Monthly Archives: June 2022

By Michael F. Duggan

“Young man, about seventy-five years ago I learned that I was not God. And so, when the people… want to do something and I can’t find anything in the Constitution expressly forbidding them to do it, I say, whether or not I like it, ‘Goddamn it, let ’em do it.'”
-Oliver Wendel Holmes, Jr.

Reduced to its constituent elements, the law consists of the rule (statutes, regulations, executive orders, and the holdings of case law), general compliance with the rule by a majority of people, and enforcement against those who do not comply with it. If any of these elements is missing, the law, as a practical matter, ceases to exist. And the law is fundamentally a practical matter. When it becomes impractical, it becomes dry fiction.

The cornerstone of legal realism is that although the law and morality are not identical—the law is a set of external rules where morality consists of the feelings of right and wrong that rise up in us—law must exist in proximity to a nation’s normative morality and must reflect this in its spirit. It must reflect a majority ethos. As Holmes put it in “The Path of the Law,” “The law is the witness and deposit of our moral life.” In The Common Law, he writes “The first responsibility of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong.” When it comes to federal case law regarding fundamental rights, the “community” is the entire country (“fundamental” translates to “universal” within a nation). You do not throw questions on fundamental rights back to the states. That’s how we got Jim Crow.

Because of this, the Ninth Amendment provision securing other rights “retained by the people,” far from being the “inkblot” characterized by Robert Bork, would seem to be an interpretive cornerstone of the Constitution. If a historical tradition or a longstanding precedent can be shown—for example, a case law precedent upholding an unenumerated fundamental right for almost a half-century that is embraced by a majority of people in the country—it seems reasonable that that right is protected under the Ninth Amendment.

Federal judges are not elected, they are nominated and confirmed via a constitutionally-prescribed process. The idea is to keep decisions removed from the passions and prejudices of the people by a degree of separation while maintaining its proximity to the dominant, normative morality. Judges and justices are drawn from the people, after all. The idea is that fundamental rights should be beyond the feelings of the moment and should not be put to popular votes (this is a reason why the Framers thought it necessary to enshrine some rights in a Bill of Rights). So there it is: constitutional fine-tuning to preserve a normative basis for law, but no popular referendums to get rid of fundamental rights.

But what would happen in a deeply-divided nation where jurists are nominated by presidents and confirmed or opposed by members of legislative bodies controlled by strongly ideological political parties specifically because of the candidate’s ideological prejudices and fervor? Article II of the Constitution says that the Senate shall give “advice and consent” in regard to nominations. It does not say that political operatives and ideological extremists elected to the Congress may obstruct, delay, or even fail to entertain the nomination of a qualified judicial candidate for political or ideological reasons until more politically favorable circumstances present themselves.

If the Senate Judiciary Committee does not, for example, entertain the nomination of a qualified candidate put forth by a two-term president for 293 days, allowing a subsequent president to fill that slot because of overt political obstruction, can we say that the confirmed candidate is constitutionally legitimate? If the same political party that obstructed the first candidate reverses its position and rushes through the confirmation of a one-term president who was not elected by a popular majority and is now facing imminent defeat in a looming general election, can we call that candidate’s confirmation to be legitimate?

If these two jurists then side with a ruling that goes squarely against a half-century of precedent regarding a fundamental right—a precedent upheld in decisions of that court and embraced by a majority of American citizens—how can we say that the new precedent has normative legitimacy?

The tightrope that a healthy republic must walk is to implement the will of the majority while protecting the rights of political minorities. We can only speculate on the unhappy fate of a system that inverts this, where political minorities trample the fundamental rights embraced by the majority. The situation would seem to make the divisions in this country deeper and wider than ever and perhaps beyond repair. IT would seem to make a constitutional crises inevitable somewhere down the road.

By Michael F. Duggan

“Do you ever wait for the longest day of the year and then miss it? I always wait for the longest day of the year and then miss it!”
-Daisy Buchanan

About an hour ago, I realized that the action in The Great Gatsby takes place in 1922, and therefore the longest day of the year that Daisy was hoping to not miss was 100 years ago today. So I got into the car, put in a CD of Bix and Tram, and drove to Scott and Zelda’s grave in nearby Rockville. It was a gorgeous sunset.

