#the AMOUNT of self restraint andrew has

[combinationofstardust]

not to be dramatic but if i were andrew i would have "thank you, you were amazing" tattooed on me where neil could find it

[oracleoutlook]

I have only ever interacted with Post-liberalism as a theological project than a political project. Maybe the Stock Market is sinful because it isn't natural for money to reproduce. I never really thought about the pre-modern gendered world of economics. Let me ponder this for a while.

Because of this, I am a bit confused by people who take this seriously as a political threat. Every once in a while I see a news article saying, "Can you believe that Vance is Catholic and once went to a Catholic conference where they discussed Catholic political theory? Fascism!" The criticism seems so idiotic.

And some of the criticisms are just over-exaggeratedly angry. James Lindsay became frothing mad at the idea that encouraging virtue in citizens may be part of a healthy functioning society. Quick quiz, which Post-Liberal academic said:

There exists in the economy and course of nature, an indissoluble union between virtue and happiness; between duty and advantage; between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity; since we ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained.

Sorry, the language style probably gives it away, but that was George Washington. Let's try again?

When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before has become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law.

Nope, no one outside Tumblr uses 'fain' anymore, that is Thomas Jefferson.

So many Post-liberal writings mostly looked to me to be a return to American-liberal writings (as opposed to Continental Liberalism, which has seen a surge in popularity in America only recently.) And again, I saw it as a theological movement more than a political movement. Again, I'm not going to pretend that I've read every essay and blog post in the sphere, but what I did read seemed begin, and I assumed the rest would be as well.

So when someone I would have described as a Post-liberal, Andrew Willard Jones, says:

Take, for example, the postliberals gathered around Adrian Vermeule. These thinkers rightly recognize our late-modern economic form as an oligarchy hiding behind the fiction of the “private” in order to profit from the destruction of the clearly public goods of family and community. Yet the postliberals imagine they can rectify this unjust “economic” form by doubling down on the political form that corresponds to it—the centralized, social-engineering, late-modern administrative state. For them, the solution to the tyranny of politically active economics is the reassertion of economically inactive politics, one that can regulate economic actors and order them toward the common good. In this manner, they simultaneously deconstruct and deploy the public-private distinction, relying on it in order to combat it.

We find ourselves with the troubling conclusion that postliberalism amounts to what Vermeule might call liberalism “working itself pure”:[1] The old liberals were wrong; the public-private distinction isn’t natural (supposedly private companies tend toward public tyranny), and so the postliberals must force the distinction into being, must somehow create the properly “public” political realm and in so doing recreate the properly “private” realm. But this doesn’t get them very far. Indeed, some postliberals have come to the less-than-enthusing conclusion that the New Right should just become the Old Left, or “Pro-Life New Dealers,” as a recent attempt at self-classification by Sohrab Ahmari put it.[2] The “baby boomer” conservatives were wrong to idealize the 1950s when, it turns out, it was the 1930s that got things right! Spinning wheels.

I take this criticism a lot more seriously than those who amount to saying, "Liberalism is the ultimate good, so any movement calling itself post-liberal must be the ultimate evil."

[anonymoushouseplantfan]

The Royal (Non)Reaction

The big royal response will be the coronation, as it should be.

It will "look towards the future while being rooted in long-standing traditions and pageantry." I hope so. The big challenge here is to present an attractive and coherent vision for the future. I look forward to seeing what they come up with. Personally, I would shine a spotlight on the younger royals, not just the Wales kids but also the Wessex children and the others.

Until then the family will stay quiet. Responses will be indirect, like the burgundy outfits for the Christmas Carol, the eagle feather hat for the Christmas walk, and Jasons RVO. I'm particularly impressed with William's restraint, as he sometimes shoots from the hip. He has been very disciplined.

So far, this has been pretty effective, which I find curious. Stonewalling Thomas Markle was not effective, but stonewalling Harry has the opposite effect. When I realized the family would not respond I feared Charles would be perceived as unfeeling and harsh, like Meghan was when her father went to the press. However, that has not been the case. Is it because Meghan and Harry are raking in the cash and the amounts are a lot bigger than anything Thomas earned during his media tour? It is Queen Elizabeth's halo effect? Is it because Charles, as the king, is seen as representing the institution in a way Meghan never was?

Personally, I think it is the precedent. I am reading Traitor King (highly recommended btw), and the parallels between David and Harry are eerie--the books, the interviews, the post-royal struggles.

Likewise, the parallels between the royal responses to David and Harry are also very similar. Above all, the institution is to be protected.

The one big difference is that David and Wallis weren't as viciously self-destructive as Harry and Meghan. The documentary was not greeted positively and yet here is Harry doing more interviews covering the same ground. They just keep digging that hole deeper and deeper.

[hillbillied]

i found your post about andy and eddie's kinks from a couple of years ago and i was just wondering do you have any updated thoughts?

firstly, thank you anon!! I love writing these two!!

secondly fuck, I left this ask in the ‘box for a while because, double fuck, I couldn’t think of any kinks I hadn’t included in the OG post!! I am very sorry for the delay!

