Month: March 2020

From Judge Tanya Walton Pratt’s decision Friday in Kimberlin v. U.S. (S.D. Ind.); note that there’s an interesting First Amendment twist as to the impersonation conviction:

In February 1979, Kimberlin was charged in a 34-count indictment with crimes related to a series of bombings in Speedway, Indiana. Over the course of three trials in 1980 and 1981, Kimberlin was convicted of numerous felonies arising out of his impersonation of a Department of Defense police officer and eight explosions that occurred in Speedway, Indiana in September 1978. Kimberlin has challenged his convictions on numerous occasions. He served his sentences and was released from imprisonment in 2001.

In addition to the convictions challenged in this case, Kimberlin has incurred a 1974 felony perjury conviction …; and the Government asserts and Kimberlin has not disputed a 1979 felony conviction for conspiracy to distribute marijuana in Texas. {Based on [references to the conspiracy conviction] in this record, the Court concludes that the felony conviction still exists.}

Kimberlin is challenging the validity of some of his past convictions, but that’s hard to do for convictions that are decades old, such as these ones. The time for direct appeal has run out. Any appeal via a petition for habeas corpus is no longer available because his sentences have long expired. His only remedy is therefore under the writ of coram nobis, “an extraordinary remedy, allowed only where collateral relief is necessary to address an ongoing civil disability resulting from a conviction” (emphasis added)—and the reversal of the convictions would have to eliminate the civil disability.

“[C]oram nobis relief is available when: (1) the error alleged is of the most fundamental character as to render the criminal conviction invalid; (2) there are sound reasons for the defendant’s failure to seek earlier relief; and (3) the defendant continues to suffer from his conviction even though he is out of custody.” …

[Kimberlin] seeks relief from [his past] convictions asserting that they have interfered with his ability to obtain government grants, sit on a jury in his home state of Maryland, and renew his pilot’s license, among other impediments.

The Court assumes, without deciding, that these alleged impediments cause Kimberlin more than merely incidental harm. But because he has been convicted of multiple felonies in separate trials, including a 1974 perjury conviction in this Court, and the 1979 conspiracy to distribute marijuana conviction in Texas, neither of which are at issue here, a successful challenge to any one conviction will not relieve him of these impediments. See United States v. Keane (7th Cir. 1988) (“a single felony conviction supports any civil disabilities and reputational injury [a convicted felon] may have to endure”).

As discussed in detail below, Kimberlin’s challenge to his convictions for impersonating a Department of Defense official fail. Even if he were to successfully overturn his other bombing-related convictions, he would remain a convicted felon on at least the impersonation convictions, and likely his felony perjury and felony drug conspiracy convictions which he does not challenge here. Those felony convictions interfere with his ability to sit on a jury in Maryland state court, renew his pilot’s license, and obtain government grants whether his convictions related to the explosions in Speedway are overturned.

“Courts must conserve their scarce time to resolve the claims of those who have yet to receive their first decision.” United States v. Sloan (7th Cir. 2007). Kimberlin’s liberty is not at stake and overturning his bombing-related convictions would not relieve him of the civil impediments discussed above. Therefore, the Court will analyze Kimberlin’s challenge to his false impersonation convictions, but not his other claims.

Kimberlin challenges his convictions under 18 U.S.C. § 912, for falsely impersonating a Department of Defense … official. He argues that these convictions violate the First Amendment under United States v. Alvarez (2012) …. Specifically, Kimberlin argues that his convictions under § 912 violate the First Amendment because his wearing of the uniform and DOD patch while conducting commercial transactions constitutes expressive speech protected by the First Amendment. He seeks to extend the reasoning of Alvarez and United States v. Swisher (9th Cir. 2016), cases which dealt with the Stolen Valor Act of 2005 to his convictions under § 912.  {In addition, Mr. Kimberlin challenges his convictions under 18 U.S.C. § 701 for unlawfully possessing an official DOD insignia, and 18 U.S.C. § 713 for illegal use of the presidential seal violate the First Amendment under Alvarez, but the Court need not reach these arguments.}

In Alvarez, the United States Supreme Court addressed the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b) (which prohibits lying about being awarded military medals) and held it to be invalid under the First Amendment. In Swisher, the Ninth Circuit extended the holding in Alvarez to § 704(a) (which criminalizes the unauthorized wearing of such medals). However, [n]either Alvarez nor Swisher held convictions under § 912 or § 701, the statutes Kimberlin was convicted under, to be unconstitutional.

Last year, the Seventh Circuit addressed an argument similar to Kimberlin’s in United States v. Bonin (7th Cir. 2019). In Bonin, the Seventh Circuit rejected the defendant’s attempt to extend the reasoning of Alvarez to overturn his conviction under 18 U.S.C. § 912 for impersonating a United States Marshal. The Seventh Circuit squarely held that the acts-as-such clause of § 912 is narrowly drawn to serve the government’s compelling interests of protecting the integrity of government processes.

