JLPP Publishes Issue 1 of Volume 45’s Print Edition – JLPP Staff

Posted by on Feb 25, 2022 in Per Curiam

JLPP Publishes Issue 1 of Volume 45’s Print Edition

JLPP Staff

The Harvard Journal of Law & Public Policy is proud to share Issue 1 of Volume 45’s print edition, just posted today. This Issue begins with five essays from the 2021 Federalist Society National Student Symposium, held at Penn Law School. Senator Mike Lee’s Keynote Address to the Symposium starts off the Symposium portion of the Issue, followed by essays from Dean Ron Cass and Professors Oona Hathaway, John McGinnis, and John Yoo. After the Symposium essays, the Issue includes an adapted version of Justice Samuel Alito’s remarks at the 2020 Federalist Society National Lawyers Convention, delivered virtually at the height of the COVID-19 pandemic.

On the heels of the publication of his new book Common Good Constitutionalism, Professor Adrian Vermeule has co-authored an essay in Issue 1 with Professor Conor Casey on myths about common good constitutionalism. In addition, Professors Eugene Volokh and Ryan Williams each publish articles in this Issue, with Professor Volokh writing on overbroad injunctions against speech and Professor Williams penning a piece on lower court originalism.

Finally, the Issue features three pieces of student writing—two Notes and a Case Comment. JLPP Articles Chair John Acton kicks off the student writing section with a Note about deference to the commentary of the U.S. Sentencing Guidelines. JLPP Notes Chair Brett Raffish follows with a Note about arbitrary property interference. And former JLPP Articles Chair Jason Muehlhoff finishes the Issue with a Case Comment about the Supreme Court’s decision in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

To access the full issue, click here.

Symposium Essays

Speech

Essay

Articles

Notes and Case Comments

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Adam J. White and Kermit Roosevelt III on the Supreme Court Commission

Posted by on Feb 24, 2022 in Per Curiam

Harvard Journal of Law and Public Policy: Per Curiam is pleased to present two essays from Adam White and Kermit Roosevelt on their thoughts and role on President Biden’s Supreme Court Commission. Each essay explores the nature of the Commission and why the authors took the positions they did. While the authors came out on different sides of the issues, these pieces offer a unique glimpse into the Commission’s work and the place of the Court in our Constitutional Republic.

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The Supreme Court Fights are Really About the Senate – Adam J. White

Posted by on Feb 24, 2022 in Per Curiam

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The Supreme Court Fights are Really About the Senate

Adam J. White[1]

 

As its name suggests, President Biden’s Commission on the Supreme Court of the United States centered on debates surrounding the Supreme Court. But throughout my service on the commission, I was reminded time and again that political fights about the Court are, at a deeper level, constitutional fights about the Senate.

It is rather fitting to find myself writing about the Court, the Senate, and the Court Commission in the Harvard Journal of Law & Public Policy. Many years ago, as a student at Harvard Law School, I wrote a paper on the Senate and judicial nominations, which the JLPP later published.[2] In those years, Senate Democrats’ filibusters against President Bush’s judicial nominations spurred him to insist, “[t]he Senate has a Constitutional obligation to vote up or down on a President’s judicial nominees.”[3]

I liked President Bush’s judicial nominations, so I instinctively agreed with his constitutional point and set out to write a paper accordingly. But before long, my research brought me to a different conclusion: far from obligating the Senate to vote (a proposal that the constitutional convention specifically considered but rejected), the Constitution places the burden upon presidents to convince senators to vote for their judicial and executive nominations.[4] And for good reason.[5]

When Justice Scalia died unexpectedly in 2016, the ensuing events put this fundamental constitutional question—of the powers of the Senate and the President, and the future of the Court—front and center in our politics for nearly a year. The Senate, controlled by Republicans, did not act on President Obama’s nomination of Merrick Garland, waiting instead until President Trump’s post-election nomination of Neil Gorsuch.[6] And critics, in turn, accused Republicans of “stealing” a Supreme Court seat.[7]

The Court Commission’s report briefly recounts those events and some of the arguments.[8] And it also recounts another way in which the Senate’s advice and consent power is implicated by efforts to restructure the Court. The report explains how any effort to impose new term limits on Justices—for example, 18-year terms, so that a nine-Justice court would see a new vacancy every other year—would necessarily require a concomitant change to the Senate’s role in the appointment of new Justices[9], so that the Senate could no longer present a serious obstacle to the President’s appointment of new Justices.[10]

The fact that term limits would almost necessarily require a reduction in the Senate’s role is the main reason why I changed my mind on term limits, as I explained at the end of the Commission’s work in my concurring statement.[11] More broadly, my time on the Commission helped me to better understand that current political fights over the Court are, at their heart, arguments about the role of the Senate and the Presidency in our constitutional republic.