(I had to read through them to check, still crispy if I do say so... let’s see what else we can get in there. god I could go on a whole bunch more about the ones from the OG post lmao my fave losers in love having great sex!)

The Secret Kinks of Andrew Haldane and his Lieutenant, Edward Jones (pt.II)

(highly nsfw, 18+ only)

I’m gonna rag on Andy’s exhibitionism kink a little louder than before because it’s so embarrassing. going to the cinema is a chore because Andy doesn’t have the patience for long movies and he really can’t get behind anything that’s not a really fucking hilarious comedy or a truly gripping drama. anything even a little lacklustre (most of what’s on in the 50s) has his gaze wondering elsewhere

the amount of times Eddie has been enjoying his movie experience (he loves movies, btw, he didn’t get to go to many as a kid – think Gunny-level attention in the scene where the marines are watching For Whom the Bell Tolls) and suddenly a hand is brushing his knee. he can’t help but roll his eyes because Andy, good lord, can’t you enjoy the plot for five-fucking-minutes?

luckily for Andy, he’s got a semi-indulgent boyfriend or at least a condoning one; either Eddie will lift his longs legs and put them over Andy’s lap, teasing him with the weight whilst simultaneously giving him some cover to enjoy himself (in no relation to the movie) – or, if he’s feeling generous and equally turned on, he’ll give his stupid fucking would-be husband a hand so he can go back to his popcorn. Eddie’s got skilled fingers and only makes eye contact with his flustered, heavy-breathing boyfriend in scathing glances to show his “disapproval”

car sex is as normal to the two of them as breathing. it started fairly uncreative and vanilla, just screwing in the one long seat of Hillbilly’s pickup. it’s a little on the tight side but Eddie’s more flexible than many would believe. Andy loves having two hands just under his knees, pushing his thighs up against his chest so he can fuck him nice and deep. it has Eddie’s toes curling and his teeth gritted and colourful curses dripping out the cracked window (no AC means a real sweaty cab)

that, or Hillbilly will be riding Andy passenger side. he likes smoking in his car and he likes riding Ack Ack’s cock, so this is a win-win scenario. the leverage from the seat means he can light up while rolling his hips, humming around the cigarette. it’s an erotic sight for sure; Andy has to cover his eyes with his hand while laughing out a breathless “shit, Eddie…”

romantic evenings include soft kisses and mutual handjobs in the truck bed, after giving up on star gazing. less romantic evenings include parking somewhere discreet (or… not, because Andy’s exhibitionism is a nightmare and the 60s were pretty wild) to get them both out on the road. there’s sweaty handprints on the hood where Andy has Eddie bent over it, pinned between his chest and hot metal. it’s some of the hardest, roughest sex they have, and Andy usually uses Eddie’s t-shirt for leverage, something to twist into an psudo-harness to pull him back against his dick. Hillbilly likes to growl out threats – “you stain m’ car, Andy, I’ll fuckin’ kill you” – but it’s all a ruse to cover how there’s sweat dripping from his curls and how his pants for air are turning into moans and how he’s the one staining the tire where he’s cum, hard enough to have him flat out over the hood and gasping

this is all while the car is parked, of course. Andy loves giving Eddie head while he’s driving. it’s lucky Hillbilly’s had to drive bigger, scarier machines than a Ford, honestly. his disapproval (fake, every time) is portrayed where he grabs Andy’s hair and forces his cock down his throat. ���Cop car” he’ll say, “gotta stay down”. he’s a lying sack of shit but it’s worth the sin to glance down at Andy when he lets him pull back, spittle running from his tongue and his coughing turning to a gasp then a moan in quick succession. it’s really difficult for Eddie not to grin super wide and push Andy’s head back down for more

(side note: Andy’s a service top so he gives great head, none of this fake dom shit. they each say the other gives it better because they are both weak for one another and stupidly in love)

gags become a thing after a while. Andy is an expert at introducing/asking about bedroom ideas without being condescending and he knows he has to decipher Eddie’s interest without it sounding like he wants him to shut the fuck up. (he does not, he loves everything that comes out of Hillbilly’s mouth, from stone-cold threat to lazy joke to breathless groan)

but a thing they do become. (it starts with Andy shoving a couple of fingers in Eddie’s mouth to “keep quiet”, an old familiar trick from the war, and it snowballs from there) so the next time Andy’s bent over Eddie, facing him and maybe got his hands pinned above his head, and Eddie decides to let off a quip, Ack Ack stops. slows his motions and pretends to think, then reaches for his master plan. the first time, it’s just fabric, shoved into Hillbilly’s mouth. his pink cheeks (from semi-annoyance or embarrassment, not sure) and deep frown and almost-offended stare are fucking priceless

(Andy buys a proper gag, one Eddie can bite down on. one he can grab the back of and pull Hillbilly’s head back with so he can kiss his neck, tell him how fucking hot his moans are when they’re all he can make)

collars slip in there somewhere. they’re not sure where that came from but there’s a suspicion it may have come from the wholesome conversation about adopting a dog (which they both want to do they’re just terrified of going to pick one and falling in love with more and then what are they gonna do?? have fifty dogs?? but I digress)

