George Will’s Natural Rights Judicial Philosophy

George Will has established a reputation for being an idiosyncratic thinker, and in his masterful new tome, The Conservative Sensibility, Will demonstrates this idiosyncrasy in his chapter on judicial philosophy. Will rejects originalism, preferring instead what could be described as libertarian or natural rights activism. Will chides originalists for bowing to legislative majorities – state or federal – unless they have clearly circumvented the constitutional text. Will argues that the judiciary should be active guardians against encroachments of the natural rights of citizens.

Will’s approach is reflected in his discussion of Brown vs. Board of Education. He dismisses the Warren court’s rationale for overturning the separate but equal doctrine established in Plessy vs. Ferguson. The Warren court’s decision was seeped in social psychology, twisting itself to find a justification for its decision.  Brown has been a source of dissension among some conservatives. For instance, Michael McConnell agrees with the outcome but not the rationale, while others think that – lamentably – there really was no originalist justification for the outcome (a point many progressives make in attempting to debunk originalism in toto).

Will casts aside all of these approaches and instead postulates:

The threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the Court’s conclusion in Brown; the conclusion invalidates any theory that rejects it. If a theory of constitutional interpretation cannot find in the document’s text, when the text is construed to serve the document’s purpose of framing a government that secures natural rights, grounds for striking down racial segregation in schools, a practice facially inimical to equal enjoyment of the blessings of liberty, then this theory must be discarded.

Will follows up with an important framing of his basic constitutional philosophy: “The phrase the ‘blessings of liberty’ is of course from the Constitution’s Preamble. But the Preamble is not a mere decorative filigree on the Constitution. It is a statement of the objectives of all that follow.”

To Will, the Constitution “is John Locke’s political philosophy translated into institutional architecture.” He thus views the Constitution as the written document making concrete the principles established in the Declaration of Independence. He echoes Abraham Lincoln in calling the Declaration the “apple of gold,” surrounded by the “frame of silver” which is the Constitution.

Will sides with Randy Barnett in professing what Ilan Wurman (A Debt Against the Living: An Introduction to Originalism) describes as “libertarian originialism.” The case which distinguishes Barnett and Will from most originalists is Lochner vs. New York, the 1905 Supreme Court case involving a New York state law limiting worker hours. In a decision Will applauds, the Court overturned New York’s law, invoking the idea of the “liberty of contract.” This is a right that is not enumerated specifically in the Constitution, but which is implied via the Ninth Amendment.

In supporting the Lochner court’s decision, Will accepts a concept anathema to many conservative originalists: substantive due process. Will writes, “The Due Process Clause, properly construed, prohibits arbitrary government actions, particularly actions that unjustifiably restrict individuals’ liberties. The Due Process Clause is not purely about process.”

This reading of the due process clause would animate many Supreme Court decisions over the next three decades. These cases generally centered on economic questions. It was not until FDR appointed an entirely new court over his tenure in office that substantive due process would die a sudden death, only to be revived by the Warren court, only this time generally to protect socially libertarian ideas.

Will also does not completely dismiss the idea of a constitution as a living, breathing document. Will himself uses the term “living originalism,” a term coined by Jack Balkin. He quotes Balkin’s description: “In every generation, We the People of the United States make the Constitution our own by culling upon its text and its principle and arguing about what they mean in our own time.” The prohibition against cruel and unusual punishment is used as an example. What was considered “cruel and unusual” in 1789 America is not the same as what would be considered cruel and unusual in 2019. Each generation can read the constitutional intent in light of new revelations and modes of thinking. This differs from progressive judicial activism because the constitution would still be interpreted to support a Madisonian respect for natural rights, just with a more modern flavor.

Will lambasts the conservative originalist approach because it is far too deferential to majorities. He specifically calls out Antonin Scalia’s dissent in Lawrence v. Texas, where the majority struck down Texas’s anti-sodomy laws. Will accuses Scalia of being a majoritarian, and decries the originalist impulse to defer to legislative majorities.

There are thus two principles which underlay Will’s judicial philosophy: a defense of natural rights, and a suspicion of majoritarianism. While there is some division within conservative circles, both of these ideas are within the mainstream of traditional conservative thought, particularly the anti-majoritarian impulse. Will is on solid ground in citing Madison and the Framers and their distrust of majorities and the damage that unrestrained majorities could wreck on our republic. Neither of the principal authors of the Federalist Papers – Hamilton or Madison – were exactly Jeffersonian democrats. (Madison may have forged a political partnership with Jefferson, but he never shared similar philosophical ground with Jefferson when it came to ideas such as democracy and the permanency of the constitution.)

Will might encounter more resistance to his passionate advocacy of natural rights. Again, though, he is on generally solid ground in interpreting the Framers as being natural rights advocates. Thomas West, in The Political Theory of the American Founding, does a convincing job of demonstrating the Framers’ commitment to natural rights, sorting through varied and various writings to demonstrate this propensity.

Yet there are three fundamental issues with this judicial philosophy. Neither one is perhaps lethal to Will’s argument, though in combination they suggest that it is not an approach conservatives should take.

The first issue with manifests itself is that of states’ rights, a concept Will himself defends in the book. Leaving aside the judiciary’s rulings on federal matters, absent a clear contradiction of the constitutional text and meaning, a philosophy of judicial restraint with regards to state laws would be not only sensible, but in fact would be the correct way to honor the Framers’ intent as Will calls us to do.

Will defends this seeming tension with respect for state sovereignty by noting that states cannot abrogate the constitution. That is certainly true. Obviously no state can take it upon itself to legalize slavery, which is clearly prohibited by the 13th Amendment. Will wants to go a step further to recognize that the Ninth Amendment is not just an empty set of words, and establishes a principle for supporting rights not clearly laid out in the Bill of Rights and the Constitution in general.

The problem for Will is that the Constitution is a document meant to lay out the rules for the federal government, and not the states. As originally drafted and ratified, there was very little in the constitution that directly impacted and/or curtailed state actions. The republican guarantee and commerce clauses, for instance, constrained state actions. Otherwise, the Constitution was meant to enumerate (and limit) the powers of the federal government.

The reluctance to superimpose a federal viewpoint over the states is best demonstrated by the convention’s rejection of Madison’s proposal for Congress to have a veto over state laws, a veto Madison thought to be essential for the Constitution to have any teeth. Initially it was generally supported, but as the convention wore on, more delegates – particularly from the small states – argued against this provision, and it ultimately went down to defeat. Madison greatly lamented this, and he thought the lack of such a provision was one of the severest flaws in the Cconstitution.

But even Madison’s advocacy of a veto over state laws stemmed largely from his fear of state interference with federal laws. He didn’t begrudge the states from passing their own laws per se, but rather worried that certain state laws would contradict federal action. Thus even this proposal is less about protecting natural rights and more about protecting the federal government from state encroachment.

Will would rightly counter that the 14th Amendment changed the relationship of the Constitution to the states, at least in practice. He laments the Court’s Slaughterhouse decision, which practically nullified the privileges or immunities clause. But the due process clause has been used to bring the states to heel on a number of issues, and has essentially federalized the Bill of Rights. The question conservatives have to tackle is: how much power do the states retain?

This leads to the second problem with Will’s approach. Progressives mock originalism by contending that it turns judges into historians. A conservative could contend that Will’s natural rights approach turns judges into philosophers, arguing over the meaning of natural rights.

Many (though not all) on the right would agree with Will about the natural rights inclinations of the Framers. Natural rights advocates also believe that we’re constantly discovering what our natural rights entail. And that’s the rub. While a natural rights reading of the Lochner decision could stand upon the idea of the liberty of contract, it is not implausible to picture a progressive natural rights reading of the New York law as supporting the legislation. FDR’s “four freedoms” should provide insight into how a much different concept of natural rights would lead to outcomes Will – and conservatives – would very much disapprove of. Though I agree with Will’s natural rights reading of the Lochner decision and the liberty of contract, it’s not at all far-fetched to see a much different philosophy of natural rights reaching the opposite conclusions.

