Traditionalist conservatives and classical liberals need Charles Darwin. They need him because a Darwinian science of human nature supports Burkean conservatives and Lockean liberals in their realist view of human imperfectibility, and in their commitment to ordered liberty as rooted in natural desires, cultural traditions, and prudential judgments. Arnhart's email address is larnhart1@niu.edu.
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.
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 (here, here, 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?
LOCKDOWNS WITHOUT PRECEDENT
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?
THE UTILITARIAN CALCULUS OF COST-BENEFIT ANALYSIS
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.
REFERENCES
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.
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.
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.
PENNSYLVANIA
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 reportedtheir 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?
MICHIGAN
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?
ADDENDUM
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.
A 9,000-year-old Burial of 17-19 Year-old Woman with a Hunting Toolkit
An Artistic Rendering of the Female Hunter (WMP6) Using an Atlatl to Hunt Vicunas in the Andean Highlands of Peru
A Vicuna in the Andean Highlands of Chile
In 1966, some 75 scholars who studied the hunting and gathering peoples of the world gathered at the University of Chicago for a conference on "Man the Hunter" (Lee and DeVore 1968). It was generally agreed that one of the most prominent features of hunter-gatherer life was the sexual division of labor in the provisioning of food in which men hunted large animals and women gathered plants and small animals.
The subsequent studies of hunter-gatherers have largely confirmed this, as Robert Kelly (2013) has indicated in his survey of the research. The investment that women typically make in pregnancy, breastfeeding, and childcare is usually incompatible with hunting large game. For women the gathering of plant foods is more compatible with caring for children. And insofar as this has been true for most of human evolutionary history as hunter-gatherers, this has shaped the evolved human mind so that men and women on average differ in their typical temperaments and propensities. This supports my claim about there being an evolved natural desire for sexual identity: human beings generally desire to identify themselves as male or female, and there are some psychological differences between typical males and typical females. But despite these sex differences on average, there is a lot of individual variation. So, as Kelly observes, there are quite a few individual cases in hunter-gatherer societies of women becoming hunters, particularly when the hunting does not interfere with childcare. (I have written a previous post on Kelly's book.)
Now, this week, we have a new report by Randall Haas and his colleagues of an archaeological discovery that appears to be evidence for women being big-game hunters in the hunter-gatherer societies of ancient South America (Haas et al. 2020). The New York Times has a good article on this (Gorman 2020).
Here is the abstract:
"Sexual division of labor with females as gatherers and males as hunters is a major empirical regularity of hunter-gatherer ethnography, suggesting an ancestral behavioral pattern. We present an archaeological discovery and meta-analysis that challenge the man-the-hunter hypothesis. Excavations at the Andean highland site of Wilamaya Patjxa reveal a 9000-year-old human burial (WMP6) associated with a hunting toolkit of stone projectile points and animal processing tools. Osteological, proteomic, and isotopic analyses indicate that this early hunter was a young adult female who subsisted on terrestrial plants and animals. Analysis of Late Pleistocene and Early Holocene burial practices throughout the Americas situate WMP6 as the earliest and most secure hunter burial in a sample that includes 10 other females in statistical parity with early male hunter burials. The findings are consistent with nongendered labor practices in which early hunter-gatherer females were big-game hunters."
There are three steps in their reasoning to support their general conclusion that "early hunter-gatherer females were big-game hunters." The first step is to argue that while the ethnographic record shows that big-game hunting has been indeed a predominantly male activity among recent hunter-gatherer societies, this does not prove that this was true for ancient prehistoric hunter-gatherer societies. The second step is to describe their archaeological discovery of WMP6's burial as showing one clear case of an ancient hunter-gatherer female who was a big-game hunter. The third step is to claim that this one case is part of a general behavioral pattern that can be seen by surveying the evidence of Late Pleistocene and Early Holocene burials across the Americas.
