Public Affairs

On the one hand, I express no profound personal opinions here; on the other, I have some smart and provocative “takes” from others and some comments on them.

Stupid opinions on why a Trump conviction will be reversed

Any conviction obtained at the so-called “trial” of former President Donald Trump’s alleged alteration of financial records will be reversed on appeal, if necessary by the U.S. Supreme Court, because altering financial records is only a crime in New York if you do it to conceal some other crime. Paying Stormy Daniels money is NOT a crime. …

Steven Calabresi (emphasis added).

I would wager a substantial sum that the U.S. Supreme Court will not reverse a New York conviction of Trump at all, let alone on the basis that New York Courts misapplied New York law.

If the law is as Calabresi says, State appeal courts should reverse, but state Courts have the last word on what state law is.

Steven Calabresi is not a stupid man. This outburst was an example of motivated reasoning.

It’s still quite possible that the Manhattan jury will convict Trump on the 34 felony charges Bragg has brought. But there is no chance the conviction will withstand appeal, particularly given that it relies so heavily on Cohen’s testimony.

Eli Lake (emphasis added).

I would wager even more that a conviction will not be reversed because it relies too heavily on Michael Cohen’s testimony. No Courts will have any idea what the jury relied on. That’s not how jury trials work.

I cannot vouch for Elli Lake not being stupid on legal matters. It rather appears that he is.

Note: This is not to say that Courts won’t reverse because particular testimony of Cohen was admitted over timely objection. Nor am I saying that this prosecution is solid and will not be reversed. There’s a lot of non-dopey analysis that thinks if very shaky. I’m just faulting stupid arguments that mislead non-lawyer readers.

History Rhyming?

I’ve been surprised at the intensity of the electorate’s hostility to post-Roe restrictive abortion legislation. I thought public opinion was more closely divided.

As we think about why voters are so hostile, though, it may be illuminating to remember the Protestant landscape pre-Roe. For one common instance:

The great majority [of pre-Roe Southern Baptists] favored such “therapeutic” abortions, but a small minority objected that abortion was murder, and another small minority argued that it should be legal in all cases. The divide, however, did not fall along the usual conservative-moderate lines, but rather, it seems, along the spectrum of anti-Catholicism.

Frances FitzGerald, The Evangelicals. Voters may just be reverting to pre-Roe positions.

I care a bit about what the various states do. But I’m still committed to federalism, unconvinced that this is an appropriate topic for national legislation.

Commencement Addresses

It’s like the opening parable of David Foster Wallace’s Kenyon College commencement address: “There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says ‘Morning, boys. How’s the water?’ And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes ‘What the hell is water?’”

James K. A. Smith, You Are What You Love

But what sort of use does it make of this freedom? Here again, the main concern is not to infringe the letter of the law. There is no true moral responsibility for deformation or disproportion. What sort of responsibility does a journalist or a newspaper have to his readers, or to his history — or to history? If they have misled public opinion or the government by inaccurate information or wrong conclusions, do we know of any cases of public recognition and rectification of such mistakes by the same journalist or the same newspaper? It hardly ever happens because it would damage sales. A nation may be the victim of such a mistake, but the journalist usually always gets away with it. One may — One may safely assume that he will start writing the opposite with renewed self-assurance.

Alexandr Solzhenitsyn, Harvard Commencement Address, 1978

Equality

In these powerfully written essays Oakeshott points to the damage done when politics is directed from above towards a goal – whether liberty, equality or fraternity – and where all policies and negotiations are formulated by reference to that goal.

Roger Scruton, Conservatism

We in the US are suffering from a putative commitment to the goal of equality, “where all policies and negotiations are formulated by reference to that goal.”

I say “putative” because we seem to have lost the ability to identify which things truly are alike, and so should be treated alike, the ability to recognize that not all discrimination is invidious. Sometimes “discrimination” is the necessary consequence of discernment.

If the preceding seems impenetrably opaque, think about the dogma “trans women are women.” If that makes perfect, incontestable sense to you, you probably are loving our present love affair with “equality.” If you hesitate or disagree with “trans women are women,” you may be on my wavelength.

Elites and normies

Elites require control over the information sphere because their policy obsessions—on immigration, gender, and climate, for example—are not popular with the normies. By necessity, progressive fantasies must be imposed on our mediated reality, even as dissenting opinions are cast out into the dark. The internal combustion engine will destroy the earth; windmills will save it. Trump is a wannabe dictator; Biden, the adult in the room. Antagonists are always “far right”; there’s no such thing as “far left.” The ambition to conquer the empirical world with words approaches magical thinking.