It’s commendable that Will recognizes that the Ninth Amendment and the privileges or immunities clause of the 14th Amendment are still parts of the Constitution, but how much power to interpret the meaning of those clauses in light of natural law should we give the courts? That leads us to the final objection. While Will again should be commended for not taking the easy conservative path of bashing the courts and questioning the judicial branch’s legitimacy, and is correct in highlighting the anti-majoritarian impulse of the Framers, this approach tilts the balance far too much towards the judiciary.

Conservatives have an uneasy relationship with democracy. I am certainly guilty of being reflexively anti-majoritarian. But we run the risk of going too far in our – let’s call it suspicion of democracy, or at least the democratic aspects of republicanism.

But it is, nonetheless, a republican form of government the Framers created and we’re trying to keep. And what is a republican government? According to Madison, in Federalist 39:

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

This broad definition doesn’t necessarily lead us to a satisfactory conclusion as to the rightful powers of the judiciary, but it indicates Madison’s frame of mind. Suspicious as he was of democratic majorities and of state power in general, he recognized there had to be an element of popular choice. Ultimately the people of the United States are sovereign. That sovereignty may be expressed in incompletely democratic forms, and the judiciary is itself a tangential product of popular sovereignty, as they are appointed by (indirectly) elected presidents and confirmed by (indirectly, at the time) elected Senators, and served during good behavior (thus subject, theoretically, to impeachment).

Though we created a republican government with limited democratic forms, there is a general sense that the genius (to borrow from Madison) of the people requires some aspect of popular choice and control. An unelected judiciary consistently overturning legislative majorities based on philosophy rather than the constitutional text will only embitter the citizenry, especially if it feels it has no ability whatsoever to undo the judiciary’s actions. This notion of almost complete judicial supremacy over the legislature, one which extends beyond the original concept of what the judicial branch was intended to be, goes well beyond simple anti-majoritarianism and is seemingly at odds with the very core of our national identity.

That’s not to say there isn’t a good deal of merit in Will’s advocacy of greater judicial activism. First of all, the term judicial activism, like so many political terms, has been abused to the point it merely means “Courts rendering decisions I don’t agree with.” And Will is right to urge courts to adjudicate based on the constitution. In other words, judicial restraint can itself be a form of political activism. For example, John Roberts deciding to find a curious rationale for upholding Obamacare was almost certainly motivated by his desire to restrain the Court from becoming involved in a political debate. Yet this decision itself was political, and lacked any defensible constitutional merit. Judges should judge, and then they may let the political chips fall where they may.

In general, Will isn’t far afield of the Famers. Though Will takes his cues from Madison, it is perhaps unsurprisingly Alexander Hamilton who comes closer to providing support for Will’s judicial philosophy. As Hamilton writes in Federalist 78, “[the judicial branch] is a no less excellent barrier to the encroachments and oppressions of the representative body.” Hamilton adds:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This supports Will’s counter majoritarian argument. Hamilton here expresses the idea that judges must rule against democratically elected legislators when the latter act against the Constitution. But only the most ardent majoritarian would dispute that. The question remains: how do we know precisely when legislators have acted in defiance of the Constitution? And which aspects of the Constitution apply to state legislators? Hamilton provides something of an answer in Federalist 80:

It seems scarcely to admit of controversy, that the judicial authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

The first point is most relevant here. As Hamilton explains, “What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.”

It is this last point which resounds: the principles of good government. It is sufficiently vague to countenance a higher degree of judicial interference in state affairs than one would have imagined by the plain text of the Constitution. But again, this doesn’t quite provide a wholly satisfactory answer. State laws that contravene the Constitution should be declared null by the federal judiciary. But what of laws that run amok against “the principles of good government?”

Hamilton even addresses the privileges and immunities clause of Article IV, but here the reference is to states violating the rights of citizens from other states. This does not address internal laws impacting the state’s own citizens.

Will is on solid ground in defending the importance of an independent judiciary. Conservative frustration with court decisions has led many to call for reforms, some of which would strip the courts of their independence, or would limit their jurisdiction. While understandable, it is as true today as it was over two centuries ago that there must be an independent branch of government acting as a barrier against untrammeled majoritarianism.

But Will goes further than that. It would be an exaggeration to suggest Will is proposing the courts act like a council of ephors, but not much of one.

In a sense, Will is contradicting his own philosophy, and not just because this is a nationalistic judicial philosophy disruptive of state’s rights. As a libertarian-conservative, Will understands that human nature cannot be perfected, and that not all social ills can be corrected or cured. His is an anti-utopian philosophy. Will is also rightly at odds with the “post liberal” strand of conservatism which is so much in vogue, precisely because it has the faintest whiff of utopianism. Yet Will’s vision of an omnipotent judiciary acting as the guardian of natural rights is also semi-utopian. States may err in judgment and pass laws offensive to libertarian sensibilities. But just as post-liberals don’t seem to recognize the dangers of giving the government more power to discern “the good,” Will doesn’t seem to fully appreciate the dangers of giving the judiciary the unrestrained authority to declare what does and does not accord with natural rights. A court so fully invested with such a power may not act in strict accordance with libertarian principles. Just as conservatives should appreciate the importance of pluralism in acting as a safeguard for their practice of their values, a “libertarian orginalist” ought to appreciate the necessity of judicial deference. The alternative system may look a lot different than what is hoped for.

George Will has left us what an important contribution to the world of not just conservative thought, but political philosophy in general. His defense of natural rights and an independent judiciary, along with his anti-majoritarian impulse are all important countertrends to what we see in much of the conservative movement today. His judicial philosophy may place too much trust in the Solomonic wisdom of judges, but it is a worthwhile contribution and important guidepost.

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Conservatism Undefined

It’s a battle over the true meaning of conservatism, and for once it doesn’t solely involve individuals on the right.

Kevin Williamson of National Review and Professor Kevin Kruse of Princeton recently had a bit of a back and forth that was essentially over the question of whether it was accurate to call the segregationist southern Democrats whom Joe Biden once buddied up to “conservative.” Williamson, answering in the negative, originally responded to a series of tweets sent by Kruse in response to Tom Cotton. Kruse took to Twitter to reply to Williamson. Williamson replied here, and Kruse in turn answered back here and here.

Just summarizing the exchange would take about 3,000 words, and I’m not doing another one of those right now*, so I am counting you all to look through each link and carefully read every word of it. I’ll wait.

Now that you’re back, I’m not going to go all Hot Air on you now and copy and paste a whole bunch of stuff with commentary intermingled until you are just about nauseous. The quick summary is that Williamson thinks it is absurd to categorize the southern Democrats of this era as conservative. As a counterpoint Kruse cites the words of men like William F. Buckley and Richard Nixon who thought these southern “conservatives” could be won over to the GOP (indeed belonged in the GOP), as well as Congressional voting scorecards to prove that they were indeed conservatives, properly understood.

