Month: September 2021

Hillbilly Elegy author JD Vance was already some way along a journey when he took the stage at the first “National Conservatism Conference” in July 2019. 

In the runup to 2016, he had been an outspoken critic of Donald Trump’s candidacy. “I find him reprehensible,” he tweeted a month before the election. “Fellow Christians, everyone is watching us when we apologize for this man.”

Within three years, his views had evolved sufficiently to put him on the program of an event widely viewed as an attempt by right-wing pundits and scholars to erect an institutional structure—or at least some intellectual scaffolding—around the Trump phenomenon. 

Earlier this year, just after announcing a run for U.S. Senate, he apologized to Ohio voters for having been “wrong about the guy.” 

But only last week did the full force of Vance’s spiritual reversal become apparent: “I think our people hate the right people,” he told The American Conservative magazine.

“Our people” might be understood broadly as the Republican base, while those he sees as worthy of contempt might be understood broadly as leftists and members of the coastal elite. Reached for comment, his campaign press secretary affirmed that “JD Vance strongly believes that the political, financial and Big Tech elites…deserve nothing but our scorn and hatred.”

By suggesting that antipathy toward the correct out-group is itself a moral imperative, Vance was engaging a powerful political current that has recently resurfaced within the conservative movement. He is not the first to be swept up in it.

In 2016 and 2017, New York Post op-ed editor Sohrab Ahmari wrote a pair of long magazine articles sounding the alarm to people of faith about rising illiberalism at home and abroad. “Simply put,” he said in the second piece for Commentary magazine, “in the real-world experience of the 20th century, the Church, tradition, and religious minorities fared far better under liberal-democratic regimes than they did under illiberal alternatives.” 

Two years later, Ahmari had had enough of all that. In a now-infamous broadside in the Christian journal First Things, he insisted that conservatives learn to see “politics as war and enmity,” that they shed their “great horror” of “the use of the public power to advance the common good,” and that they be willing “to fight the culture war with the aim of defeating the enemy and enjoying the spoils.”

At the very core of the new illiberal conservatism is a yen for power—and an unabashed willingness to use it to destroy one’s political opponents. Summing up the problem with libertarians and “establishment” conservatives in an essay last year, Hillsdale College’s David Azerrad assailed “the cowardice and accommodation in the face of leftist hegemony” exhibited by the “long list of enemies to the Right.” The more “manly” and “combative” conservatism that Azerrad claimed to speak for “understands not just ideas,” he said, “but power.”

Demands of this sort can be plausibly justified only if one’s adversaries are irredeemable and one’s life itself is at stake. Listen to the new conservatives’ online chatter and you’ll hear just such claims: that the left wishes to “subjugate” or “exterminate” them; that progressives have no qualms about using state power to accomplish their ends; that to do anything less than respond “in kind” amounts to “unilateral disarmament”; that this is a “war” in which the only choices are “suicide” or victory at any cost.

And these sentiments are not limited to anonymous accounts on the dark edges of social media. In July, former Trump official (and “Flight 93 Election” essayist) Michael Anton lambasted conservatives for not responding appropriately to the “proto-genocidal rhetoric” of the left. In February 2020, Harvard Law professor Adrian Vermeule stepped into hot water by tweeting that the anti-Trump attendees of a center-right conference would be “the very first group for the camps.” (He meant that their opposition to Trump will not be able to save them from the “gulags” when the “extremist left” takes over, he later clarified.) As talk radio provocateur Jesse Kelly put it this spring, “The Left and the Right have existed in a System where only the Left plays offense and the Right plays defense. They’ve existed in this System so long, both sides think it’s normal. And permanent. It’s not.”

A couple of things should be clear at this point. For one, this is not a left-right schism. For those I call “Will-to-Power Conservatives,” the fusionist right is no less an enemy than is the progressive-identitarian left. (Now would be a good moment to acknowledge that the politics of hate are not exactly foreign to segments of the progressive movement, either. Neither side has a monopoly on illiberalism.)

Second, this divide is not primarily about technocratic policy. 