There seems to be a strongly held view, among Court-focused activists and perhaps much of the politically aware public, that Supreme Court appointments are simply a perk of the presidency. We see it when partisan activists demand that Supreme Court justices retire simply to open a new seat for the current president.[12] We saw this in the debates surrounding the 2016 vacancy, animated by the presumption that it is unfair for the Senate not to fill a vacant Supreme Court seat.[13] We also see it in the debates about Supreme Court term limits, when advocates for term limits argue that a regular schedule of vacancies and appointments is necessary to eliminate “the variation in the number of each President’s opportunities to nominate a Justice[;]” their premise is that it is inherently unfair for one President to appoint more Justices per four-year term than others.[14] As the Court Commission’s report recounted, “proponents of term limits do not seek partisan balance” on the Court, but “if a party wins the White House more often, its Presidents should have the opportunity to nominate more Justices,” and “parties that lose [presidential] elections” should not “have outsized impact on who sits on the Court and on its general direction.”[15]

We are well accustomed to warnings about the overgrowth of presidential power. We are all too familiar with the dangers of Presidents overstepping their constitutional bounds, encroaching upon the other branches. We also know that too often Congress gives power away to the executive branch, in ways that advance Congress’s modern political incentives yet undermine the constitutional order. And we see this all in both domestic and foreign affairs.[16]

The new Court-packing or term-limit arguments present the same dangers. Criticism of the Senate’s inaction on the Garland nomination; proposals to reduce the Senate’s confirmation power in order to facilitate term limits; and the presumption that fairness requires Supreme Court vacancies to be mapped on to presidential political calendars all treat the Supreme Court as little more than the echo of presidential elections. It treats presidential elections as the only elections that genuinely matter.

Today our major constitutional crisis is not a domineering Congress, but a desiccated one. We cannot afford for Congress to cede still more power to the presidency; rather, we need Congress to reassert its proper constitutional roles. And especially so for the Senate, the part of Congress that was created to be less impassioned, more statesmanlike.[17] For the sake of our constitutional system, we need to resist this latest instinct toward the imperial presidency and learn once again to respect the Senate’s crucial role in the appointments process.

 

 

[1] Former commissioner, Presidential Commission on the Supreme Court of the United States; Senior Fellow, American Enterprise Institute; Co-Executive Director, George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.

[2] Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103 (2005).

[3] See id. at 107 (quoting Statement on Judicial Nominations, White House Press Releases and Documents, Dec. 23, 2004, Factiva, Doc. No. WHPR000020041226e0cn00003).

[4] See id. at 141–48.

[5] See The Federalist No. 76, at 456 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“[Senate advice and consent] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”).

[6] See Richard Pérez-Peña, Hearing for Neil Gorsuch, Supreme Court Nominee, Is Set for March, N.Y. Times (Feb. 16, 2017), https://www.nytimes.com/2017/02/16/us/politics/neil-gorsuch-supreme-court-senate-hearing.html [https://perma.cc/PUC8-QLNR].

[7] See, e.g., Editorial, The Stolen Supreme Court Seat, N.Y. Times (Dec. 24, 2016), https://www.nytimes.com/2016/12/24/opinion/sunday/the-stolen-supreme-court-seat.html [https://perma.cc/D68Y-4XF5]; Jason Sattler, Gorsuch faces supreme battle; Block him. The GOP doesn’t deserve to fill a seat it stole in the heist of the century., USA Today, Feb. 2, 2017, at 7A.

[8] See Presidential Commission on the Supreme Court of the United States, Final Report 14–15 (2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf [https://perma.cc/ACD4-5GKJ]; see also id. at 75–77 (describing arguments that the Senate’s inaction on the Garland nomination amounted to “norm violations”).

[9] See id. at 140–43.

[10] See id.

[11] Adam White, Separate Statement of Commissioner Adam White (Dec. 15, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/White-Statement.pdf [https://perma.cc/9AEF-9RL2].