Undeterred, Kimberlin argues that Bonin left the door open for challenges to § 912 in less egregious cases such as his, but this Court disagrees. The Seventh Circuit rejected Bonin’s argument that, if allowed to stand, 18 U.S.C § 912 could be used to prosecute people for simply wearing Halloween costumes. But that was in the context of Bonin’s void for vagueness challenge, not his facial challenge under Alvarez, and the Seventh Circuit ultimately avoided evaluating his void for vagueness challenge because his conduct—claiming to be a U.S. Marshal and displaying a weapon in a theater as a way to intimidate other moviegoers who asked him to stop talking on his cell phone—clearly violated § 912.

The same can be said of Kimberlin’s conduct. He was not on his way to a Halloween party when he stopped to have a calendar or party invitations printed. The evidence at his trial demonstrated that he wore a DOD patch on his shirt and attempted to have copies made of the presidential seal.

It makes no difference that the copies were never made for Kimberlin. It was reasonable for the jury to conclude that he wore the DOD patch to deceive the copy store employee so that he or she would copy the presidential seal for him and the impersonation was to falsely imply that he was government official. Bonin held that public safety and protection of the reputation of law enforcement were compelling interests and § 912 is narrowly drawn to protect that interest. Thus, Kimberlin’s First Amendment challenge is foreclosed by Bonin….

Kimberlin has not shown that a fundamental error renders his convictions under § 912 invalid. Because these felony convictions, and his other unrelated felony convictions are valid, the Court need not address Kimberlin’s arguments regarding the alleged errors in his second and third trials which resulted in his conviction on charges related to the explosions in Speedway in the fall of 1978….

The court also rejected Kimberlin’s challenge to his felon-in-possession-of-explosive convictions:

In Rehaif v. United States (2019), the United States Supreme Court held that to convict an individual of illegal firearm possession under 18 U.S.C. §§ 922(g) and 924(a)(2), the Government must prove (1) the individual knew he or she possessed a firearm, and (2) the individual knew that he or she belonged to the relevant category of persons banned from possessing a firearm. Kimberlin asserts that his felon in possession of explosive convictions (violations of 18 U.S.C. § 842(i)(1)), as charged in Counts 23 and 24 of the 34-count indictment, must be vacated because the government never proved at trial that “he had any criminal intent or that he knew he had been convicted of a crime punishable by more than one year.” The evidence presented at Kimberlin’s trial does not support this assertion.

For more on Kimberlin’s lawsuits against the bloggers (which I mention chiefly because I think some of our readers may have followed them in the past), see here, here, here, and here.

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Bill Weld, the former Massachusetts governor and 2016 Libertarian Party vice presidential nominee, is facing some brutal odds this Super Tuesday in his Quixotic quest to wrest the GOP presidential nomination from incumbent Donald Trump.

Weld, who lost to Trump by nearly 96 percentage points in Iowa and nearly 77 in New Hampshire, then watched helplessly as Nevada and South Carolina ceded all delegates to the president rather than hold elections, has not as an official candidate polled higher than 14 percent in any of the 13 states (worth a combined 785 delegates) voting Tuesday. Trump’s margin in national polls has not dipped below 80 percentage points since October, and his approval rating among Republicans rests at 93 percent. The president’s combined campaign-finance juggernaut is outraising Weld by a ratio of 300 to 1.

And yet the perpetually chipper redhead still sees some upside to his long shot bid. More than half of Super Tuesday states, including Trump-averse Utah, have not been polled. In his home state of Massachusetts, Weld was endorsed by the Boston Globe, in an effort “to salvage time-honored conservative principles and to change the shabby tone of the Trump era.”

And though he no longer dreams of being 1992 Pat Buchanan or 1968 Eugene McCarthy, Robert Mueller’s old boss does hold out hope that his minor electoral contribution might yet be enough to derail the 2020 Trump train.

“Steve Bannon said that if the president loses four percent of the traditional Republican vote, he cannot be re-elected,” Weld told me in a phone interview Monday afternoon. “If that’s true, that’s a marker I can meet. And it would not pain me to think that I had some responsibility for bringing it about that Donald J. Trump was not re-elected president.”

Weld, who has campaigned consistently on reducing debt/deficits, updating 1990s-flavored moderate-conservative reform for the 21st century, and railing against Trump’s unfitness, also told me that he still thinks the Republican Party might go the way of the Whigs, and that a “strong third party” including “centrist Democrats” and “centrist libertarians” might rise from the ashes in 2021 or 2022. He also said he would back Joe Biden or Michael Bloomberg if they became the Democratic presidential nominee, though not Sen. Bernie Sanders (I–Vt.) at this time.

The following is a lightly edited transcript of our conversation:

—

Reason: What results do you need to see tomorrow to stick in until Wednesday?