Andy’s not one to be embarrassed of his sex purchases but he was definitely scratching his neck when he bought it. luckily, his boyfriend can read him like a goddamn book. the man likes being in control, sure, dominating the room in his own masterful way, definitely – that doesn’t change the look of complete adoration that takes Andy’s features when Eddie buckles the collar around his neck

it fits well with Andy’s orgasm denial kink. he doesn’t do it to Eddie much (he’s got enough kinky shit he can do to him) but Hillbilly definitely does it to him. it’s a treat to test Andy’s self-restraint and not with any bondage. Eddie’s a very patient man, used to unfulfilling sex prior to Ack Ack, so he’s got all the time in the world. he loves making Andy wait, teasing him with a grip around the base of his cock. he gets a cock ring for him later, when his tight grip isn’t cutting it anymore

there’s nothing better than watching Andy’s thighs tremble, sat on his own hands on a chair, desperately keeping his cool while Hillbilly carefully lowers himself onto his cock (Eddie uses that collar to get him to look him in the eye)

they usually can’t be bothered with food play (“Food is f’ eatin’, Andrew, not wastin’.”) but there’s occasional things. Andy has a tendency to take Eddie’s fingers in his mouth and lick them clean, whether from an accidental or purposely spillage. he doesn’t really care what’s on them so long as it’s edible and he can watch Hillbilly’s lip curl watching him

Eddie’s definitely done a “spillage” of his own once or twice. except his are obvious, just how he likes them; he’ll straight up pour a splash of beer on his dick and invite Andy to come lap it up. his house, his rules and all. Andy always obliges

Eddie gives a great spit ‘n shine to boots, Andy’s found. he loves demanding Eddie get on his knees and do the daily duties he learned as a marine, making sure his captain’s uniform is in order. (slightly funny if Ack Ack’s not wearing anything but his boots while saying it, but he can live with that) having Hillbilly look up at him – “Like this, Skipper?” - as he runs his tongue across the leather is more than worth it

Eddie likes tearing open clothes, though he feels really, really bad about it. it’s obvious it turns him on because Andy loses a lot of shirt buttons over the years. (they sew them back on together, which is nice, gotta know how to mend and make do. Eddie actually knows a lot about cross stitch and Andy adores learning from him)

one time Andy’s waving his ass Eddie’s way, has been for a whole morning whilst they were gardening, potting flowers, weeding the lawn, working, Andy, we’re busy – so it’s just been a build up of hard-ons and no time to deal with them. and they’re wearing old clothes for the task, threadbare jeans. (that used to be Eddies, even the ones on Andy’s ass) so when Hillbilly finally presses up against Andy, bites his ear, and grabs his pants with both hands - he just pulls. they tear open and Andy feels Eddie shudder against him (shortly before he feels Hillbilly’s cock pushing inside him but that’s just a massive bonus)

Andy’s an indulgent boyfriend so he buys underwear and pants on the cheap and waves them Eddie’s way. the “rippables” as he calls them. made to be ripped, end of. no hard feelings, good riddance to them

I said they were too lazy for bondage because they can just pin each other and I stand by it; it remains a special thing. one of the ‘hardcore’ things, like the belt and gun play. mainly because, while they can actually pin each other down quite effectively with limited wiggle room, there’s still the ability to y’know, headbutt each other. because they’re also both trained in how to flip a guy that grabs you. fatally, if need be

so tying Eddie up (Andy’s always been down to be tied up, blindfolded, etc. by Eddie because he trusts literally one man in the whole world and it’s Edward Jones) is a big thing. because Eddie has had to fuck people up who tried to fight him and his brute strength is what’s gotten him through (finding something capable of realistically holding him is also a struggle in sexual hilarity because fuck, it’s gotta be thick rope or actual police handcuffs)

when Andy asks him about it (and presents the short length of rope he went for because he couldn’t find handcuffs yet) Eddie immediately says yes. because he trusts Andy completely. but he also says not tonight and not every night and not any time he can see it coming. if he works himself up about it, he’ll embarrass himself

when it does happen (Andy’s can read him right back, he knows when), Eddie ends up with his hands tied behind his back. he jokes about Ack Ack’s poor navy knotwork and gets a laugh back. then Andy slow bends him over the bed. that’s all Eddie thought he’d do, which isn’t a bother, long legs are still able to roll away. until Andy kneels down below him, caressing his thigh lovingly, and nudges his legs open. Eddie ends up standing bent over on the mattress with each ankle tied to a leg of their heavy bed frame

it’s a lot but Andy takes his time, kisses his way up from Eddie’s calf all the way to the back of his neck, keeping a hand pressed to his inner thigh. the tremble there is aroused and overwhelmed all in one. the first time, Ack Ack just enjoys giving his boyfriend a nice, slow handjob, supporting himself over Hillbilly so he can feel his weight. it’s amazing to have Eddie coming apart under him, whispering for more until he gets a shaking orgasm, biting the sheets to try and cover how loud he whimpers (it’s too much for Andy, too, and he cums just from rubbing between Eddie’s thighs)