[12] Cf. Robert Barnes, Activists, academics step up pressure on Justice Breyer to retire, Wash. Post (June 16, 2021), https://www.washingtonpost.com/politics/courts_law/breyer-retirement-pressure-biden-mcconnell/2021/06/16/498b2df2-ceb8-11eb-8cd2-4e95230cfac2_story.html [https://perma.cc/A3C5-AJZK]; Fatma Khaled, Justice Stephen Breyer, 83, Responds to Liberal Activists Pressing for His Retirement, Newsweek (Sep. 19, 2021), https://www.newsweek.com/justice-stephen-breyer-83-responds-liberal-activists-pressing-his-retirement-1630594 [https://perma.cc/DWP6-8VDC].

[13] Cf. Editorial, supra note 7; Sattler, supra note 7.

[14] See Presidential Commission on the Supreme Court of the United States, supra note 8, at 114–15.

[15] Id. at 115.

[16] See, e.g., Neomi Rao, Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fla. L. Rev. 1 (2018); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath ix (1993) (“[T]he legislative surrender was a self-interested one: Accountability is pretty frightening stuff.”).

[17] See Adam J. White, The Senate’s Trial, Nat’l Rev. (Dec. 19, 2019), https://www.nationalreview.com/2019/12/the-senates-trial [https://perma.cc/7EAH-E82Q].

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Court Reform and the Biden Commission – Kermit Roosevelt III

Posted by on Feb 24, 2022 in Per Curiam

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Court Reform and the Biden Commission

Kermit Roosevelt III

 

The Biden Supreme Court Reform Commission and its report have been criticized by both the right and the left. That might be a sign that it performed its job in a bipartisan way—which I think it did. But it also might be a sign that people on both sides misunderstand the nature of the commission and the report. So here I want to try to explain them, and also add my personal views, based on my experience as a Commissioner.

First, some people criticized the commission for not making recommendations. That’s true, but the commission’s charge was not to make recommendations, so faulting it for that is really asking for a different kind of commission. We could have had that—Biden could have decided that something was wrong with the Court and created a commission to tell him the most effective way to fix it. But that would have made sense only if he was already convinced that there was a problem that needed solving, and that he knew what it was. And then he would probably have assembled a relatively small group of people who also already agreed on the existence and nature of the problem.

Biden was doing something very different, which I think is to his credit. He was genuinely open-minded about the Court. He knew that people had concerns about it, and he wanted a commission to evaluate those concerns and the costs and benefits of different proposed solutions.  For that job it made sense to have a relatively large bipartisan commission, and that’s what we had. It was a sincere and good-faith attempt to get the best, most comprehensive assessment of the situation.

And I think the commission did a good job of fulfilling its charge. We surveyed the potential problems, and analyzed the proposed solutions and the arguments for and against them. Generally speaking, we gave the drafting of particular arguments to people who really believed in them, so that they would be presented in their strongest form, and we definitely had people on both sides of every major issue. Now some political actor has to look over this report and decide which reforms, if any, they want to pursue. If that next step doesn’t happen, then some of the critics may be proved right: the ones who said it was a diversion and that commissions are where reform goes to die. But I hope and believe that Biden is going to read the report and draw a conclusion about what to do.

What should that conclusion be? Ultimately, that’s a political decision, but having spent almost a year as a Commissioner going over these issues, I have some thoughts. My overarching principle is that whether a reform is needed, and what that reform should be, depends on what you think the problem is. So I’m going to go through some different articulations of the problems and solutions.

First, a problem might be that the Supreme Court is handing down decisions I don’t like politically. Since that’s a weak objection, let’s also say I think they are incorrect as a matter of constitutional law. For instance, the Court is giving religious freedom more protection than I think it’s entitled to under the First Amendment. The only real way to change that now is to change the composition of the Court—expand it. So, one framing is: consider Court expansion as a solution to the problem of decisions I don’t like.

Even with the idea that these decisions are legally incorrect, this is the weakest case for reform. The Court is, in our constitutional design, ultimately responsive to the elected branches, because they appoint the Justices. National majorities should be able to have some influence on the Court, over time. But I don’t think the elected branches should add new Justices whenever they don’t like what the existing ones are doing. They do have that power, but circumstances would have to be very extreme for me to say the Court has gone far enough astray for it to be warranted. In some ways, Court expansion can helpfully be analogized to impeachment—neither of them should be the remedy for ordinary disagreement.