In addition to the perennial pens, pennies, and little gin bottles left on the slab was a green light bulb. Clever.

By Michael F. Duggan

For several months, I along with many other commentators, have predicted that the primary Russian war aim in Ukraine is to annex some of the eastern, predominately Russian and Russian-speaking parts of the Country. Although the initial Russian incursion in the north and northeastern parts of Ukraine appeared to be aimed at taking Kyiv—and although the withdrawal of Russian forces there, the northeastern rim of Ukraine, and Kharkiv have been reported as bona fide defeats for them—this part of the invasion now appears to have been a feint to spread out Ukrainian forces and to draw them away from the eastern and southeastern parts of the country. The consolidation of the eastern regions by Russian forces may bear this out. If it was a miscalculation, they now have adjusted their operations and logistics to a more realistic and effective strategy.

What the war may boil down to then is a broader and more intense version of the Ukrainian Civil War from 2014 to early 2022. The lines will be further to the west—the annexed territory will be deeper and wider than that previously held by the Russian-Ukrainians of the Donetsk and Luhansk regions—and the fighting will be heavier. It will be a proxy war on the part of the United States, thus keeping alive the possibility of miscalculation and dangerous escalation by both sides.

It could settle into a festering war of position (think of the fixed lines, trenches, artillery barrages, and raids of the Western Front during WWI, only with 21st century weaponry and without massed infantry assaults). This appears to be a likely and least-bad outcome and one that will last until one or both sides get tired of the killing. Of course, if the front does “simmer down” over time, the result could be a landmine laden armed border—a no man’s land—like the Demilitarized Zone in Korea. Or it could escalate into a larger and far more destructive conflict. The summer and fall may tell.

The Russians now appear to have the upper hand in eastern Ukraine. But as more, and more sophisticated American and British weapons arrive on the battlefield, we can expect a sharp uptick in the intensity of the fighting over the coming weeks and months. It will be a long, deadly summer in eastern Ukraine and perhaps in western Russia.

By Michael F. Duggan

My doctorate is in American History with minors in Modern European History and Western Philosophy (mostly in the philosophy of science), so if you are a physicist and this seems like a dumb or commonplace idea, please just scroll through to the next essay.

One of my favorite thinkers is Wilhelm Gottfried Leibniz (1646-1716). A bona fide polymath, he is on my shortlist for the “smartest person who ever lived” (for me, the smartest people are those who posit an original, plausible, non-theistic cosmological model relative to the most advanced models of the day). In addition to his cosmological model, Leibniz made contributions in biology, computation, diplomacy, ethics, geology, history, the law, library science, logic, mathematics, philosophy, political theory, psychology and theology, as well as other areas. He famously invented calculus independently of Isaac Newton, and while Leibniz had the better notation, Newton had better lawyers. He wrote in at least 6 language and may have had understanding in as many as 12.¹

Leibniz outlined his cosmological model in a short work written near the end of his life called The Monadology.² It was not published during his lifetime. Where the Newtonian model is commonsensical and demonstrable, Leibniz’s outline is cryptic, rationalistic (as opposed to empirical), counterintuitive, and largely untestable. Interestingly, modern developments in physics (special and general relativity and quantum mechanics) showed that, although the model of Newtonian mechanics is useful as a heuristic instrument in predicting things like ballistic trajectories and orbital decay, it is not a an accurate representation of the true nature of the physical world. By contrast, Leibniz’s model dovetails with the ideas and models of modern physics and has been embraced by some prominent physicists.³ Thus, although the Newtonian cosmos was killed off by Einstein more than a century ago, the cosmology of Leibniz lives on as a productive model. The Monadology is also one of my favorite books.