I think Williamson is largely right in hitting back at Kruse on the fallibility of WFB, who was just frankly wrong when it came to segregation. As for Kruse’s reliance on scorecards, I think it leaves a lot to be desired when it comes to measuring ideological coherence. It’s a bare step up above using those Facebook quizzes to measure where you are on the ideological spectrum. First of all, the scorecard is in the eye of the beholder. What counts as a “liberal” vote is determined by the person doing the scoring. If voting for (or against) civil rights legislation is the major criterion by which one is judged, and voting for such legislation is considered “liberal,” then it makes sense that the southern Democrats would be adjudged to be less conservative. But is that really a good measure when a majority of Republicans voted the same way? It’s at best debatable. As for other scores, who knows how these votes are being scored. Moreover, these scorecards are limited to actual legislation before Congress, and in the context of the 1960s, are further skewed by the dramatic over-representation of Democrats. For example, the 89th Congress (1965-1966) had 67 Democratic Senators as opposed to 33 Republicans, and the proportion was similar in the House. The Democrats lost a few seats in the 90th Congress, but still had a significant majority. That is going to affect the nature of legislation being proposed in Congress, as well as the relative partisan scores.

It would be much better to look at the careers of these southern Democrats and the specific legislative focus before determining they are conservatives. Herbert Talmadge, for example, voted in favor or Medicare and Medicaid and was generally a reliable supporter of Great Society programs. It is true that other southern Democrats, such as Eastland and Stennis of Mississippi, voted against these programs, but southern Democrats largely fell in line. Moreover, Talmadge sponsored the legislation that created foodstamps (albeit with then proviso that the able-bodied must work to receive them), and his legislative history was one that wasn’t exactly a model of Hayekian fiscal libertarianism, even if he was a bit of a budget hawk towards the end of his career.

Kruse waves away Williamson’s quite accurate depiction of southern Democrats as being progressive supporters of the New Deal by pointing out that they started to align with Republicans in the late 30’s to vote against New Deal expansion. But this is both misleading at the same time as it is subtly damning to Kruse’s general thesis.

First of all, Kruse overstates the amount of southern Democrat defection from the New Deal, as neither the entire southern delegation nor their electors completely turned against the New Deal. As a crass generalization, it would be more accurate to label most of these southern Democrats as populists: generally socially conservative, but also economically interventionist. Ironically, they would be a better fit in today’s Republican party than the GOP of their era, but more on that in a moment.

But if one concedes that the Dixicrats and other southern Democrats were generally to the right of their own party, and some Republicans thus saw an opportunity to recruit them into the GOP, that in and of itself refutes the long-held contention that Republicans and Democrats “switched places” ideologically. Though the original histories of both parties are complicated to place on an ideological spectrum, the relative right/left configuration of both was pretty clear by the end of World War I. Woodrow Wilson had begun the process of moving the party in a Progressive direction, while the waning influence of men like Robert LaFollette, combined with the presidency of Calvin Coolidge and the leadership of Robert Taft, moved the Republican party inexorably to the right.

It’s true that “American” conservatism became much more of a true ideology as a reaction to the New Deal, but the GOP had become the more rightward tilting party long before then. What’s more, the right-wing of the Republican party, generally speaking, were not opposed to civil rights. Opposition to civil rights on the right was generally due to states rights and libertarian purity rather than racial animus (though I won’t pretend the latter no doubt played a part in some right-wing thinking).

It is also important to note that men like Talmadge were replaced in the Senate not by populist conservatives, but traditional Reagan conservatives. When the south began slowly moving to the Republican column beyond the presidential level, one of the first Republicans voted into Congress was Newt Gingrich. I think it’s safe to say Gingrich, at least at this period, was a more emblematic of conservative thought than Talmadge. As for Talmadge, he was ultimately defeated by Mack Mattingly, whose political thought was in tune with Gingrich’s. It would take another couple of decades for southern Republicans to become dominant in the south, and there are two notable aspects about these Republicans: they were by and large much orthodox in their conservatism than men such as Talmadge, and they were very much not segregationists.

The south moved slowly towards the Republican party because older southerners – many of whom maintained some of their original racial sentiments – continued to vote Democrat, while younger voters generally shed the racism of their forebears and tended to vote Republican. That is not to say every younger southern Republican was completely pure on race, or that racism is a uniparty phenomenon. But by the time the Republicans truly came to dominate the south in the late 1990s and early 2000s, race had become a drastically less important issue, at least on the surface.

In a way, this confrontation between Williamson and Kruse is another round in the debate about what conservatism truly means. I think Williamson is grounded in traditional conservative thinking, and thus sees at least the economic voting record of southern Democrats as being wholly incompatible with true conservatism. As I alluded to above, Kruse would actually be on more solid ground if we defined conservatism as it is being practiced (or promoted) by the more “Trumpist” Republican party. If conservatism is defined as a culturally reactionary and economically interventionist philosophy dedicated to helping the forgotten American, then indeed Kruse might have the better of the argument. As a matter of historical accuracy, Williamson has the better of the argument. Going forward, I only hope Williamson’s conservatism is what we all recognize as conservatism.

*Stay tuned.

Why I am Not a Libertarian

I did not haphazardly choose Cato as the inspiration for this blog’s name or for my pseudonym. Both the historical Cato as well as the collective of Gordon and Trenchard are inspirational figures. The latter, in particular, are truly the forerunners of the American Revolution and the ideals of the early American republic. These are ideals that, I believe, have been abandoned by the majority of Americans on both sides of the spectrum.

I am not a libertarian, though I am about as close to being one as you could be without actually being one. Am I a classical liberal? Perhaps that’s a better descriptor. Whatever the case may be, I have never been a full-fledged libertarian, and so-called libertarians do their damndest to regularly remind me why I never will be one. Two recent controversies remind me why.

Let’s take the more serious issue first. Recent anti-abortion bills have passed in Georgia and Alabama. The former prohibits abortion once a heartbeat has detected. Alabama’s law is more sweeping, completely banning abortion except in cases where the mother’s life is at risk.

There are prudential reasons even pro-lifers object to these laws. These laws will almost certainly be struck down by lower courts, and there is no guarantee that the Supreme Court will take up the cases. And if it did, there’s a better than even chance that the Supreme Court will not vote to overturn Roe v. Wade.  Clarence Thomas is arguably the only bedrock certain vote against Roe, though Alito would likely join him, as Gorsuch probably would. Justice Kavanaugh and especially Chief Justice Roberts, however, seem to be of the judicial temperament that would incline them against overturning Roe. Therefore we’re back to the drawing board, and arguably we could take a step back.

David French is one of the few voices against restraint, and I agree with him. I think he’s particularly correct in suggesting that instead of simply upholding Roe and laying the hammer down on these states, the justices could work out a middle-ground that modifies the Casey decision. While Kavanaugh and Roberts are temperamentally conservative jurists, I would guess they also do not agree with the Roe decision. I don’t think they would vote to uphold it, full-stop.

While I might understand these prudential concerns, I am much more distressed by some of the feedback from the larger pro-life community. Here’s one example, from Guy Benson.

“I’m pro-life but a bill that actually bans abortion is too extreme.” What? This is incoherent to me. This is more than a pragmatic objection and gets to the heart of the debate. If you’re pro-life, then what exactly are you supposed to be fighting for? This isn’t some debating society thought experiment we’re talking about. The ultimate aim of the pro-life movement is to, you know, ban abortion. This may come as a surprise to some people who call themselves pro-life, but pro-lifers view unborn children as human beings endowed with the right to live. An abortion is thus the deliberate taking of human life. This is not some icky thing we disapprove of but otherwise tolerate legally because we recognize humans must be free to act as they choose. That freedom to choose ends when that choice necessitates killing another person. This is one of the basic building blocks of human society, and I thought it was a sentiment shared by all pro-lifers. Evidently not, because when confronted by the logical conclusion of their position, they are suddenly balking.

Others, however, don’t even bother trying to defend the sanctity of life. The twitter user by the name of neontaster offers up what I think is the position of many libertarians:

So let’s get this straight – it’s not a life deserving of legal protection unless it can survive outside the womb. Of course, this is an even more obscure standard than the heartbeat standard. Medical advances continually reduce the age by which fetuses can survive outside the womb. Fetsuses as young as 21 weeks have now survived. So is the standard the lowest possible age a fetus can live outside the womb? The lowest typical age it is likely to survive?