Andy’s trademark aftercare is as excellent as ever and they sit together with some tea on the bed, listen to the radio, Eddie leaning against his chest with two loving arms around him. he asks if next time Ack Ack will fuck him and naturally, Andy just says “if you want me to” while kissing his temple. Hillbilly wipes his face and asks “please”

[roaringgirl]

Books read in January

I am keeping this as a little record for myself, as I already keep a list (my best new year’s resolution - begun Jan 2018) but don’t record my thoughts

General thoughts on this - I read a lot this month but it played into my worst tendencies to read very very fast and not reflect, something I’m particularly prone too with modern fiction. I just, so to speak, swallow it without thinking. First 5 or so entries apart, I did quite well in my usually miserably failed attempt to have my reading be at least half books by women.

1. John le Carré - Tinker Tailor Soldier Spy (1974): I liked this a lot! I sort of lost track of the Cold War and shall we say ethics-concerned parts of it and ended up reading a fair bit of it as an English comedy of manners - but I absolutely love all the bizarre rules about what is in bad taste (are these real? Did le Carré make them up?).

2. John le Carré - The Spy Who Came in From the Cold (1963): I liked this a lot less. It seemed at the same time wilfully opaque and entirely predictable. Have been thinking a lot about genre fiction - I love westerns and noir, so wonder if for me British genre fiction doesn’t quite scratch the same itch.

3. David Lodge - Ginger You’re Barmy (1962): This was fine. I don’t have much to say about it - I was interested in reading about National Service and a bit bogged down in a history of it so read a novel. As with most comic novels, it was perfectly readable but not very funny.

4. Dan Simmons - Song of Kali (1985): His first novel. This is quite enjoyable just for the amount of Grand Guignol gore, and also because I like to imagine it caused the Calcutta tourist board some consternation. Wildly structurally flawed, however. Best/worst quote: ‘Hearing Amrita speak was like being stroked by a firm but well-oiled palm.’ Continues in that vein.

5. Richard Vinen - National Service: A Generation in Uniform (2014): If you are interested in National Service, this is a good overview! If not, not.

6. Sarah Moss - Ghost Wall (2018): I absolutely loved this. About a camping trip trying to recreate Iron Age Britain. Just, very upsetting but so so good - a horror story where the horror is male violence and abuse within the (un)natural family unit.

7. Kate Grenville - A Room Made of Leaves (2020): Excellent idea, but not amazing execution - the style is kind of bland in that ‘ironed out in MFA workshops’ way (I have no idea if she did an MFA but that’s what it felt like). Rewriting the story of early Australian colonisation through the POV of John Macarthur’s wife Elizabeth.

8. Ruth Goodman - How to Be a Victorian (2013): I mostly read this for Terror fic reasons, if I’m honest. I skimmed a lot of it but she has a charming authorial voice and I really like that she covers the beginning of the period, not just post-1870.

9. Gary Shteyngart - Super Sad True Love Story (2010): I read this on a recommendation from Ms Poose after I asked for good fiction mostly concerned with the internet, and I thought it was excellent - it’s very exaggerated/non-realistic and that heightening of incident and affect works so well.

10. Brenda Wineapple - The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation (2019): What a great book. I had to keep putting it down because reading about Reconstruction always makes me so sad and frustrated with what might have been - the lost dream of a better world.

11. Halle Butler - The New Me (2019): Reading this while single, starting antidepressants and stuck in an office job that bores me to death but is too stable/undemanding to complain about maybe wasn’t a great decision, for me, emotionally.

12. Halle Butler - Jillian (2015): Ditto.

13. Ottessa Moshfegh - Death in Her Hands (2020): Very disappointed by this. I don’t really like meta-fiction unless it’s really something special and this wasn’t. Also, I’m stupid and really bad at reading, like, postmodern allegorical fiction I just never get it.

14. Andrea Lawlor  - Paul Takes the Form of a Mortal Girl (2017): This was really really hot! I will admit I don’t think the reflections on gender, homophobia, AIDS etc are very deep or as revealing as some reviews made out, but I also don’t think they’re supposed to be? It’s a lot of fun and all of the characters in it are so precisely, fondly but meanly sketched.

15. Catherine Lacey - The Answers (2017): This was fine! Readable, enjoyable, but honestly it has not stuck with me. There are only so many sad girl dystopias you can read and I think I overdid it with them this month.

16. Hilary Mantel - Wolf Hall (2010, reread): Was supposed to read the first 55 pages of this for my two-person book club, but I completely lack self-restraint so reread the whole thing in four days. Like, I love it I don’t really know what else to say. I was posing for years that ‘Oh, Mantel’s earlier novels are better, they’re such an interesting development of Muriel Spark and the problem of evil and farce’ blah blah blah but nope, this is great.