Consider that the same nationalist conference at which Vance spoke in 2019 featured a debate. On one side, representing the MAGA faction, former Mitt Romey adviser Oren Cass argued that Washington should use its powers of taxation and regulation to prop up American manufacturing against foreign competition. On the other, Richard Reinsch, an editor at the libertarian publisher Liberty Fund, made the case for free markets and against attempts by the state to choose winners and losers.

It can seem like this type of studious wrangling over the proper size and scope of government is the main rift on the right today. It’s not. Cass’ top-down industrial planning is about as far from my free trade libertarianism as a political agenda can be. But as a dispositional liberal, Cass recognizes, just as Reinsch and I do, that people can disagree without despising one another.

The same, I fear, cannot be said of Vance and his compatriots. And once hate becomes a virtue to be celebrated and opponents become enemies to be destroyed, before long, no response is off the table. 

Students of intellectual history may be picking up a hair-raising resonance. The new illiberal conservatives have (sometimes quite explicitly) taken a page out of the book of Carl Schmitt, an anti-modernist, pro-authoritarian German political philosopher known for insisting that the core distinction of politics “is that between friend and enemy.” 

It’s occasionally said that Schmitt’s ideas were meant to be descriptive, not normative. Yet he plainly believed that blowing up constitutional limitations on the executive and withholding mercy from the out-group were the legitimate province of a sovereign state. Democracy, he once wrote, “necessarily involves first homogeneity and secondly—if necessary—the elimination or annihilation of heterogeneity.” 

As if to prove how strong the current of hate-based politics can be, Schmitt’s beliefs would lead him to a stint as the “crown jurist of the Third Reich.” Though he eventually left the Nazi Party, he refused to renounce the worldview that had made him one of Hitler’s most prominent apologists.

With their talk of enemies and enmity and civilizational war, it seems the new illiberal conservatives have tapped into something that isn’t so new after all.

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From Lull v. County of Sacramento, decided Tuesday by Magistrate Judge Jeremy Peterson (E.D. Cal.):

Plaintiff claims that defendants engaged in retaliation forbidden by the First Amendment when they refused to let him pay some of his property taxes with crumpled one-dollar bills emptied from garbage bags, which he brought to the Sacramento County Department of Finance office on tax day. Defendants maintain that, although they do accept some cash payments and had previously accepted one from plaintiff, they refused the payment at issue because it did not comply with the county’s requirements for cash payments and because they did not have the resources to process it. Plaintiff disputes that defendants’ rejection of his payment was motivated by these considerations, claiming instead that defendants sought to suppress his protest, but he offers scant evidence of this. I recommend that the court grant summary judgment for defendants….

In 2017, plaintiff was behind on his property tax payments and was under pressure from his mortgage holder to pay the taxes. He needed to pay by February 6 to avoid either a fee, a higher interest rate, or default. Plaintiff sought to make his tax payment in one-dollar bills, which he alleges was intended as a form of protest. Before attempting such a cash payment, he consulted with the county attorney, Keith Floyd. Floyd told him that coins were not an acceptable form of payment, but dollar bills would be acceptable under certain conditions, namely:

1. All tendered bills would have to be in a readily countable condition. This means the bills must be flat when presented. No folded, crinkled, wadded up, rolled, or otherwise altered bills would be accepted.
2. The payment would have to be offered in person at an agreed upon date and time. The Department of Finance needs to ensure that it has adequate staffing resources available to count the money during regular business hours while you or your representative remain present during the process.
3. The Department of Finance would allow for one recount if the counted total appeared to be less than the tax bill amount.

Plaintiff arranged with Floyd to pay with 16,400 one-dollar bills on February 6, 2017.

When plaintiff came to the Department of Finance’s public counter at 8:10 a.m., the 16,634 bills that he presented did not comply with the requirements that Floyd had laid out. Specifically, some of the bills were folded and crumpled, not flat. Plaintiff dumped them from garbage bags onto the counter, spilling some onto the floor. He also taped fake bills to the counter and spoke about his protest, recording it on video. Despite the condition of the bills, the county still accepted them as payment. Processing plaintiff’s payment took 35 hours of staff time and involved six staff members.

