First Amendment Follies

Which is more depressing?

  1. A California Attorney General ignorant of the first amendment or contemptuous of his oath to uphold the constitution; or
  2. A group of Texas College Presidents who, presumably having deliberated carefully, apparently couldn’t find among them even one College President to scream “Wait a minute! We’re going to make asses of ourselves!” before publishing solemn nonsense that made asses of themselves?

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More lies in an age of lies

When people care enough about history to study and read it, it’s a small sin to lie and mislead in dramas. But when people get their history through entertainment, when they absorb the story of their times only through screens, then the tendency to fabricate is more damaging.

Those who make movies and television dramas should start caring about this.

It is wrong in an age of lies to add to their sum total. It’s not right. It will do harm.

(Peggy Noonan, concluding a column on the Netflix series “The Crown” and Steven Spielberg’s movie “The Post,” each of which lies and misleads in its own way)

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Game, set, match

Donald J. Trump presumably needs no introduction.

Jim Sciutto is, incredibly enough, CNN Chief National Security Correspondent.

John Cardillo is a Trump and #MAGA buff who has a talk show or something analogous on the net.

David Harsanyi is a Reactionary (his term) who writes for @FDRLST and @NRO.

I quote this Twitter series (to be read in reverse order if you don’t know what’s going on) because, much as I dislike Donald Trump being president, I think Harsanyi has captured the gist of what’s going on:

 

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Bad Analogies

[N]o one, not the most wild-eyed critic of the principles underlying the civil-rights legislation of the 1960s, ever suggested that, if such laws were passed, they would lead to obscure Christian bakers’ being forced at the point of government bayonets to produce cakes for the celebration of homosexual weddings. (I write “principles” because the Masterpiece case is a challenge to a Colorado statute, not to the Civil Rights Act of 1964.) The slope is, in fact, slippery.

We ought to think a little about how far down the slope we want to go. We ought to think a little about how far down the slope we want to go. Americans look instinctively to our Constitution and to our national political principles for guidance, and our attitude toward them is the civic version of sola scriptura. We tend to generalize when we ought to specify and sometimes to specify when we ought to generalize. The social and political condition of African Americans in the 1960s was indefensible and incompatible with our national ideals. Something needed to be done, and something was, imperfectly. But our generalizing from that has not always been intelligent or prudent or constructive. Jews often were treated shabbily in our country, and sometimes still are, but the case against Princeton’s numerus clausus system of discriminating against Jewish applicants was not the same as the case against Mississippi’s suppression of African Americans. The situation of gay Americans in 2017 is not very much like that of black Americans in 1935.

It is not the case that discrimination is discrimination is discrimination. Telling a black man that he may not work in your bank because he is black is in reality a very different thing from telling a gay couple that you’d be happy to sell them cupcakes or cookies or pecan pies but you do not bake cakes for same-sex weddings — however much the principle of the thing may seem superficially similar. If the public sphere is infinite, then the private sphere does not exist, and neither does private life. Having a bakery with doors open to the public does not make your business, contra Justice Harlan, an agent of the state. A bakery is not the Commerce Department or the local public high school.

Sure, bakery customers may travel there on public roads. But tell me: Isn’t that EPA-regulated air you’re breathing?

(Kevin D. Williamson)

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Hatchet-Job History

[I]nexcusably sloppy editorializing posing as scholarship has becoming increasingly characteristic of the conservative movement as a media phenomenon. Editorial opinions dressed up as as scholarship and then placed in book form and mass-marketed have become part of the new highbrow conservatism …

Perhaps one of the most ludicrous examples of the conservative movement’s recent attempt at being sophisticated was an exchange of equally uninformed views by talk show host Dennis Prager and Dinesh D’Souza, on the subject of the fascist worldview. The question was whether one could prove that fascism was a leftist ideology by examining the thought of Mussolini’s court philosopher Giovanni Gentile (1875-1944). Gentile defined the “fascist idea” in his political writings while serving as minister of education in fascist Italy. He was also not incidentally one of the greatest philosophers of the 20th century; and in works like General Theory of the Spirit as Pure Act, adapts the thought of Hegel to his own theory of evolving national identity. It would be hard to summarize Gentile’s thought in a few pithy sentences; and, not surprisingly, the Canadian historian of philosophy H.S. Harris devotes a book of many hundreds of pages trying to explain his complex philosophical speculation.