Weld: Well, I’ll be sticking in anyway. I mean, we’ve got Michigan coming up on the 10th. We’ve got Florida coming up on the 17th. So I don’t want to miss those.

In terms of tonight, I would say my top three states are probably Vermont, Massachusetts, and Utah. I’ve been endorsed by Evan McMullin, who got 20 percent-plus in Utah last time. Had some very nice visits out there with the [Latter Day Saints] folks, who I get along with very well. So that’s why that’s in the top three. […]

Colorado is an open primary, and I think unpredictable—I’m not predicting victory there, but that could be an interesting state. California, likewise, not predicting victory, because it’s a closed primary, but Trump has really declared open war on California, so that could be of interest. Otherwise, I’d like to see what happens in Texas and North Carolina, Tennessee. It should be an enjoyable evening.

Reason: What have you learned in this process since you jumped in?

Weld: I’ve learned that the duopoly in Washington, D.C., is every bit as bad as Gary Johnson and I thought it was four years ago. It’s really paralyzing the country and preventing forward motion. When you have a president of the United States who shares that poisonous view and is vengeful into the bargain, that makes it even worse. So that’s what I’ve learned!

It’s all about Washington, D.C., the bad stuff—it’s not about the state capitals and states, it’s not about the Trump voters. I think it’s about Donald Trump, the increased negativity.

Reason: What have you observed on a state-by-state level, including even in Massachusetts to the extent that it’s relevant, about the way that Trump and the national GOP has muscled in on state GOPs, or that just state GOPs know that in order to be popular you need to stay in good with the president?

Weld: Well, no, it’s not that they’re inferring anything, it’s that they’re told things. Because once the Republican National Committee merged its operations with the Trump campaign, then from that point forward the Republican state committee in every single state was, is, and remains the Trump organization. So it doesn’t pay me to try to bark up that tree.

My strategy needs to be, and has been, to try to increase the number of people voting in the Republican primary—more women, more younger voters, more minorities, et cetera, et cetera. Just voters who are perhaps marginally more likely to rally to my flag than a classical Republican voter who’s voted in the last five Republican primaries.

Reason: You mentioned that the duopoly is every bit as strong, if not stronger. And yet we’re on the verge of having Trump, who was an outsider, take over the Republican Party and mold it in his image, largely. And Bernie Sanders is on the verge of being a democratic socialist independent who might do the same with the Democratic Party. What do you make of that paradox? So, the duopoly is super strong and yet vulnerable to takeover by kind of anti-establishment figures?

Weld: Well, I’m not sure Sanders is going to get there, frankly. Most people seem to think that he will.

I think Donald Trump essentially cemented his takeover of what I’ll call the Trump faction of the Republican Party…when 52 Republican senators not only said, “We don’t want to hear any evidence,” they also said, “We really don’t want to consider whether you should be removed from office, although the Constitution requires us to do so.” That was not a good showing.

And I know that a number of them have said to the press on background since their vote, “I did it because of fear. I did it because I was fearful the president would run somebody against me to my right in the primary, and I would lose my seat.” I’ll tell you, if that was the case with me, I would never have admitted that to anybody on or off the record! That’s a shameful admission.

Reason: You and I talked a lot in 2017 and 2018 when you were still doing a lot of activities within the Libertarian Party; you had an analysis of the Republican Party facing a future in which maybe they go the way of the Whigs, maybe they kind of split apart and get reborn anew into something else, or explode. I want you to re-evaluate that analysis. And then also, might that be happening on the Democratic side as well?

Weld: Well, victory is a wonderful salve. And if the Democrats win the election, I don’t think that’ll happen, Democratic side.

On our side, yeah, no, I think the same thing I did last time. And this time, because of their votes to acquit without hearing any evidence, I think the Republican senators are vulnerable this year.

I saw this happen with the Nixon impeachment when people who had gone through the draining exercise of defending President [Richard] Nixon all summer long and saying, “There’s insufficient evidence that he knew about the Watergate conspiracy to tank the Jaworski investigation”—they lost their seats. Including people like Rep. Wiley Mayne from Iowa, who had won handsomely [before] but was voted out. I mean, they looked kind of ridiculous.

I’m not sure that a number of the Republican senators this time around don’t look ridiculous. So I think there’s a decent chance that the Republicans will lose the Senate.

Then you could see some finger-pointing and forces at play that could cause a split-up of the party, similar to the split-up of the Whigs in the 1850s with the Know-Nothing faction, which was founded on anti-immigrant prejudice. It was all the Catholics from Germany and Italy and Ireland that they hated, and they had violent rallies and they had conspiracy theories. It’s a carbon copy of the Trump faction now. But they did pinwheel out into outer space and were never heard from again. Except for Speaker Nathaniel Banks of the Massachusetts House, who also became speaker of the U.S. House, I think. But he was an outlier. So I think that could happen again, and I’m not sure it’d be a bad thing.