It rarely works. The chaos and contingencies of the digital age allow the normies and their chosen tribunes, the populists, too much room to maneuver. Trump’s rise in the opinion polls would otherwise be inexplicable.

Martin Gurri

Why the meritocracy is not viewed as a legitimate ruling class

Now comes the kicker. By the competition it unleashes, bourgeois society creates unprecedented wealth, but also unprecedented inequality of wealth. It does so even while proclaiming equality to be its great insight, innovation and foundation, an inalienable right of man. The contradiction of bourgeois society is such that “its development belies its principle, and its dynamic undercuts its legitimacy.”

In earlier societies, inequality held a legitimate status, assigned by nature, tradition, or providence. In bourgeois society, inequality is an idea that circulates sub rosa in contradiction with the way individuals view themselves; it nevertheless pervades the environment in which they live…. The bourgeoisie did not invent the division of society into classes, but by cloaking that division in an ideology that renders it illegitimate, they tinged it with suffering.

One result is that we are deprived of a fundamental requirement of any polity: a ruling class that will be perceived as legitimate.

…

At bottom, we see a refusal of the ruling class to take responsibility for its rule, preferring to LARP at the barricades.

Matthew B. Crawford, Why the meritocracy is not viewed as a legitimate ruling class

Why so few pro-Trump columnists

There aren’t many pro-Trump columnists at major papers because there aren’t many pro-Trump columnists anywhere.

In past years, it hardly seems possible that a major publication wouldn’t have a supporter of Ronald Reagan on George W. Bush on its staff. That is why in 2024, newspapers would love nothing more than to have an in-house columnist on Team Red Hat/Tie.

But Trumpism is a visual medium – it cannot withstand the scrutiny of a written column. Trump supporters can go on Fox News or Newsmax or OAN and say whatever they want in the moment without being fact-checked beforehand. But writing a column means having editors and fact checkers verify the claims you’re making.

And because no editor will rubber-stamp a claim like “the 2020 election was stolen,” someone who tries to argue Biden didn’t win the last election or that the Jan. 6 insurrectionists were “political prisoners” will never be able to make their way to a legacy print outlet. A columnist that wanted to say, for instance, Vice President Mike Pence had the ability to choose his own electors in 2020 would be like a columnist earnestly arguing a woman is safer if she encounters a bear rather than a human man in the woods.

This phenomenon is glaringly obvious any time Trump goes on a network like CNN for a town hall or a debate. The falsehoods come so fast out of his mouth, the moderator can’t keep up, leaving 90 percent of his claims unchallenged. If the reporter stopped Trump to correct him on every lie he told, the event would be more moderator than candidate.

That is because being a Trumper is based almost solely on emotion and doesn’t rely on facts. Trumpism is a clenched fist, not an argument. And newspapers print arguments.

Christian Schneider, Where Are All the Pro-Trump Newspaper Columnists? (emphasis added; H/T The Morning Dispatch)

I am predisposed to credit Schneider’s argument because of people like Eric Metaxas.

Metaxas, a Yale grad, is an intellectual of sorts. He writes books. He hosts high-tone “Socrates in the City” conversations. I have it on fairly good authority that he’s genial and fun to talk to.

But he’s bereft of arguments for his election denialism. He has rock-solid certainty. As a word guy, he makes reductio ad Hitlerum analogies. He may have had mystical visions. But he has zero evidence. (Did I mention the rock-solid certainty?)

Checking in on the further-right

Charlie Kirk is worked up. “The world is in flames, and Bidenomics is a complete and total disaster,” the conservative influencer said during a recent episode of his podcast The Charlie Kirk Show. “But it can’t and won’t ruin my day,” he continued. “Why? ’Cause I start my day with a hot America First cup of Blackout Coffee.” Liberals have brought about economic Armageddon, but first, coffee.

… “Rest assured knowing that you’re ready for whatever the globalists throw at us next,” Kirk said at the end of one ad for medical-emergency kits … The commercial breaks sounded like something from an alternate universe. The more I listened to them, the more I came to understand that that was the point.

…

Some of Kirk’s ads … sound a little jarring: “You are nine meals away from anarchy,” he said in one ad for buckets of food rations, from a website called MyPatriotSupply.com. Yet as the world of right-wing-coded products has expanded, so has the weirdness of ads for them. “For 10 years, Patriot Mobile has been America’s only Christian-conservative wireless provider,” started another ad. Switching to Patriot Mobile, Kirk explained, would mean that “you’re sending the message that you support free speech, religious liberty, the sanctity of life, the Second Amendment, our military veterans and first-responder heroes” while getting “the same coverage you’ve been accustomed to without funding the left.”

