccines.  Then we need to think about the possible scenarios for achieving the immunity that could slow down or end the pandemic.


In his History of the Peloponnesian War, Thucydides gives a detailed account of the plague in Athens in 430-429 BC.  He says that those people who recovered from the disease could not catch it again, or if they did, they would have mild symptoms, and it would not kill them.  These people were the best ones to nurse the sick, or to study the disease, without fear of dying.  Thucydides himself had survived an attack of the disease.  So, without fully understanding it, he had observed the phenomenon of immunity and immunological memory.  (I have written about the plague in Athens--and about how the Liberal Enlightenment has brought progress in overcoming infectious diseases--herehere, and here.)

Thucydides says while plagues were commonly thought to be sent by the gods, people discovered that praying to the gods was of no use against the plague, and so they stopped appealing to the gods for help.  They also discovered that medical doctors could do little to help them, because the doctors did not understand the natural causes of the disease, and consequently they knew little about preventing or curing the disease.  

Lucretius saw that human progress had been driven by the technological conquest of nature.  He also understood that infectious diseases were probably caused by tiny "seeds" invisible to the human eye--what we today know to be bacteria or viruses.  

So one might have foreseen that better understanding infectious diseases would depend on the technology of optical instruments and other techniques that would extend human vision to microscopic phenomena, and this knowledge might lead to medical technology for what Francis Bacon called the mastery of nature for the relief of the human estate.  In The New Atlantis, Bacon described a society that supported scientific research institutions devoted to studying nature and inventing techniques for preventing and curing diseases, which would extend the human lifespan, perhaps even to immortality.

The critics of the Baconian project have complained that Bacon failed to recognize how this human power over nature would always limited by nature itself.  So, for example, while some scientists in the middle of the 20th century predicted that humanity would soon conquer infectious diseases, newly emerging infectious diseases like COVID--arising from the unpredictable transmission of a new coronavirus from bats to humans--shows the limits of human mastery of nature.  (I have written about the evolutionary history of the SARS-CoV-2 virus herehere, and here.)

Bacon understood this, however, because he observed that "Nature is conquered only by obeying her," and "all that man can do to achieve results is to bring natural bodies together and take them apart; Nature does the rest internally."  The technology of vaccines illustrates this Baconian insight, because vaccines work only by stimulating the evolved natural working of the immune system in defending the body against parasitic pathogens that threaten human survival and reproduction.


Natural selection favors the evolution of plants and animals that are naturally adapted for self-defense, and the immune system is one of the mechanisms of self-defense for animals.  A properly functioning immune system must distinguish self from nonself, so that the system can recognize and target foreign substances that would injure or kill their victim.  This system can fail, as in allergic reactions or autoimmune disorders, in which the immune system overreacts to a foreign body or attacks its own body.

The immune system has three features.  All animals have innate immunity, which allows recognition of traits shared by broad ranges of pathogens (such as bacteria, fungi, and viruses) using a small set of receptors and a rapid response by various cells, proteins, and inflammation.  Vertebrates have adaptive immunity, which allows recognition of traits specific to particular pathogens using a large number of receptors and a slower response by antibodies in body fluids and cytotoxic cells in body cells.  

Although it does not receive as much attention as it deserves, there is a third dimension of the immune system--behavioral immunity, which includes behavioral strategies by which animals attempt to prevent infectious pathogens from invading their bodies.  (I have written about this here.)  One of those behavioral strategies is social distancing: social animals who can be infected by social contact with infected individuals can protect themselves by avoiding contact with those individuals who appear to be infected.  But as social animals who naturally benefit from social interaction, social distancing creates a dilemma in which the animal must weigh the health benefits of avoiding infection against the social costs of being isolated from others.  We could avoid infectious diseases if we all lived as solitary hermits.  But few of us would want to live that way.  That's the Darwinian evolutionary explanation for the moral debate we are now having over the COVID-19 lockdowns--the debate over whether the benefits of lockdowns outweigh the costs.

We could avoid the costs of behavioral immunity to protect ourselves against the pandemic, without incurring the costs of allowing the infections to spread, if we could achieve adaptive immunity through vaccination.  To do this, we need vaccines that will simulate a coronavirus infection to provoke a natural immune response.  And if enough people are vaccinated, we could become immune to the virus.

The body's adaptive immune system can learn to recognize new invading pathogens such as the coronavirus SARS-CoV-2.  The virus uses its surface spike protein to lock onto receptors on the surface of human cells.  Once inside the cell, the virus releases its RNA, so that it can hijack the cellular machinery for translating the viral RNA into proteins and then assembling those proteins into a new virus, which is then released from the cell.  Viruses cannot reproduce themselves, which is why they must become parasites that use their host cells to reproduce more viruses.

Once the virus has been released from the human cell, the virus can be ingested by an antigen-presenting cell that displays viral peptides to activate T-helper cells.  The T-helper cells then enable other other immune responses: B cells make antibodies that can block the virus from infecting cells, while also marking the virus for destruction.  Cytotoxic T cells identify and destroy human cells that have been infected with the virus.  Long-lived memory B and T cells that recognize the virus can patrol the body for months or years, and this constitutes immunity.

A coronavirus vaccine must simulate this process by exposing the body to an antigen (a foreign substance that induces an immune response) without causing disease.  In the case of this virus, the antigenic target is the spike protein that is responsible for binding to the human cell receptor.


There are currently more than 180 COVID-19 vaccines at various stages of development.  There are basically 8 types falling under 4 categories: virus vaccines, viral vector vaccines, protein-based vaccines, and nucleic-acid vaccines (Florian Krammer, "SARS-CoV-2 Vaccines in Development," Nature 586 [October 22, 2020]: 516-527).

Virus vaccines use the SARS-CoV-2 virus itself in either a weakened or inactivated form, so that it induces an immune response but without causing the disease.  Traditionally, vaccines have all been virus vaccines--like the smallpox vaccine.  In 1796, Edward Jenner demonstrated that an infection with the relatively mild cowpox virus conferred immunity against the deadly smallpox virus.  (Of course, he did this without understanding viruses.)  Cowpox was a natural vaccine until the modern smallpox vaccine emerged in the 19th century--a live-virus preparation of vaccinia from calf lymph.

Viral-vector vaccines are those for which a virus such as measles or adenovirus has been genetically engineered to that it can produce coronavirus proteins in the body, which provoke an immune response.  These viruses are weakened so that they cannot cause disease in the body.  There are two types--those that can replicate within cells and those that cannot.

Protein-based vaccines are those in which coronavirus proteins are injected directly into the body.  There are two types.  Either fragments of proteins or protein shells mimic the coronavirus structure in such a way as to elicit an immune response, but they cannot cause disease because they lack genetic material.

Finally, nucleic-acid vaccines require injecting into the human cell either DNA or RNA with the genetic instructions for a coronavirus protein that prompts an immune response.  Both the Pfizer and the Moderna vaccines are RNA vaccines.

That the Pfizer and Moderna vaccines are being approved for use is remarkable for two reasons.  First, because no vaccines against coronaviruses have previously been licensed for use in humans.  Second, because the whole technology of RNA vaccination is new.

Consequently, it becomes important that we have confidence that these radically new vaccines have been properly tested.


Traditional vaccine development can take 15 years or more.  So it's a big surprise that the development of the COVID-19 vaccine is occurring so quickly--with some vaccines now being approved after only 10-11 months of research.  Does this show the speeding up of Baconian scientific progress, as scientists around the world cooperate and compete in developing new biomedical technologies that might quickly slow or end the pandemic?  Or does it show undue haste that could be dangerous?  

There are good reasons for the speed of this vaccine development.  SARS-CoV-2 was first reported in China at the beginning of January.  Within weeks, the genetic sequence of the virus was worked out, which allowed scientists to begin immediately looking for vaccine technologies.  Typically, vaccine development starts with 2-4 years of preclinical research with mice before any clinical research with human subjects.  But this kind of preclinical research had already been done with SARS-CoV and MERS-CoV coronaviruses, which could be applied to the study of SARS-CoV-2.  Scientists could then move quickly to Phase I clinical trials with about 20-80 human, to Phase II with several hundred participants, and to Phase III with up to 3,000 participants.  And while normally a pharmaceutical company would wait until after FDA approval to begin large-scale production of a vaccine, in this case companies started production during the Phase III trials, which was financially risky for them.

