The Volokh Conspiracy is a website that describes itself as “Mostly law professors | Sometimes contrarian | Often libertarian | Always independent”. They forgot to add “Frequently Lukidist”.
The eponymous founder of said conspiracy is Eugene Volokh. To call Gene’s c.v. “glittering” is probably the understatement of the decade. A bona fide mathematical genius, he scored 780 out of 800 on the math SAT, when he was 10 years 1 month old! Beating my age 17 score by more than 200 points.
Gene went on to graduate from UCLA at age 15 with a degree in math and computer science, but, possibly inspired by de Tocqueville’s remark that “if there is a ruling class in America, it is the lawyers,” he later enrolled in the UCLA school of law, graduating (of course) first in his class and later becoming a professor at that school.
Gene does quite a bit of writing for the Conspiracy, but the palm must go to Josh Blackman. Josh got his juris doctor from George Mason Law School, located in McLean, Virginia, GMU being a frequent recipient of largesse courtesy of the Koch brothers, as discussed in this New York Times. The Koch boys—or, I guess, now “boy”—also help finance Reason magazine, which also publishes the Volokh Conspiracy at its website. Of the Kochs, one can say, sometimes they suck and sometimes they don’t. The GMU law school is now the Antonin Scalia1 Law School, just in case you couldn’t figure out where they were coming from, and a number of Volokhers are either associated Ninoville or actually teach there.
Gene and Josh are both Jewish, and thereupon hangs a tale. One of Gene’s greatest passions is for free speech, which I wholeheartedly applaud, particularly because he is very willing to go where the tediously woke American Civil Liberties Union frequently and prissily refuses to go, the ACLU rule being that white men don’t have quite as many rights as other people do. Gene and Josh make a considerably narrower exception: anti-Semites don’t have quite as many rights as other people do—bad enough, but most unfortunately very much amplified by a recent quasi-corollary, to wit: Donald Trump has more rights than other people do.
To my knowledge, the curious distinction regarding anti-Semites first reared its ugly head with the advent of the Boycott, Divestment and Sanctions “movement”, which is nothing more than an anti-Semitic—or, if you want to be polite/hypocritical—an “anti-Zionist”2 screed masquerading as a moral crusade. It is “disappointing”—another gross understatement—that this has become a “woke” cause. If people want to boycott “wicked” countries, they could start with the U.S., which has spent the last 30 years causing mayhem around the globe in the name of peace and freedom, running up a body count that far exceeds that of Israel or anyone else. But, well, I guess it’s easier to pick on little countries.
So that was bad enough. But then pro-Israel groups decided to fight hypocrisy with hypocrisy, lobbying state legislatures—red state legislatures, in particular—to pass laws denying state contracts to anyone participating in BDS. Total violation of the First Amendment, right? Ooops! Not so fast! Just read Gene’s brief filed in response to a court challenge of an Arkansas anti-BDS statute, wherein he’s joined by two “two leading liberal First Amendment scholars”. You can read the whole thing for yourself if you like, which sportingly contains links to opposing briefs challenging the law, but I confess I haven’t read any of them. The whole purpose of such laws is so obviously to discourage the expression of selected political views (that Israel is “bad”), that, well, case closed. Case closed! And if you don’t believe me, read this column in the New York Times by Alan Leveritt. Founder and publisher of the Arkansas Times, We’re a Small Arkansas Newspaper. Why Is the State Making Us Sign a Pledge About Israel?
Much, though not all, of my skepticism is due to the fact that, in one post, whose link I sadly neglected to save, Prof. Volokh says that it was Prof. Blackman who convinced him of the constitutionality of these laws, because, by my book, if Prof. Blackman said it, it’s jive—well, 73% of the time.3
OK, the vanity, and the verbosity, of lawyers both spring eternal, but these banalities, in defense of anti-BDS laws were, one could say, almost ignorable, though “amusing”, like all banalities, but the Volokh Conspiracy took a turn from the evil of banality to the banality of evil with the election of Donald Trump.