Hey, but that’s no big deal for such priests of the GOP church as Prager and D’Souza. They zoom to the heart of Gentile’s neo-Hegelian worldview in thirty seconds and state with absolute certainty that he was a “leftist.” …

I still recall a column by [Jonah] Goldberg in which he exiled to the far left ultraconservative opponents of the French Revolution, because they didn’t believe in human rights. He then went on to compare the Catholic counterrevolutionary Joseph de Maistre to a black feminist advocate of affirmative action, because both associated human beings with the national identities into which they were born. Apparently anyone who views others in terms of their ethnic origin, no matter at what point in history, is a certified leftist. At that time I was puzzled (but am no longer) that Goldberg had no idea that political camps in 1800 were different from what they are now.

Let me close these observations by noting the obvious. There are still many respectable historical works that are produced by scholars identified, however loosely, with the American right. But there is also a plague of genuinely ridiculous writings on historical subjects coming from conservative media celebrities that surpass in their arrogant stupidity almost anything I’ve encountered in professional journals. As for people who yap about the ideologically tainted work that originate in our universities, one might hope they’d be somewhat better than those they declaim against. That’s not always the case.

(Paul Gottfried, Right-wing Celebrities Play Fast and Loose With History) I’m disappointed that Dennis Prager collaborated so recently with Dinesh D’Souza. I guess someone needs to be his friend if he’s ever to be rehabilitated, but that shouldn’t include joining him in the hucksterism to which his tragic flaws have presently consigned him.

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Speech or Religion?

I wrote several times, I’m pretty sure, that I thought the Masterpiece Cakeshop case would be argued by Jack Phillips’ attorney, and would ultimately be won, as a case about compelled artistic expression, a violation of the First Amendment’s speech clause. Free speech and compelled expression precedents are more strongly in Phillips’ favor than the current state of the law on free exercise of religion. Or so I thought.

I stand by that, but I’ll admit that the justices asked some pretty skeptical “where do we draw the line” questions about when or whether a cake is expressive, when a craft is art, and stuff like that (the last clause is my fudge factor — I’m not going back to review the transcript of argument again).

[Digression: I don’t think they’d have asked those skeptical questions had the case not implicated our newest Super-Right, the right to have everyone in every way affirm your every expression of your every sexual (and “gender”) whim. So it appears that the law of the land has another distortion factor baked into it: an LGBT distortion factor has taken root, joining the original abortion distortion factor (“no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion”) and a little-remarked creationist distortion factor (Creationists categorically lose cases involving science teaching—and intelligent design advocates get labeled “Creationists”).]

But I do disgress. I wrote today because someone I respect thinks, after scrutinizing the Masterpiece Cakeshop oral arguments, that the case could turn on the free exercise of religion after all.

Mark Bauerlein and Mark Movesian recently chatted about this on the First Things podcast. Bauerlein is no lawyer, but Movesian is a law prof, and he thinks Anthony Kennedy may smell blood in the water: a lack of neutrality or of general applicability in the Colorado law, which could be fatal under Employment Division v. Smith‘s new test for free exercise violations (the “when does the constitution create a religious exemption to a law” question).

The lack of neutrality (e.g., gerrymandering to target an unpopular religion) has been fatal in only one famous case since Employment Division v. Smith, to the best of my recollection: a case involving Hialeah Florida targeting the Santeria religion, Church of the Lukumi Babalu Aye v. City of Hialeah. But general applicability has been a wider problem, because, basically, religion gets an exemption if anyone gets an exemption, and our laws typically are riddled with “small business,” “Mrs. Murphy’s Boarding House” or other piddly little exemptions that someone lobbies for powerfully or that seem fair to legislators.

So here’s the problem: Colorado has, on something like three occasions, exempted cake bakers from making cakes that opposed gay rights or same-sex marriage. I assume those cakes were sought by provocateurs who, frankly, I would have dismissed as misguided and counterproductive (I actually may have so dismissed them). But by asking for a Bible-shaped cake with a Romans 1 “Clobber Passage,” the provocateurs may have turned refusal into “anti-Christian discrimination.”

Not only did those other three bakers win on the basis of dubious distinctions from the Masterpiece Cakeshop case, but a couple of Colorado’s Civil Rights Commissioners slung some bigoted-sounding remarks at Jack Phillips, with which Justice Kennedy grilled Colorado’s attorney. (Pro Tip: Do not let any mean words pass your lips if Anthony Kennedy may eventually be judging your case.)

I’ve taken more time than intended hyperlinking to terms of art and cases that not all readers may know, so I’ll wrap up.