Ali Breland, Why Is Charlie Kirk Selling Me Food Rations?

Another Denialism

Just as the Bishop of Oxford refused to consider that he might be descended from an ape, so now are many in the West reluctant to contemplate that their values, and even their very lack of belief, might be traceable back to Christian origins.

Tom Holland, Dominion

Trust the science

The strong, as science had conclusively demonstrated, had both a duty and an obligation to eliminate the weak.

Tom Holland, Dominion

So: where did all my mockery of Trump go?

I suffer more from the humiliations inflicted by my country than from those inflicted on her.

Simone Weil, from a letter to Georges Bernanos.

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my cathartic venting, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.

Friday, 7/28/23

Legalia

Oh what a tangled web we weave

A federal judge in D.C. vacated the 2017 desertion conviction and dishonorable discharge of former Army Sergeant Bowe Bergdahl, who walked off of a base in Afghanistan in 2009. He was captured by the Taliban and held for five years before being freed in a prisoner exchange in 2014. The judge argued Bergdahl did not receive a fair trial because the [military] judge in the case failed to disclose he was concurrently applying for a job in former President Donald Trump’s Justice Department—Trump had called Bergdahl a traitor and suggested he should be executed. Bergdahl may now face a second trial before a different judge.

(TMD) What you think of Bergdahl shouldn’t blind you to the sleaziness of what the military judge did.

Political persecution

From the department of “Damned-if-you do, Damned-if-you-don’t,” a thought on Donald Trump’s legal difficulties:

If they prosecute him, “they’re politically persecuting him.”
If they don’t prosecute him, they’ve “got nothing on him.”

Heads Trump wins, tails Trump wins.

Such is my former party. Brain dead is the benign explanation; cynical is the likelier (and culpable) explanation.

Well, they’ve got something on him, so let the “persecution” continue.

Not a rubber stamp, but a punching bag

Just as Hunter Biden was on the verge of signing a very nice plea deal to settle up tax and gun charges, Judge Maryellen Noreika mucked it all up. “I cannot accept the plea agreement today,” said Judge Noreika, who is definitely getting audited this year and who should be very careful about going 0.5 miles above the speed limit from now on.

Nellie Bowles, TGIF

What could possibly go wrong?

The IRS announced Monday that it would stop making most unannounced, in-person visits to taxpayers—a practice that has long been one of the agency’s key tools to collect unpaid taxes—citing security concerns and taxpayer confusion as scam artists imitated the tactic. The change is part of a 10-year modernization plan focused on cracking down on tax evasion and improving customer service.

TMD

Culture

SAT levels the field

Shocking new study—the SAT is a progressive tool: There are a lot of good liberals who genuinely believe that the SAT is racist, but that teacher recommendation letters and extracurriculars aren’t. My friends: Please think about a teacher at a small private school versus one at a big public school. Who has more time to get to know a kid? Think about extracurriculars: what happens to the kid who needs to work at a deli and can’t launch a nonprofit in Gambia? The SAT is the least racist thing we have. The SAT is the closest to equity in admissions we can ever hope to achieve. Now we have stats from a new study out of Harvard and Brown showing how the ultra-rich can get a huge boost from everything except. . . the SAT.

Nellie Bowles, TGIF

Soon to be a hateful myth

Meantime, in the U.S., Democrats in Texas and Louisiana voted this week in favor of age restrictions on hormones and gender surgeries, explicitly breaking with the party. Shawn Thierry, a Democrat in Texas, said: “I have made a decision to place the safety and well-being of all young people over the comfort of political expediency.” Let’s not get ahead out ourselves—in Oregon, doctors can treat gender dysphoric adolescents 15 years or older without parental permission or even notification. But I’m pretty sure we’re seeing a shift here. I agree with Jesse Singal that pediatric transitions will very soon be memory-holed as a thing that Absolutely Never Happened.

Nellie Bowles, TGIF

Budapest, the putative hell-hole

In the two years I’ve lived in Hungary, I have seen many Americans and Western Europeans come to Budapest for the first time, visibly anxious about what they’ll find, as they only know the city and the country from their media, which routinely denounce the Orban government as ‘authoritarian’ and, yes, ‘far-right.’ It only takes a few days for them to realize that they have been lied to, and that Viktor Orbán is the kind of reasonable, effective conservative that most Americans on the Right hope for when they vote Republican, but rarely get.

As I tell Americans headed over, “Budapest feels like a major midwestern American city, circa 1998.” If Clinton-era Omaha, but with better architecture and food, is your idea of Nazitown, maybe the problem is you.

Rod Dreher in European Conservative.