In their first step, Haas and his colleagues agree with Kelly's assertion that the hunter-gatherers studied by ethnographers "are not humanity in a state of nature; they are not Pleistocene relics; we cannot, as E. O. Wilson (1978) suggested, reconstruct ancient human society by extrapolation backward from living hunter-gatherers" (2013, xv). Kelly gives two reasons for this. First, living hunter-gatherers have been influenced by the modern social and economic conditions in which they have lived, which must make them different from ancient hunter-gatherers who lived in ancient conditions. Second, living hunter-gatherer societies are so variable that they cannot provide a universal pattern of hunter-gatherer life.
Nevertheless, Kelly does think that the ethnographic record shows at least one feature of living hunter-gatherer societies that can be projected back into the ancient past--"men hunt while women gather." There is a good theoretical justification for this, Kelly observes, because "the division of labor is rooted in fundamental biological differences between men and women and the incompatibility of children with hunting" (2013, 274). If we have correctly identified these causes for the sexual division of labor among living hunter-gatherers, and if we can reasonably assume that the same causes were at work among ancient hunter-gatherers, then we can infer that the division between man the hunter and woman the gatherer that we see among modern foragers is a model for what we should expect for ancient foragers.
If ancient foragers had two ways of provisioning food--gathering wild plants and hunting wild animals--and if the female biology for bearing and rearing children was more compatible with gathering than with hunting, then we can infer that women in general were more inclined to gathering than to hunting.
It is true, however, as Haas and his colleagues indicate, that there are some circumstances in which women can mitigate the conflict between child care and hunting. Mothers can find people (such as grandmothers or other relatives) to help with the caring of their children. Mothers can also join in communal hunting in which even young children can participate. Moreover, those women who are not bearing and caring for children might choose to become hunters, even big-game hunters, if they have the skills and temperament for hunting. This all suggests that we should find some cases of female hunting, even though the general pattern will be a sexual division of labor with women gathering and men hunting.
In fact, Haas and his colleagues have provided us what looks like one clear case of an ancient female hunter. In 2018, Haas's team excavated an archaeological site called Wilamaya Patjxa in the Andean highlands of southern Peru at an elevation of 12,877 feet. They found five human burial pits with six individuals. Two of these individuals were associated with projectile points from the Early Holocene (beginning around 12,000 to 11,500 years ago).
One of these two individuals--the Wilamayo Patjxa individual 6 (WMP6)--was identified as a 17-19 year old woman, which was determined by studies of her bones and tooth enamel protein. She was associated with stones that were identified as an integrated toolkit for hunting. There were stone projectile points that could have been used to kill big game. There were other stones that could have been used for dressing the game and red ochre nodules for tanning hides. There were some mammal bone fragments that could have been from one of the species endemic to the Andean highlands--vicuna (a relative of llamas) or taruca (a species of deer). As depicted in their artistic rendering of WMP6 hunting, Haas's team speculated that she used an atlatl made from a camelid radioulna bone to throw a spear at a vicuna. However, there is nothing that looks like an atlatl at the burial site. (I have a post on the evolution of the atlatl.)
And yet, even if one agrees that this is good evidence for identifying WMP6 as a female hunter of big game animals, one must then ask whether this is only one isolated case or part of a general behavioral pattern. To find the evidence for a general pattern of female hunting, Haas's team reviewed the reports of Late Pleistocene and Early Holocene burials in the Americas. They identified 429 individuals from 107 sites. They found 27 individuals from 18 sites who were associated with big-game hunting tools. Of theses, 11 of the individuals from 10 sites were identified as female, and 16 individuals from 15 sites were identified as male. They see this distribution--11 female hunters and 16 male hunters--as "statistical parity" between males and females in hunting behavior, which supports "the hypothesis of non-gendered big-game hunting among early populations."
This step in their argument has been identified by their critics as the weakest part of their reasoning. Notice that Haas and his colleagues have to assume that in ancient burials, "the objects that accompany people in death tend to be those that accompany them in life" (Haas et al. 2020, 5). So if individuals are buried with hunting tools, that proves that they were hunters. Robert Kelly, Ben Potter, and others challenge this assumption: that individuals were buried with hunting tools does not directly prove that they were hunters. Burial goods are symbolic offerings from the living to the dead, and the interpretations of their meaning are often ambiguous.