Bauerlein, the non-lawyer, was delighted to think this might be decided on free exercise of religion grounds. I disagree. I would consider it remarkable and disheartening if Jack Phillips won on “an oopsie!”—catching the Colorado Civil Rights Commission in an inconsistent application of its facially neutral and exceptionless law—because that would be a narrow decision where I’d like, the cases that have built up in this area need, and the Supreme Court normally delivers, something bigger and more definitive than “this one Colorado law was applied to Jack Phillips in an nasty and inconsistent, and therefore unconstitutional, manner.”

The country doesn’t get a lot of guidance out of that on how to behave in the future, and what guidance it does get tends toward “use some guile and maintain plausible deniability when you stick it to Christian bigots.”

But if Colorado’s “oopsie” prompts overruling of Antonin Scalia’s nadir, his new free exercise test in Employment Division v. Smith, and restoration of the status quo ante, the Wisconsin v. Yoder free exercise test, I would be stunned and very, very happy.

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Toxins and antidotes

I encountered one of this quotes before and may have shared it, but now I’ve read the whole article:

When I was at Yale in the 1980s, I was given so many tools for understanding the world. By the time I graduated, I could think about things as a Utilitarian or a Kantian, as a Freudian or a behaviorist, as a computer scientist or a humanist. I was given many lenses to apply to any one situation. But nowadays, students who major in departments that prioritize social justice over the disinterested pursuit of truth are given just one lens—power—and told to apply it to all situations. Everything is about power. Every situation is to be analyzed in terms of the bad people acting to preserve their power and privilege over the good people. This is not an education. This is induction into a cult, a fundamentalist religion, a paranoid worldview that separates people from each other and sends them down the road to alienation, anxiety, and intellectual impotence.

…

Now that I have thoroughly depressed you, let me end with a few rays of hope and some thoughts about what can be done. I began this lecture with a discussion of the fine-tuned liberal democracy, which is the hypothesis that human beings are unsuited for life in large diverse secular democracies, unless we can get certain settings finely adjusted. I think this hypothesis is true, and I have tried to show that we have stumbled into some very bad settings. I am pessimistic about our future, but let me state clearly that I have low confidence in my pessimism. It has always been wrong to bet against America, and it is probably wrong to do so now …

[I]f you want more hope, let me tell you why I think things are going to start to improve on university campuses, beginning in the fall of 2018: because as things get worse on campus, more people are beginning to stand up, and more people are searching for solutions. Some college presidents are starting to stand up. They all know they are sitting on a powder keg, and they want to defuse it. Also, they are generally liberal scholars, deeply opposed to illiberalism …

Professors are starting to stand up, too. At Heterodox Academy, we started with 25 members two years ago; now we have over 1,400, evenly balanced between left and right. We got a big surge of members after the violence at Middlebury because that was a tipping point. Professors are overwhelmingly on the left, but they are mostly liberal Left, not illiberal. My field—social psychology—for example, is quite sane. I have been raising the alarm about political imbalance and orthodoxy since 2011, and so far nothing bad has happened to me …

And most importantly, some students are beginning to stand up. At Reed College, one of the most politically orthodox schools in the country, social-justice activists had been protesting and disrupting the first-year humanities course for more than a year. They called the course an act of white supremacy because it focused on dead white authors. They said the course was traumatizing to non-white students. They brought their signs and chants into the classroom every day, making it hard for professors to teach or for students to learn. Many Reed students and professors objected, but none dared to do so publicly, lest they be called racist themselves. Finally, this fall, several Asian students stood up, criticized the protesters, and asked them to stop interfering with their education. Once these students stood up, support for the protesters collapsed. Many people had been going along out of fear, rather than conviction.

(Jonathan Haidt) This edited transcript of Haidt’s Wriston Lecture for the Manhattan Institute, delivered on November 15 has much more of worth than I have quoted, including analysis of how we got so polarized. A hint: I left the GOP in 2005, but there was handwriting on the walls ten years earlier (which I did not notice.)

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Gun Control

I began this blog many weeks ago, forgot it, but now finish in pared-down form.

I wonder to what extent the visceral anger at “thoughts and prayers” is a way of expressing fear and anger at our inability to control irruptions of evil into our ordered lives.

(Rod Dreher)

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When a tragedy occurs — particularly one that involves gun violence, like Sunday’s mass shooting in Texas — two things are quite predictable in the aftermath: First, lots of people, including politicians, will offer their “thoughts and prayers.” And second, an increasingly large cadre of critics will react to these offerings of “thoughts and prayers” with outrage.

Why? It seems people think “thoughts and prayers” are a lazy substitute for embarking on some real political action that might help prevent such tragedies from occurring in the future …

Contrary to the enraged certainties of many anti-gun liberals, there are actually few policies we know of that could serve as easy remedies to things like gun massacres …

The urgency and vigor of those who despise the notion of “thoughts and prayers” would only be justified in their reaction if there were indeed a magic button we could push to fix the problem tomorrow. And there isn’t.