People who matter

[Marty Peretz] writes honestly about the core fight around publishing a symposium on The Bell Curve:

Leon said: Publish a review of the book but don’t run the piece itself. We don’t run Marxists here; we shouldn’t run Social Darwinists. Andrew said: Our readers read Marxists and Marxist derivatives already. If we don’t run Murray they’ll never read him at all — and Murray is a person who matters.

I was speaking about my own ignorance as well: reading the draft of the book was the first time I’d ever even heard there were racial differences in the distribution of mean IQ. That forbidden knowledge — uncontested, uncontestable — was something we needed and need to know. Because it was and is real. That’s all. Why it was real and how to fix it were open questions. And the ongoing debates over the fraught issue are still necessary, which is why the woke left wants to render them entirely taboo — along with countless of their other stagnant little orthodoxies. Our job as writers, I believed, was to open up debate with epistemic humility, courage and precision; it was not to shut it down in a flurry of virtue-signaling.

Andrew Sullivan

I have always rebelled against taboos based on the idea that bad people will make bad uses of what appears to be truly true.

Living by faith

The irony is that we all—secular or religious people alike—make our biggest life-shaping decisions on faith. Life is too short to learn what you need to know to live well.

Frank Schaeffer, Crazy for God

The DEI Racket

Jesse Singal notes the reported abandonment of DEI programs in corporate America, and recounts the sad story of a school principal absurdly called racist and white supremacist during prolonged DEI training, and who eventually took his own life

[M]any contemporary DEI trainings “often seem geared more toward sparking a revolutionary reunderstanding of race relations than solving organizations’ specific problems.” There’s an intense, confrontational element to some of them … DiAngelo’s approach leans very heavily on the idea of calling out white employees, in front of their colleagues, for their alleged racial sins …

…

My argument, then and now, is that these sorts of DEI interventions are, very obviously, psychological interventions. What else do you call something that is designed to change the way people think and act? And if they’re psychological interventions, of course they should be subjected to certain standards; perhaps first and foremost, their advocates should be able to assure institutional decision-makers that whatever else they do or don’t accomplish, they won’t cause harm.

But we don’t have that data, because almost none of these programs are formally, rigorously evaluated. I may sound like I’m beating a dead horse here, and I understand that at a certain point I come across as a nerd, but until you have evidence a program works, you don’t have any evidence a program works. It doesn’t matter how glossy the brochure or how impressive the website is. I understand that CEOs were desperate to do something to respond to societal and employee demand in the wake of George Floyd’s murder. But this is a rather undercooked industry, and until it adopts better standards, it will be hard to shed all that many tears over its contraction.

I couldn’t help but think of Orwell’s Animal Farm when I read A Cruel Summer at Cornell, about a Telluride Association Summer Program that seemed to be, if tacitly, about the eventuality of DEI as currently treated.

Conspiracy theories

Conspiracy theorists have got at least two things right: that the truth can differ dramatically from what we’re officially told, and that it is usually unpleasant. There aren’t many conspiracy fantasists who claim that the world is run by a benevolent secret society which will one day deposit a fortune in all our bank accounts.

Terry Eagleton

Trigger warnings run amok

We may laugh at the university that appended a trigger warning to Ernest Hemingway’s The Old Man and the Sea, informing students that it contains scenes of “graphic fishing” ….

Andrew Doyle, Our culture war is not a distraction.

Indeed we may laugh.

Economics

Perverse economic incentives

The more the economy becomes a matter of the mere distribution of loot, the more inefficiency and unnecessary chains of command actually make sense, since these are the forms of organization best suited to soaking up as much of that loot as possible.

David Graeber, Bullshit Jobs

Efficiency versus humanity

Efficiency was the coldest metric for evaluating a merger. It reduced Americans into the stylized economic caricature known as the “consumer,” treating cheap goods as our highest and only aspiration. The new guidelines inject a bit of humanity back into the calculus. And they suggest that the ultimate question for government shouldn’t be whether something is efficient, but whether it’s right.

Franklin Foer, Biden Declares War on the Cult of Efficiency

I hope I’m not being sold a bill of goods, but if the new Biden antitrust guidelines are as Foer represents them, I approve — and that puts me at odds with The Thing That Used To Be Conservatism.

Politics

Isolationist fascism

Trump differed sharply from the European fascists of the interwar period.

They were ardent militarists and imperialists. War was the crucible in which the new fascist man was to be forged; territorial expansion was both the means and the end of fascist power and triumph. Trump has shown little ambition to pursue such aims.