The second framing is a little different. The Supreme Court is handing down decisions I don’t like because it was constituted in an unfair way. I think the decisions are wrong, and I think we’re getting them because of some problem with the appointments process. What is that problem? There are two things people identify. First, if we go back to the appointment of Clarence Thomas, the longest-serving current Justice, we have four Republican presidential terms (Bush I, Bush II x2, Trump) and four and a quarter Democratic ones (Clinton x2, Obama x2, Biden). (For flavor you can throw in the fact that the Democratic candidate won the popular vote in seven out of nine of those elections, although the significance of that is less clear.) So you might think there would be a relatively even balance between Democratic and Republican appointees. But in fact under those Presidents we had 7 Republican appointments and 4 Democratic ones, and we now have a court with a 6-3 Republican tilt. (President Biden will now presumably be able to replace Justice Breyer, which will make the total appointment tally 7-5 but not affect the 6-3 tilt.) So viewed just from a statistical perspective, it looks unbalanced. Second, there’s the more specific issue of the refusal to allow Obama a third appointment, and the rush to confirm Amy Coney Barrett. So the complaint here is based on the party system, and it is that the other side has manipulated the process. Again, the straightforward solution is expansion. So the second framing is this: consider Court expansion as a solution to the unfair advantage held by the Republicans.

I think this argument is perfectly fine. The Court is out of balance statistically, and that’s in part because Republicans aggressively used the powers they had to increase their appointments. Court expansion is a power that Congress and the President have, and it can be used to increase Democratic appointments. I was surprised by the resistance to this among what I would call the liberal institutionalists on the Commission—that is, people who identify as liberal but still said “this would be a dangerous norm-breaking escalation that would trigger a cycle of reprisals.”

That response strikes me as profoundly naïve and mistaken in almost every regard. First, is it an escalation? Maybe, but not as much as you might think. Saying “we will not consider any Obama nominee” is actually manipulating the size of the Court for partisan advantage. The Senate effectively took it down to eight and then back up to nine. So expansion has been done already—not by a majority controlling two branches of government but by one house of Congress composed of Senators representing a minority of the American people. Second, would it trigger a cycle of reprisals? Maybe, but the existing process is already a cycle of escalating reprisals, where each side justifies itself with sincere claims that the other is behaving worse. And to me there’s no doubt at all that Republicans would enlarge the Court if they found it necessary to maintain control. Expansion now wouldn’t trigger reprisals except in the sense that as long as the Republicans are in control they don’t need to do anything. Last, game theory suggests that if the other side takes advantage of you, the best strategy is to retaliate to show them that there will be costs if they keep doing it. In sum, I’m basically neutral on the framing that advances court expansion as a solution to an unfair Republican advantage.

But this also brings up another possible solution, which is term limits. The point of term limits is to regularize the appointments process so that each President gets two appointments per four-year term. Then we don’t have to worry about strategic retirements and chance deaths and partisan hardball, and the composition of the Court will eventually come in line with national elections, which is a far preferable system. So going in, and for much of the process, my view was that the right answer was to say “We’re not going to try to change the current Court. But the process that got us here is broken, and we need to fix it, and term limits are the solution.”

Brief digression: I think term limits can be enacted by statute. I didn’t think this going in, because it seemed obvious to me that taking a Supreme Court justice out of the regular decision process removed that Justice from office. Surprisingly, that isn’t the way our law or our practice understand it. Current 28 U.S.C. § 371 provides two options for federal judges, including justices, who meet the service and age requirements. They may “retire from the office” under § 371(a), upon which they no longer hold the office but continue to receive an annuity equivalent to their salary at the time of retirement. Or they may “retain the office but retire from regular active service” under § 371(b) and “continue to receive the salary of the office” if they perform a different set of duties, spelled out in later sections. Retired Justices do not participate in Supreme Court decisions but may decide cases on the lower courts; senior judges do not have to decide cases at all. Yet Booth v. United States[1] held that these people do still “hold the office” for the purposes of Article III, section 1.

So there’s very straightforward argument for a system whereby Justices retire from active service after eighteen years. The Good Behavior Clause says that judges “shall hold their offices during good behavior.” If you want to know whether doing something to a judge violates that clause, the threshold question is whether the judge still holds the office. If they do, there can’t be a violation. And a unanimous Supreme Court has told us that senior judges still hold the office. Does the power to change judicial duties without running afoul of the Good Behavior Clause threaten judicial independence? Yes, if it can be used selectively, or as punishment—but I think that general structural principles of separation of powers prevent that, just like they prevent other forms of punishment that don’t amount to removal from office, like taking judicial clerks as reprisal for unpopular decisions. Consistent and lengthy fixed terms are adequate to protect judicial independence in every other democracy in the world.