Curiously (or not—who knows?) some years before Donald’s Electoral triumph, Gene at least was emphatically not a fan. In a 2013 post in an early version of the Volokh Conspiracy, Donald Trump v. Bill Maher, Gene burned quite a few pixels over a not terribly important law suit occasioned by a joking remark by Bill Maher that he was offering to donate $5 million to charity if anyone could provide proof that Trump was not related to a orangutang, a parody of sorts of Trump’s offer, during the 2012 presidential campaign, to donate $5 million to charity if President Obama would publish his college and passport records. Private citizen Trump did in fact “prove” that he wasn’t related to an orangutang, and then filed suit to compel Maher to make the donation. So does Bill have to pay up?
Says Gene, “I am not a contract law expert, yet here is my quick legal analysis”, which I will make a lot quicker, boiling it down to this: No, a conclusion that non-expert (and thus non-qualified?) Gene reaches in five lines of text, containing links to three cases. So, post over, right? Not so fast. Gene then spends ten lines arguing that Trump’s suit is so absurd that “I would think that the complaint is such a clear loser that it would likely be sanctionable under Cal. Code Civ. Proc. § 128.7.”4
Now, Gene doesn’t explain who exactly who would be sanctioned for filing a “clear loser”, though, from the reading of section 128.7, it’s clear that it would be the attorney(s) who filed the suit. In other words, Gene wants lawyers to be punished here! Scary!
The obvious question is why non-contract lawyer Gene is so anxious to comment on this case. Clearly, not because he wants to discuss the merits of the suit. Rather, he wants to argue that the lawyers helping Donald Trump ought to be punished for filing a meritless suit, something that, as Gene well knows, almost never happens. It’s a pretty unusual argument for a law professor to make, and one that Gene makes in an amusingly passive-aggressive manner, assiduously burying his lede, which ought to be “Trump’s attorneys should lose their licenses!”, but is not, the whole thing strongly suggesting that Gene thinks that Donald Trump is a crock, and any lawyers who help him are sanction-worthy schmucks, a conclusion he, strangely enough, refused to reach seven years later when Trump’s lawyers were abusing the legal process with the clear goal of destroying the United States as a functioning democracy, something that somehow didn’t upset Gene one whit.
I don’t know what happened to Gene’s psyche between 2013 and 2017, but clearly something did, because shortly after Trump made it into the White House, Gene turned from passive-aggressive opponent to passive-aggressive booster of Il Duce. It seems that, during the 2016 presidential campaign, Donnie Junior had had just a wee bit of a run-in with a Russian operative, said run-in taking place because Donnie had been promised some “very sensitive” information on Hillary from the Russian government via a pal of his, had then taken part in a meeting to receive this information, only to stalk out when it turned out that the “sensitive information” bit was all a come-on to try to talk the Trump folks to do one of Vladimir Putin’s buddies a favor, something that, when the news began to break, Donnies Senior and Junior both began to lie their asses off about.
Gene, I’m sad to say, was Johnnie on the spot as Donald Trump’s first line of defense, anxious to portray Little Donnie’s actions as totally First Amendment-protected free speech. “Solicitation of a campaign contribution from a foreign national”, forbidden by the Federal Elections Campaign Act Amendments of 1974? Pish-posh! In an unsurprisingly disingenuously headed article, Can it be a crime to do opposition research by asking foreigners for information?—for Gene, alas, is nothing but disingenuous—the dude spun what one can only describe as a “lawyeresque”—or “shysteristic”—defense of one of the main charges against Little Donnie, when he eagerly responded to an offer of derogatory information from the Russian government— “I love it.”
Gene starts off his take with a hypothetical:
Say that, in Summer 2016, a top Hillary Clinton staffer gets a message: “A Miss Universe contestant — Miss Slovakia — says that Donald Trump had sexually harassed her. Would you like to get her story?” The staffer says, “I’d love to,” and indeed gets the information, which he then uses in the campaign.