On February 9, Floyd sent plaintiff a letter confirming that plaintiff had made a partial payment on February 6 and stating that he still had an outstanding balance, which was due by April 10, 2017. The letter notified plaintiff that “the Department of Finance’s duty to serve the rest of the public through its normal budgeted operations prohibits accepting any further payment attempts in single, folded dollar bills. Placing a large pile of dollar bills on the Department of Finance public floor area also creates a significant security risk.”

Department of Finance officials recognized the need for a policy on cash acceptance, in part because of the burden of processing plaintiff’s payment on February 6. Thus, in addition to the guidance provided by the county attorney in advance of the February 6 payment, Ben Lamera, the director of finance, implemented an informal cash acceptance policy for the Department of Finance sometime prior to April 10. The policy stated:

1. Bills must be readily countable (i.e. not folded, crinkled, or otherwise manipulated).
2. Large quantities of bills or coins may not be placed on the public counter, floor, or any other place within the public area. The Tax Collector has the right to refuse the payment in coins of property taxes, penalties and interest.
3. Large quantities of bills must be tendered by the customer in stacks that can be quickly placed in Department counting machines.
4. The limit for non-tax payments made in coin is approximately $150 at a location where there is an automated coin counter and $5 at locations without one.
5. All counting must occur at the public counter with the customer present.
6. For payments involving significant quantities of cash, transactions must be able to be completed in a reasonable amount of time, during regular business hours. The county does not accept partial payments for property tax payments. Any counted cash must be returned to the customer if counting of tendered cash is not completed by the close of business, unless the customer offers to make a non-property tax partial payment.

On April 10, 2017, the state tax deadline, plaintiff came to the Department of Finance’s public counter without an appointment and attempted to make a tax payment with folded and crumpled one-dollar bills contained in two trash bags.

Plaintiff recorded his appearance on video and spoke with members of the public and county employees. While he was in line, a security officer approached him and asked that he not dump money on the floor. The officer indicated that he did not know whether plaintiff’s form of payment would be accepted. Defendant Mark Aspesi, a senior accounting manager, was working at the counter and refused to accept plaintiff’s payment. There was a line of customers stretching out the door because it was tax day. Aspesi later testified that he refused the payment because the office’s staff was busy and it would have taken a long time to count so many dollar bills. Plaintiff left without paying his taxes….

At issue is a single claim of First Amendment retaliation. To prevail, plaintiff would need to show that: “(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” …

As for the first required element, plaintiff offers little to back up his claim that he engaged in constitutionally protected activity. Speech is protected by the First Amendment, but making a payment in a particular form is conduct, not speech—and conduct receives far more limited First Amendment protection. Although plaintiff apparently intended his choice of a form of payment—crumpled and folded one-dollar bills presented on tax day—to have an expressive element, it might merit no First Amendment protection at all….

But even if I accept the questionable proposition that the relevant activity was protected by the First Amendment, plaintiff has failed to offer evidence sufficient to satisfy the third element of retaliation: he has not shown that there was a substantial causal relationship between his purported constitutionally protected activity and the county’s adverse action—its refusal to accept his second payment. On the other hand, defendants point to copious evidence in the record that plaintiff’s form of payment was refused because the bills were not readily countable and could not be processed that day….

It is telling that both times that plaintiff brought trash bags full of money to the county office, he was permitted to engage in speech. He was able to film his interactions on April 10. He and his videographer were permitted to shove crumpled dollar bills through the service window, and he was able to speak out on video to county employees and members of the public. The evidence does not show that the county sought to shut down his protest, but rather that plaintiff ignored reasonable restrictions on cash payments, of which he had advance notice, and that this led to the rejection of his payment. Nothing in the record indicates that plaintiff’s payment would have been rejected had his bills been stacked and readily countable….

 

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Ameal Woods was driving near Houston in May 2019 when he was pulled over by a Harris County Sheriff’s deputy, allegedly for driving too close to a semi-truck. The deputy let him go without a ticket or a warning, but he did take one one thing for his troubles: Woods’ and his wife’s life savings. 