Aside from being an impossible standard to apply, it’s not logical from a moral and legal standpoint. Either the fetus is a human life or it is not. Its dependence on the mother for continued existence doesn’t diminish this reality.I won’t even get into argument that, taken to its logical conclusion, this would be an argument for permitting the murder of any child up to about age 18, or any special needs child, or anyone dependent on another life. I’ll grant neontaster’s distinction about the ability to live outside the womb, although logically this distinction doesn’t really add up when you think about it. If the child cannot survive without my ability to nurture it, how does that make it any less dependent? Sure, a mother can beg off once the child is born, but the child is still dependent for quite a long time. But, again, for the sake of argument I’ll just grant this distinction. It still fails to address the fundamental humanity of the unborn child. A legal standard that permits abortion as long as the child cannot live outside of the mother’s womb is still a legal standard that permits murdering human life. There is no law if this is law.

Unfortunately this is the standard argument of many libertarians. Some, such as Rand Paul, reject this form of thinking, but they are in the minority. As long as libertarians cherish bodily autonomy at the expense of defending human life, then this is a movement I want no part of.

Another issue where I depart from libertarians, at least in part, is on foreign policy. A kerfuffle surrounding Senator Tom Cotton’s remarks about potential war with Iran is what reminds me of the extremism of the libertarian position. Here is a link to a tweet in which the video is embedded.

Cotton is asked if we could win a war with Iran, and he replied, instantly, that we would. He adds, “Two strikes. The first strike and the last strike.” In the rest of the clip he then clarifies that he does not in fact want war with Iran. The question which was postulated was based on a scenario in which Iran struck us or our allies first. Cotton makes it very clear that he doesn’t want war and wants to exhaust every peaceful solution possible. He things regime change ought to happen, but that it isn’t going to come because we sparked a war with Iran. His response, again, was predicated on whether we would win the war.

This naturally outraged many who accused Cotton of being some neocon warmonger.

Cotton’s “two strikes” comments are admittedly worrisome. A particularly negative interpretation is that he’s talking about nuclear strikes. If not, he is perhaps widely over-estimating the ease with which we would win a military confrontation with Iran. Whichever interpretation you go with, Cotton’s remarks on this score merit criticism. But beyond that, the blowback is hysterical.

First of all, there seems to be a wide contingent of Americans who seem offended by the notion that someone would dare to be confident about America’s military capabilities. Yes, how dare a sitting US Senator think America could win a war – the nerve of the guy. Better for Senator Cotton to respond that America would curl into the fetal position and immediately surrender were Iran to attack us. That’s the sort of 21st century American spirit we have come to know and love.

The rest of the criticism comes from those who have not seemingly watched the entire clip – in other words, the overwhelming majority commenting on it. To accuse Cotton of being some kind of neocon warmonger based on these remarks is a calumny. He does not in any way indicate some desire for pre-emptive war. But to an increasing number of Americans – both on the libertarian side and for large swathes of the right – any mention of military action, even theoretically, sends them into paroxysms of rage. To even think about a military action, even a theoretical one based on the idea that we’ve been attacked by a foreign power, is basically the same thing as wanting to just bomb every country in existence.

Noah Rothman doesn’t exactly address this specific video, but he writes about this general sentiment in Commentary. He shoots down this notion that there’s just some large neoncon cabal itching to fight endless wars.

Rothman is hardly a fan of this administration, but he gets it right. While the Trump administration (and one would think any rational human being) wants regime change in Iran, military action to achieve it would be counter-productive.

Sadly our conversations around foreign policy seem to assume there are only two options: Paulite isolationism or McCain-like bellicosity. There are, in fact, other approaches. A reasonable approach – okay, my approach – is to be incredibly circumspect about military action without completely abandoning the possibility that we might, as a last resort, have to engage militarily with other countries. Discussing the potential of what might happen were we to engage in military conflict doesn’t mean you’re actively pursuing that agenda.

Again, not all libertarians necessarily subscribe to the extremist “don’t even think about it” approach to potential military entanglements, but this is certainly the view of the overwhelming majority. What’s more, for some it seems to go beyond mere principled opposition to military conflict and becomes an almost paranoid fear of the subject, and even a subtle deprecation of the American military.

I’m sympathico with much of the libertarian agenda, but these are just some of the reasons why I will never be a libertarian myself.

 

Against Ludditism

I came across this article on my friend’s Facebook feed and was fascinated by it, or at least by the attitude it represented. Here’s how it begins:

I was backing my wife’s car out of our driveway when I realized I wasn’t watching the backup camera, nor was I looking out of the rear window. I was only listening for those “audible proximity alerts” — the high-pitched beeps that my car emits as I approach an object while in reverse. The problem was that my wife’s car, an older model, doesn’t offer such beeps.

I had become so reliant on this technology that I had stopped paying attention, a problem with potentially dangerous consequences.

Backup cameras, mandatory on all new cars as of last year, are intended to prevent accidents. Between 2008 and 2011, the percentage of new cars sold with backup cameras doubled, but the backup fatality rate declined by less than a third while backup injuries dropped only 8 percent.

This speaks to a real problem: technology does force a certain atrophy of some of our senses or brain functions. I can remember most of my childhood best friends’ phone numbers – numbers I haven’t called in two decades, but other than my wife’s cell, I couldn’t recall from memory one phone number I’ve acquired since I started using cell phones. As for backup cameras, if I drive the large family minivan (which has a backup camera) for any extended period of time, I get a little discombobulated when I get into my Mazda (no camera).

And yet, what are the tradeoffs? While losing a cell phone used to mean all your contacts were gone forever, usually the files are recoverable thanks to modern software, apps, and other technologies. Now you have those contacts until the end of time, and you don’t have to rely on a faulty memory to call a friend you haven’t spoken to in years.

Look at those backup number stats. While the author seems to argue that the injuries and accidents haven’t gone down at the same rate as backup camera installations, they have gone down, and pretty significantly in terms of fatalities. In other words, it would seem that the use of backup cameras has been a net benefit.

The author cites other technological fails – the Boeing 737 Max 8 for one – as cause for concern over our reliance on technology. Nevermind that the mass commercial aircraft is itself a major technological change from, say, sailing across the water or relying on a horse and buggy to carry you across the country. While these air crashes and the deaths caused by automated vehicles create headlines and cause concern, left unaddressed is the important question: do these technologies create a net benefit? Often the answer is yes.

Let’s look at automated vehicles. While there’s still some work that needs to be done I’m sure, consider the alternatives. I recently sat through a presentation where someone mentioned he was an EMT, and was stunned when he sat around on a Friday night and there were no crashes on the Beltway. A colleague said to him that’s because younger people take Uber or Lyft when they leave the bars rather than get behind the wheel. Now, those Ubers and Lyfts are currently operated by humans, but nonetheless they’re examples of smart technological process. And as those vehicles become automated they will become cheaper, and their use more ubiquitous. The end result is likely to be even fewer roadside fatalities.

Automation doesn’t come without concerns. Those Uber and Lyft drivers will be out of jobs. Electrified vehicles also tend to come with less maintenance issues, so mechanics will also see a decline in work. Then there’s the fact that people do actually just like to drive. And yet, there will be obvious benefits: a decrease in fatalities and injuries, which will lead to fewer medical and repair costs. If we’re not spending money on mechanical repairs, we’ll be spending the money elsewhere in the economy. And while we might like the freedom of driving, the ability to get other stuff done while HAL 2000 takes you to work has a certain appeal as well. Thus, the benefits of automation will very likely outweigh the costs, and probably by a long shot.