The thing is, when a lawyer dreams up a hypothetical, 99 times out of a 100, his purpose is to come up with one that isn’t on “all fours”, as the lawyers like to say, with the original. Here is the original, an email received Donnie received from Rob Goldstone, a publicist with whom the Donnies had dealings with when they had dealings with Russia:
Emin just called and asked me to contact you with something very interesting.
The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.
This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin.
“Aras” was Aras Agalarov, one of Russia’s leading pop stars, a mutual friend of Trump, Jr. and Goldstone, while Emin was his father, one of Russia’s leading real estate tycoons, with, of course, many connections with Russian President Vladimir Putin. There is no “Crown Prosecutor” in Russia, any more than there is one in the U.S. But there is, of course, a “chief prosecutor” of some sort.
So Donnie boy wasn’t doing opposition research, he was being offered opposition research—“This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump”—clearly a quite possibly very significant “in-kind” campaign contribution—a distinction that somehow escaped Professor Volokh’s otherwise razor-sharp mind.
Later on, the good professor girds up his loins like a man—a man who happens to be just a wee bit of a shyster lawyer (there are such things)—and offers another hypothetical, supposedly more on point:
If a Canadian government official had informed the Clinton campaign of some possibly illegal conduct in the development of one of Trump’s Canadian properties, I don’t think it could be made a crime for the Clinton campaign to accept that information and ask for more.
Uh, really? A Canadian official takes it upon himself to inform the Clinton campaign about “possibly illegal” activities by Trump and the campaign asks for more information? Presumably obtained by the official during his official activities but (apparently) not part of the public record? That’s legal? Doesn’t sound like it. But, anyway, what did happen was a lot more corrupt than what didn’t happen. Donnie wasn’t being told that someone knew about something that Hillary had done with regard to Russia that might have been illegal. He was being told the Russian government had “very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump”. This was information, not necessarily obtained by “illegal” means (by Russia’s notoriously loose standards) but obviously embarrassing to Mrs. Clinton that was being offered in a deliberate effort to defeat her.
With regard to the information regarding Russia’s hacking of the Democratic National Committee’s emails, Gene says that there’s no evidence that Donnie asked the Russian government to obtain information illegally or assisted them in doing so, which is true, but then he goes on to say “Just to clarify, as best I can tell there was no indication from the e-mails that Trump Jr. thought the information was the result of a hack; this happened before the hack of the DNC was revealed, and the Russian government could have many sources of “official documents and information” — for instance, dealings between Clinton and Russian officials — that would come through means other than hacks or other crimes.“
Oh, sure. There can be many sources of “official documents and information”, even, I guess, “very high level and sensitive information” that the Russian government could have obtained “legally”. Well, here’s a news flash for Gene: in Russia, balls to the wall electronic surveillance of foreigners—and anyone else—is entirely legal. Oh, and if that doesn’t work, there’s always torture.5 Furthermore, any government has all sorts of information obtained by legal means—tax returns, criminal investigations, etc., that is, of course, entirely illegal to release to outsiders. But in Russia, those restrictions only apply when the government wants them to. Russian intelligence could have video of Hillary naked with three Russian whores that would have been obtained by entirely legal means. Okay, that’s unlikely. But how about a tape of Hillary saying “I never understood what Bill saw in that little Jewish whore”? I love it!
Further furthermore, Gene’s defense of Donnie, Jr. cleverly elides mention of Donnie Sr.’s exclamation of delight when the first batch of DNC emails were released: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens.”
Um, doesn’t that fit Gene’s criteria for a clearly criminal violation of the FECA? Like, you know, a glove? And, if the glove fits, mustn’t you convict? Well, I guess even a dude who graduated summa at UCLA can’t defend all the Trumps all the time. (And if Gene ever called for Trump’s impeachment, removal from office, and subsequent trial and conviction for violating the FECA, I must have missed it.)