On the night of April 25, 2022, I decided to read before going to bed and chose The Monadology. There are many fascinating ideas in this book and Leibniz presents them successively as short sections, as if working up from basic provisions to describe an overall outline or basis for the cosmos, to include consciousness. It reads as of he is merely transcribing something that he has already worked out in his head, inventing the rules of a functional universe as if he was God. Each section is like a brick in a building or like the monads (atoms) that make up his world. In section 17, for example, he beautifully and succinctly describes why consciousness cannot be accounted for or reduced to mechanical processes. His idea (a version of panpsychism) is that consciousness is an irreducible characteristic intrinsic to monads. This idea is one of the few remaining thorns in the side of the modern emergence (evolutionary) view of consciousness. This time I skipped ahead to sections 61 and 62.

In these sections, Leibniz describes the interconnectedness of all things in the universe and their instantaneous affect on one another, as instantaneous action at a distance. This struck me as conceptually identical to the modern idea of quantum entanglement, the “spooky action at a distance” that vexed Einstein and is a fly-in-the-ointment to the classical elegance and simplicity of his Special Relativity.

In the Einsteinian universe of special and general relativity, action is limited to the speed of light (with the possible exception of the expansion of space itself during the inflationary period).⁴ But Leibniz saw space as an abstraction of relationships of objects to one another as well a plenum of physical objects.

But Leibniz saw space as an abstraction of relationships of objects to one another as well a plenum of physical objects.⁵ He does not appear to have considered space itself (as opposed to objects in it) in Einstein’s terms as a realm with physical qualities, dictates, and limitations. Leibniz’s concept of space as abstraction knows none of the limitations of physical space.

Therefore, if we posit an underlying abstract universe that is an infinite mathematical matrix (as Leibniz does), then instantaneous action at a distance would be permissible. Given that Leibniz’s model does not preclude or prohibit Einsteinian space, then perhaps “spooky action at a distance” is a manifestation or function of this primal, mathematical realm on its physical overlay (as Pythagoras and Plato (and Max Tegmark?⁶) might believe). It would be the prior mathematical matrix overriding the limitations of the physical cosmos. As such Leibniz appears to be positing a robust idealist model in which abstractions exist actively in the world outside of of minds and beyond the relationships and ratios of known physical laws.

I do not know by what means or mechanism the abstract Leibnizian world would assert itself on the physical Einsteinian universe, but then nobody has described or explained the mechanism by which multiple universes peel off from each other during probabilistic events in the multiverse implied by the ideas of Hugh Everett.⁷ And yet his ideas are widely and increasingly embraced.⁸

I sent this idea in an unsolicited email to two prominent physicists and received no reply, so it is most likely a dumb idea with no future—an incongruous intermixing of two fundamentally distinct realms by a non-physicist, a meddling amateur—or else an idea that others have already hit upon in a different form. Anyway, there it is.

Postscript July 7, 2022
A few weeks after posting the essay above, I searched “quantum entanglement” and “Leibniz” on the Internet. One of the things that came up was a wonderful article from 2021 by Professor Ludmilar Ivancheva of Bulgaria titled “Leibniz’s Monadology and its insights concerning quantum Mechanics.”⁹ This article is an overview, an intellectual history, of the many areas in which Leibniz’s ideas either presage, inform, or find modern analog in modern physics. Turns out I was scooped by many years and in a multiplicity of areas that I had not even considered (e.g. the “holographic and fractal nature of reality;”). Although I should have known better, at least I have the satisfaction of having come up with an idea on my own, even if many others had hit on it long before.

Note

1. https://history.stackexchange.com/questions/45824/how-many-languages-did-leibniz-speak
2. See G.W. Leibniz’s Monadology, An Edition for Students, Nicholas Rescher, ed. (University of Pittsburgh Press, 1991).
3. For example, see Lee Smolin, The Life of the Cosmos (Oxford University Press, 1997).
4. Regarding inflation generally, see Alan H. Guth, The Inflationary Universe (Reading, MA: Addison-Wesley Publishing Company, Inc., 1997).
5. Leibniz “also believed in the plenum. But he maintained that space is merely a system of relations.” See Bertrand Russell, A History of Western Philosophy (New York, NY: Simon and Schuster, 1945) 70. For a more in-depth discussion of the complexities of Leibniz’s concepts of space, see Benson Mates, The Philosophy of Leibniz (Oxford University Press, 1986) 227-240.
6. The physical world seems to run on finely-tuned mathematical relationships. See Max Tegmark, Our Mathematical Universe (New York, NY: Alfred A. Knopf, 2014). See also Martin Reese, Just Six Numbers (New York, NY: Basic Books, 2001). Perhaps this fine tuning is the result of the cosmological natural selection suggested by Lee Smolin in The Life of the Cosmos and elsewhere. But these relationships allow the physical world to work the way it does. My idea is that a greater mathematical realm would allow a process not permitted by the limits of the physical world.
7. Hugh Everett, III, “Relative State Formulation of Quantum Mechanics,” (Review of Modern Physics, v. 29, no. 3. July 1, 1957), 454-462.
8. Tegmark, 228-29.
9. Papers pf BAS Humanities and Social Science, Vol. 8, 2021, No. 2, https://www.papersofbas.eu/images/Papers_2021-2/Ivancheva.pdf.