Now, as a conservative I ought to be concerned about the unforeseen consequences of automation. I alluded to one above. There is a car culture, especially in America, and there is a psychological component to driving your car around. And yet, the car itself, like the plane, is new technology. The car is barely over a century old, and mass availability of cars is even newer. I’m sure people enjoyed riding on horses or in buggies, but they adapted. We love our cars because they’re what we’re used to. But I’m not sure it will be a huge societal loss if we personally drive them less, or even not at all.

I could spend another couple of thousand words speaking about the pros and cons of the internet, and what social media hath wrought, but I won’t (at least at this time). I will just leave with this: while a healthy suspicion of technology is a good and necessary thing, we ought to carefully weigh the benefits of these changes along with the costs. Are our lives made better through these changes, and if the answer is yes, then maybe we ought to be grateful for those changes instead of advocating a return to stick shift.

The Real History of the Electoral College

Note: I’m reposting this from my old blog thanks to renewed efforts to get rid of the electoral college based on faulty premises.

It would take an act of enormous historical illiteracy to end my blogging hiatus. Congratulations are thus in order to the New York Times for providing me with such an example. In an editorial Jay Caruso has accurately labeled “historically inaccurate garbage,” the Times has called for the abolition of the electoral college. In the process of doing so, the Times’ editors reveal an understanding of American history which calls into question whether they’ve even taken high school-level American history classes.

The Electoral College, which is written into the Constitution, is more than just a vestige of the founding era; it is a living symbol of America’s original sin. When slavery was the law of the land, a direct popular vote would have disadvantaged the Southern states, with their large disenfranchised populations. Counting those men and women as three-fifths of a white person, as the Constitution originally did, gave the slave states more electoral votes.

Let’s address the slavery as the reason behind the electoral college argument. The New York Times links to a Time magazine article written by Akhil Reed Amar in which Amar attributes the electoral college’s existence to the advocacy of the slave states. He begins:

Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.

Some “claim” this because, well, it happens to be true. The divide at the constitutional convention was not between slave states and non-slave states,* but rather between large and small states. Remember, the convention kicked off with a presentation of the Virginia plan. This plan, authored in large part by James Madison but presented by Edmund Randolph, set the framework for much of the debate at the convention. Among other things, the plan proposed a bicameral legislature with representation in both houses based on population. The smaller states objected to it, and put forward their own plan. The New Jersey plan called for each state to have an equal voice in the legislature, a la the Articles of Confederation.

* As Caruso correctly notes, at the time of the convention, only a handful of states had even partially abolished slavery, and only Massachusetts had totally abolished it. That’s not to say that New York and South Carolina were equally vested in the continued propagation of the institution, but in 1787 the north-south divide on this issue was not nearly as intense as it would become in future years.

When it came to the large-small divide, there was a mixture of states. The large states included Massachusetts, Virginia, and Pennsylvania – in other words a mix of predominant slaveholding states and anti-slavery states. The small states included Connecticut, Delaware, New Jersey and Georgia – again, a mix of states with different views on slavery. Thus feelings about slavery had little to do with these respective coalitions. So already Amar is off to a poor start in actually grasping the nuances in early American history. But he’s not done.

One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.

This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.

Even if one objects to the notion that political parties made this argument obsolete (they didn’t), it’s a bit anachronism to bring this into the debate over the electoral college, since parties didn’t actually exist at the time of the convention, and several of the Framers had rather deeply set feelings against parties (even if they would eventually spearhead the formation of those parties). So dismissing this objection when the reason for its supposed nullification didn’t yet exist is non-sensical.

Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.

Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?

The 12th Amendment merely more carefully delineated the presidential and vice presidential election process. It did not amend the electoral college, nor did it necesssarily eliminate the basic need for the electoral college. But Amar knows the real reason the college wasn’t changed: demon slavery.

Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.

This sneering dismissal is ironic, as, if anything, slavery’s role in the formation of the constitution is over-estimated. But don’t worry, Amar has a tool at his disposal that most mere mortals who only have taken standard civics classes don’t: google. So Amar no doubt entered into his search “constitutional convention electoral college slavery” and came back with literally the only result that would have populated – a speech given by James Madison in July of 1787 during the convention.

At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.

As I said, this is literally the only time during the entire convention that slavery came up in the context of the election of the executive. Unfortunately for Amar, an actual reading of the entire convention debate outside of this one quote proves that his magic bullet is not so magical.

First of all, some context is in order. Throughout much of the early part of the convention it was assumed the executive would be chosen by the legislature. It wasn’t until about the second part of the convention that the debate really kicked in over the method of selecting an executive.

There were a couple of intertwined debates. Some argued that if the executive were to be selected by the legislature, then he should not be eligible to serve more than one term. If eligible to serve more than one term, then the executive would be beholden to the legislature, and would therefore not be an independent force.

Amar is correct in pointing out that Wilson advocated a popular selection of the president, and his fellow statesman Gouverneur Morris also advocated for a selection independent of the legislature. Many other delegates – both from small and large states, as well as anti-slavery and slaveholding states – scoffed at the idea of any popular participation in the selection of the executive. Elbridge Gerry of Massachusetts insisted on more than one occasion that the general mass of the population were ill-educated and would be easily duped, and as such should have no say in the selection of the executive.

As the debate continued over several days, it was clear that the dividing line was not between slave states and non-slave states, or even large and small states (though that certainly was a part of it), but rather between individuals who had a more populist bent and those whose inclinations were more, shall we say, aristocratic. The debate was in large part a reflection of the general feeling that the mass of citizens did not have the proper qualifications and knowledge to make such a crucial decision. Even those who did not think it proper for the legislature to choose the executive did not openly advocate a popular election.

Enter James Madison. It’s odd, though understandable, that Amar focuses on Madison, as at the time he delivered his speech at the convention cited here he was closer to Wilson than most of the other delegates. The bulk of his speech was actually dedicated to expressing his opposition to the legislative method of choosing the executive. In point of fact, Madison expressed his preference for a popular vote, a preference he repeated at another point in September when the convention made its final determinations. What Amar is quoting is a small section of Madison’s address where he concedes the potential drawbacks to a popular vote. Contrary to Amar’s implication, Madison’s concern was not with how the southern states would be disadvantaged by slavery, but rather the more restrictive franchise requirements that existed in the south. Madison’s argument was that more people would be eligible to vote in the north, irrespective of slavery, thus furthering the imbalance. Madison repeated this point in September, with absolutely no mention of slavery.

Therefore the one and only convention speech Amar points to as proof of his thesis actually contradicts it, at least when read in its entirety.

And that is the entirety of Amar’s argument – this one speech, and the fact that a whole bunch of Virginians were elected president. Nevermind that those Virginians included the man who led our country to independence, the author of the Declaration of Independence, and one of the primary authors of the Constitution and the Bill of Rights. No, it’s all about slavery.

There were literally dozens and dozens of speeches made at the constitutional convention regarding the election of the executive, and one of them contained a passing reference to slavery. Yet Amar, and in turn the New York Times, uses this as justification for contending that the electoral college is completely about defending slave interests. Even if one counters that the framers were too wily to openly state their true intentions, a careful reading of the entirety of the debates shows that the delegates were motivated by completely different factors.

And of course there is one of the most elegant defenses of the electoral college ever made – Federalist 68. In it the author celebrated the electoral college for giving the people a voice in the selection of the president while providing an intermediate body of electors whose judgement would presumably be more discerning. As the author states, it’s all about preserving an orderly process:

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Now who was the author of this celebrated piece? Why, none other than the bastard, son of a whore and a Scotsman. Yes, the immigrant, New Yorker, and ardent slavery opponent Alexander Hamilton. Somehow I don’t think he viewed the electoral college as a vestige of slavery. But what did he know?