This problem is particularly clear in the case of the two female individuals buried at the Upward Sun River site in Alaska (dated to around 11,500 years ago), which has been studied by Potter and his colleagues (2014). One individual was estimated to have died a few weeks after birth, and the other was identified as a late-term fetus. Four antler rods, two large dart points, and a third biface lithic tool were found associated with these two individuals. Potter's team observes: "The presence of the hafted points may reflect the importance of hunting implements in the burial ceremony at USR and within the population as a whole" (17064). Potter's team does not see this as evidence that females were hunters in this ancient population of hunter-gatherers. But Haas and his colleagues, in their online Supplement to their article, write: "The Upward Sun River females are both infants and thus were not hunters per se, although they appear to have been gendered in a way that recognized females as being associated with big game hunting." So although these infants were not hunters, burying them with hunting tools was a symbolic ritual statement that they could have become hunters if they had lived to adulthood! Potter disagrees. In an email message to me, he wrote: "I think the most parsimonious and plausible interpretation of the hunting implements in the infants' grave is that they represent symbolic 'sacrifices' of perfectly usable hunting weapons by the father(s)."
There is another closely related problem here that Haas's team makes clear in their online Supplement but not in their article. In determining whether females were buried with big-game hunting tools, they distinguish "secure" evidence and "tentative" evidence. They also distinguish between "securely associated with big game hunting tools" and "securely identified as a big-game hunter burial." There are "secure cases in which context, sex, and date estimates are each determined to be secure," and there are "tentative associations" where the evidence for context, sex, and dating is not so secure.
The WMP6 burial and the two Upward Sun River burials are the only female burials securely associated with big game hunting tools. But the two Upward Sun River burials are not securely identified as big game hunter burials. Consequently, in their Supplement, Haas's team concludes: "the WMP6 burial is the only burial securely identified as a big-game hunter burial in the entire sample of late Pleistocene and early Holocene burials in the Americas. Under the most conservative criteria, we identify one female hunter burial and no male hunter burials."
Remarkably, this statement is hidden away in the Supplement, and it does not appear in the article. In effect, this concedes the point made by the critics--that Haas and his colleagues have at best found only one case of a female hunter burial, which suggests that while some individual females in hunter-gatherer societies will become hunters, there is still generally a sexual division of labor in which men hunt and women gather.
The 8 cases where Haas's team think they see "tentative" evidence for the burial of a female big-game hunter are actually quite dubious. Consider this example, which they report: "Ashworth Shelter is a rockshelter site in Kentucky . . . . The following summary is based on Walthall's review (46). A primary inhumation identified as an adult female had a Kirk style projectile embedded in a vertebra and a second point located near the left patella."
Haas's team here is relying on an article by John Walthall (1999), in which he reports the findings of Philip DiBlasi (1981) in a Master's Thesis at the University of Louisville, which is available online. In describing "burial #4" in the Ashworth Shelter, DiBlasi writes:
"As mentioned above, a projectile point was found imbedded in the body of the third thoracic vertebra. This projectile entered from the left rear of the individual splitting the neural arch between the left superior and inferior articulating surfaces and the spinous process. The extreme distal portion (tip) of the projectile entered the dorsal surface of the body of the vertebra with sufficient force to split the vertebra in half. The left superior articular surface of the fourth vertebra was also damaged."
"A wound of this type would have caused death almost immediately. The most apparent cause of death would have been hypotensive shock resulting from the direct reflex shock to the central nervous system caused by the impact and resulting rebound of the spinal cord. . . Paralysis of intercostal muscles would make breathing impossible, again causing death within a short period of time" (1981, 74-75).
Neither DiBlasi nor Walthall identify this as evidence that this individual had been a female hunter. After all, how can the fact that she was killed by a projectile point thrust into her back with sufficient force to split her spine in half be even "tentative" evidence that she was a big-game hunter?