You might see a third party—a strong third party, not a single-issue third party—emerge out of the remnants of traditional Republicans. Some centrist Democrats, some centrist libertarians. That could be an interesting party. I’ll just call it the Unity Party for the time being. That’s something that could happen. But it’s not going to happen in 2020. It would be 2021, 2022.

Reason: It’s not hard to look at your situation and see some pretty bad math…So what are some glass-half-full analyses of the numbers going into tomorrow, even if there are some lopsided defeats?

Weld: Well, although you’d always like to win any contest you get into, and I’m no stranger to long odds—my first governor’s race, I won, even though I started at sub-asterisk levels and everyone laughed and said, “You got to get out of this race”—however, I do think that of the reasons that I’m running, number one is I think I could start Monday on the job, and I have half a dozen things that I think desperately need doing. But number two is—and the reason I ran as a Republican this time as opposed to a Libertarian—one of the reasons is that every vote for me, even a write-in vote for me, is not a vote for Trump.

Steve Bannon said that if the president loses 4 percent of the traditional Republican vote, he cannot be re-elected. I don’t know whether Bannon was being serious or not, but he’s usually serious. And if that’s true, that’s a marker I can meet. And it would not pain me to think that I had some responsibility for bringing it about that Donald J. Trump was not re-elected president.

Reason: I know you don’t spend a lot of time commenting on the Democratic race, for obvious reasons, but is it safe to assume that if it’s candidate Biden or Bloomberg, you would vote or encourage people to vote Democrat? And if it’s candidate Sanders, you’re going to wait and see who the Libertarians nominate?

Weld: That’s exactly correct.

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Last year, voters in Toledo, Ohio passed a ballot initiative purporting to enact a “bill of rights” for Lake Erie as a part of the city’s charter. The so-called “Lake Erie Bill of Rights” or LEBOR declared that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish and naturally evolve.” Accordingly, LEBOR sought to prohibit environmental contamination and prohibit activities that harmed the ecological integrity of the lake and purported to authorize citizen suits to effectuate its prohibitions.

The idea behind LEBOR was always a bit fanciful, particularly insofar as the initiative’s sponsors thought that voters in a single municipality could assert rights on behalf of broader ecosystems and waive away the trade-offs inherent in declaring that particular resources must be used in particular ways. Now LEBOR is no more.

Last week, a federal district court judge in Ohio declared the LEBOR to be “unconstitutionally vague” and beyond “the power of municipal government in Ohio.” In Drewes Farms Partnership v. Toledo, Judge Jack Zouhary explained:

Federal courts have invalidated municipal legislation on vagueness grounds. For example, a Cincinnati ordinance criminalized gathering on sidewalks “in a manner annoying to persons passing by.” Coates v. City of Cincinnati, 402 U.S. 611, 611 (1971). The Supreme Court struck it down because “[c]onduct that annoys some people does not annoy others.” Id. at 614. A Detroit-area township regulated the use of machines that keep water near boats and docks free from winter ice. Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 555 (6th Cir. 1999). These ice-free areas could not exceed a “reasonable radius.” Id. The Sixth Circuit found the ordinance void for vagueness, in part due to the “failure to include a definition of ‘reasonable.'” Id. at 558–59. A Columbus gun-safety ordinance met the same fate. The ordinance banned forty-six specific guns, as well as “other models by the same manufacturer . . . that have slight modifications or enhancements.” Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 251 (6th Cir. 1994) (emphasis added) (brackets omitted). The Sixth Circuit saw “no reasoned basis” for determining what changes qualify as “slight,” so it invalidated the ordinance. Id. at 253–54.

LEBOR’s environmental rights are even less clear than the provisions struck down in those cases. What conduct infringes the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve”? TOLEDO MUN. CODE ch. XVII, § 254(a). How would a prosecutor, judge, or jury decide? LEBOR offers no guidance. Similar uncertainty shrouds the right of Toledoans to a “clean and healthy environment.” Id. § 254(b). The line between clean and unclean, and between healthy and unhealthy, depends on who you ask. Because of this vagueness, Drewes Farms reasonably fears that spreading even small amounts of fertilizer violates LEBOR. Countless other activities might run afoul of LEBOR’s amorphous environmental rights: catching fish, dredging a riverbed, removing invasive species, driving a gas-fueled vehicle, pulling up weeds, planting corn, irrigating a field—and the list goes on. LEBOR’s authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning. Under even the most forgiving standard, the environmental rights identified in LEBOR are void for vagueness.