It quickly became clear that both professors Volokh and Blackman had come to see Trump as a sort of goyish golem— “an animated anthropomorphic being in Jewish folklore which is entirely created from inanimate matter (usually clay or mud)”—created by God to crush the woken and “restore” Jerusalem as the capital of Israel.6 But while Gene concealed his boyish man-crush under a pseudo-dispassionate nonpartisan devotion to the First Amendment, Professor Blackman had no time or appetite for pretense. He was a man in love and he wanted the whole world to know it! Here at last was a champion of Israel who was entirely without scruple, who would tell any lie, would violate any law or principle of human decency, to defend Israel by any means necessary!
Yes, it was love without stint for Josh, a love that quickly ripened to an incandescent passion when the good professor saw the object of his adoration actually threatened by the vile and vulgar hands of such vermin as Nancy Pelosi, who dared to impeach the Donald twice! Begone, arrogant woman! Begone!
Blackman frenziedly defended Trump during his first impeachment, landing a piece with the New York Times, Trump Acts Like a Politician. That’s Not an Impeachable Offense, essentially arguing that a president has the right to do anything he goddamn pleases if he thinks it will win him an election. This was, really, a continuation of what one might call the “Trump Defense” first developed, to my knowledge, by then Attorney General William Barr, at his infamous press conference, during which he summarized, with notable dishonesty and deceit, the (supposed) contents of special counsel Robert Mueller’s report on the Investigation into Russian interference in the 2016 presidential election. In particular, Barr claimed that “And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.”
Got that? If Donald Trump believes anything “sincerely”, well, anything he does as a consequence of that sincere belief is ipso facto legal, not to mention constitutional. It may strike a skeptical observer that such reasoning is remarkably “convenient” to Donald Trump, since The Donald has the remarkable ability to believe anything he wishes, since for The Donald there is no truth other than his will. Trump is always sincere—as sincere, and as soulless, as a great white shark.
Trump’s legion of credentialed defenders have woven endless variations on this malodorous theme ever since. If Prof. Volokh ever took issue with the foam-flecked rantings of his belligerent protégé, I must have missed it, but Gene did run frequent posts from the admirably anti-Tumpian Ilya Somin—like Prof. Volokh a Jewish émigré from the since mercifully deceased Soviet bloc—who nonetheless teaches at the House o’ Scalia. Well, a guy’s gotta teach somewhere, right? Ilya was as relentless in his demonstration of Trump’s monstrous guilt as Blackman was in his shameless denial of it, Ilya being even so—well, so contumacious, really—as to point out that Blackman’s ultimate defense of Trump—that Trump hadn’t committed an actual felony for which a private citizen could be convicted in court—was double hooey, first because it was the clear intent of the Constitutional Convention, clearly embodied in the language of the Constitution itself, to allow impeachment for “non-statutory” crimes such as abuse of office, and second because Trump had committed the sort of crime that Blackman demanded, by withholding money (specifically, financial aid to Ukraine) appropriated by Congress, which he had no lawful authority to do, any more than he can stop my Social Security check until I promise to vote for him.
As far as I can tell, Gene maintained radio silence on matters Trumpian all the way through the first impeachment and even through the 2020 election campaign, but Josh, unsurprisingly, was a different matter. Last July, President Trump suggested that, what with all the confusion and unrest wracking the country as a result of the COVID and the BLM riots, it might be better to postpone the election. This staggered Northwestern law professor Steven Calabresi, co-founder of the right-wing Federalist Society, who had been, up until that time, a fervid Trump worshipper, passionately defending him during the “Ukraine” impeachment, discomfiting him to the point that, radically shifting gears, Stevo demanded Trump’s impeachment unless he withdrew the proposal:
I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.