Usually, the regulatory review by the FDA takes 1-2 years.  But in this case, an "emergency use authorization" application has prompted the FDA to do its review in 1-2 months.  This will rightly create some concern as to whether the scrutiny of the testing has been strict enough to make us confident about the safety and efficacy of these vaccines.


What kind of immunity can we expect to achieve through these COVID-19 vaccines?  No one knows the answer to that question.  But there are some educated guesses.

Vineet Menachery, a coronavirus researcher at the University of Texas Medical Branch in Galveston, suggests there are four possibilities: sterilizing immunity, functional immunity, waning immunity, and lost immunity (Helen Branswell, "Four Scenarios on How We Might Develop Immunity to Covid-19," STAT, August 25, 2020).

Sterilizing immunity would mean that once we have either been infected with the COVID virus or vaccinated with the COVID vaccine, we would never be infected by it again, because our immune system will have been so reliably and durably well-armed that the infection could not return.

Although this is the most desirable immunity, most scientists think it's unlikely to be achieved.  Some scientists do believe, however, that some people are likely to achieve sterilizing immunity after an infection or a vaccination.

Functional immunity is a more likely possibility.  This means that those people who have had either an infection or a vaccination would have immune systems that might not prevent new infections, but at least the immune defenses would be strong enough to prevent severe symptoms.  And if people who are reinfected don't generate high levels of the virus, the spread of the virus might be slowed, and thus the virus might become less common and less dangerous.

Waning immunity is another possibility.  People who have been infected or vaccinated could find their immunity weakening over time.  Even so, new infections would be less severe than the first infection.

Some scientists foresee a mixed situation.  Some people will have sterilizing immunity.  But most people will have either functional or waning immunity.

Lost immunity would be the worst outcome: people who have had natural infections or vaccinations would lose all of their immunity within a short time, and so new infections would make them just as sick as they were with the first infection.  No one believes this is likely.  Anyone who generates some immunity to the SARS-CoV-2 virus is likely to hold that immunity at some level for a long time.

But then what about herd immunity?  Can we be sure that sometime soon enough of us will have immunity so that the virus can no longer spread?

As some scientists have said, vaccines don't create herd immunity--rather, vaccinations create herd immunity, if enough people have them.  And some have said that we might need to have 70% to 85% of the people vaccinated to achieve this.

There are two problems with this.  The first is the adequate production and distribution of vaccines.  The RNA vaccines require two doses.  So to have enough for everyone in the world, we'll need about 15 billion doses delivered around the world!

The second problem is convincing people to be vaccinated, which belongs to the behavioral immune system.  Some surveys have reported that a majority of Americans say they will not agree to be vaccinated.  (Remarkably, Democrats are more inclined to vaccination than are Republicans!)  If that's true, voluntary vaccination will not give us herd immunity.

Does that mean that we will have to institute mandatory vaccination?  Could we do that without violating individual liberty?  In the U.S., would that be unconstitutional?

This question will be the subject for my next post.

Wednesday, December 02, 2020

The Darwinian Emergence of Aristotle's Political Animals and de Waal's Moral Animals: A Reply to Cheryl Abbate

In various publications (Arnhart 1990, 1994, 1998, 2009), and in some blog posts, I have argued that a Darwinian science of animal behavior can support Aristotle's biological science of political animals.  Aristotle's statement that "man is by nature a political animal" is famous.  But it is often falsely assumed to mean that human beings are by nature the only political animals.  As Aristotle explains in his biological writings, the political animals include ants, bees, wasps, and cranes.  But even if humans are not the only political animals, Aristotle indicates, they are distinctive in that they are more political than the other political animals, because humans have a biological capacity for logos, which allows them to organize their political communities through shared symbolic conceptions of justice.

In his biological works, Aristotle sees that some animals are solitary and others gregarious.  Of the gregarious animals, some are political.  Some of the political animals have leaders, but others do not.  The distinguishing characteristic of the political animals is that they cooperate for some common work or function.  Humans, bees, ants, wasps, and cranes are all political animals in this sense.

The uniquely human capacity for speech or rhetorical persuasion makes humans more political than the other political animals, because while other animals can share their perceptions of pleasure and pain, humans can use speech to share their conceptions of the advantageous, the just, and the good.  Through speech, humans cooperate for common ends in ways that are more complex, more flexible, and more extensive than is possible for other animals.  Through speech, humans can deliberate about the common interest as the standard of justice.  A just political community can be judged to be one that serves the common interest of all or most of its members, as contrasted with an unjust political community that serves only the private interest of its ruling group.

I have argued that Charles Darwin's evolutionary theory of morality and animal social life supports Aristotle's biopolitical science.  I have also argued that the biological study of animal behavior over the past 60 years (beginning with Jane Goodall's arrival at the Gombe Stream Preserve in 1960) has largely confirmed this Aristotelian science of animal politics.

Recently, I noticed that Cheryl Abbate (2016) has disagreed with my reasoning in what is essentially a critique of my 1990 article in Social Science Information.  I also noticed that Edward Jacobs (2018) has written a response to Abbate's article, and Abbate (2018) has replied to him.

Abbate's critique consists of two arguments.  First, she claims that my defense of Aristotle's teaching contradicts the Darwinian principle of the psychic continuity between humans and animals--the idea that humans differ from other animals only in degree and not in kind.  Second, she claims that recent studies of animal behavior show that some highly social nonhuman animals have a sense of justice, and so Aristotle is wrong in thinking that this is unique to human beings.

As you might expect, I believe she's mistaken on both points.


Abbate correctly quotes from the crucial passage in Aristotle's Politics (1253a) where Aristotle declares that a human is much more a political animal than other political animals, because "man alone among the animals has speech [logos]," and through speech, "he alone has a perception of good and bad and just and unjust," which is the uniquely human basis of human politics (Abbate 2016, 57).

She then claims that this contradicts the Darwinian principle of "evolutionary continuity"--that all differences between species are only differences in degree and not in kind (Abbate 2018, 160).  She correctly quotes from Darwin's apparent endorsement of this idea in The Descent of Man:

"Nevertheless, the difference in mind between man and the higher animals, great as it is, certainly is one of degree and not of kind.  We have seen the senses and intuitions, the various emotions and faculties, such as love, memory, attention, curiosity, imitation, reason, etc., of which man boasts, may be found in an incipient, or even sometimes in a well-developed condition, in the lower animals" (2004, 151).

Abbate is silent, however, about the fact that despite Darwin's explicit statement that humans differ only in degree, not in kind, from other animals, he implicitly recognized human differences in kind.  That is to say, Darwin saw that human beings have some moral and mental traits that other animals do not have at all.

In The Descent of Man, Darwin noted that self-consciousness is uniquely human: "It may be freely admitted that no animal is self-conscious, if by this term it is implied, that he reflects on such points, as whence he comes or whither he will go, or what is life and death, and so forth" (105).  Morality is also uniquely human: "A moral being is one who is capable of comparing his past and future actions or motives, and of approving or disapproving of them.  We have no reason to suppose that any of the lower animals have this capacity. . . . man . . . alone can with certainty be ranked as a moral being" (135).  And language is uniquely human: "The habitual use of articulate language is . . . peculiar to man" (107).

Darwin was thrown into self-contradiction--both affirming and denying that humans are different in kind from other animals--because he failed to see how he could affirm emergent differences in kind without affirming any radical differences in kind.  Emergent differences in kind can be explained by evolutionary science as differences in kind that naturally evolve from differences in degree that pass over a critical threshold of complexity.  So, for example, we can see the uniquely human capacities for self-consciousness, morality, and language as emerging from the evolutionary development of the primate brain, so that at some critical point in the evolution of our hominid ancestors, the size and complexity of the brain (perhaps particularly in the frontal cortex) reached a point where distinctively human cognitive capacities emerged at higher levels of brain evolution that are not found in other primates.  With such emergent differences in kind, there is an underlying unbroken continuity between human beings and their primate ancestors, so there is no need to posit some supernatural intervention in nature--the divine creation of the human soul--that would create a radical difference in kind in which there is a gap with no underlying continuity of natural causes.

Edward Jacobs points to this when he describes the evolution of the human mind.  "The moment a certain threshold of mental development was reached (and logos is as good a placeholder name for this threshold as any), we became able to make and grasp persuasive accounts," which made humans more political than the other political animals (155).