The right of Toledoans to “self-government in their local community” is impermissibly vague as well. Id. § 254(c). At first blush, this provision seems to reiterate Article XVIII, Section 3 of the Ohio Constitution, which grants municipalities “authority to exercise all powers of local self government.” Unlike the Ohio Constitution, however, LEBOR imposes a fine on any business or government that violates the right. The amount of the fine is “the maximum . . . allowable under State law for that violation.” Id. § 256(a). But Ohio law does not identify any fine for violating a right to self-government. Additionally, this right includes “the right to a system of government that protects and secures . . . human, civil, and collective rights,” but the nature of those human, civil, and collective rights is anybody’s guess. Id. § 254(c). Like LEBOR’s environmental rights, this self government right is an aspirational statement, not a rule of law. . . .

Frustrated by the status quo, LEBOR supporters knocked on doors, engaged their fellow citizens, and used the democratic process to pursue a well-intentioned goal: the protection of Lake Erie. As written, however, LEBOR fails to achieve that goal. This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio. It is therefore
invalid in its entirety.

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3/3/2019: Schenck v. United States decided.

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Arizona State University’s School of Civic and Economic Thought and Leadership held a two-day conference on nationalism last weekend. I was invited to speak on a panel titled “American Citizenship in a Global Context: Rootedness and Globalism,” along with Baylor College’s Ann Ward and the Claremont Institute’s Christopher Caldwell.

What follows is an expanded and revised version of my remarks:

Does America need a project of nationalism to make Americans feel more American? More specifically, can nationalism offer a way to foster social cohesion in an increasingly polarized country and globalized world?

Not to give away the punch line, but the short answer is “no.” In this, I am sharply diverging from the emerging consensus on the center-right represented here yesterday by Rich Lowry and on this panel by Chris Caldwell. But with all due respect to them, a top-down program of nationalist engineering to unite the country will, I fear, backfire badly, pouring gasoline on the fires of polarization. It’ll also force Americans, paradoxically, to turn their back on the one true source of their rootedness: their founding principles of equality, individual rights, and human dignity—universal principles that unify them not just with each other but with the rest of humanity. Their country is an instantiation of universal principles, which makes it possible for Americans to be both citizens of their country and citizens of the world without any inner conflict.

But before I get into why a program of nationalism is undesirable and unworkable, let me push back on the premise of this panel and perhaps conference and say why it is also unnecessary. It is unnecessary because if you look past screechy liberal activists, Americans are preternaturally inclined to not just love but more importantly like their country.

I came to the United States from India some 30 years ago, and I was immediately struck by the same thing that struck a much more illustrious foreigner, Alexis de Tocqueville, about 200 years before me: America is a naturally patriotic country. I remember being intrigued by the open and unselfconscious affection of Americans for their country. To effete European eyes, this might seem corny. But to the eyes of this immigrant from a “shithole country” used to government-sponsored and jingoistic public shows of patriotism, it was really charming to see the display of the American flag outside private homes, the heartfelt rendition and warm reception of the American anthem before every sporting event, and hobby clubs where adults reenact the Revolutionary War and the Civil War dressed in period costumes. On the Fourth of July, every neighborhood association, every city, every municipality arranges its own festivities. No national law is required. No federal funding is demanded. Laredo, Texas, a border town with a 90 percent Hispanic population, has a century-old tradition of holding month-long festivities to celebrate George Washington’s birthday that culminate in a debutante ball where young men and women dress up as figures from the revolutionary period. Last fall, I went to Sharpsburg, Maryland, the site of the Battle of Antietam, the bloodiest battle in this country’s history, in which Union forces eked out a victory that allowed Abraham Lincoln to issue the Emancipation Proclamation. My tour guide, hands down the best I’ve ever had anywhere in my travels, was a retired dentist from Illinois who spends several months every year in the town to conduct these tours, barely making minimum wage no doubt. He does it because he loves that chapter in American history in which his country stood up for its principles.

What is strikingly absent in America, at least until the “Salute to America” that President Donald Trump held in the National Mall last year, is state pomp and circumstance—military parades with soldiers in crisp uniforms smartly saluting political authorities. As Tocqueville observed, American patriotism is very different from the old-fashioned Old World kind that regarded the nation as a father that created its citizens. Americans, by contrast, love their country because as free and productive citizens, they see themselves as its creators. The nation is their offspring, not their father. (Or the result of their actions, not their designs, as F.A. Hayek might have put it.)

Not so in India, where Republic Day celebrations involve a massive parade by various military divisions, complete with fighter planes performing war games in the air, followed by schoolchildren conscripted from all over the country to march in lockstep. Four years ago, after a military skirmish with Pakistan, the Indian Supreme Court issued a ruling mandating that every movie theater begin with a rendition of the national anthem and required every viewer to stand up. “The time has come, the citizens of the country realize that they live in a nation and are duty bound to show respect to the national anthem…[the Constitution] does not allow any different notion, or the perception of individual rights.” This ruling has since been reversed, but such a sentence is unimaginable from the pen even of the most ardently patriotic American jurist. Indeed, far from not allowing any “different notion” or posture toward the national anthem, this country has insisted on letting its beloved symbols be used as vehicles for protests.