17. Oisin Fagan - Hostages (2016): Book of short stories that I disliked intensely, which disappointed me because I tore through Nobber in horrified fascination (his novel set in Ireland during the Black Death - which I really cannot recommend enough. It’s so intensely horrible but, like Mantel although in a completely different style/method, he has the trick of not taking the past on modern terms). A lot of this is sci-fi dystopia short stories which just aren’t... very good or well-sustained. BUT I did appreciate it because it is absolutely the opposite of pleasant, competently-written but forgettable MFA fiction.

18. Muriel Spark - Loitering with Intent (1981): Probably my least favourite Spark so far, but still good. I think the Ealing Comedy-esque elements of her style are most evident and most dated here. It just doesn’t have the same sentence-by-sentence sting as most of her work, and again I don’t like meta-fiction.

19. Hilary Mantel - Bring up the Bodies (2012, reread): Having (re)read all of these in about 3 months, I think this is probably my favourite of the three. I just love the way a whole world, whole centuries and centuries of history and society spiral out from every paragraph. And just stylistically, how perfect - every sentence is a cracker. I’m just perpetually in awe of Mantel as a prose stylist (although I dislike that everyone seems to write in the present tense now and blame her for it).

20. Muriel Spark - The Girls of Slender Means (1963, reread): (TW weight talk etc ) As always, Hilary Mantel sets me off on a Muriel Spark spree. I’ve read this too many times to say much about it other than that the denouement always makes me go... my hips definitely wouldn’t fit through that window. Maybe I should lose weight in case I have to crawl out of a bathroom window due to a fire caused by an unexploded bomb from WW2???? Which is a wild throwback to my mentality as a 16 year old.

21. China Mieville - Perdido Street Station (2000, reread): What a lot of fun. I know we don’t do steampunk anymore BUT I do like that he got in the whole economic and justice system of the early British Industrial Revolution and not just like steam engines. God, maybe I should read more sci-fi. Maybe I should reread the rest of this trilogy but that’s like 2000 pages. Maybe I should reread the City and the City because at least that’s short and ties exactly into my Disco Elysium obsession (the mod I downloaded to unlock all dialogue keeps breaking the game though. Is there a script online???)

22. Stephen King - Carrie (1974): I have a confession to make: I was supposed to teach this to one of my tutees and then just never read it, but to be honest we’re still doing basic reading comprehension anyway. That sounds mean but she’s very sweet and I love teaching her because she gets perceptibly less intimidated/critical of herself every lesson. ANYWAY I read half of this in the bath having just finished my period, which I think was perfect. It’s fun! Stephen King is fun! I don’t have anything deeper to say.

23. Hilary Mantel - Every Day is Mother’s Day (1985): You can def tell this is a first novel because it doesn’t quite crackle with the same demonic energy as like, An Experiment in Love or Beyond Black, but all the recurring themes are there. If it were by anyone else I’d be like good novel! But it’s not as good as her other novels.

24. Dominique Fortier - On the Proper Usage of Stars (2010): This was... perfectly competent. Kind of dull? It made me think of what I appreciate about Dan Simmons which is how viscerally unpleasant he makes being in the Navy seem generally, and man-hauling with scurvy specifically. This had the same problem with some other FE fiction which is that they’re mostly not willing to go wild and invent enough so the whole thing is kind of diffuse and under-characterised. Although I hated the invented plucky Victorian orphan who’s great at magnetism and taxonomy and read all ONE THOUSAND BOOKS or whatever on the ships before they got thawed out at Beechey (and then the plotline just went nowhere because they immediately all died???) I had to skim all his bits in irritation. I liked the books more than this makes it sound I was just like Mr Tuesday I hope you fall down a crevasse sooner rather than later.

25. Muriel Spark - The Abbess of Crewe (1974): Transposing Watergate to an English convent is quite funny, although it took me an embarrassingly long time to realise that’s what she was doing even though I lit read a book covering Watergate in detail in December. Muriel Spark is just so, so stylish I’m always consumed with envy. I think a lot of her books don’t quite hang together as books but sentence by sentence... they’re exquisite and incomparable.

Overall thoughts: This month was very indulgent since I basically just inhaled a lot of not challenging fiction. I need to enjoy myself less, so next month we’re finishing a biography of Napoleon, reading the Woman in White and finishing the Lesser Bohemians which currently I’m struggling with since it’s like nearly as impenetrable Joyce c. Portrait of the Artist as a Young Man but, so far... well I hesitate to say bad since I think once I get into I’ll be into it but. Bad.

[benrleeusa]

[Ilya Somin] Does Yale Law School’s Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?

Yale Law School recently adopted a policy under which students cannot get school-subsidized grants to support public interest summer jobs, postgraduate fellowships, or targeted loan forgiveness for those working at relatively low-income jobs, if the job in question is with an employer that discriminates on the basis of race, religion, veteran status, marital status, veteran status, or – most controversially – sexual orientation. The policy change was in large part the result of student protests against a Federalist Society-sponsored speaker from the Alliance Defending Freedom, a Christian conservative public interest law firm that had successfully represented the plaintiff in the Masterpiece Cakeshop case.  The owner of the bakery argued that the state of Colorado violated his freedom of speech and freedom of religion by requiring him to bake a cake for a same-sex wedding to which he objected on religious grounds.