Well, if Steve was “appalled”, Josh was hysterical, enraged that Steve would flaunt his role as co-founder of the Federalist Society, which Josh had clearly hitherto regarded as the first and stoutest line of defense against Democratic insanity. How dare Steve dare to use his conservative credentials—even the sacred name of the Federalist Society itself!—to imply that a “real” conservative regarded the Donald as a “fascist”, a word that Steve actually used!
But, of course, that was as nothing compared to what happened following Trump’s seven million vote loss in the 2020 presidential election. Not only did Trump predictably scream “Fraud”, a legion of Trump worshipping lawyers filed suit after disgusting suit to overturn the results in the seven states that gave Joe Biden his Electoral College majority, suits consisting of nothing but the most disgusting and shameless lies.
Were these suits, or any of them, “presented primarily for an improper purpose”? Where they, perhaps, not “warranted by existing law”? Could it be said that, perhaps, “the allegations and other factual contentions” did not “have evidentiary support”? You know, the sort of failings that Gene had in mind when he passively aggressively called for the sanctioning of Trump’s lawyers in Trump v.Maher (supra)?
Well, not so’s you would know it. The California Chatterbox somehow kept his jaw wired shut during this entire foofaraw. I mean, First Amendment and all that. A guy’s got a right to say what’s on his mind, doesn’t he? Though somehow I think if Donnie had blamed the supposed “steal” on “the Jews”, Gene might have been quicker off the mark.
But Gene’s silence, pusillanimous as it was, proved golden as compared to what was to follow: After weeks of Trump’s apocalyptic screaming about a stolen election, a few days before the horrifying events of Jan. 6, Gene, without mentioning anything about the utter depravity of Trump’s conduct following the election, offered this prediction/benediction with regard to the upcoming January 20 Inaugural:
In the sweep of world history, peaceful but unhappy transfers of power have been very difficult to arrange, but somehow the British and we and then most of the rest of the West have gotten the hang of them.
That's bigger than one man, whatever his personality might be. And indeed, that the system works with the sore losers is ultimately a greater testament to it than its working with the gracious ones. True, it's not Jan. 20 yet. But my prediction is that (setting aside the surface matters related to the epidemic) it will be a Jan. 20 of an inauguration year much like any other.
One can wonder if a more fatuous, or less prescient, statement has ever been published in the history of our republic. One is also not exactly surprised that Volokh was signally lacking in the moral courage to walk back this obsequious forelock tugging before the drooling visage of Donald “Donald the Animal” Trump. Instead, on January 7, he ran a shamelessly deceitful non-mea culpa that began as follows:
A friend asked me whether Trump's speech yesterday could be punished as criminal incitement of the appalling Capitol riot.
I doubt it, at least as I read what Trump was saying. Under Brandenburg v. Ohio, even "advocacy of the use of force or of law violation" can't be punished unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Saying things that foreseeably move some audience members to act illegally isn't enough. Speaking recklessly isn't enough. The Court was well aware that speech supporting many movements—left, right, or otherwise—that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.
Well, I can doubt that the good professor had such a convenient friend. Yeah, it’s the old passive-aggressive two-step. After leading off with what he doesn’t want to talk about, smooth-talkin’ Gene finally gets to what he does want to talk about:
The problem here is that it's Trump's job to prevent and stop rioting, especially rioting against federal institutions. He's supposed to prevent and stop such behavior even when it's promoted by total strangers to him. He has a special responsibility to prevent and stop such behavior by people who are on his side, since those are the ones whom he can most effectively try to calm even when they're already in a rioting mood.
…
Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant.
Now, Gene, was that so hard? Sure, you didn’t mention your prior, toad-kissing—nay, toad-eating—cowardice, but, hey, no one’s perfect. Especially not you.