The careful reader might well conclude that the most important sentence in the writing of Haas and his colleagues is not in their published article but in the online Supplement to the article: "Thus the WMP6 burial is the only burial securely identified as a big-game hunter burial in the entire sample of late Pleistocene and early Holocene burials in the Americas."
REFERENCES
DiBlasi, Philip. 1981. "A New Assessment of the Archaeological Significance of the Ashworth Site (15Bu236)." A Master's Thesis. University of Louisville.
Gorman, James. 2020. "Ancient Remains in Peru Reveal Young, Female Big-Game Hunter." New York Times, November 4.
Haas, Randall, et al. 2020. "Female Hunters of the Early Americas." Science Advances 6: 1-10.
Kelly, Robert L. 2013. The Lifeways of Hunter-Gatherers: The Foraging Spectrum. Cambridge: Cambridge University Press.
Lee, Richard B., and Irven DeVore, eds. 1968. Man the Hunter. Chicago: Aldine Publishing.
Potter, Ben A., et al. 2014. "New Insights into Eastern Beringian Mortuary Behavior: A Terminal Pleistocene Double Infant Burial at Upward Sun River." Proceedings of the National Academy of Sciences. 111, no. 48: 17060-17065.
Walthall, John. 1999. "Mortuary Behavior and Early Holocene Land Use in the North American Midcontinent." North American Archaeologist 20: 1-30.
Wilson, Edward O. 1978. On Human Nature. Cambridge: Harvard University Press.
Joe Biden's victory over Donald Trump was not a big landslide, but it was still big. Biden got the largest popular vote for the presidency in American history, and it was over 4 million votes more than Trump. Biden flipped some of the states that went to Trump in 2016, while Trump did not flip any of the states that went to Hillary Clinton.
But still, looking at the voting patterns that led to Biden's defeat of Trump, it is clear that I was wrong to suggest that Trump's defeat could be a general defeat for the Republican Party.
The Democrats have lost some seats in the House of Representatives, and they have only a slim chance of taking control of the Senate. Moreover, the Democrats have not won big in the races for state offices.
Many voters who punished Trump by voting for Biden voted for other Republican candidates down the ballot. So with many voters, their vote against Trump was not a vote against the Republican Party. On the contrary, they were careful to vote for other Republican candidates, to create a divided government, so that the power of the Republicans could check the power of the Democrats, and thus prevent the Democrats from enacting extreme left-wing policies.
What was it that made Trump so uniquely unpopular? One possibility is that it's Trump's immoral character--that he's a grandiose narcissist who does not show any of the traditional cardinal virtues of character: prudence, justice, temperance, and courage.
In fact, Miles Taylor, the former chief of staff at the Department of Homeland Security, has argued that Trump lacks these four virtues as defined by Cicero in his De Officiis, which is one of the classic philosophic statements of the virtuous character that distinguishes a good man and a good statesman. Taylor was the anonymous author of the famous article in the New York Times in 2018 that claimed there was a resistance movement against Trump in the Trump administration--people who wanted many of Trump's policies to be successful, but who saw Trump's immoral temperament as a threat to the country. (I wrote about this in a previous post.) He later wrote a book--A Warning--in which he applied Cicero's account of the moral and intellectual virtues to Trump and argued that Trump failed to manifest any of those virtues. Trump is an evil man.
If I am right, Trump's failure to win reelection shows that many voters--including Republican voters--agree with this assessment: the character of a President matters, and a president who has an immoral character must be rejected, regardless of what one thinks about his policies.
Biden recognized this by turning much of his campaign into a moral criticism of Trump's character and by arguing that the campaign was a "battle for the soul of the country."
I am old enough to remember the 1960 presidential election, and I cannot remember any other election that has moved me so emotionally as this one. Apparently, many other Americans have had the same experience, as indicated by the many people across the country who have gone out to the streets this afternoon to cheer, shout, and dance to express their joy that Trump has been thrown out. Unfortunately, many families and friendships have been disrupted by this election. This evening, I had a big family dinner at my home, and we could not talk about the election outcome at the dinner table, because we knew that we were split between Trump supporters (Calvinists who believe that Trump is God's Chosen One) and Trump opponents (who believe Trump is evil). I have heard about many Americans who have had the same experience, which testifies to the strong moral symbolism of presidential elections for Americans. This may not be healthy. But it is a fact.