In the aftermath of the policy shift, many on the right charged that it amounts to religious discrimination against theologically conservative Christian employers who refuse to hire gays and lesbians because homosexuality conflicts with their religious commitments. In a letter to Yale Law School Dean Heather Gerken, Republican Senator Ted Cruz claimed that the policy violates federal civil rights laws banning discrimination on the basis of religion, and announced his intention to have the Senate Judiciary Committee hold an investigation of the policy. Dean Gerken has issued a public statement denying Cruz’s claims. Ironically, this is a case where supposedly pro-free market conservatives want to impose tighter regulations on a private organization, while the left – which normally favors expansive antidiscrimination laws – is defending Yale’s freedom of association.

Who has the right of this dispute? When it comes to religious discrimination, Gerken is correct, and her critics on the right are wrong. But these sorts of antidiscrimination policies do raise other difficult questions.

I. Why Yale’s Policy Does Not Discriminate on the Basis of Religion.

To see why Yale’s policy does not discriminate on the basis of religion, it’s worth considering the following hypothetical examples, both of which have real-world analogues:

Employer A refuses to hire gays and lesbians because doing so would violate her religious commitments.

Employer B also refuses to hire gays and lesbians. But in his case, it has nothing to do with religion, but is the result of his entirely secular belief that gays and lesbians violate proper gender roles. He thinks that gays are effeminate and don’t qualify as true “manly men,” while lesbians fail to live up to what he considers to be proper standards of femininity.

Under the Yale policy, law students who want to work for Employer A and those who want to work for Employer B are treated exactly the same. Both would be denied fellowship funding. This shows that the focus of the policy is discrimination on the basis of sexual orientation, not the religious (or secular) nature of the beliefs underlying that discrimination. The Yale policy is entirely neutral as between religious and secular employers.

Obviously, the policy is likely to disproportionately affect employers with religious objections to homosexuality, since those are likely to be a high percentage of those who discriminate against gays and lesbians. But, in virtually every other context, conservatives are the first to point out that a disproportionate effect on a particular group does not by itself make a policy discriminatory. For example, they rightly argue that the use of grades and test scores in academic admissions does not amount to discrimination against members of groups that are disproportionately likely to be excluded by the use of such criteria. The same principle applies here.

Sometimes, a seemingly neutral policy actually has a hidden discriminatory motive. That argument successfully prevailed in Masterpiece Cakeshop (where the Court ruled in favor of the baker because Colorado officials demonstrated hostility towards his religious beliefs). It should have prevailed in the  Trump travel ban case as well (I am one of the relatively few people who believe the plaintiffs deserved to prevail in both of these cases).

The fact that the Yale policy was adopted in response to the protests against the ADF speaker might be seen as evidence of such a hidden motive. After all, both ADF and their client in the Masterpiece Cakeshop case object to homosexuality and same-sex marriage for primarily religious reasons.

It is hard to be certain about the true nature of Yale’s motives. But the strong likelihood is that the religious nature of ADF’s commitments was not a decisive factor. If the Federalist Society – or some other student group – had invited a high-profile speaker who opposes same-sex marriage for secular reasons, it would almost certainly have attracted the same sorts of student protests, and led to much the same policy change by the Law School.

The anti-ADF protests were troubling for a number of reasons well-stated by legal scholar Andrew Koppelman (himself a long-time advocate of same-sex marriage). Like Koppelman, I think the Yale Federalist Society was entirely justified in inviting the ADF representative, even though I am – to understate the point – no fan of their beliefs about homosexuality (though, unlike Koppelman, I largely agree with their legal position in the Masterpiece Cakeshop case).

Be that as it may, the protests and the resulting policy were about ADF’s hostility to homosexuality and same-sex marriage, not the religious nature of that hostility. A secular organization with similar commitments would have aroused much the same anger.

In this case, and others like it, many conservatives’ understanding of liberal motives has things backwards. The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues). As a general rule, most gay rights advocates have no problem with religion as such, and are perfectly fine with theologically liberal religious groups that take positions that are more congenial to the political left.

Many argue that religiously motivated objectors to neutral policies deserve exemptions because of the special status of religious beliefs. That is the principle underlying the state and federal Religious Freedom Restoration Acts, for example. There are good arguments for such exemptions, and I myself support them in some situations. But refusal to grant a special exemption to religious objectors is not the same thing as discrimination against religion, even if it might be problematic on other grounds.

  II. The Danger of Slippery Slopes.

The fact that the Yale policy does not discriminate on the basis of religion does not mean that its rules are above criticism. In my view, private organizations should have broad rights of freedom of association – and that goes double for situations like this one where the school is simply refusing to subsidize students who work for a particular employer, rather than attempting to bar them from taking such positions entirely. Senator Cruz and the federal government should leave Yale alone.