Simona Ginsburg and Eva Jablonka (2019) have shown how an evolutionary neuroscience could explain this emergence of the human mind as passing through the three levels of mind identified by Aristotle in De Anima (On the Soul). The basic nutritive and reproductive soul belongs to all living things--plants and animals.  The second level--the sensitive soul--belongs to all animals.  The third level--the rational or symbolizing soul--is specific to humans.  The crucial evolutionary transition marker of the rational soul is language.  The rational soul gives humans the capacity for grasping and sharing the abstract symbolic values of the good and the just that make human politics unique.  Ginsburg and Jablonka suggest that all three levels can be explained by evolutionary biology.

I have written some previous posts on emergent evolution (here and here).;


Abbate relies heavily on two cognitive ethologists--Marc Bekoff and Frans de Waal--for providing the evidence that some nonhuman animals have a sense of justice, and therefore Aristotle is wrong in saying that humans alone have a moral sense, which makes them more political than the other political animals.  For Abbate, this proves that humans differ only in degree, not in kind, from other animals.

Bekoff is best known for his studies of canid social carnivores--wolves, dogs, and coyotes--and his argument that their social play shows that they have "codes of conduct" that indicate a moral life of "wild justice" (Bekoff 1995; Bekoff and Pierce 2009; Pierce and Bekoff 2012).

De Waal is best known for his Chimpanzee Politics and other studies of primate colonies in captivity.  He has endorsed what he calls my "Darwistotelian" view of human politics and morality as showing an evolved political nature shared with chimps and other primates. A sample of my many posts on de Waal can be found herehereherehere, and here.

She does not notice, however, that Bekoff and de Waal show the same self-contradiction that one can see in Darwin.  On the one hand, Bekoff says that "animal morality is different in degree but not in kind from human morality."  On the other hand, he says there are "bona fide differences in kind" (Bekoff and Pierce 2009, 139-40).  He admits that "human morality is unique," because humans are unique in their capacities of language and judgment (Bekoff and Pierce 2009, 132, 139-42).  Similarly, de Waal sometimes seems to say that morality is not unique to human beings, but then he concedes that morality at the level of judgment and reasoning is uniquely human (de Waal 2006, 20, 173-75).

Abbate might say, however, that this is not necessarily contradictory.  If de Waal is right about there being three levels of human morality, and if nonhuman animals show some elements of the lower levels but not of the higher levels, then the fullest expression of human morality is uniquely human, although some animals show some features of the moral life.  Thus, there is both continuity and discontinuity in the moral psychology of animals.  At some levels of morality, there is only a difference in degree.  At other levels, there is a difference in kind.  This is exactly what one would expect from the emergent evolution of animal morality.  And, I suggest, this is Aristotle's position, even though his biology did not have a fully developed evolutionary theory.

According to de Waal, the moral sentiments constitute the first level of morality--the emotional building blocks of morality that include empathy, reciprocity, retribution, a sense of fairness, and reconciliation to resolve conflicts and restore harmonious relationships (de Waal 2006, 166-75).  All of this can be seen in some form in other animals

In stressing the importance of the moral sentiments for moral psychology, de Waal belongs to the philosophic tradition of sentimentalist ethics that includes David Hume, Adam Smith, Darwin, and Edward Westermarck--a tradition that is set against the Kantian tradition of rationalist ethics.  I have written many posts on this, including herehere, here., and here.

De Waal identifies social pressure as the second level of morality.  Through social pressure, individuals are habituated to conform to the social rules of their group that maintain the good order of the community.  These rules are enforced through reward, punishment, and reputation.  In these ways, morality serves as a social contract for a cooperative society. Some of this can be seen in some nonhuman animals.  For example, high-ranking males in chimpanzee groups show "policing behavior"--males break up fights among others, and their intervention seems to be remarkably evenhanded.  Nevertheless, the human morality of social pressure goes beyond animal morality by formulating social rules that are more abstract and systematic than is the case for other animals.

Finally, judgment and reasoning constitute a third level of morality, and this is uniquely human.  So, for example, we are like other social animals in that we care about our reputations--how we appear in the eyes of others--so that we want to be praised and not blamed by others; but we can also use our distinctively human capacity for abstraction and imagination to see ourselves mirrored in the eyes of an "impartial spectator" (as Adam Smith said), so that we can want to do what is praiseworthy, regardless of whether we are actually praised by anyone. We care not only about our real reputation but also about our imaginary reputation.  From this we develop an internal sense of self-esteem or conscience.  There is no evidence for anything like this in nonhuman animals.  (I have written about Smith's concept of the "impartial spectator" here.)

Like de Waal, Aristotle saw both continuity and discontinuity between human beings and other animals in their moral psychology.  In his History of Animals (588a15), he wrote:

"In most of the other animals, there are traces of the qualities of soul that are more evidently differentiated in human beings.  For there are both gentleness and savagery, mildness and harshness, courage and timidity, fear and confidence, spiritedness and trickery, and, with respect to intelligence [dianoia], something like judgment [sunesis], similar in many ways. . . . For some of these qualities differ only more or less with reference to human beings. . . . For nature passes little by little from the inanimate to animals, so that this continuity prevents one from seeing a border or perceiving on which side an intermediate form lies."

Aristotle argues that the moral psychology of wild animals is like that of children: they can have natural virtue and habitual virtue, but they cannot have the deliberative virtue that requires fully developed logos (Politics, 1332b1; Nicomachean Ethics, 1144b1-1145a5).  They can have the natural virtue that comes from being born with a good natural temperament that inclines them to do the right actions.  And they can have the habitual virtue that comes from obeying social rules so that they habitually do the right actions.

Only human adults are capable of deliberative virtue, which requires logos. And logos is the capacity for grasping explanatory accounts--for understanding both theoretical and practical syllogisms (Moss 2014).  In ethics and politics, explanatory accounts do not just prescribe right actions, they also explain why these are right.  Children and animals can be trained to know what they ought to do but without understanding why they ought to do it.  Virtue in the strict sense requires deliberate choice and prudential judgment with full knowledge of both what should be done and why it should be done.  This deliberative virtue with prudence corresponds to what de Waal identifies as the third level of morality--reasoning and judgment.

Because of their unique capacity for logos, human beings are more political than the other political animals--and more moral than the other moral animals--because this capacity for grasping explanatory accounts means that rather than just habitually obeying social rules of justice in their group, human beings will want to know why these are the rules, and they will argue over whether there might be better rules.  For that reason, human politics is always a rhetorical activity in which people have to persuade one another that what their community is doing is just, right, or noble.  That's why Aristotle's Rhetoric is a crucial text for his moral and political philosophy.

The importance of rhetorical speech for human politics and human morality explains why language is the critical marker in the evolutionary transition to uniquely human symbolism and rationality, as Ginsburg and Jablonka have indicated.


Abatte, Cheryl E. 2016. "'Higher' and 'Lower' Political Animals: A Critical Analysis of Aristotle's Account of the Political Animal." Journal of Animal Ethics 6:54-66.

Abatte, Cheryl E. 2018. "Redefending Nonhuman Justice in Complex Animal Communities: A Response to Jacobs."  Journal of Animal Ethics 8:159-165.

Arnhart, Larry. 1990. "Aristotle, Chimpanzees, and Other Political Animals." Social Science Information 29:479-559.

Arnhart, Larry. 1994. "The Darwinian Biology of Aristotle's Political Animals."  American Journal of Political Science 38:464-485.

Arnhart, Larry. 1998. Darwinian Natural Right: The Biological Ethics of Human Nature. Albany, NY: State University of New York Press.

Arnhart, Larry. 2009. Darwinian Conservatism: A Disputed Question.  Ed. Kenneth Blanchard. Exeter, UK: Imprint Academic Press.

Bekoff, Marc. 1995. "Play Signals as Punctuation: The Structure of Social Play in Canids." Behaviour 132:419-429.

Bekoff, Marc, and Jessica Pierce. 2009. Wild Justice: The Moral Lives of Animals. Chicago: University of Chicago Press.

Darwin, Charles. 2004. The Descent of Man.  Second edition. Ed. James Moore and Adrian Desmond. London: Penguin Classics.

de Waal, Frans. 2006. Primates and Philosophers: How Morality Evolved. Princeton, NJ: Princeton University Press

Ginsburg, Simona, and Eva Jablonka. 2019. The Evolution of the Sensitive Soul: Learning and the Origins of Consciousness.  Cambridge, MA: MIT Press.

Jacobs, Edward. 2018. "Aristotle and the Zoon Politikon: A Response to Abbate." Journal of Animal Ethics 8:150-158.

Moss, Jessica. 2014. "Right Reason in Plato and Aristotle: On the Meaning of Logos." Phronesis 59:181-230.