Amar tries to move the goalposts by arguing that even if the electoral college at inception wasn’t about slavery, later events (which, by the way, he completely exaggerates while relying on dubious methodolgies to determine who really should have won the election of 1800) made it about slavery. Now, it’s curious that the institution which made Abraham Lincoln’s ascendancy to the presidency possible should retroactively be seen as a gatekeeper for the peculiar institution, but so be it.

Now let’s get back to the Times. The editors throw in a whole bunch of other familiar arguments about the folly of the electoral college and its unfairness. Since this is strictly an historical post I won’t get into all that, so I’ll let you read the rest of Jay Caruso’s post. I’ll just note that throwing in the slavery non sequitur is nothing more than an attempt to gloss over the weakness of the Times’s overall argument. By continually parotting the historically inaccurate line that the electoral college is all about protecting slavery – an argument repeated by equally historical illiterate leftists on twitter and other platforms – we are supposed to throw away this “ancient” and “outdated” mode of election. Unfortunately these arguments do nothing more than to reveal that those making them don’t even have the first clue about American history and the debates surrounding the constitution, thus making anything else they have to offer of dubious merit.

At the very least we can take confort in the knowledge that people like Akhil Reed Amar have little influence outside the barely-read pages of Time.

Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.

 To quote Dr. Hibbert, upon learning that Homer is working at a nuclear power plant: Oh Good Lord. Although this picture might be more appropriate.
facepalm

All Bond Movies Ranked

Here’s something a little different. Now that I finally watched the one Bond movie I had not seen in its entirety from start to finish (see number 23), I can finally offer up my definitive ranking of all 24 Bond movies. Note: The spoof Casino Royale and Never Say Never Again are not included.

1) Goldfinger: Every bit of the Bond formula is done to perfection here: the villain, the henchman, the Bond girl, the top notch opening song and sequence: all among the best in Bond history. It also manages to be a bit campy without being absurd. Sean Connery’s Bond carefully hues the line between badass and sauve lady’s man in a way that would not really be replicated again, with perhaps Daniel Craig coming closest.

2) On Her Majesty’s Secret Service: George Lazenby’s only appearance as Bond stands out if for no other reason than it being the only time until the number six movie on the list that Bond shows anything like emotional vulnerability. Opinions certainly vary, but Telly Savalas to me is the signature Blofeld, though I could be persuaded toward Donald Pleasance.

3) From Russia With Love: For many, Daniela Biancha as Tatiana Romanova might be the greatest of all the “Bond girls,” and I wouldn’t particularly argue with that. As for the movie itself, I wouldn’t fuss with anyone who put either of these three at the top of the list.

4) Casino Royale: The Bond franchise desperately needed a fresh start after the disastrous Brosnan era and the mediocrity of latter-day Moore and Dalton, and what better way than to go back to the beginning with the very first Fleming novel. Daniel Craig was perfectly cast as Bond, and the script was the most faithful adaptation of a Fleming story since the Connery era ended. It brought the Bond franchise in the present without sacrificing the essential elements of what makes Bond so good.

5) Dr. No: The common thread among the top five movies on the list is that they are faithful adaptations of Ian Fleming’s novels. When they started veering from the plot towards the end of Connery’s run and especially in the Moore era is when the franchise started to falter. Hee we have the first in the series. It would take a couple of more films before the formula was clearly established, but this sets the series off on phenomenal footing.

6) Skyfall: After the disappointment of Quantum Solace, it was heartening to see a second strong effort from Craig. Sure, some of the plot is utterly ridiculous, but it showed a different side of the character.

7) The Spy Who Loved Me: Easily the best of the Moore movies, and the turning point of the franchise before it devolved into high camp. Also the one time when not being faithful to the novel was a good call.

8) Thunderball: It’s generally more highly regarded by others, but I’ve always thought it was a bit too busy, and the underwater scenes are simply hard to keep track of. Still brilliant, otherwise.

9) You Only Live Twice: The absurdity of Sean Connery trying to pretend to be Japanese aside, the introduction of Blofeld (finally) as the big bad is worthy of a top ten entry.

10) Live and Let Die: As cringe-worthy as some of the blackploitation scenes are, and as silly as the general plot may be, it’s still a ton of fun. It certainly sets the scene for the what the Roger Moore era would be: for good and bad.

11) The Living Daylights: Timothy Dalton was basically a 180 degree turn from Moore, perhaps turning too far to the hard-edged version of Bond. This movie would be an island of good in a sea of awfulness between the end of the Moore era and Craig.

12) SPECTRE: It disappointed, but was still a fairly solid feature.

13) Diamonds are Forever: Connery came back for one more turn, and it may have been better had he just remained retired from the series. There are still some high points, including the delightful Tiffany Case (Jill St. John), but Mr. Wint and Mr. Kidd are more awkward than imposing. Throwing shade at Howard Hughes was certainly an interesting choice as well.

14) For Your Eyes Only: After the sheer awfulness of Moonraker (more on that later), a good comeback and the last of the good Moore movies. Bit of trivia: the ending of the movie with Bond and Melina being drug behind the boat as shark bait comes from the novel Live and Let Die. 

15) Licence to Kill: This may have taken the concept of a more hard-edged Bond a tad too far. Bond going on a bloodthirsty, revenge-fueled quest is something they would kinda reprise with Quantum of Solace, though dialed back a notch.

16) The Man with the Golden Gun: We really didn’t need to see a return of Roscoe P. Coltrane Sheriff JW Pepper. A slightly ridiculous movie but Christopher Lee is enjoyable enough as the villain.

17) Goldeneye: The best of the Brosnan movies. That tells you all you need to know about this period.

18) Octopussy: I’ve seen this multiple times and I’m still not sure what the hell the point is supposed to be.

19) Quantum of Solace: This happened.

20/21) Die Another Day/The World is Not Enough: Completely interchangeable and forgettable movies. I’d have to rewatch them to remember what the plot was supposed to be, and frankly I’d rather not. One of them had Denise Richards and, well, my brain has tried to blot the memory of that performance permanently.

22) A View to a Kill: The only Bond theme to hit the top of the Billboard charts. It singlehandedly saves this movie from being at the bottom of the list. Christopher Walken being Christopher Walken is normally enjoyable, but this was just awful.

23) Tomorrow Never Dies: The scene in which Eliot Carver (Jonathan Pryce) is speaking to his media henchmen is the most cringe-inducing scene in the history of the franchise, and that is a high bar. It plays out like a scene which would have been cut out of one of the Austin Powers movies for being too over-the-top. Pryce’s performance is especially disappointing, because he’s at an 11 on the maniacal villain scale, and he needed to be at about a 7.

24) Moonraker: James Bond in space. Some argue this is so bad it’s campy good humor. No. No it is not.

Political Bubbles and Assuming the Worst

The revelation – or really confirmation of what we all expected since day one – that Jussie Smollett staged to so-called hate crime committed against himself is the second significant case inside of a month of a viral story’s narrative crashing to Earth. Last month we witnessed the full fury of the internet unleashed upon the boys from Covington, only to have it been confirmed that not only were they innocent of the original allegations against them, they were basically the victims.

With two major stories now having exploded in the media’s face, we should naturally expect some circumspection from the media and from the general public going forward, and a reluctance to pounce on a story before the facts crystallize.

BWAHAHAHAHAHA. Nah, that’s not going to happen. Here’s CNN’s resident “conservative” SE Cupp:

This is a variation of the “conservatives pounce” theme. When leftists say or do something . . . deplorable, the media reaction is to call out conservatives for either exposing or highlighting the deplorable activity.

No one will learn a damned thing.