But even if the feds should stay out of the matter, it is still worth asking whether Yale’s policy is entirely justified. There are, I think, cases where universities can legitimately choose to deny any financial support to groups with odious hiring practices and agendas. For example, few would object to the Yale policy if it was limited to refusing to fund students working for groups that discriminate on the basis of race, such as those who refuse to hire African-Americans because they believe blacks are inferior to whites. As I see it, employment discrimination on the basis of sex and sexual orientation is comparably odious, and has an almost equally sordid history.

The case for the Yale policy is further strengthened by the fact that Dean Gerken indicates that the school will create “an accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles.” This exemption could potentially satisfy many of the concerns of those who believe religious organizations deserve special exemptions from some generally applicable rules (though I suspect that the  accommodation is likely to apply only to organizations whose primary purpose is religious, not merely those who have religious motives for various types of employment discrimination). Depending on what counts as a “religious organization,” it is even possible that ADF itself would qualify for the exemption!

At the same time, it is also the case that antidiscrimination rules have a strong tendency to expand beyond the relatively easy cases to ones that are far more questionable. The Yale policy already covers some such cases, such as veteran status. There are often good reasons for employers to prefer veterans over non-veterans, or vice versa, that cannot be reduced to some kind of invidious prejudice.

Academic bureaucracies are, to understate the point, not notable for their self-restraint in such matters. There is therefore a danger that the YLS policy will expand over time, in various problematic ways. If Yale’s policy for funding student employment becomes subject to a growing list of ideological constraints, it is likely to undermine ideological diversity at the school, and undercut the whole purpose of the funding policy – which is to enable students to work for a wide range of public interest employers.

Gerken emphasizes that the policy is strictly limited to cases of employment discrimination, and will have accommodations for religious groups. But these constraints could be eroded over time. It may be that the slippery slope risk so great, that it’s not worth going down this route in the first place. As a practical matter, it is unlikely that more than a very small number of Yale law students will seek out subsidies to work for organizations that discriminate in the ways the current policy seeks to forbid. Letting those few slip through the cracks, as  it were, may be a price worth paying to avoid slippery slopes. At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.

NOTE: I have more than the usual number of personal connections to the subject of this post. I am myself a Yale Law School graduate (Class of 2001). In the summer of 1999, I had a Yale-funded summer fellowship to work at the Institute for Justice, a libertarian public interest law firm. Current YLS Dean Heather Gerken is a friend and a professional mentor of mine. I am also a longtime member of the Federalist Society, and was a member of the Yale Law School student chapter during my time as a YLS student.

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LAURENCE TRIBE AND Joshua Matz have written a wonderful book. It is simultaneously timeless in its analysis of impeachment as a tool created by the Constitution and timely in focusing on impeachment in the context of President Donald Trump and our current polarized country. It does a masterful job of telling the history of impeachment and of analyzing the meaning of this aspect of the Constitution. In addition to their careful legal analysis, Tribe and Matz offer astute political analysis of our current polarized country and the role of impeachment in this context. Their book looks at impeachment as a tool created by the Constitution and at the same time focuses on impeachment in the context of a president unlike any other in American history.

I agree with their ultimate conclusion that “when the House majority and the president belong to the same party, impeachment is a virtual nonstarter. Recent changes in the political system have only entrenched that rule.” Moreover, they are surely right that “[i]n this climate, finding sixty-seven votes to convict a president would be a Herculean task.”

Their careful review of history, however, demonstrates that this is not new or just about our current context. They quote Thomas Jefferson declaring that “impeachment is an impracticable thing, a mere scarecrow,” and Andrew Jackson asserting that impeachment “had become little better than a tale to amuse, like Utopia or Swift’s flying island.” Although the liberal billionaire Tom Steyer has launched an ambitious campaign urging President Trump’s impeachment, it has gotten little traction. In fact, such efforts may be counterproductive in that they provide a rallying point for Trump’s supporters: they argue that if Democrats take control of Congress, impeachment might result.

Ultimately, Tribe and Matz are persuasive that impeachment and removal for Trump, or for any president, is highly unlikely. Only two presidents have been impeached in American history, and neither was convicted in the Senate.

But the conclusion as to the virtual impossibility of impeachment raises a profound question. If impeachment is impossible and even talk of impeachment can be destructive, as Tribe and Matz persuasively illustrate, how do we check a president who is violating the Constitution?

This makes me wonder if the Constitution makes it too hard to remove a president. Would it be better to have some mechanism for a “no confidence” vote that can end a disastrous presidency? I am unsure. An enormous amount of damage can be done by a president in four years. After 16 months of the Trump presidency and with 32 months to go, I fear we will see this in a way unprecedented in the experience of the United States. But I also worry that in a polarized time, especially with presidents who lost the popular vote, any such mechanism would lead to a cycle of efforts to remove presidents. The history that Tribe and Matz chronicle of unpopular presidents — whether John Tyler or Harry Truman or Donald Trump — makes me think that several presidencies would have been ended early by no confidence votes. I am left wondering whether that would have been better or worse for the country.