But there’s something more fundamental at play. This isn’t just about guns. It’s about how we see political action. The implicit, maybe unconscious, but clear premise of the anti-“thoughts and prayers” line is that the only proper response to bad things happening is always political action. But turning everything into a political battle ensures that every single issue will become a conflictual one, leading to the progressive fraying away of social norms and of the belief in shared American values — which is what allows for political debate to begin with.

(Pascal-Emmanuel Gobry, In defense of ‘thoughts and prayers’)

Derision of prayer and demands (tacit or explicit) for legislative magic are extensions, it seems to me, of our broadly modern notion that the public square is full of “problems” that need scientific or political “solutions.” I believe a ban on semi-automatic weapons would lower mass murder rates very slowly at best, with the interim full of demands for banning private gun ownership entirely—or so I expect gun owner suspicions run. They’d rather endure the evil of occasional mass murder than face that prospect.

No solution

Insofar as the gun control cause is “liberal,” and liberalism is most famously instantiated in the Democrat party, this seems like a very bad issue for Democrats serious about regaining some political power:

  • We have no answers, and perhaps no real concern, for the economic and social pain of you Trump voters.
  • We despise your prayers.
  • We want to take away the guns you so bitterly cling to.

Were I still a Republican, I’d be thrilled at such folly.

***

What do the perpetrators of the massacres at Sandy Hook, at Aurora, at Orlando, and at Sutherland Springs have in common? They were all men under 30 and they all used versions of the same kind of firearm, the AR-15, the semi-automatic version of the military’s M-16 and the bestselling gun in America.

It might be difficult to make this connection because as I write this, the section on the use of AR-15s in mass killings has been deleted from Wikipedia by a user called Niteshift36, who claimed that including such a section at all was inherently biased. According to his user profile, this no-doubt scrupulous and disinterested editor of the world’s most widely used work of reference is “proud to be an American,” “a native speaker of the English language,” “skeptical of anthropogenic global warming,” and “supports concealed carry laws.” He is also a veteran, a Tom Clancy and 24 fan, someone who thinks we should “say NO to political correctness,” and a self-professed “Jedi.”

With all apologies to Jedi Master Niteshift36, this is ridiculous. If the killers had all worn Mickey Mouse sunglasses or been found with Metallica tattoos, it would be considered noteworthy. It’s not biased except in the sense that reality itself is biased against childish gun enthusiasts. But whether he wins his edit war or nay, he has done a great service by reminding us what we’re dealing with whenever we try to argue. He fits a profile, of revoltingly adolescent, video game-addicted LARPers who think that their hobby of playing dress-up with murder weapons is a constitutional right.

The AR-15 is not just a gun. It is a hobby, a lifestyle, an adolescent cult …

(Matthew Walther, The adolescent cult of the AR-15)

Lest you think Walther’s mocking approach nearly as useless as prayer, be assured that this is aimed right at the source of the problem:

Lewis does not apologize for the fact that The Screwtape Letters is an entertaining and amusing read. Indeed in the opening pages he quotes Martin Luther and St. Thomas More on the need to take Lucifer lightly. Luther says, “The best way to drive out the devil, if he will not yield to texts of Scripture, is to jeer and flout him, for he cannot bear scorn.” For his part, St. Thomas More writes, “The devil…that proud spirit…cannot endure to be mocked.”

(Dwight Longnecker, Laughing at Lucifer with Lewis) Walther:

Which is why I am not optimistic about our ability to pass any kind of meaningful legislation. The Republican Party owes too much of its support to people whose economic well-being it gleefully neglects but whose ill-considered attachments to dangerous toys it has safeguarded as a kind of poisoned consolation prize. Nor do I think that if we were somehow able to ban the manufacture, sale, and possession of all such weapons and carry out a more or less successful confiscation scheme we would never see anything like what happened in Sutherland Springs again. The real causes are chthonic; AR-15s are only the accidents that have in many cases enabled them.

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Not without friction

This afternoon, Migranyan was lecturing on Putin’s speech at the 2007 Munich Conference on Security Policy, a speech that seems to be Russia’s sole post-Soviet ideological document—and key to understanding how the relationship between Russia and the U.S. reached today’s nadir. Putin, still a painfully awkward speaker at the time, was seven years into his now nearly two-decade reign. Eighteen years prior, in 1989, he had been a KGB officer stationed in Dresden, East Germany, shoveling sensitive documents into a furnace as protesters gathered outside and the Berlin Wall crumbled. Not long after that, the Soviet Union was dead and buried, and the world seemed to have come to a consensus: The Soviet approach to politics—violent, undemocratic—was wrong, even evil. The Western liberal order was a better and more moral form of government.