The Volokh Conspiracy’s response to Trump’s second impeachment was a replica of a the first, with Blackman and Somin repeating their respective antagonistic roles, though Gene did, in his usual passive-aggressive way, did take a “stand”, of sorts, publishing without comment the arguments of others in favor of the power of the Senate to hold a trial of Trump after he had left office because the House had in fact impeached him before he had left office, therefore demonstrating that the massive debate over whether Trump could be “impeached” after leaving office was entirely off point!
Yet, amazingly enough (perhaps I’m just easily amazed), even after passively aggressively wishing that, you know, someone would impeach and convict Trump and thus ban him from holding any federal office in the future, old lick-spittle Gene, well, he just couldn’t stop licking the spittle that flew from Trump’s lips. Sure, he was guilty of a “a failure, a massive and unjustifiable failure, as a public servant,” but, hey, that doesn’t mean he should be prevented from running his mouth from any public forum he wishes, telling obscene lies deliberately intended to wreck democracy in America, something for which Gene has, in the past, expressed significant fondness!
With a head that can only be described as spittle-lickin’ good, Trump has a point: Facebook’s policing of speech is ominous, Gene took arms against the right of private corporations like Facebook, aka “Meta”, and Twitter to monitor the contents of material posted on their sites however they wished, a principle that, in the past, most “libertarians” had regarded as, well, a guarantee of freedom from government thought control!
Gene’s whole article, appearing in the July 25, 2021 issue of the Washington Post, is a masterpiece in passive-aggressive misdirection, purporting to take its direction from arguments made by liberal Supreme Court justices, notably Justice Stephen Breyer in his dissent in Agency for International Development v. Alliance for Open Society International, Inc, concealing the fact that his whole argument is pilfered wholesale from a solo “concurrence” written by, surprise, surprise, Justice Clarence Thomas in Biden v. Knight First Amendment Institute at Columbia Univ., a decision issued in April 2021 that actually involved Donald Trump, in which the good justice bemoaned the fact that those damn hippies out in Silicon Valley practically own the air we breathe and it’s about time we put a stop to it, the Constitution be damned!
“Real” Reason libertarians Dan Root (Clarence Thomas Declares War on Big Tech) and Elizabeth Nolan Brown (Section 230 Haters Aren't Going Away) tell you everything Gene doesn’t want you to know about why letting Facebook, Twitter, et al. monitor the content of their sites, a right guaranteed to them by “Section 230” (of the federal Communications Decency Act), is a great thing rather than the reverse. (As Elizabeth notes, there are plenty of “liberal” Section 230 haters as well—Elizabeth Warren, for example, and Barack Obama.)
Gene’s article for the Post proved to be a mere warmup in what is now shaping up as a full-scale war on Section 230, Gene setting the ball in motion in classic passive-aggressive style by founding a brand new Journal of Free Speech Law, whose first issue contained, to the surprise of no one named Alan Vanneman, a symposium on “Free Speech and Social Media Platform Regulation”, including an article the that Gene coauthored with Adam Candeub, Interpreting 47 U.S.C. § 230(C)(2).
There is no question that the big sites like Facebook, YouTube, and Twitter engage in a great deal of censorship, but, in the old days, if you wanted your “message” to be distributed to millions of people around the world, well, it would cost you. Furthermore, it is “interesting”, to say the least, that, as far as one can tell, Professor Volokh took zero interest in Section 230 until Twitter and Facebook took to censoring Donald Trump. The question is why. And the answer is “Israel”.
Now, there are many zealous Jewish devotees of Israel who were appalled by the rise of Trump—William Kristol, for example—and have fought against him every step of the way, but Eugene, once he realized that Trump could rouse the yahoos in defense of Israel like none other, neither blenched nor blanched throughout Trump’s “excesses”. A man who supposedly has dedicated his life to the rule of law deliberately distorts the law to aid a man who threatens the rule of law in the United States as has no man in our history.