By Michael F. Duggan

As the world sleepwalks toward a third world war, there is a way to end the conflict in Ukraine in short order and with democratic legitimacy.

First, working through the United Nations, a ceasefire would be declared by both sides and the armies would stop on their current lines. A peacekeeping force from non-aligned nations would come in to observe and oversee the ceasefire.

The U.N. would then call for a referendum in the Donbas region and perhaps some adjacent areas. On the ballot would be the following choices: 1). This region will remain a part of Ukraine, only with greater autonomy (essentially in line with the home rule provisions of the 2015 Minsk II agreement). 2). This region will become an independent nation. 3). This region will become a part of Russia. The referendum would be overseen by observers from both sides as well as by U.N. personnel. All sides would then abide by the majority outcome of the referendum. Ukraine would also have to pledge military neutrality in regard to NATO and Russia.

Needless to say, this will not happen.

By Michael F. Duggan

I let down my guard. After Henry Kissinger and the Editorial Board of The New York Times embraced positions of deescalation in Ukraine last week, I posted a modestly optimistic (for me) essay yesterday. My hope was that with The Times coming to its senses, a measure of sane realism might be returning to the coverage of the war and to the polices of the war managers themselves. Strike that.

Last night I spoke with a friend who harbors no such illusions like the ones under which I briefly labored. He pointed out a powerful op-ed in The Times yesterday by Christopher Caldwell yesterday, suggesting that there is plenty of blame to go around regarding the war in Ukraine and that the United States and the nations of Europe may be heading like sleepwalkers toward a Summer of 1914-like crisis, only with nuclear weapons.¹

To this I pointed out that President Biden had just announced that the United States would not be providing Ukraine with rockets that have a range greater than anything we have given them to date.² My friend would have none of it.

Here is how it plays out: even if the U.S. does not give Ukraine these weapons, it is possible that another NATO country will. With the more-than $50 billion in military aid already supplied to Ukraine (almost the equivalent to Russia’s entire annual military spending) and with more on the way, it is possible that Ukrainian forces could hit Russia it with shorter-range rockets and other ordnance.

If rockets start raining down on Russian towns and cities, all bets are off. It will likely initiate a vast increase in Russia’s military spending, perhaps by the equivalent of hundreds of billions of dollars, and they will go all in. If the missiles or rockets that hit Russia were provided by NATO country, the return address for a Russian response could be that country or countries. At that point, you have a general European war—i.e. a world war. Even if the missiles used up to that point in the escalation are not nuclear-tipped, the losing side of World War III will be compelled to even the score with nukes (and it is stated Russian policy to meet a conventional attack on Russian soil with tactical nuclear weapons). Game over.

In retrospect it is clear that the historical lesson for October 1962 was not the Munich Crisis of 1938, but the August Crisis of 1914. So it is today.

In the future—assuming that there is one—when an optimistic feeling comes over me about the situation in Eastern Europe, I will just lay down and wait until it passes.

Note

1. See Christopher Caldwell, “The War in Ukraine May be Impossible to Stop. And the U.S. Deserves Much of the Blame,” The New York Times, May 31, 2022.
2. For the distinction between the weapons and systems in question, see Sebastien Robin, “Biden Decoded: Ukraine Will Get HIMARS Rocket Systems, But Not Longer-Range Missiles,” Forbes, May 31, 2022.