Pierce, Jessica, and Marc Bekoff. 2012. "Wild Justice Redux: What We Know About Social Justice in Animals and Why It Matters." Social Justice Research 25:122-139.

Friday, November 27, 2020

SCOTUS Upholds Lockean Constitutionalism in the COVID Pandemic

Wednesday night--a few minutes before midnight--the U.S. Supreme Court released its decision granting an emergency injunction to halt Governor Andrew Cuomo's lockdown orders restricting religious gatherings as a violation of the First Amendment's protection of religious liberty.  This is the first time that the Court has indicated that the Constitution's securing of individual rights from infringement by government cannot be suspended during the emergency of the COVID pandemic.  This is also the first decision showing how the replacement of Ruth Bader Ginsburg by Amy Coney Barrett has shifted the majority on the Court towards a Lockean constitutionalism of originalist jurisprudence in protecting constitutional rights and limiting governmental power.

In two earlier cases from California and Nevada, which were issued before Justice Ginsburg's death in September, the Court upheld COVID lockdown restrictions on worship gatherings by 5-to-4 votes.    Chief Justice Roberts voted with Justices Breyer, Sotomayor, Kagan, and Ginsburg, with Justices Alito, Thomas, Gorsuch, and Cavanaugh dissenting.  Now, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Court has reversed those decisions through another 5-to-4 vote, which Justice Barrett casting the decisive vote, joined by Alito, Thomas, Gorsuch, and Cavanaugh.  Barrett has now replaced Roberts as the crucial swing vote between the liberals and conservatives on the Court.

The opinion of the majority is not signed.  But it probably was written by Justice Barrett.  If you compare this opinion with some of the opinions Barrett wrote for the 7th Circuit of the U.S. Court of Appeals, you will see some distinctive traits of her writing that are manifest in this opinion.  For example, she likes to begin sentences with the word "and."  And in this 6-page opinion, she does that 6 times.

By executive order, Governor Cuomo had imposed restrictions on gatherings for religious services.  In "red" zones (where the COVID outbreak was most severe), no more than 10 people could attend each religious service.  In "orange" areas (with less severe outbreaks), attendance was limited to no more than 25.  The Governor had done this after some ultra-Orthodox Jews in Brooklyn had openly defied and protested against earlier orders restricting worship gatherings.  The Roman Catholic Diocese of Brooklyn and the Agudath Israel of America filed suits in federal court arguing that this violated their First Amendment right to the free exercise of religion.  While pursuing appellate review of a lower federal court ruling against them, they asked the U.S. Supreme Court to issue an emergency injunction stopping any enforcement of the Governor's orders.  A few days ago, the Governor changed his orders so that his color code for Brooklyn and Queens was changed to "yellow" zones, which removed the more severe restrictions on worship gatherings.  The plaintiffs argued, however, that they still needed an injunction to prevent the Governor from reinstating the "red" and "orange" restrictions at his discretion.

The fundamental question here is whether in time of some great emergency--particularly, when public health and safety are threatened--the constitutional protection of individual rights and limitations on governmental power must be suspended to allow the officers of government to exercise prerogative power: the power to exercise discretionary judgment outside the law to do whatever is necessary to protect the public good.  The principle here might be salus populi suprema lex--the safety or health of the people is the supreme law, which allows executive rulers to act outside the normal legal limits on their power.  

In previous posts (here and here), I have contended that the Constitution cannot rightly be suspended during an emergency like a pandemic.  While protecting the public good in time of emergency might require extraordinary measures from government, it is still the right of the people to judge whether these measures truly do serve the public good--whether the benefits of these measures for the public safety outweigh their costs, including the costs from sacrificing constitutionally protected liberty.  The exercise of the "police power" of state governments to protect the public health allows for broad powers to respond to outbreaks of infectious disease, but the abuse of these powers can be struck down by the courts if they violate the Constitution.  

Now, it seems that a majority of the Supreme Court Justices agree with this.  In her opinion for the majority, Justice Barrett declares: "even in a pandemic, the Constitution cannot be put away and forgotten" (5).  In his concurring opinion, Justice Gorsuch takes the same stance.  "Government is not free to disregard the First Amendment in times of crisis" (1). "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical" (3).  "We may not shelter in place when the Constitution is under attack" (6).  Here the Court agrees with Justice William Strickman, the Federal District Court judge who struck down the lockdown orders in Pennsylvania, who argued: "the Constitution applies even in times of emergency."

The Court also agrees with Judge Strickman's argument that the Supreme Court decision in Jacobson v. Massachusetts (1905) does not support setting aside the Constitution during a pandemic.  As Justice Gorsuch explains, the Massachusetts law requiring smallpox vaccination during a smallpox pandemic was justified only as long as it did not "contravene the Constitution of the United States" or "infringe any right granted or secured by that instrument."  Henning Jacobson claimed that requiring him to be vaccinated violated his liberty to protect his "bodily integrity," which is not a constitutionally specified right.  By contrast, Governor Cuomo's orders violated a right to the free exercise of religion expressly stated in the First Amendment.  Also, the restriction on Jacobson was easily avoided and rather modest: he could either accept the vaccination, pay a fine of $5, or identify some basis for exemption.  Governor Cuomo's orders were a much more severe violation of liberty in banning all forms of traditional forms of public worship.

And while the vaccination order in Jacobson could be seen as a necessary means for controlling the smallpox pandemic, the closing down of the houses of worship in New York was not necessary to control the COVID pandemic.  The churches and synagogues in New York had taken precautions to make worship gatherings safe--by requiring masks, social distancing, and even prohibiting singing.

Moreover, Governor Cuomo's orders were unconstitutionally discriminatory in that while religious gatherings of more than 10 people (in "red" areas) or more than 25 people (in "orange" areas) were prohibited, gatherings of large numbers of people in grocery stores and big-box retail stores were permitted.  In the orange zone, even "non-essential" businesses were free to admit as many people as they wished.

Even Chief Justice Roberts, while dissenting from the majority opinion, seemed to agree that Cuomo's orders were probably unconstitutional: "it may well be that such restrictions violate the Free Exercise Clause" (1).  But Roberts claimed that there was no need to rule on that question at this time.  The Governor has dropped his restrictions.  And if he were to renew those restrictions, then the plaintiffs could renew their request for injunctive relief, Roberts advises.  Gorsuch complains that Roberts is being unreasonable here.  The plaintiffs have been under unconstitutional restrictions for months, and it has taken weeks for their case to reach the Supreme Court.  The Governor changed his color coding just a few days ago, but he could reinstate the previous restrictions tomorrow, forcing the plaintiffs to renew their request for an injunction, and then the Governor could just change the rules again just as the case reached the Court again.  And in fact, both Governor Cuomo and Mayor de Blasio have recently said that it's only a matter of time before all five boroughs of New York City are switched from "yellow" to "orange."

What we see here is a contrast in judicial temperaments.  Roberts is always looking for ways to display judicial restraint--finding some way to avoid striking down as unconstitutional the work of the elected branches of government.  Those like Gorsuch are more inclined to judicial activism--claiming that judges have the constitutional duty to enforce constitutional limits on government, even when that means frustrating the wishes of the elected officers of government.

Saturday, November 21, 2020

Do the Benefits of COVID-19 Lockdowns Exceed the Costs? Nicholas Christakis' New Book

I have written previously (here and here) about Nicholas Christakis' biological sociology of the naturally good society as grounded in the "social suite" of evolved human nature.  

Now I am pleased to see the publication of his new book--Apollo's Arrow: The Profound and Enduring Impact of Coronavirus on the Way We Live.  It's a remarkable achievement, because he has written a comprehensive study of the COVID-19 pandemic, in all of its biological, sociological, psychological, and economic dimensions; and he completed it only eight months after the pandemic began in January.

This book helps me to think about the many questions I have raised about the pandemic in previous posts (herehere, and here).  In this post, I will consider two questions.  When and how did the experts decide that the COVID-19 pandemic justified a lockdown imposed by government?  And is it true that the benefits of COVID-19 lockdowns exceed the costs?


We must begin by recognizing one startling fact about the response to this pandemic--that there is no historical precedent for the general lockdowns of society ordered by governments in 2020.  Christakis does not give enough weight to this fact.  He writes about the history of public health policies in responding to infectious diseases in a way that suggests to the reader that the COVID-19 lockdowns were nothing new.  In only one sentence does he implicitly recognize the uniqueness of the lockdowns.  Speaking about the shutdown of almost all of China at the end of January, he writes: "It was the largest imposition of public health measures in human history" (9).