As for why people might be so eager to assume the worst of Trump supporters, the political bubbles we dwell in may explain much. Most of us reside in cocoons, reading news sources and social media feeds of those with whom we agree with politically. Not only does this cocooning impair our ability to understand the other side of the political spectrum, when we are exposed to the other side, it’s usually the worst elements of the other side. This is especially true on Twitter. When someone from the left is retweeted onto a conservative account – and vice versa – odds are it is someone expressing the dumbest opinion imaginable. The retweet is done for the express purpose of mockery. Therefore, we begin to hold even lower opinions of the other tribe. When a few schmuck alt-right accounts with a few thousand followers are retweeted by a member of La Resistance, the inclination is to believe that these are somehow representative of all of MAGA  nation. Similarly, if conservatives only see the most screeching members of La Resistance  retweeted into their timelines, they may come to believe that the left is more rabid than it might truly be.

And I do not absolve myself from any of this. I used to read a lot more left-wing political accounts and blogs than I do now.

Even if you’re not so inclined to start reading more Vox (or Breitbart), it would be good to keep in mind that not everything you see, especially when it is presented by co-partisans, is necessarily reflective of the entirety of the political thought of your political opposites.

 

The Emergency Order, Bad Arguments, and Logical Fallacies

Now that President Trump has issued the emergency declaration on the wall, I thought I would reiterate something I said multiple times during the Obama administration: there is no “The President thinks something is really really important but Congress won’t act so the President just gets to do whatever he wants” clause in the constitution. The Veruca Salt standard simply doesn’t exist. While I think the Democrat opposition to the wall is overwrought (and indeed now some have even indicated they want to remove the border barriers that doers exit), President Trump has had ample time to secure additional border wall funding. A changeover in Congressional leadership doesn’t constitute a national emergency.

I wanted to take the bulk of this post to address some of the responses I’ve seen, both in opposition and in defense of this action.

I’ll start with one argument made by opponents of the move that I deem to be overstated. They argue that this will set a precedent for future Democratic presidents to declare national emergencies over, say, climate change and healthcare*. There is a little bit of truth to this – as I said on twitter, each new precedent has a bit of snowball effect. But when looking at the cast of characters which constitutes the current Democratic presidential field, who doesn’t think that one of them will do this anyway? President Obama’s DACA order was arguably even less meritorious than President Trump’s actions here (where exactly was the crisis in not providing legal status to the children of illegal immigrants?), and it was President Obama who uttered his petulant “I’ve got a pen and a phone” threat when he grew frustrated with the constitution’s pesky limitations. If anything, Democrats have grown even more radical, and I don’t think President Trump increases the likelihood of future despotic actions.

* I’ve seen more than a few tweets in recent days about 28 million uninsured Americans being a graver national emergency. But I’m confused: wasn’t Obamacare supposed to solve this problem? I thought Obamacare was a “big fucking deal.” Well if there are still 28 million uninsured, maybe it was really nothing more than a “little useless clusterfuck.”

The flipside of the above is the argument from defenders of the administration is that we already have precedent, so Donald Trump’s actions are not unprecedented. Again, there’s an element of truth here, but that doesn’t make right-wing defenders of the president any less hypocritical. If you were (rightly) crying bloody murder every time President Obama used his pen and picked up his phone, you cannot now defend President Trump doing the same. If the “but daddy I want it” justification for emergency declarations is pathetic, even worse is the “but mommy he did it first” defense of the declaration. Speaking of setting precedents, you now have sent a clear message that the right-side of the political spectrum is cool with unilateral, unconstitutional, and unlawful presidential declarations so long as the end-result is fine by you. That seemingly less than about ten percent of the American public consistently even cares about constitutional law is indeed depressing.

As for the unlawful part of this, defenders say that “hey, Congress set us on this path, and the president is just doing what’s in his legal authority.” I’m not one to shy away from blasting Congress for cowering in fear to assert its rights as the superior  branch of the federal government, but I am not persuaded that the president is acting within the very generous parameters laid out by Congress. As David French explains in National Review, this is an abuse of the statutory authority given away by Congress.

Look at the list carefully. He’s listing criminal challenges. He’s listing humanitarian challenges. He’s listing the problems on the border that have existed for decades and that Congress has enacted comprehensive statutory schemes (including funding civilian wall construction and civilianimmigration authorities) to combat. Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war. The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter — such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Instead, the declaration cites the wasteful 2018 border deployment, but that is only evidence that the military has been used, not that it must be used. If the mere fact of a deployment were proof of the necessity of military intervention, then there would be no limiting principle on a president’s action. The message is clear — the military is “required” simply because he says it is required.

I was called a “neocon” on Twitter for having the temerity to argue that the president has no constitutional or statutory authority to justify issuing this emergency declaration. It is a sign of the lack of intellectual heft of much of the populist right that they believe defending constitutional norms is a sign of “new” conservative thinking.

I guess I could just sit back and laugh when President Harris issues a presidential emergency declaration shutting down the health insurance industry and forcing all Americans onto Medicare. It could be humorous to see the contortions of the overwhelming majority of Americans suddenly switching their opinions on such declarations. Instead I’ll just weep as our constitution becomes all but a dead letter.

Democrat Party Priorities

Earlier this week, Virginia legislator Kathy Tran pushed legislation to liberalize Virginia’s abortion laws and to do away with even the minimal restrictions on third trimester abortions. In support of Tran’s effort, Governor Ralph Northam had this to say in response to a question about the availability of abortion in the case of a child who has actually been born:

This is why decisions such as this should be made by providers, physicians, and the mothers and fathers that are involved. When we talk about third-trimester abortions, these are done with the consent of the mother, with the consent of physicians, more than one physician by the way, and it’s done in cases where there may be severe deformities, there may be a fetus which is non-viable. So in this particular example, if the mother is in labor, I can tell you exactly what would happen, the infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if this is what the mother and the family desired, and then a discussion would ensue between the physician and the mother.

This stance is an extreme one even in the Democratic party. Yet here is a full rundown of all the major Democratic party players in response to Northam:

(crickets)

On Friday, a photo emerged that showed Northam’s medical school yearbook page. Among the items was a photo of two individuals, one in black face and the other in a KKK robe. Presumably one of the two individuals was Northam. On Friday night, Northam apologized, but then on Saturday he backtracked in one of the weirdest press conferences in world history. He claimed that neither of the two individuals was he, and he also suggested that there be a facial recognition scan – how a facial recognition scan be done on a hooded figure is a mystery. He did say he had actually worn blackface for a Michael Jackson dance contest, and then came a bizarre explanation of having to apply shoe polish. There was even a moment during the presser where it seemed Northam was set to moonwalk before his wife reminded him where he was.

When it came to chastising Northam for the yearbook catastrophe, there has been no shortage of Democrats who are now calling for him to resign. Here is a rundown of just some of the Democratic presidential candidates condemning Northam and calling for him to step down.

Meanwhile, here is Hillary Clinton:

Other prominent Democrats have also chimed in and called for Northam to step down.

This has been a rather revelatory moment in American politics, and it has shone a bright line on the soul of the Democrat party. A governor defending infanticide draws absolutely no criticism, yet the revelation that this same individual may have posed for a racist photo 35 years ago means he should be cast into the exterior darkness.

Even if one concedes that silence does not connote support for Northam’s abortion stance, the comparative reactions to these two events should make abundantly clear where the Democrat party’s priorities lie. In a sad way, had Democrats stood by Northam they would be less morally repugnant. But their manifest lack of interest in condemning infanticide (if not outright support) is brought into clear relief when contrasted with their unified reaction against a man posing for a racist photo three and a half decades ago.

While we might applaud the Democrat party for coming a long way since their adulation for a man who spent many a day wearing the klan robe, it’s unfortunate they are less concerned about respecting the rights of at least one class of humans.