For a while, Putin had tried to find a role for Russia within that Western order. When Boris Yeltsin, Russia’s first post-Soviet president, named him his successor in 1999, Russia was waging war against Islamist separatists in Chechnya. On 9/11, Putin was the first foreign leader to call President George W. Bush, hoping to impress on him that they were now allies in the struggle against terrorism. He tried to be helpful in Afghanistan. But in 2003, Bush ignored his objections to the invasion of Iraq, going around the United Nations Security Council, where Russia has veto power. It was a humiliating reminder that in the eyes of the West, Russia was irrelevant, that “Russian objections carried no weight,” as Migranyan told his students. But to Putin, it was something more: Under the guise of promoting democracy and human rights, Washington had returned to its Cold War–era policy of deposing and installing foreign leaders. Even the open use of military force was now fair game.

In 2007, speaking to the representatives and defenders of the Western order, Putin officially registered his dissent. “Only two decades ago, the world was ideologically and economically split, and its security was provided by the massive strategic potential of two superpowers,” Putin declaimed sullenly. But that order had been replaced by a “unipolar world” dominated only by America. “It is the world of one master, one sovereign.”

A world order controlled by a single country “has nothing in common with democracy,” he noted pointedly. The current order was both “unacceptable” and ineffective. “Unilateral, illegitimate action” only created “new human tragedies and centers of conflict.” He was referring to Iraq, which by that point had descended into sectarian warfare. The time had come, he said, “to rethink the entire architecture of global security.”

This was the protest of a losing side that wanted to renegotiate the terms of surrender, 16 years after the fact. Nonetheless, Putin has spent the decade since that speech making sure that the United States can never again unilaterally maneuver without encountering friction—and, most important, that it can never, ever depose him.

“You should have seen the faces of [John] McCain and [Joe] Lieberman,” a delighted Migranyan told his students, who appeared to be barely listening. The hawkish American senators who attended Putin’s speech “were gobsmacked. Russia had been written off! And Putin committed a mortal sin in Munich: He told the truth.”

The year that followed, Migranyan said, “was the year of deed and action.” Russia went to war with neighboring Georgia in 2008, a move that Migranyan described as a sort of comeuppance for NATO, which had expanded to include other former Soviet republics. But Western encroachment on Russia’s periphery was not the Kremlin’s central grievance.

The U.S., Migranyan complained, had also been meddling directly in Russian politics. American consultants had engineered painful post-Soviet market reforms, enriching themselves all the while, and had helped elect the enfeebled and unpopular Yeltsin to a second term in 1996. The U.S. government directly funded both Russian and American nongovernmental organizations, such as the National Endowment for Democracy, to promote democracy and civil society in Russia. Some of those same NGOs had ties to the so-called color revolutions, which toppled governments in former Soviet republics and replaced them with democratic regimes friendly to the West.

…

Putin’s Munich doctrine has a corollary: Americans may think they’re promoting democracy, but they’re really spreading chaos. “Look at what happened in Egypt,” Migranyan said, beginning a litany of failed American-backed revolutions. In 2011, the Egyptian strongman Hosni Mubarak stepped down following protests the U.S. had supported, Migranyan contended. But after “radical Islamists” won power democratically, the U.S. turned a blind eye to a military coup that deposed the new leaders. Then there was Libya. “You toppled the most successful government in North Africa,” Migranyan said, looking in my direction. “In the end, we got a ruined government, a brutally murdered American ambassador, chaos, and Islamic radicals.”

“If we count all the American failures, maybe it’s time you start listening to Russia?,” Migranyan said, growing increasingly agitated. “If [Syrian President Bashar al-Assad] has to go, then who comes in, in place of Assad? … Don’t destroy regimes if you don’t know what comes after!”

(Julia Ioffe, What Putin Really Wants, Atlantic)

This is a very long article, in which I was watching for what Putin really wants according to Ioffe. I have a somewhat biased eye, but this was the best I could come up with (although there are echoes of it as well):

Putin has spent the decade since that speech making sure that the United States can never again unilaterally maneuver without encountering friction—and, most important, that it can never, ever depose him.

Judge for yourself whether his fears are realistic. I’ve made my judgment.

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Some succinct standing advice on recurring themes.

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280 x 2 > enough

Sometimes, Twitter’s 280 characters is a wonderfully capacious:

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Some succinct standing advice on recurring themes.

Where I glean stuff.