100 years ago today, on November 2, 1920, Republican Warren Harding was elected president, defeating Democrat James Cox, in the biggest popular vote victory in American history--60% to 34%. This was a devastating repudiation of the presidency of Democrat Woodrow Wilson that signaled a political realignment favoring the dominance of the Republican Party. This was the first of three overwhelming presidential defeats for the Democratic Party. This was also the beginning of a decade in which Republicans had large majorities in both houses of Congress. We have to wonder whether the election tomorrow will bring another realignment--this time signaling repudiation of the Trump Republicans and dominant majority power for the Democratic Party.
Coming after the end of World War I in 1918, the last two years of Wilson's presidency had been some of the most turbulent in American history. The world suffered the worst pandemic in human history--killing as many as 675,000 people in the United States alone. As a proportion of the population, the equivalent number for the U.S. today would be over two million people dead. Even President Wilson and the Prime Minister of Great Britain were infected by the flu, although they recovered.
It was also a time of violent social unrest. The migration of many rural blacks from the South to northern and western cities sparked racial violence, including race riots in over 25 northern cities in the summer of 1919, in which over 100 people died. Blacks organized marches protesting white violence against blacks. Anarchists and left-wing radicals mailed packages with bombs to 36 government officials. One bomb exploded outside the home of Attorney General A. Mitchell Palmer. Federal agents arrested some 5,000 radicals. Americans had reason to fear that the Communist revolutionary ferment in Russia might spread to the U.S. Cities were shut down by general strikes led by the radical International Workers of the World. There were more labor union strikes than ever in American history. In addition to all this disorder, the country fell into a deep economic recession with over 20% unemployment.
The theme for Harding's successful campaign for the presidency was his promise of a "return to normalcy." Sound familiar?
Remembering this history should teach Americans two lessons. The first is that the social and political turmoil in our lives today is not unique, and that the country has recovered from much worse disorder in the past.
The second lesson is that the evolution of the American two-party system has produced two major parties that are so adaptive in their resilience that they can survive devastating electoral defeats and then find ways to return to dominance. And so it was, that the realigning election of 1920 that made the Republican Party the dominant party was followed by the realigning election of 1932 that reversed the positions of the two parties and elevated the Democratic Party to majority status. Franklin Roosevelt's 57 to 40 percent victory over Herbert Hoover was the largest Democratic majority up to that time. And this was the first of five consecutive presidential elections won by the Democratic candidate. In 1934, the Democrats gained House seats and increased their majority to 319-103, which was the only mid-term election between 1838 and 2002 in which the president's party gained House seats.
If the Republican Party does suffer a defeat tomorrow comparable to what the Democratic Party suffered in 1920, some pundits will wonder whether this is the end of the Republican Party, or at least the beginning of a long period in which Republicans will be a minority. This could happen. But if the Republican Party is still as adaptive in making innovative changes as it has been in the past, it can turn away from Trump's illiberal populism and find new leaders that can broaden the party's appeal to voters.
That will require a moral appeal to voters. The Trumpist Republicans have decided that moral character does not matter--that Trump's immoral character does not matter, as long as one agrees with his policies. Trump boasted about this when he said that even if he murdered someone in the middle of Fifth Avenue in New York, his supporters would still love him.
Against this, Joe Biden's claim that this election is a "battle for the soul of the nation" argues that Trump's immorality does matter because it corrupts America's moral identity. Presidential statecraft is soulcraft. If Trump and the Trump Republicans lose in a big way, that will confirm Biden's argument that a president must provide moral leadership that manifests and shapes the moral character of the country. The Republican Party will then have to persuade Americans that it will never again embrace the political leadership of a grandiose narcissist like Trump who lacks the moral and intellectual virtues.