As measured by the number of people who died in two years, the flu pandemic of 1918 was the deadliest infectious disease outbreak in American history or in world history.  So if we were looking for historical precedent for pandemic lockdowns, we should find it here, but we don't.  

So, for example, as Christakis indicates, the Health Commissioner for New York City in 1918--Royal Copeland--"generally favored keeping things open," although the sick were quarantined in mostly voluntary isolation, the city ordered staggered business hours to avoid rush-hour crowding, and there was a campaign against public spitting as unsanitary.  The schools remained open (73-74).  Christakis relies on an article by Francesco Aimone (2010).  And Aimone reports that Copeland "reasoned that more restrictive means, such as ordering all businesses and municipal offices closed, was unwarranted because of the low incidence and concentrated prevalence of the disease" (72).  Theaters were also open, although they were subject to public health regulations.

Christakis praises Copeland.  "Copeland endured enormous criticism, but the strategy was vindicated by the results.  Public health decisions always involve difficult, utilitarian trade-offs between benefits and costs to different people."  The results were clear in that "New York City had approximately half the excess deaths that Philadelphia had" (74).  So here the "utilitarian trade-offs between benefits and costs" justified keeping schools, businesses, and theaters open, and relying on mostly voluntary quarantining of the sick. 

In contrast to his praise of Copeland for keeping schools open in New York City, Christakis says that two studies of 43 major U.S. cities in the 1918 flu pandemic show that the earlier that schools were closed, the lower the number of excess deaths (Bootsma and Ferguson 2007; Markel et al. 2007).  He presents a graph comparing St. Louis and Pittsburgh on the timing of school closures and public gathering bans--showing that the earlier imposition of nonpharmaceutical interventions (NPIs) was correlated with lower mortality rates (124).  Graphs like this comparing cities in 1918 have been the single most commonly used evidence apparently justifying the COVID-19 lockdowns in 2020.  The flaw in this reasoning, however, is the fact that no city in 1918 imposed anything close to a general lockdown.

Christakis' graph comes from Merkel et al. (2007).  But Christakis does not tell his reader that this article points to "two outlier cities"--Grand Rapids and St. Paul--that had low excess death ratios even though they imposed few restrictions for very short periods.  In fact, Grand Rapids--the least restrictive of the cities--had the lowest excess death ratio of all the 43 cities!

Nor does Christakis tell his reader that these cities refused to lockdown businesses.  In Los Angeles, the city council debated this and decided not to do it.  In St. Louis, something like a lockdown of businesses was done for only about two days.  So people in 1918 judged that the likely costs of a prolonged lockdown would be greater than the likely benefits.  Has anyone in 2020 demonstrated that now the benefits of doing this exceed the costs?


As already indicated, Christakis stresses that "public health decisions always involve difficult, utilitarian trade-offs between benefits and costs."  Remarkably, however, Christakis never shows that any of the people who initiated the COVID-19 lockdowns had actually worked through any precise cost-benefit analysis to justify this.  Christakis himself presents his own cost-benefit analysis in one paragraph of his book, but it's hard to understand his calculations.

As Christakis suggests, the first mandatory pandemic lockdown in history occurred in China last January in response to the outbreak of the coronavirus in Wuhan.  A six-member team of Chinese epidemiologists and physicians advised the Chinese government to impose "closed-off management," using the sort of social control that had originally been developed by Mao Zedong (9).  Christakis does not indicate that anyone in this team or anyone else in China had actually calculated the "utilitarian trade-offs between benefits and costs" to support this recommendation.

Similarly, Christakis reports that on March 13, 2020, Dr. Anthony Fauci had publicly stated that a "national lockdown" might be necessary in the United States (90).  But, once again, there is no evidence that Fauci or anyone else in the CDC had worked through a cost-benefit analysis to justify this.

Christakis indicates that the CDC "released the aptly titled report 'Community Mitigation Guidelines to Prevent Pandemic Influenza--United States, 2017' three years prior to the pandemic.  It was full of sound advice that had been offered for decades" (96).  

Christakis does not tell his reader, however, that in the 2017 CDC guidelines for a "Very High Severity" pandemic (comparable to the Spanish Flu), the guidelines provide only that "CDC recommends voluntary home isolation of ill persons," and "CDC might recommend voluntary home quarantine of exposed household members in areas where novel influenza circulates."  Notice the word voluntary.  And notice that nothing like statewide lockdowns is recommended in this document.  Nothing is said about closing "non-essential businesses."  (I have written about this here and here.)

Here is the one paragraph in which Christakis presents his own cost-benefit analysis to justify lockdowns:

"These sorts of demographic calculations also allow us to benchmark the financial benefits of saving lives against the financial costs of shutting down the American economy during the development of the NPIs.  By using a standard benchmark of five hundred thousand dollars as the economic value of a year of life (or ten million dollars per life, regardless of age), we can estimate the one million coronavirus deaths (at the rough age distribution at which they occur) would be worth about six trillion dollars.  Even at the highest end of a range of estimates of the consequences to our economy, including the expenditures by our government, we do not reach that sum.  Strictly from an economic perspective, our response was commensurate to the threat posed by the pathogen.  It's a bad virus" (304-305).

Christakis here seems to be relying totally on an article by Joshua Goldstein and Ronald Lee (2020).  And in turn Goldstein and Lee seem to be relying on estimates made by W. Kip Viscusi (2020) in a blog post.  Viscusi estimates the value of a statistical life (VSL) as $10 million, based on estimates of the extra wages that workers would demand for increased risk of dying at work.  If a worker receives extra pay of $1,000 to face a risk of 1/10,000 that he will die at work, the VSL is $1,000(1/10,000) = $10 million.  Viscusi then estimates that if a U.S. COVID-19 lockdown saves 1 million lives, the economic value of these benefits would be $10 million times 1 million lives--$10 trillion.  Goldstein and Lee estimate the value of these benefits as ranging from $6 trillion to $10 trillion.  Christakis apparently has chosen to go with the lower estimate--$6 trillion.

How exactly do we derive the number of 1 million lives saved by the governmental lockdowns of society?  And how exactly do we calculate the costs of the lockdowns, so that we know for sure that the costs are less than the benefits? 

Elsewhere in his book, Christakis says that the lockdown in the U.S. in the spring of 2020 "may have prevented sixty million cases and probably more than three hundred thousand deaths during the acute shock of the first wave of the pandemic" (94).  But in another passage, he says that without the lockdown, "it is possible that over a million Americans would have died in the first few months of the pandemic" (91).  So which is it--300,000 or 1 million?

Christakis also points to the prediction "that one million people will die from COVID-19 by the time the pandemic is over in the United States after several waves (which is not inconceivable)" (303).  So is he suggesting that without any lockdowns in the spring, the U.S. COVID-19 death toll would have reached over 2 million?  If so, where did he get this number?  One possibility is that he is relying on Neil Ferguson's prediction that if there were no mitigation efforts at all, over 2 million Americans would die in the pandemic.  Apparently, Ferguson derived this number by assuming that COVID-19 would be as deadly as the flu of 1918; and adjusting for population growth, 675,000 deaths in the U.S. in 1918 would correspond to over 2 million deaths in 2020.  But as Christakis indicates, COVID-19 is not as deadly as the 1918 flu (304).

Another mistake in Ferguson's estimate is that he assumes that people will not voluntarily change their behavior to protect against the virus.  As Christakis observes, there is plenty of evidence that people were voluntarily reducing their social and economic activity two to three weeks before the mandatory lockdowns started (19-20, 90, 133-35, 284).  He writes: "people themselves knew what to do, notwithstanding the failures or successes of their country's responses.  People began to physically distance before being told or ordered to do so" (135).  Consequently, most if not all of the reduction in death rates in the spring could have been caused not by the mandatory lockdowns but by the voluntary mitigation behavior.  Christakis does not consider this possibility.

Another problem in the paragraph quoted above is that Christakis does not factor in all of the costs of the lockdowns that he mentions elsewhere in the book.  Christakis identifies many "medical, social, and economic costs"--including increasing rates of depression, suicide, and homicide, and harm to children who fall behind in their education (94, 100, 120-21).  Poverty is deadly, and the global depression provoked by lockdowns could well create famines in which millions of people will die.

Moreover, it's the poorer and weaker members of society who bear most of these costs.  "Affluent people are able to protect their health and livelihood more effectively than others.  Remember that wealthy people have been fleeing to their country homes to avoid plague for thousands of years" (179).  So why should we trust the rich and powerful people to impartially make the calculus of costs and benefits of lockdowns when most of the costs will be suffered by the poor and the weak?