But with no such mechanism in the Constitution and with impeachment a virtual impossibility, what can be done when the president violates the Constitution? In theory, Congress might check the president, perhaps as Tribe and Matz suggest by censure or maybe using other tools such as control over the spending power. That, though, seems quite unlikely when Congress is controlled by the same political party as the president. Certainly, thus far, the Republican Congress has shown no propensity to check President Trump.

Near the end of the book, Tribe and Matz observe, “[a]s polarization, partisanship, and tribalism have weakened external checks on the executive branch, Americans have come to rely increasingly on the president’s good faith and self-restraint.” But what happens when there is a president who is not acting in good faith and shows no proclivity for self-restraint? As Tribe and Matz note, “[t]hat’s a precarious position for any democracy — especially since our nation’s warped politics also make it more likely that voters will favor populist demagogues who pander to their darkest instincts.”

The question of how to check a president who is blatantly violating the Constitution is particularly salient with Donald Trump in office. Tribe and Matz refer several times to President Trump’s simply ignoring the “emoluments” clauses of the Constitution. Like them, I am involved in a lawsuit to stop these constitutional violations.

President Trump is violating the Constitution literally every day by receiving benefits in violation of the “emoluments” clauses. Article I, section 9, clause 8 of the Constitution prohibits any person holding a position of trust in the federal government from receiving any present or emolument from a foreign state. The Constitution broadly prohibits receiving any benefit from a foreign government. Yet, President Trump is constantly receiving economic benefits from foreign countries, including through hotels owned in his name.

For example, China granted the president valuable trademarks after denying them to him for years. Within days of receiving these, President Trump reversed course on a key issue affecting China, shifting from entertaining a pro-Taiwan policy to supporting a “one China” policy. In addition, President Trump owns the Trump International Hotel in Washington, DC, and it is clear that foreign governments are using it, rather than alternative hotels, precisely because it is owned by the president.

Article II, section 1 of the Constitution says that while in office, the president shall receive compensation for serving, but shall not receive “any other emolument from the United States.” This provision was meant to keep a president from using his position to receive other benefits from the federal government. Yet, President Trump is doing just that, as buildings he owns are renting space to the federal government and he is personally profiting.

Congress is not going to do a thing about it, let alone pursue the dramatic remedy of impeachment. But this then renders these provisions of the Constitution meaningless. Long ago, in Marbury v. Madison, Chief Justice John Marshall explained that the Constitution exists to limit the government and its limits are meaningless if they are not enforced. He also reminded us that under the Constitution, no one, not even the president, can be above the law.

The answer that emerges from this for me is the essential nature of the judiciary to stop the president from violating the Constitution. If we can’t rely on Congress to check the president, it must be the role of the courts to do so. It is imperative that the doctrines governing judicial review, such as the justiciability doctrines, not preclude the courts from performing this essential task. Too often in the past, and now, courts have used doctrines like standing and the political question doctrine to effectively immunize unconstitutional presidential actions from judicial review.

Thus far, one federal district court in New York has dismissed a suit about the emoluments clause for lack of standing and as a political question, while another federal court in Maryland has permitted a suit to go forward. Ultimately, these cases will make it to the Supreme Court, but whether it is before the end of the Trump presidency is quite uncertain. Without courts to stop this, and other constitutional violations, the president simply can ignore law.

The alternative is to leave compliance with the Constitution to the “good faith” of the president. That can’t be right in a society committed to constitutional governance and the rule of law.

Still, there is the question of when violations of the Constitution warrant talking about impeachment and pursuing it. In their preface, Tribe and Matz rightly point to the three key questions in this regard: “(1) is removal permissible; (2) is removal likely to succeed; and (3) is removal worth the price the nation will pay.”

These are the questions to discuss with regard to the Trump presidency and for any in which a president seriously abuses the powers of the office and violates the Constitution. These, though, are questions that require analysis of very different considerations. Whether removal is permissible focuses on the criteria in the Constitution: treason, bribery, and high crimes and misdemeanors. Tribe and Matz persuasively argue that “high crimes and misdemeanors” is not limited to criminal activity by the president, but includes allowing removal for serious abuses of power.

Whether removal is likely to succeed is not a constitutional question, but one that requires analysis of the political situation at the moment. Also, there is the question, not addressed by Tribe and Matz, as to whether it is worth pursuing impeachment when it might succeed in the House of Representatives, but conviction is sure to fail in the Senate.

Finally, Tribe and Matz say it is important to consider whether removal is worth the price the nation will pay. I wonder, though, how that question ever can be answered in making the choice whether to pursue impeachment. There are huge costs to allowing a president to remain in office if he or she is violating the law or seriously abusing power. But there also are great costs to the disruptions of the unprecedented step of removing a president from office. I am skeptical that it ever will be possible at the moment of the impeachment and removal to know whether it is worth the costs. That inevitably is a question that can only be answered in hindsight.

Tribe and Matz are to be congratulated for having pointed us to the right questions and having given us a great deal of useful material for answering them. Their book is engaging and provocative. It is as relevant as today’s news and as timeless as the Constitution itself.

¤

Erwin Chemerinsky is the dean of Berkeley Law School and the Jesse H. Choper Distinguished Professor of Law.

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