Anyway, the third framing is this: “The problem is that the composition of the Court depends on chance, strategic retirement, and partisan hardball, and the solution is term limits.”

I think that’s pretty clearly right, and I still believe it. But I ended up going farther, too. And what drove me there really was the liberal institutionalists again, because in response to the suggestion that term limits could be achieved by statute, they said “We need to be very careful about this. We’ve seen democratic backsliding occur in other countries where the composition of the judiciary could be changed by an electoral majority. We don’t want to open that door.”

That made me think that the situation is much worse than I realized, because again, these distinguished scholars are either profoundly naïve or just in denial about what’s happening. The United States is experiencing democratic backsliding. You can listen to the European think tank IDEA, which added us to its list of backsliding democracies,[2] or you can look at the waves of attempts to modify the electoral process, directed at both the process of voting and the process of counting votes and certifying results. This is happening, and it’s happening with the active participation of the Supreme Court, in decisions like Shelby County[3] and Brnovich.[4] And like I said before, the Court is handing down those decisions because its composition was changed by one house of Congress—by Senators representing a minority of the population. They shrank the Court to eight and then they brought it back to nine. But now if you say “maybe we should try to fix the appointments process so that doesn’t happen again,” distinguished liberal thinkers will say “oh, no, that would set a dangerous precedent and undermine the norms that safeguard our hallowed institutions.”

That’s sleepwalking into authoritarianism. And it made me realize that if I want to defend democracy, the place to stand is not with the liberal institutionalists. It’s farther left. So that’s the final framing: the problem is that our democracy is under attack and the Supreme Court is participating. Again, court expansion is the solution. And that’s where I came down in the end. This is a moment of crisis. Court expansion does strike me as extreme. It’s really a confession that the ordinary system has failed. But I’m afraid that’s the truth, and desperate times require desperate measures.

 

[1] 291 U.S. 339 (1934)

[2] See International Institute for Democracy and Electoral Assistance, The Global State of Democracy 2021: Building Resilience in a Pandemic Era 8 (2021) (including the United States among “currently backsliding countries”).

[3] Shelby County v. Holder, 570 U.S. 529 (2013).

[4] Brnovich v. Democratic National Committee, 594 U.S.__ (2021).

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Lies and the Father of Lies – Charles Fried

Posted by on Feb 14, 2022 in Per Curiam

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Lies and the Father of Lies

Charles Fried

The pandemic deprived me of the pleasure of roaming the halls of Harvard Law School and chatting with my colleagues. The time saved allowed me to do some reading I somehow had never got to. One of the treasures I uncovered was Milton’s Paradise Lost.

 I am not now a religious person. I am, however, a believer in objective standards of right and wrong, in truth and the reality of love and generosity, and in beauty as the order which comes—often as a surprise—out of these. I turned to Milton for beauty and found, in addition, profound moral truths.

Let me change the register for a minute to introduce my subject. A while back NPR did interviews of Trump supporters to see what makes them tick. They spoke to one woman, an evangelical, and asked, “But, aren’t you disturbed by the frequent and flagrant lying?” She gave what I would describe as the audible version of a shrug. “He’s done so much for us evangelicals”—as if a practice of lying was like bad table manners, an endearing and minor foible. Well, it is not. In the public realm it is a cardinal sin—cardinal, in the etymological sense of that word: a hinge. In the public realm, the rule of law and democracy hinge on truthfulness. Even in regimes that have not been democracies, but were committed nonetheless to the rule of law—Kant thought Frederick’s Prussia was such a regime—law was at least a promise that the government would keep, and from that promise was the assurance of a measure of liberty. And of course a promise is a commitment made through language and language can only be understood if language is intact because on the whole what is said can be believed as true.  It is like currency: there are very occasionally counterfeit bills, but currency only works if there is a sturdy presumption that the bills are not phony, that they are true.

In a democracy, truth is doubly urgent. We choose our governors. Our governors necessarily have to do many things we do not understand, that we cannot probe and perhaps even should not probe. For that very reason it is important that the governors to whom we have chosen to give this authority will tell us what is happening and why it is happening. If we cannot believe them, the choice that democracy gives us is meaningless; they might stay forever.