Precisely because the understanding in America is that the country exists for the sake of individuals and not individuals for the sake of the country, the First Amendment protects activities like bending the knee during an anthem to protest police brutality, or burning a flag to oppose unnecessary wars. (Also, you won’t see any American reenacting the Vietnam War, a sign that this was a mistake, not a “just war.”) This allows civic activism by oppressed groups and dissidents to alert the country when it is falling short of its professed ideals. Of course, the dissenters and protesters can and do go overboard, but then their cause fails to sway. In short, American nationalism has built-in mechanisms for course correction, which makes the country more worthy of affection.

The other striking thing about American patriotism—and I am using the term interchangeably with nationalism, although there is a valid distinction to be made, as Reason‘s Stephanie Slade recently pointed out—is that it does not define itself against something else. If Pakistan and Islam were to disappear from the face of the Earth tomorrow, there would be nothing left to sustain Indian nationalism. It would be devoid of content, hollowed out. But America’s ideals anchor it. The demise of Communism didn’t diminish America’s ideals-based nationalism. It vindicated it. Indeed, it resulted in a wave of democratization around the world, at least for a while. The Israeli author Yoram Hazony, whose book The Virtue of Nationalism arguably launched the post-Reagan nationalist right in America, makes the remarkable claim that America’s classical liberalism is fundamentally imperialistic because its political principles are deduced from Lockean notions about a universal human nature. That, he says, leads to a crusading moral universalism that denies the validity of alternative principles of national self-determination. But America doesn’t have to try to universalize its ideals—the universe vindicates them on its own. In fact, the one thing that most powerfully undermines American patriotism is misguided warfare aimed at spreading democracy at gunpoint, as in Iraq. I’ll speak more on Hazony later, but suffice it to say for now that America does not have to be like the dragon-riding Daenerys from Game of Thrones, incinerating countries to free them.

None of this is to suggest that pre-Trump America had completely risen above the us-versus-them impulse. But Trump’s campaign to depict Mexicans as “rapists and criminals” and Mexico as a fundamental threat to American sovereignty is perhaps the first attempt in living memory to mount a major presidential campaign around it.

It is terribly unfortunate that instead of rejecting this idea of nationalism, conservatives are straining to put a respectable intellectual foundation beneath it. It is as if they are buying the notion of the conservative German jurist and philosopher Carl Schmitt that the very core of political life requires opposition to “the Other” because polities, even liberal ones, can’t maintain their cohesion on the strength of their own principles. They allegedly need a cultural enemy against which to define themselves.

And what is this new enemy? Mass immigration, especially from non-Western countries. This has become de rigueur in conservative nationalist circles. Germany’s Angela Merkel is out because of her friendliness to Middle Eastern refugees; Hungary’s strongman, Viktor Obran, is in because he is taking draconian steps to wall off his country from even transient refugees in the name of national security and cultural purity. Though I am pro-immigration, I get why others feel that immigration flows have to be carefully managed. But this is something else. This is making opposition to immigration the central pillar of a program of cultural renewal—treating immigrants as the enemies against whom we assert our national sovereignty.

Once you look past the lofty references to Hamilton and Lincoln in Rich Lowry’s book, this antipathy to immigration even makes him flirt with a mild version of blood-and-soil nativism. He argues that “an exclusively idealistic account of America is a mistake” and “the criterion for citizenship in the United States is not attachment to a set of ideas but birth within our borders.” He calls George W. Bush’s statement that “our identity as a nation, unlike other nations, is not determined by geography or ethnicity or soil or blood” a sign of “willful ignorance,” because it denies “the contribution of geography or land to our identity.” Geography, he says, “is our national destiny,” and celebrating the “beauty and bounty of our land in the most exalted terms” ought to inform our understanding of who can be a true American and who can’t. What also matters, he says, is whether our ancestors shed blood for the country and are buried here.

What is Lowry’s project here? He’s trying to articulate a non-racial, non-religious criteria to anchor a thick sense of nationalism that bloodless appeals to abstract individual rights allegedly cannot do. (Tocqueville would be rolling in his grave right now.) He wants to be broadly inclusive of those already in America, but not so inclusive that America has an obligation to anoint as a full American anyone who manages to find his or her way here and agrees to live by American principles. He wants a form of cultural nationalism that makes it more difficult for immigrants to become accepted as Americans. So if America’s principles are not enough to anchor a robust nationalism—and race and religion are off limits because they would run afoul of the constitution—then geography and ancestry are the only candidates for Lowry’s project.

Lowry devotes an entire chapter to immigration in which he offers the standard conservative prescriptions for reform, namely, cut overall immigration levels and let only high-skilled immigrants come in. But that won’t advance his version of ancestral and geographic—or  blood-and-soil—nationalism. Another thing that might be required is something else that’s popular in conservative circles, namely, getting rid of birthright citizenship, which automatically makes any child of immigrants born on American soil an U.S. citizen. Lowry’s America may also need to let fewer immigrants obtain naturalization and make them wait much longer to do so than the current five years after obtaining their green cards. It may have to make them pass some cultural test.