Another problem with Christakis' cost-benefit analysis of lockdowns is that he admits that lockdowns are not sustainable--they must be lifted after two or three months, and then the virus will return (11).  He writes:

"In early May 2020, as the United States began to ease the non-pharmaceutical intervention, Thomas Frieden, the former director of the CDC, observed, 'We're reopening based on politics, ideology, and public pressure.  And I think it's going to end badly.'  It is one thing to determine what the epidemiology of the situation demands but conclude that the economics countermands it or that the public has had enough, but it is quite another thing to ignore the epidemiology and pretend that nothing bad is going to happen" (319).

Well, if "the epidemiology of the situation demands" a prolonged hard lockdown (a year or more?) until a vaccine is available for everyone, then why not do that?  Why lift lockdowns if that means that more people will die?  Presumably, the answer is that any lockdown of more than two or three months is too costly--the human harms exceed the human benefits.

Now, in the fall, we have seen higher COVID-19 numbers--infection rates and death rates--than we saw in the spring.  So why shouldn't we reimpose hard lockdowns?  In recent weeks, some U.S. governors and national leaders in Europe have ordered new restrictions, but these new orders are noticeably softer than what was done in the spring. If hard lockdowns now are too costly to be justified, then why doesn't this mean that the hard lockdowns in the spring were also too costly?

Although Christakis did not intend to do so, his book makes clear to any careful reader the logical incoherence of the argument for COVID-19 lockdowns.


Aimone, Francesco. 2010. "The 1918 Influenza Epidemic in New York City: A Review of the Public Health Response." Public Health Reports 125: 71-79.

Bootsma, M. C. J., and Neil Ferguson. 2007. "The Effect of Public Health Measures on the 1918 Influenza Pandemic in U.S. Cities."  Proceedings of the National Academy of Sciences 104: 7588-7593.

Christakis, Nicholas. 2020. Apollo's Arrow: The Profound and Enduring Impact of Coronavirus on the Way We Live. New York: Little, Brown Spark.

Ferguson, Neil. 2020.  "Impact of Non-pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand." London: Imperial College COVID-19 Response Team, March 16.

Goldstein, Joshua, and Ronald Lee. 2020. "Demographic Perspectives on Mortality of COVID-19 and Other Epidemics." Cambridge, MA: National Bureau of Economic Research, April.

Markel, H., et al. 2007. "Non-Pharmaceutical Interventions Implemented by U.S. Cities during the 1918-1919 Influenza Pandemic." JAMA 298: 644-654.

Viscusi, W. Kip. 2010. "Pricing the Lives Saved by Coronavirus Policies." National Economic Education Delegation Blog. April 8.

Monday, November 16, 2020

Governor Whitmer's New Lockdown Orders Are Unconstitutional

In October, I wrote about the decision of the Michigan Supreme Court striking down Governor Gretchen Whitmer's coronavirus lockdown orders as unconstitutional.  Now the Governor has issued new lockdown orders that can be recognized as unconstitutional if one applies the same reasoning as the Court employed in the previous case.

In that earlier case, the Court declared that the Emergency Powers of the Governor Act (EPGA) of 1945 was an unconstitutional violation of the Lockean nondelegation doctrine--under the principle of the separation of powers, the legislature cannot delegate its lawmaking power to any other branch of the government, because that would create an arbitrary, absolute power to violate the rights of the people unconstrained by the rule of law.

In writing the opinion for the majority on the Court, Justice Markman warned:

"almost certainly, no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconveniences of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion" (47).

Although the Governor's new lockdown orders are somewhat less severe than those issued last spring, they still display "concentrated and standardless power to regulate the lives of our people."  

Under this order, for the next three weeks, the following kinds of gatherings are prohibited: high schools (in-person learning), colleges and universities (in-person learning), workplaces (when work can be done from home), restaurants and bars (indoor dining), organized sports (except professional sports), theaters, stadiums, arenas, bowling centers, ice skating rinks, indoor water parks, bingo halls, casinos, arcades, and group fitness classes.  Indoor gatherings are prohibited at non-residential venues, which presumably would include indoor worship services.  Indoor gatherings at residential venues must not be more than 10 persons from no more than 2 households. 

Violation of this order is a misdemeanor punishable by imprisonment for up to 6 months, or a fine of not more than $200, or both.

So how does the Governor evade the Supreme Court ruling against her?  She thinks she has found a loophole in the opinion written by Judge Viviano, who said that most of what she wanted to do in her lockdown order could have been done under the authority of a public health law passed by the legislature in 1919 (in response to the flu pandemic of 1918).  One section of that act addresses public meetings:

"In case of an epidemic of any infectious or dangerous communicable disease within this state or any community thereof, the state health commissioner may, if he deem it necessary to protect the public health, forbid the holding of public meetings of any nature whatsoever except church services which may be restricted as to number in attendance at one time, in said community, or may limit the right to hold such meetings in his discretion.  Such action shall not be taken, however, without the consent and approval of the advisory council of health. . . . Such order shall be signed by the health commissioner and if applicable to the entire state be countersigned by the governor."

The State Health Commissioner is also "authorized to establish a system of quarantine for the state of Michigan and the governor shall have authority to order the state militia to any section of the state on request of the state board of health to enforce such quarantine."

Notice that the legislature has not provided any clear definite standard limiting administrative power here.  The only suggestion of a standard is that the commissioner can act at his own discretion "if he deem it necessary to protect public health."  

This language is just as vague as the language of the EPGA, which the Supreme Court declared unconstitutional.  The EPGA says: "After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control."  The Court declared--in Justice Markman's opinion--that this language did not provide a proper standard: "the EPGA, in setting forth a 'necessary' standard, just as in setting forth a 'reasonable' standard, neither supplies genuine guidance to the Governor as to how to exercise the authority delegated to her by the EPGA nor constrains her actions in any meaningful manner" (33).

If the EPGA is an unconstitutional delegation of legislative power to the Governor, then, for similar reasons, the 1919 health law is an unconstitutional delegation of legislative power to the State Health Commissioner.  I will be interested to see if the Michigan Supreme Court agrees with this.

In the meantime, there is talk among Michigan legislators today about impeaching the Governor, which is the ultimate check on the Governor's abuse of power.

Actually, though, the ultimate check on the Governor's power is the refusal of the people to obey her order.

Friday, November 13, 2020

Evidence and Legal Argument in Trump's Voting Fraud Lawsuits in Pennsylvania and Michigan

         Videos of the Mob Scene of Poll Watchers at the TCF Center Ballot Counting Center in Detroit

On Tuesday night, Ronna McDaniel, Chair of the Republican National Committee, told FOX News commentator Sean Hannity that she had 500 sworn affidavits alleging over 11,000 incidents of voter fraud organized by the Democratic Party to throw the presidential election to Joe Biden.

At the same time, The New York Times published an article reporting that they had contacted the top state-wide election officials in 49 states--Texas did not respond--and none of them said that there had been widespread voter fraud.  Some of these officials were Republicans who disagreed with Trump's claims about fraud.

So what's going on here?  Perhaps the best way to assess the evidence and legal arguments is to look at the lawsuits filed by Trump to see how persuasive they are.  I have studied three of the recent lawsuits--two in Pennsylvania and one in Michigan--in the effort to understand the strategy of Trump's lawyers and whether it has any chance of success.

My general conclusion is that the logical arguments in these lawsuits are incoherent, and the factual arguments are implausible.  The logical arguments are incoherent because they are both self-contradictory and contradictory of what Trump has claimed.  The factual arguments are implausible because the testimonial evidence for fraudulent voting and vote counting consists of vague and unsubstantiated rumors and reports of what some people think they saw or heard.


On November 5, Trump's lawyers filed a petition in the Court of Common Pleas of Montgomery County, Pennsylvania, objecting to the counting of 562 absentee and mail-in ballots cast in that country.  Oral argument occurred on November 10.

Republican challengers had objected that the Board of Elections was "canvassing and counting absentee and mail-in ballots for which the outer declaration envelope is not completely filled in with the elector's signature, address and/or date of execution," as required by state election law.  The petitioners said that this "is based on a clear error of law and must be reversed."

No one knows whether these contested ballots are from predominantly Democratic or Republican voters.  But we do know that whether or not these 592 ballots are counted will make no difference in the outcome of the election, because Biden is ahead in Montgomery County by over 130,000 votes, and he's ahead in the state by over 46,000 votes, and perhaps ultimately over 100,000 votes.  