The deputy seized $43,200 in cash that he found in the rental car Woods was driving, money that Woods and Davis say they planned on using to possibly purchase a tractor-trailer for Woods’ trucking business. Carrying large amounts of cash is legal, but the deputy seized it under suspicion that Woods was a drug trafficker using a practice known as civil asset forfeiture.

Now Woods and his wife, Jordan Davis, are the lead plaintiffs in a class-action lawsuit filed Monday in Texas district court against Harris County and the Harris County District Attorney by the Institute for Justice, a libertarian-leaning public interest law firm. The suit alleges that the county has a practice of seizing cash through civil forfeiture without probable cause, relying on boilerplate language and vague allegations to seize and keep property.

Under civil asset forfeiture laws, police can legally seize property—cash, cars, and even houses—suspected of being connected to criminal activity like drug trafficking, whether or not the owner has been charged with a crime.

Law enforcement groups say civil forfeiture is an essential tool to disrupt organized drug trafficking. However, civil liberties groups say the practice is profoundly tilted against owners, who often bear the burden of proving their innocence and fighting in court for months, sometimes years, to try and win back their own property.

“It’s two years later, and I still have the same reaction thinking about it,” Woods said about the seizure in a press release. “I just get depressed all over again. We hope we can get our savings back and make sure this doesn’t happen to anyone else.”

The lawsuit alleges that Harris County prosecutors have a pattern of seeking civil forfeitures based on boilerplate affidavits, written by police officers who were not at the scene. The Institute for Justice found that Harris County prosecutors filed at least 113 forfeiture petitions since 2016 that used stock language and identical phrases, each one noting that a police drug dog alerted on the property at some point after the seizure, each one written by an officer who was not at the scene. The use of boilerplate language led to errors in the affidavits, such as contradictory dates and incorrectly stating what property was seized.

It’s a practice that Institute for Justice managing attorney Arif Panj calls “copy-and-pasting your way to probable cause,” and he says it doesn’t pass constitutional muster. 

In addition, the lawsuit claims that Harris County’s forfeiture practices fail to provide owners with prompt hearings to challenge property seizures, require owners to prove their own innocence, and create perverse profit incentives for law enforcement, all of which violates the Texas constitution.

Forfeiture proceeds in the county go straight into the budgets of the district attorney’s office and the Harris County Sheriff’s Office. The lawsuit says the sheriff had paid about $2.3 million annually in salaries and overtime—all of which comes from forfeiture proceeds.

“Absent intervention from this Court, Harris County will continue to unconstitutionally seize and forfeit property from scores if not hundreds of new individuals every year, without probable cause, without due process, and often with the same affiant relying on identical hearsay testimony in some two-thirds of cases,” the Institute for Justice argues in its petition.

The Institute for Justice has successfully challenged civil forfeiture practices in other jurisdictions. Most recently, the Institute for Justice filed a lawsuit on behalf of Kermit Warren, a New Orleans grandfather who had roughly $28,000 seized by the Drug Enforcement Administration based on flimsy accusations of drug trafficking. Warren, like Davis, said he was carrying cash to possibly buy a tow truck to start a scrapping business. He was never charged with a crime.

In 2018, Philadelphia agreed to reform its forfeiture program and pay out settlements to alleged victims as part of a class-action lawsuit filed by the Institute for Justice. The organization is also currently litigating a class-action lawsuit on behalf of travelers who have had large amounts of cash seized from them at airports by federal agents.

Around 35 states have passed some form of civil forfeiture reform over the past decade in response to outrageous stories exposed by civil liberties groups and news outlets. However, no such legislation has passed in Texas, despite years of effort by advocates, and the Institute for Justice says the state has some of the worst forfeiture laws in the country.

“The existing legal remedies are totally inadequate to compensate [Woods and Davis] for having their money taken for over two years,” Panj says. “We’re hoping that real, meaningful constitutional relief ensures that their rights are protected, their money is returned, and everyone else’s rights are protected, too.”

The Harris County District Attorney’s Office did not immediately respond to a request for comment.

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