If this seems like I’m accusing Professor Volokh (and William Kristol and many other AIPAC-style Jewish folks) of “dual loyalty”, well, yes, I am. However, dual loyalty is not the same as “treason”. “Knee-jerk” Jewish supporters of Israel are trying to protect what they see as Israel’s interests, not to injure the United States. My complaint, however, is that they are disingenuous when they do this, claiming that unthinking support of Israel is somehow always in the best interests of the United States, when clearly it isn’t, and, in fact, clearly isn’t in the interests of Israel itself, which “learns” that, thanks to the U.S., Israel doesn’t have to play by the rules.
There have been a number of “dual loyalty” groups in the U.S. Back during World War I, when interventionists like Theodore Roosevelt and Woodrow Wilson complained of “hyphenated Americans”, they were speaking in a code that few Americans today bother to translate. They weren’t talking about “foreigners” in general but rather German and Irish Americans, who generally opposed U.S. intervention. German Americans certainly had no reason to die fighting against the Vaterland, which many surely regarded as the greatest and most kultiviert in the world, while the Irish had no desire to die for the British Empire. Furthermore, a German victory would almost surely have guaranteed Irish independence (at that time, all of Ireland was part of the United Kingdom of Great Britain).
But why is the “dual loyalty” of some Jews a big deal? Surely most of the “knee-jerk” supporters of Israel aren’t Jewish—they’re evangelical Christians who see present-day Israel as part of God’s plan for the redemption/damnation of the entire human race. In addition, there are plenty of goyish neocons like John Bolton and Dick Cheney and his brood who are passionate supporters of Israel out of political calculation—the Bolton/Cheney crowd wants an aggressive, bullying America as an end in itself, while the “dual loyalty” Jews want a bullying, aggressive America to defend Israel. So what’s the difference?
The difference is, without Israel, Volokh, Kristol, et al. probably wouldn’t support an aggressive, bullying American foreign policy. While Volokh has a number of supposedly right-wing libertarian enthusiasms, some of which I even share, he is quite “left” on many other issues, supporting gay marriage, for example, and “even” defending sociologist Allyn Walker, recently put on leave by Old Dominion University for his “controversial” research regarding “minor attracted” individuals. Said Volokh
Studying people who are attracted to minors is clearly protected by academic freedom principles, and is indeed important to figuring out ways to prevent them from acting on these impulses. It seems likely that there are many millions of people like that; whether we want to change their attraction (if that's even possible) or just to get them not to act on that attraction, we need to study them and to study what allows some of them to resist their impulses.
Without the emotional attraction to Israel, I think, Volokh himself, and a number of his fellow conspirators, would not be knee-jerk supporters of a blindly aggresive U.S. foreign policy, and disingenuous ones at that.
Most of all, of course, without this emotional attachment to Israel, Professor Volokh would not be the shamelessly hypocritical supporter of Donald Trump, and we would be spared the spectacle of a brilliant man lying his ass off on behalf of an amoral monster, prostituting his intellect on behalf of a man who is pure id, a man who would turn the U.S. into a semblance of, if not the Russia of Leonid Brezhnev from which Gene so happily escaped, then the Russia of Vladimir Putin, recklessly endangering the freedoms of a nation of more than 330 million in order to pandar to the worst instincts of a nation of 7 million. Much of the modern postmodernism so in vogue among the woke folks at America’s elite universities is correctly denounced as “nihilism”. It is “curious” to meet a nihilistic anti-nihilism coming from the other direction, courtesy of the Volk folks. O mores, O tempores, eh, motherfucker?
Afterwords
Back in the day, David Hume used to say “Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them”. Dave, you didn't know the half of it.
1. I am generally but not invariably way not a fan of Il Nino. The idea of naming a law school after a man who, with four other hypocrites, took it upon themselves to choose the president of the United States, is “amusing”. The Constitution clearly intended Congress to have the final say in disputes over the outcome of presidential elections, but Nino et al. decided that following the Constitution was too “risky”. That damn SOB Bill Clinton might just pull another of his goddamn rabbits out of his goddamn hat.