For those of us who see America’s “idealized conception” of citizenship as its greatest strength, there is nothing to be gained by doing something like this. Recent arrivals often have a deeper and more visceral appreciation of America’s founding principles, because they know what its like to live in an unfree, tyrannical country. When some Muslim refugees are asked if they are angry about the rising anti-Muslim bigotry in America that Trump may be fomenting, they say something like, “Hell, no. We love a country where the president can be sued.”

Lowry’s deification of land and ancestry will not just make it harder for such immigrants to be embraced as true Americans; it will also make Americans whose ancestors don’t go back generations feel less American. Once a criterion to judge “outsiders” is established, it will also inevitably become a way of judging “insiders.” Who will these Americans be? Religious minorities who don’t have a long history in this country. A blood-and-soil criterion will become a de facto religious criterion, regardless of whether Lowry intends that.

Will we also start viewing Americans who haven’t undertaken a national pilgrimage from the Grand Canyon to the Shenandoah as less American? How about the Amish, who eschew travel but love America precisely because it leaves them alone to pursue their own quaint ways? Will they be granted space in Lowry’s cultural nationalism? And the Hassids? Would all these groups be turned into second-class citizens or, worse, foreigners in their own land, because they don’t subscribe to Lowry’s version of blood-and-soil nationalism?

What a project like Lowry’s will do is deny individuals and communities their own ways of defining their own relationships with America, of finding their own reasons to love America.

What’s more, if this project is serious it will require state action, even aggression, to make it stick. This means that any attempt to attach it to liberal democratic principles, as Lowry seems to want to do, will destroy these principles.

This is precisely what’s happening in my native land, where Prime Minister Narendra Modi is demonstrating what it takes to convert a liberal democracy into a robust nationalistic one. Hindu extremists were touting a religiously infused blood-and-soil nationalism, or Hindutva, before such a thing became cool in the West. Hindutva believes that the only true citizens of India are those whose holy sites sit on the hallowed Indian soil that gave birth to their religion. This includes Hinduism and its off-shoots—Buddhism, Jainism, Sikhism—but not India’s 140 million Muslim inhabitants, equal to half of the population of the United States. Or its 30 million Christians, equal to the entire population of Canada.

Hindutva makes no bones that its ultimate goal is to purge India of these “foreign” religions and return to the halcyon days when only true Hindus roamed the motherland spanning the Himalayas in the North and the Indian Ocean in the South. To that end, Modi’s home minister announced plans to separate legal from illegal residents by creating a nationwide registry of citizens. Only those among India’s 1.3 billion residents who produce papers showing that they have ancestors dating back to some cutoff year will be included on this list.

The government knows that this will be an impossible task for hundreds of millions of Indians, especially poor ones, many of whom don’t even know their birth dates, let alone keep their grandparents’ birth certificates. So Modi passed a law that non-Muslims who can’t produce documents will be granted amnesty and expedited citizenship. But Muslims who can’t do so will be out of luck, even if they do have ancestors going back generations.

Modi’s nationalistic project provides a clear example of how empowering a government to impose nationalism does not nurture “mutual loyalty” among citizens, as Hazony suggests. Why? Because this state-prescribed nationalism ends up judging citizens not by their loyalty to each other but their loyalty to the state’s aims and methods. In Modi’s India, it is not just Muslims and Christians who are considered less Indian. Hindus who don’t dutifully line up behind Hindutva’s idea of national identity are considered un-Indian. As Modi pushes his Hindu nationalistic agenda, Indians are becoming more divided—the exact opposite of what nationalism is supposed to achieve.

Nor can anyone who embraces Hazony’s nationalistic project consistently condemn what’s happening in India. Why? Because as far as Hazony is concerned, judging nations that are striving to build thick national communities by liberal principles of pluralism is an illicit breach of their right to self-determination. The liberal conception of individual rights and market economics is only one among many legitimate political principles, he believes. Nation-states should be left alone, not just by international organizations threatening sanctions to imperial powers peddling a new world order at gunpoint but even by any diplomacy that smacks of  moral judgments. In the name of localism, Hazony is advocating not non-interventionism but a radical moral relativism where the only standard of right and wrong is what a nation says it is. The obscene spectacle of Trump visiting India and praising Modi as a great defender of religious liberty even as Hindu militants at that very moment were butchering Muslims merely miles away might be in keeping with that spirit.

I came to America in the heyday of the multicultural movement, when the right was up in arms over the postmodern left’s relativism that regarded any effort to judge even Muslim societies that practiced genital mutilation as Western chauvinism. It is breathtaking to now watch the same right talk itself into its own version of moral relativism, which would give the worst atrocities a pass in the name of national self-determination.