Let me again change registers and return to Milton. Satan was named in John 8:44 “the father of lies.” Why does lying rank so high among evils? Because it disables, it contradicts the defining quality of human beings: the ability to recognize truth and to act on it. In Satan’s seduction of Eve was the lie that if she and Adam ate the forbidden fruit, “you shall be as gods.” He elaborated, I’m a serpent. I am the lowest of creatures—I don’t even have legs but must creep down on the ground. Yet I, such a low creature, ate of the fruit and now only I of all the creatures in Eden can talk to you. Just imagine the power you will have if you eat of it, because you are the very top of creation. You shall be as gods.

There is another story in the Bible which is, in a sense, a parallel or mirror to that. The story of the Tower of Babel. As you will recall, the Babylonians, were—I don’t know if Satan suggested this to them—seeking to build a tower—they were great engineers—so high that it would reach to heaven; and then they too would be as gods. They were punished for this seduction by all being made to speak in different languages. They could no longer communicate. Everything that anyone said could no longer be understood. The cooperative effort necessary to this remarkable engineering project came to a halt, as the inability to communicate disables all human effort; it makes for the inability to cooperate. And this is the extreme end of a world where lying is the norm: it is like the economy where there is no longer a presumption that the currency is genuine. In the end, the habit of lying undermines our ability to communicate even with ourselves, that is to say, to have a conscience.

That is the reason, therefore, that a casual liar is not simply like a crazy uncle one views with bemused affection. No, because somebody who is an inveterate liar debases the very currency of human thought and human collaboration. A lie is the counterfeit of truth; it is the counterfeit of the currency, which allows trust and communication and cooperation. How about the occasional lie? Well, how about the occasional counterfeit $20 bill? If you don’t do something about that, the occasional counterfeit $20 bill becomes more and more common and pretty soon there is no currency and the money system disappears. Imagine if the Chair of the Fed were caught passing a counterfeit $20 bill!

Milton’s Satan says that the way God’s creatures embrace the truth, I embrace chaos; chaos is the child of the father of lies. In Satan’s words: “Evil, be thou my good.” In the poem the archangel Michael shows Adam the results of what he and Eve have done, the world of chaos they have exchanged for Paradise, a place of truth, order, and beauty. This is the world that the father of lies has brought them:

Of Death . . . many are the ways that lead /To his grim cave, all dismal; yet to sense More terrible at the entrance, than within. /Some, as thou sawest, by violent stroke shall die; By fire, flood, famine, by intemperance more In meats and drinks, which on the earth shall bring /Diseases dire, of which a monstrous crew /Before thee shall appear; that thou mayest know /What misery the inabstinence of Eve Shall bring on Men. /Immediately a place Before his eyes appeared, sad, noisome, dark; A lazar-house it seemed; wherein were laid Numbers of all diseased; all maladies Of ghastly spasm, or racking torture, qualms Of heart-sick agony, all feverous kinds, Convulsions, epilepsies, fierce catarrhs, Intestine stone and ulcer, colic-pangs, Daemoniac phrenzy, moaping melancholy, And moon-struck madness, pining atrophy, Marasmus, and wide-wasting pestilence, Dropsies, and asthmas, and joint-racking rheums. Dire was the tossing, deep the groans; Despair Tended the sick busiest from couch to couch; And over them triumphant Death his dart Shook, but delayed to strike, though oft invok’d With vows, as their chief good, and final hope.  (Book XI, ll. 468–493)

This is a pretty good description of  the horrors of the hundreds of thousands of deaths from Covid-19, many of which brought on by the lies that Covid is no worse than a bad cold or that it can be cured by chloroquine or horse dewormer or drinking bleach. What a Milton might have shown us of the devastation of climate change! The flooded coasts, the hurricanes and heat waves, the encroaching desserts and melting ice caps, with lost farm lands and lost species and lost lives! All worsened by the lie that there is no such thing as global warming, and if there is climate change, it is not brought about by human activity.

In Ambrogio Lorenzetti’s Siena frescos there is a visual representation of good and bad governmentbuon governo and mal governo.  In the former we are shown a thriving city, where the arts, trade, construction, agriculture and manufacture flourish; in the other, presided over by Satan crops wither, fires burn, bandits roam the country-side, and in the city there are riot and murder. That is the scene that comes to mind as one sees the images of the grotesques rampaging through the halls of Congress on January 6, 2020.

I cannot improve on Milton’s account of what a mendacious leader, a mendacious President has done to us—now he is gone! But to that pious lady who was interviewed on NPR, I say, “No. No, lying is not an endearing foible of an otherwise virtuous person. It is the child of Satan.”

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