This is a recurrent problem with all of the Trump lawsuits--the number of votes they are contesting is always far too low to make any difference.  That's what distinguishes this election and the election of 2000.  In 2000, Al Gore lost the election by losing Florida by less than 500 votes, when the U.S. Supreme Court ordered the vote count stopped.  In 2000, a few hundred votes decided the presidential election.  That is not the case this year, in which Biden has carried his states with  much larger margins, and across the country he has won the popular vote by over 5 million votes.

What is also remarkable about this case in Pennsylvania is that in the oral argument, under questioning from the Judge Richard Haaz, Trump's lawyer--Jonathan Goldstein--was forced to admit that they were not charging anyone with fraudulent behavior, which denies Trump's insistence that the Democrats organized a conspiracy to steal the election.

If you go to page 11 of the oral argument transcript, you will see this exchange:

"THE COURT:  In your petition, which is right before me--and I read it several times--you don't claim that any electors or the Board of the County were guilty of fraud, correct?  That's correct?"

"MR. GOLDSTEIN:  Your Honor, accusing people of fraud is a pretty big step.  And it is rare that I call somebody a liar, and I am not called the Board or the DNC or anybody else involved in this a liar.  Everybody is coming to this with good faith.  The DNC is coming with good faith.  We're all just trying to get an election done.  We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not to be counted." 

"THE COURT: I understand.  I am asking you a specific question, and I am looking for a specific answer.  Are you claiming that there is any fraud in connection with these 592 disputed ballots?"

"MR. GOLDSTEIN: To my knowledge at present, no."

"THE COURT: Are you claiming that there were improper influence upon the elector to these 592 ballots?"

"MR. GOLDSTEIN: To my knowledge at present, no."

Yesterday, in Arizona, another Trump lawyer contradicted Trump's claims about fraud.  On Saturday, Trump's lawyers filed a lawsuit alleging widespread fraud by poll workers in Maricopa County.  But yesterday, at the beginning of a six-hour court hearing, Trump's lawyer Kory Langhofer began his opening statement by saying that the plaintiffs were "not alleging fraud" or "that anyone is stealing the election," because they are only raising  concerns about a "limited number of cases" involving "good faith errors."  This is what I mean by the logical incoherence of the Trump lawsuits: his lawyers begin by repeating Trump's claims about fraudulent voting, but then they often are forced to deny this, even as they contradict Trump.

The Arizona case also illustrates what I mean by the implausibility of the factual evidence supporting the Trump lawsuits.  In Arizona, Trump's lawyers submitted evidence collected online from Arizona voters.  But then the lawyers admitted that many of these online declarations were false.  Judge Daniel Kiley remarked: "The fact that your process for obtaining these affidavits yielded affidavits that you yourself found to be false does not support a finding that this process generates reliable evidence."

In other Pennsylvania cases, however, the Trump lawyers have tried to press the charge of fraudulent vote counting by Democrats.  When the counting of mail-in ballots in Pennsylvania erased Trump's early lead and pushed Biden ahead, Trump's lawyers asked a federal judge to stop the vote counting in Philadelphia, because they claimed that Republican observers were being denied access to the Philadelphia Convention Center where the votes were being counted.  But then under questioning from Judge Paul Diamond, one of Trump's lawyers admitted that Trump had "a nonzero number of people in the room" where the counting was occurring.  To which Diamond responded: "I'm sorry, then what's your problem?"  (Diamond was appointed by President George W. Bush.)  Diamond then made a deal for 60 observers from each party to be allowed inside the convention center.

Then, a few days later, Trump's lawyers filed a lawsuit in the U.S. District Court for the Middle District of Pennsylvania--Donald J. Trump for President Inc. v. Kathy Boockvar.  Boockvar is the Pennsylvania Secretary of State.  Seven Pennsylvania county boards of election are also named in the suit as defendants.

In October of 2019, the Pennsylvania legislature passed Act 77, which allowed, for the first time in the history of Pennsylvania, voters to choose to vote by mail, rather than in person on election day, without having to provide any reason or excuse.  The primary constitutional argument of Trump's lawyers in this lawsuit is that this created "an illegal two-tiered voting system for the 2020 General Election, devaluing in-person votes" (par. 13); and since it is easier to cast a fraudulent ballot by mail-in voting than by in-person voting, this debased or diluted the votes of those who voted in person, which violates the Equal Protection clause of the 14th Amendment. Trump's lawyers rely on the declaration in the U.S. Supreme Court's Bush v. Gore (2000) decision that "having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another" (par. 205). 

For many reasons, this argument is ridiculous.  First of all, there is no violation of Equal Protection when voters have the freedom to choose whether they want to vote in person or by mail.  And no court has ever ruled otherwise.

Second, the legal doctrine of "laches" applies here--someone cannot claim a right if they have shown an unreasonable delay in making the claim.  In this case, Trump and the Republican Party had a full year after the passing of Act 77 to challenge its constitutionality.  Clearly, they waited until the election was over, and they could see that the mail-in ballots favored Biden over Trump, and only then did they decide that this was unconstitutional.

The third problem with this legal argument is that it would require overturning the outcome in all of those states that allow mail-in voting, including the states won by Trump. It is hard to believe that judges would want to do that.

The factual allegations in this Pennsylvania lawsuit are supported by "reports of voters"--usually unnamed--who claim to have seen or heard about illegal voting or vote counting.  Once one looks into these "reports," they turn out to be highly dubious.  Here's one example as stated in the lawsuit:

"126.  Mail carriers have noted significant anomalies related to the delivery of mail-in ballots.  A mail carrier for the USPS in Erie County has noted that during the course of the General Election mail-in ballot delivery period there were multiple instances in which dozens of mail-in ballots were addressed to single addresses, each ballot being in a different name.  Based on the carrier's experience delivering mail to those addresses, the carrier is aware that the people whose names were on the ballots are not names of people who live at those addresses.  In addition, ballots were mailed to vacant houses, vacation homes, empty lots, and to addresses that do not exist."

"127.  It has been reported by Project Veritas, in a release on November 5, 2020, that carriers were told to collect, separate and deliver all mail-in ballots directly to the supervisor.  In addition, Plaintiffs have information that the purpose of that process was for the supervisor to hand stamp the mail-in ballots."

Although "mail carriers" is plural, apparently this report comes from only one mail carrier in Erie--Richard Hopkins.  It was an affidavit written by Project Veritas and signed by Hopkins that prompted Senator Lindsey Graham to call for the Justice Department to investigate the postal service in Pennsylvania as possibly part of a Democratic conspiracy for fraudulent vote counting favoring Biden.

Hopkins has claimed that after Election Day on November 3, mail carriers in Erie were still picking up mail-in ballots from their customers on November 4-6.  By Pennsylvania law, mail-in ballots must be postmarked no later than November 3 to be counted as legal ballots.  So the ballots the mail carriers picked up after November 3 should not have been counted.  Hopkins has said, however, that the mail carriers in Erie were told by their supervisors that "every vote counts," and that every ballot they picked up on November 4-6 should be separated from the other mail and delivered directly to their supervisor.  Hopkins says he found this suspicious, and he became even more suspicious when he overhead two supervisors talk about "backdating" ballots to November 3.  

But then earlier this week, Hopkins was questioned by investigators from USPS, and he apparently recanted the affidavit prepared by Project Veritas and signed a revised affidavit, saying that he had not heard a supervisor use the word "backdate," and that he had heard only snippets of a conversation that were not clear to him. Oddly, when it was reported that he had recanted his earlier statement, he appeared in a video made by Project Veritas saying that this was a lie--that he had not recanted.  And later he said that the postal investigators had "played" him.  Project Veritas said that he had been coerced into signing the new affidavit. 

It then turned out that Hopkins had audiotaped two hours of the interview with the postal investigators, which is held by Project Veritas, and which can be found through a link in the Washington Post story above.  (Yes, I know, this has become a weirdly complicated story!)  If you listen to the interview, as I have, you will hear the investigators repeatedly tell Hopkins that the interview was voluntary--that he could refuse to talk with them and just walk away.  They carefully question him about exactly what words he heard from his supervisors.  And it becomes clear that he did not actually hear anyone talk about "backdating" the postmarks on ballots to November 3.  This definitely denies the claim in the Project Veritas affidavit that he had heard the postmaster tell a colleague on November 5 that the postmaster was "backdating the postmarks on the ballots to make it appear as though the ballots had been collected" on Election Day instead of the day after.