To add insult to injury for a classical liberal like me, Hazony enlists in his project the great classical liberal hero John Stuart Mill. Hazony refers to Mill’s thoughts on nationalism in Considerations on Representative Government, where Mill suggests that too much diversity makes representative government difficult because then one faction can make alliances with the government to increase its power over others. So even liberty and limited government require nationalism, says Hazony. Lord Acton vehemently disagreed. He believed that the more diverse a nation, the better, because that prevents the tyranny of the majority. But setting that aside, Hazony is mischaracterizing Mill. Mill certainly believed that “common sympathies” among a people makes the task of governing easier. But he also said that there can be various reasons behind this “fellow feeling”—religion, language, geography, common history, or “identity of political antecedent,” as is the case in America. Indeed, Mill, citing the example of Switzerland, says that it “has a strong sentiment of nationality” even though its cantons are of “different races, different languages, and different religions.” Furthermore, he states if a free nation lacks a natural sense of nationality, one cannot expect it to create one by entrusting the authorities. One of the great advantages of a unified populace is that it is able to limit the power of government, Mill says. But it is putting the cart before the horse to expect that the government, once entrusted with great powers to create national unity, will actually follow through and risk having its own powers limited. More likely it will divide and conquer.

Indeed, any overt program of nationalism will backfire badly, because it will inevitably try to replace Americans’ organic love for “political antecedents” with an entirely new and inorganic principle of American nationalism. Whether it wants to or not, it will empower the government to slice and dice people into in-group and out-group based on some artificial principle, becoming simultaneously more oppressive and more divisive.

Nation-building at home in the name of fostering a strong local identity won’t work any better, and may in fact work worse, than nation-building abroad in the name of a new world order.

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This episode features a lively (and – fair warning – long) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users’ speech online, and pretty much no one has both authority and an interest in fostering free-speech values. The ironies abound: Conservatives may be discriminated against, but so are Black Lives Matter activists. In fact, it looks to me as though any group that doesn’t think it’s the victim of biased content moderation would be well advised to scream as loudly as possible about censorship anyway for fear of losing the victimization sweepstakes.

Feeling a little like a carny at the sideshow, I serve up one solution for biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing to allow real transparency, and the government may have a first amendment problem forcing companies to disclose how they make their moderation decisions. Competition law as a way to encourage multiple curators? It might require a “magic” API, and besides, most users like a moderated Internet experience. Regulation? Only if we want to take First Amendment law back to the heyday of broadcast regulation (which is frankly starting to sound pretty good to me).

As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the CJEU’s insufferable decision encouraging the export of European defamation law to the US – with an extra margin of algorithmic censorship to keep the platform from any risk of liability. Turns out, that speech suppression regime is not just an end run around the first amendment; it’s protected by the first amendment. I offer to risk my Facebook account to see if that’s already happening.

In the news, FISA follies take center stage, as the March 15 deadline for reauthorizing important counterterrorism authorities draws near. No one has a good solution. Matthew Heiman explains that another kick-the-can scenario remains a live option. And Nick Weaver summarizes the problems that the PCLOB found with the FISA call detail record program. My take: The program failed because it was imposed on NSA by libertarian ideologues who had no idea how it would work in practice and who now want to blame NSA for their own shortsightedness.

Another week, another couple of artificial intelligence ethics codes: The two most recent ones come from DOD and … the Pope? Mark MacCarthy sees a lot to like. I offer my quick and dirty CTRL-F test for whether the codes are serious or flaky, and both fail.

In China news, Matthew covers China’s ever-spreading censorship regime – which now reaches Twitter users whose accounts are blocked by the Great Firewall. We also ask whether and how much the US “name and shame” campaign has actually reduced Chinese cyberespionage. And whether China is stealing tech from universities for the same reason Willie Sutton robbed banks – that’s where the IP is.

Nick recounts with undisguised glee the latest tribulations suffered by Clearview AI’s facial recognition system: Its app has been banned from Android and Apple, and both its customers and its data collection methods have been doxed.

Mark notes the success of threats to boycott Pakistan on the part of Facebook, Google, and Twitter. I wonder if that will simply incentivize Pakistan to drive its social media ecosystem toward the Chinese giants.

Nick gives drug dealers a lesson in how not to store the codes for €53.6 million in Bitcoin; or is it a lesson in what to say to the police if you want that €53.6 million waiting for you when you get out of the clink?

Finally, in a few quick hits, we cover new developments in past stories: It turns out, to the surprise of no one, that removing a police tracking device from your car isn’t theft. West Virginia has apparently recovered from a fit of insanity and now does not plan to allow voting by insecure app. And the FCC is doing a slow striptease in its investigation of mobile carriers for selling customer location data; now we know who’ll be charged (pretty much everyone) and how much it will cost them ($200 million), but we still don’t know the theory or whether the inquiry is going to kill off legitimate uses of location data.

Download the 302nd Episode (mp3).

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