What An Incredibly Stupid Week

I’ve said I hope to refrain from discussing current events on this blog, or at least reacting to every news story other than to talk about larger constitutional and philosophical principles surrounding them. One of the reasons is my complete frustration with the state of the media and how things are reported, and what stories are reported. This past week served as confirmation of at that approach. Let’s recap the week that was, where things just dumber each day.

First, there was this Gillette toxic masculinity ad, which I think became viral late Sunday or last Monday. This is one of those moments where the reaction to it, and then the reaction to the reaction were more the story. Count me among those who just gently shrugged his shoulders at it. I can see what Gillette is trying to say, though why a razor company feels obligated to spread the message is beyond my poor ability to comprehend. Perhaps the reaction to it would have been more muted had it not come on the heels of the idiotic APA guidelines on “toxic masculinity.” I have only daughters, but I’m more afraid of them coming home with any of these guys than that I’m going to confront some toxically masculine son-in-law.

And then it got dumber from there.

President Trump then had the temerity to buy fast food and serve it in the White House to the National Champion Clemson Tiger football program. He said the government shutdown meant his cook staff couldn’t prepare a meal, so he bought a whole bunch of Burger King, McDonalds, and Wendy’s. I think the most overwrought reaction to this were those who claimed this proved that the president was a racist – because I guess only non-whites eat fast food and no member of the Clemson team is white. Amazingly this dominated the next two days of the news cycle, because we just needed to hear every possible analysis of just how wrong it was for the president to serve fast food to probably the only set of humans who can afford to eat fast food calorie-wise – athletes.

This was only displaced in the news cycle when BuzzFeed published a story by Jason Leopold claiming he had seen evidence proving President Trump had directed Michael Cohen to lie about the Russia investigation. Most sensible people waited for confirmation of the story, while others put on their impeachment party hates and started counting the days to his big Senate trial. But the story never was confirmed, and Robert Mueller’s office responded, saying “BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.” This may seem like a non-denial denial, but I have to question why the Special Counsel’s office would have responded if the report were completely true. I don’t think this completely forgoes the possibility that Trump will wind up in legal hot water, but at this point BuzzFeed’s credibility should, again, be called into question. Still no other outlet has come forth to corroborate this story, and it seems more likely than not that this a nothingburger.

But that was all just the warmup for the stupidest, most despicable event of the week. Fortunately for me I was at a family event on Saturday, and thus could only briefly scroll through Twitter and Facebook. Therefore, I only saw some mentions of the altercation that had taken place near the Lincoln Memorial for the March for Life. So when I finally had an opportunity to sit down and watch the videotape, much more evidence had emerged. Some things became immediately obvious to me. First, there were no chants of “build the wall.” It’s possible some voice shouted that at some point, but it’s not clear who or even if that’s what was said.

Second, the original story of some high school kids getting in the face of a lone Native American protester were manifestly untrue. The longer videos clearly show it was the black Israelite* organization who were hurling all sorts of racist, homophobic, and other slurs at the boys, not the other way around. Then Nathan Phillips entered the fray, and things did not de-escalate, though that was his stated purpose for walking up to the group.

*: Just to be clear, that’s what they call themselves. I once saw them in New York, and as I called them by that name in response to a friend who asked me who they were, some woman chided me for using a supposed slur. 

I’m not going to recount everything that happened. By now I’m sure anyone reading this has already seen the videos or is familiar with what took place. Robby Soave has one of the most detailed and accurate assessments.

As I said, I fortunately came to this story a day late, so didn’t have the opportunity to opine about matters before more details became available. Others, however, were quick to condemn the kids, especially Nicholas Sandmann, who emerged as the Emmanuel Goldstein of the weekend. I’ve never heard of a Nazi smirk, but he has one according to the bright lights of the internet.

The treatment of Mr. Sandmann is particularly galling when you consider that he acted more responsibly than any other human being in this affair. There’s even a point, caught on video, where he clearly signals to one his classmates to knock it off when said classmate began getting into it with one of the other protesters. Rather than representing the smirking face of hate, Sandmann was a young man who showed great resolve and fortitude in the face of – let’s call it what it is, hatred.

There are numerous takeaways from this event. Perhaps none are as important as this: maybe wait a moment before posting your social media hot take. It’s true that waiting for “all the evidence” to come in may entail literally waiting forever, but it couldn’t hurt to wait for more than one initial viral video.

But at least some who initially attacked the boys repented and apologized when moire evidence started coming in. Others, however, just dug in their heels. Either they’re lying about seeing the longer videos, or else these people are so blinded by their ideological hatreds that they refuse to see truth when it is literally in front of them.

There are many to blame in this fiasco, and few who come off well. Let’s start off with who deserves the least amount of blame or hate: the aforementioned Nicholas Sandmann. As for the bulk of his classmates, I’m starting to take the position that they, too, largely acted well. Did some of them act foolishly and respond poorly to some of the antagonism? Perhaps, but how should a 16 or 17-year old respond when a bunch of nutjob racists are yelling at you, or some other weird dude begins playing a drum in your face? As for the MAGA hats, this is the only semi-legitimate criticism, but only insofar as wearing any partisan political regalia should be frowned upon at the March for Life because we want to try to keep partisanship out of the event as much as possible. But the idea that the hats themselves are inherently bad or equivalent to a Klan hood, as was repeated throughout the Twitterverse, is obscenely stupid.

Next up, we have the chaperones. I have not heard a satisfactory answer to where they were during this. Could any of them have stepped up to protect the boys, or did some try only to be shouted down? This is one part of the story I’d like to investigate further before passing judgment.

Nathan Phillips, meanwhile, at best exaggerated his role in this or just blatantly lied, intimating that he went in there to play peacemaker, when it is clear he was dead set on stirring up the agitation. Of course, the black Israelites are the worst direct actors in this story. They are an insane group of angry bigots, and anyone attempting to defend them in any way should be shunned.

Then there’s the media. Oh, suddenly they had something to report on during the March for Life. Let’s ignore those anti-Semites marching in Washington the very next day, we’ve got some southern, Catholic, white boys to demonize. It took most major media outlets a full two days before some of them started to say, “Hey, maaaaaaaybe we kinda sorta got this one completely wrong.”

But I reserve my greatest ire for both the school and for the archdiocese of Covington, with special mention for the archdiocese of Baltimore. These venerable institutions wasted no time in throwing these students under the bus. What’s more, when the situation began clearing up and the real news began trickling in, they failed to retract their earlier groveling statements. Only very recently did the Archdioceses of Baltimore and Covington walk back a little bit, but only through mealy-mouthed statements saying that they were “investigating” the incident. What’s there to investigate? It’s the same mealy-mouthed shit being spewed by Fr. Jim Martin, who refuses to fully apologize for throwing stones at these boys, and instead chooses to offer passive-voiced, conditional-laden non-apology apologies.

Amy Welborn has more to say about Jim Martin and that other noted guardian of charitable speech, Mark Shea. Donald McClarey, meanwhile, has noted the cowardice of Archbishop Joseph Kurtz of Louisville and his failure to retract his earlier condemnatory comments.

For those who are not fans of harsh language, I advise you to skip this next paragraph.

Hey, assholes, you know how you buried your heads in the fucking sand while your colleagues were out there diddling boys and seminarians, and how you continue to evade all sense of responsibility? Yeah, you might want to think twice before you trash faithful Catholic boys and men before all evidence comes in. But I guess you don’t much care about evidence, because you obviously didn’t give two shits while seminarians were telling you what was happening inside the walls of your seminaries. So the next time you mail your pleas for your archdiocesan appeals, just know the envelopes and the papers inside are going to be used for their only useful purpose: toilet paper.

Ahem. So that’s where we are. The only confident prediction I will offer from all this: we will learn absolutely nothing from this.