2. There were any number of “legitimate” anti-Zionists back in the day, like Gen. George Marshall, and even some really legitimate concerns. Wouldn’t bringing all the Jews into one place simply facilitate another, and even more horrible Holocaust? But the biggest, and best, argument of all against the founding of Israel in Israel was the simple fact that the need for a Jewish nation was the result of European anti-Semitism. So why should Muslim interests be sacrificed for Christian crimes? Unfortunately, there simply was no other viable solution to Europe’s self-created “Jewish problem.” As Hannah Arendt put it: “The difference between dictatorships and democracies is this: Dictatorships put you in a concentration camp, while democracies put you in a displaced persons camp.” Absent the creation of Israel, the last European Jew would have died in a camp. A democratic camp rather than a dictatorship, perhaps, but that is all.
3. Consider, for example, his article, The Irrepressible Myth of Jacobson v. Massachusetts, described by Prof. Blackman, if no one else, as “long-awaited”. In that article, Prof. Blackman “explains” that “Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts, a now well-known Supreme Court decision upholding the right of the state to require citizens to get vaccinations—for smallpox, in that particular case. Well, one has to ask, who died and made Prof. Blackman, well, Supreme and Eternal Legal Arbitrator for the Universe? Who made him wiser than, not only those “four prominent justices”, but all those other justices—a majority of four Supreme Courts—who agreed with them? The real myth, of course, is the one that Prof. Blackman is pushing, the originalist/textualist myth that there is one “correct reading” of the U.S. Constitution, that can “compel assent”, as Euclidian geometry was popularly supposed to do prior to the development of non-Euclidian geometries in the 19th century. In fact, Euclidian geometry did “compel assent” for well over 2,000 years. The Constitution has never done so, and Prof. Blackman’s supposed demolition of his distinguished predecessors, who, unlike him, were actually held worthy of interpreting the meaning of the Constitution for the American people according to procedures established by that Constitution, simply piles myth upon myth, using the myth of originalism to construct the myth of the “right” to refuse immunization. (I am, of course, unkindly assuming that Prof. Blackman will never make to the Court. Well, probably not. But you never know! The dude is still young!)
4. Gene’s summary of section 128.7 strikes me as pathetically inadequate, surprisingly, really, for such a gifted man. Read it for yourself. What’s particularly “interesting” to me is that the section forbids suits “presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Surely half the cases in California, and anywhere else, are presented “to cause unnecessary delay or needless increase in the cost of litigation.” That’s what lawyers do! In particular, that’s what Trump’s lawyers do. And very rarely do they ever get called on it.
5. If Russian surveillance picked up a visual record of a Clinton aide receiving a slip of paper from a Russian citizen, that citizen would be tortured, if necessary, to obtain the information contained on that slip of paper. And that would, of course, be entirely legal.
6. The entire ancient city of Jerusalem was destroyed in the First Jewish-Roman War (70 AD) and rebuilt by the Romans as a Roman city. After the Roman Empire became Christian under Constantine, it appears the entire population of the city was Christian. The Muslims conquered the city in 638 AD. The Crusaders took the city in 1099, murdering most of the inhabitants, whether Muslim or Jewish, and ultimately repopulated the city with Christians from surrounding areas. In 1187 Muslims reconquered the city and it remained under Muslim control until World War I, when the British took over. Israeli rule of West Jerusalem dates from 1948, while East Jerusalem was conquered in 1967. Yet such is the power of the Bible—particularly the influence of the Old Testament on Protestants—that nearly all American Christians think of Jerusalem as entirely Jewish throughout its history. (Largely taken from this entry in Wikipedia).
7. A much “better” example of speech suppression via the social media—in this case, Facebook and Youtube—is presented by Glenn Greenwald in this post regarding the mainstream’s refusal to even consider the possibility that COVID-19 was the product of a lab leak. But Greenwald is (correctly) against “reforming” Section 230.