And yet, even if Hopkins did not directly hear talk about "backdating the postmarks," it does seem suspicious if the mail carriers in Erie were told to deliver the ballots collected after Election Day to their supervisors, separated from the other mail.  If other mail carriers were to corroborate this, it would be worth investigating.

A few days ago, the Erie Times-News reported their review of the 129 mail-in ballot envelopes that were postmarked November 3 but arrived at the Erie County Board of Elections after Election Day.  Of those 129 ballots, only two were processed through the Erie postal facility.  All the others were processed through the Pittsburgh facility or other postal facilities around the country.  People registered to vote in Erie County were sending in ballots from across the country where they had travelled on Election Day.  Moreover, the newspaper found that nine late ballots processed in Erie were postmarked November 4 or later.

So we are left with two possibilities.  Either Hopkins' story about "backdating the postmarks" in Erie is incorrect.  Or it is correct, but the postal conspirators who did this were very ineffective, because they got only two fraudulent ballots counted.

Again, my general point is that this illustrates how the factual evidence of fraud cited in the Trump lawsuits is highly dubious.

By the way, Biden won in Erie County by a slim 1,424-vote margin out of more than 138,000 votes cast, which was a 10% jump in turnout from 2016.  In Erie County, registered Democrats outnumber Republicans 99,000 to 75,000.  Trump carried the county in 2016 by less than 2,000 votes.  Based on interviews of voters in Erie County, the Wall Street Journal concluded that some of the white working class voters who voted for Trump in 2016 voted for Biden this year, although they still favor Trump's conservative policies, and they oppose the extreme leftist or socialist policies of some Democratic leaders: "In short, these voters say they soured on Trump, the man, rather than Trump policies."

This confirms my argument that the great weakness of Trump's Republican Party is not their conservative policies but the bad character of Donald Trump, which drives away voters who like the policies.  The moral character of the President really does matter.  Joe Biden was shrewd in recognizing that.  The Republicans who apologize for, or try to overlook, Trump's bad character have made a big mistake.

Notice also the incoherence in the argument of Republicans that the ballots with votes for Biden were fraudulent.   Many of those ballots for Biden were also ballots for Republicans who won their elections, because many voters wanted to remove Trump while keeping Republicans in Congress.  If the Republicans want to condemn Biden's victory as fraudulent, they must also condemn their own congressional victories as fraudulent.  Isn't it strange that the Democratic strategy was to rig the election to fraudulently elect Biden, while also fraudulently electing Republicans to Congress?  This makes no sense at all.

I have just learned this morning (Friday) that the law firm representing Trump in this Pennsylvania lawsuit--Porter Wright Morris and Arthur--has announced that they are withdrawing from this case.  They give no reason for doing this.  Can we assume that the legal reasoning in this case is so preposterous that it has become embarrassing for the firm?


On Tuesday, Trump's lawyers filed a lawsuit in the U.S. District Court for the Western District of Michigan--Donald J. Trump for President Inc. v. Jocelyn Benson.  Benson is the Michigan Secretary of State.  The lawsuit is directly against the counting of votes in Wayne County (Detroit), where Biden built up a big margin of victory--about 320,000 votes--which contributed to his state-wide margin of about 145,000 votes over Trump.  In 2016, Trump won Michigan by about 11,000 votes.

As in the Pennsylvania case, the general constitutional claim by the Trump lawyers in this Michigan lawsuit is that the counting of fraudulent ballots violated the Equal Protection clause of the 14th Amendment, because "a fraudulent ballot, if counted, disenfranchises a lawful voter."

Specifically, the claim is that "election officials in Wayne County refused to permit statutorily designated challengers to observe the conduct of the election and the processing of ballots."  And since the Republican Party challengers were prohibited from observing what was happening in the processing of ballots, the election officials were free to count fraudulent ballots.  The Trump lawyers then provide testimony from the affidavits of Republican Party challengers who report the illegal vote counting that they observed.

Notice the obvious contradiction in their argument here.  On the one hand, they say the Republican Party challengers were prohibited from observing what was happening.  On the other hand, they report the illegal activity observed by the challengers.

At some points in the complaint, Trump's lawyers concede that some Republican challengers were allowed to observe, but not as many as Democratic challengers.

The problem here is that the vote tally room at the TCF Center in Detroit became chaotic, as you can see in the videos at the top of this post, and as has been reported in the Detroit Free Press.  The word went out on the Internet for Trump supporters to "go to the TCF."  Hundreds of people surrounded the building, demanding to be let in.  Once maximum capacity was reached inside the building--where "social distancing" was being enforced--election officials had to close the doors.  The Trump supporters outside were pounding on the windows and chanting "stop the count."

Under election rules, each group contesting the vote is allowed to have 134 challengers observe the counting process.  According to reporters for the Detroit Free Press, on Wednesday night, the day after the election, there were 400 challengers inside the counting room, which included 134 Republican challengers, 134 Democratic challengers, and 134 nonpartisan challengers.  Trump's lawyers offer no evidence that these numbers are incorrect.

Trump's lawyers say that "many challengers testified that their challenges to ballots were ignored and disregarded" (par. 40), which apparently concedes that there were many Republican challengers in the counting room.

It's hard to judge the credibility of some of the affidavits cited by Trump's lawyers.  In particular, a woman named Articia Bomer is repeatedly quoted.  Bomer stated: "I witnessed election workers open ballots with Donald Trump votes and respond by rolling their eyes and showing it to other poll workers.  I believe some of those ballots may not have been properly counted" (par 41).  Bomer also stated: "I observed a station where election workers were working on scanned ballots that had issues that needed to be manually corrected.  I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates" (par. 45).  What's the significance of her distinction between "I observed" and "I believe"?  Could her testimony be corroborated by others?  With 400 challengers roaming the room, shouldn't there be many people corroborating this?  Importantly, have the nonpartisan challengers reported anything like what she reported?

If I am right about the weaknesses in the Trump lawsuits--the incoherence of the legal arguments and the implausibility of the factual arguments--then we can expect to see the judges dismissing these lawsuits as frivolous.  This will probably happen by the end of next week--November 20.

Then the question is what is Trump's next move?  Since Republicans control the state legislatures in some of the swing states, will Trump ask these Republican legislators to overturn the popular vote victory for Biden in their states and appoint a slate of Trump electors to the Electoral College?  Would the Republicans allow Trump to do that?


Federal District Court Judge Matthew Brann issued his decision in the Pennsylvania case--Donald Trump v. Kathy Boockvar, et al.--on November 21.  As I expected, it was a scathing condemnation of the arguments made by Trump's lawyers.  Here's the Introduction:

"In this action, the Trump Campaign and the Individual Plaintiffs . . . seek to discard millions of votes legally cast by Pennsylvanians from all corners . . . . In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated.  One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens."

"That has not happened.  Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.  In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.  Our people, laws, and institutions demand more.  At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted.  Therefore, I grant Defendants' motions and dismiss Plaintiffs' action with prejudice."

Now, today (Friday, November 27), we have the decision of the U.S. Court of Appeals for the Third Circuit rejecting the appeal of Judge Brann's decision by the Trump campaign.  Judge Stephanos Bibas wrote the opinion for the panel, which included Chief Judge D. Brooks Smith and Judge Michael A. Chagares.  The opinion begins: "Free, fair elections are the lifeblood of our democracy.  Charges of unfairness are serious.  But calling an election unfair does not make it so.  Charges require specific allegations and then proof.  We have neither here." Their decision is blunt: "The Campaign's claims have no merit."

What is remarkable about this decision is that all three of the judges in this case were appointed by Republican presidents.  Judges Smith and Chagares were appointed by President George W. Bush.  Judge Bibas was one of President Trump's first appointees to the federal appellate bench.  Judge Bibas is regarded as extremely conservative.  When he was a law professor at the University of Pennsylvania Law School, he taught a seminar on conservative thought with Professor Amy Wax.  He has been a regular speaker at Federalist Society events.

If the evidence for fraudulent voting is as clear as Trump says it is, why are his lawyers failing to persuade any federal judges--not even conservative judges appointed by Trump himself with the recommendation of the Federalist Society?

Trump's people have said they want to appeal this case--and the others they have lost--to reach the U.S. Supreme Court.  But if you read the decisions in these cases, you will see that their scathing refutation of Trump's case is so devastating that it's hard to see why the U.S. Supreme Court would take up the cases on appeal.