…

Unlike previous fascist leaders with their cult of war, Trump still offers appeasement to dictators abroad, but he now promises something much closer to dictatorship at home. For me, what Trump is offering for his second presidency will meet the threshold, and the label I’d choose to describe it would be “isolationist fascism.” Until now, such a concept would have been an oxymoron, a historical phenomenon without precedent. Trump continues to break every mold.

Christopher R. Browning, How Trumpism Differs From Fascism

Poverty and hatred

Government has tools to fight Black poverty. It does not have tools to fight white hatred. Not in any real way. Poverty lives in the world. Hatred lives in the head.

Freddie DeBoer

A position that melts on closer inspection

Well, I think . . . they have nothing to do with being president of the United States. The 10th Amendment is very clear about what the federal government’s role is, and what’s not specifically for the federal government, that limited number of things is designated to the states or to the people. I mean, it’s a one-sentence amendment in the Constitution that I believe is basically overstepped all the time, all the time, all the time.

And I’ve seen it as, again, small business. medium business, governor, I’ve seen the federal overreach. So Dobbs? Support Dobbs—leave it up to the states. I was a candidate for not even 12 hours and the first question on CNN was how do you feel about signing a federal abortion amendment? I said I wouldn’t sign it. . . . We said, it’s up to the states, the states have to decide ….

North Dakota Governor and Presidential Candidate Doug Burgum.

I respect Burgum for saying that. For decades, I said that reversal of Roe v. Wade would return the issue to the states. Abortion has never really been a national issue (even if Roe pretended permissive abortion was enshrined in the constitution).

Granted that a federal abortion amendment would by definition make abortion a national issue, and granted that the Right to Life movement has wanted a Human Life Amendment for decades and decades, I’m unsure that the precedent of shifting the federal/state balance is one I can support.

Once upon a time, I called myself a single-issue pro-life voter. But then the GOP started running idiots who had nothing but a supposed pro-life stance to commend them — and often they betrayed in talking about it that they didn’t really get the issues. That put an end to my true single-issue voting. Now, promising a Human Life Amendment will not get me to vote for someone who otherwise is a toxic jack- or jenny-ass, like a Matt Gaetz or a Marjorie Taylor Greene.

The incredible shrinking candidate

There was a time, not that long ago, when I thought I might be able to get behind Florida Governor Ron DeSantis in his bid for the Presidency.

Ron DeSantis, Florida’s governor, ordered state officials to probe whether AB InBev, Bud Light’s parent company, breached its responsibility to shareholders by hiring a transgender social-media influencer. The partnership with Dylan Mulvaney fuelled a boycott by conservatives; AB InBev has shed about a tenth of its stockmarket value since April. Mr DeSantis has also picked fights with Disney for its “wokery”.

The Economist Daily Briefing.

I am not amused by DeSantis on this. I was amused, though, by this: The Real Mystery of Bud Light: How did it become so popular in the first place?

More trolling by Shrinking Man:

DeSantis suggests he could pick RFK Jr. to lead the FDA or CDC – POLITICO

And then there’s the mortifying mistake of the campaign video that ended with a Nazi symbol.

Nick Cattogio:

In 2022 DeSantis signed the Stop W.O.K.E. Act, a response to the panic on the right over critical race theory. Of course he did: For all the hype about the governor’s post-liberal “vision” for America, his legislative priorities are highly reactive to whatever the populist hobby horse du jour happens to be. It’s an endless game of fetch with Very Online MAGA activists tossing the ball and Ron DeSantis loyally bounding after it in whatever direction it happens to go.

(Emphasis added)

Government’s Covid response

I seem to be seeing articles every day that assume the absurdity of the government response to Covid.

This is a debate (if there be a debate) that I’m not going to enter or even to watch closely, for a couple of reasons:

I gladly isolated to a fairly great extent because I’m an introvert.
I painlessly isolated to a fairly great extent because I am (and was then) retired and financially comfortable.
I prudently isolated to a fairly great extent because I am obese and over age 70 — a demographic that everyone agrees would have been counseled to isolate even by epidemiological dissenters from Dr. Fauci’s approach.

What I will say was that we collectively were surprisingly uninterested in the fate of those mostly low-paid essential workers who had to show up in meatspace, thereby exposing themselves to (supposedly) mortal danger. Did the powers that be really believe they were all in mortal danger? Let’s not forget them.

For want of a Christian conservative, vote secular populist?

I used to say “If you don’t like The Religious Right, just wait ‘till you see the Irreligious Right.”

So how are you disliking it?

Snark aside, this review makes me want to buy yet another book I may not live long enough to read: Tobias Kremer, The Godless Crusade: Religion, Populism, and Right-Wing Identity Politics in the West. How this cashes out in the US, sadly, is that many religious voters are likely to vote for secular populist candidates again for lack of a more attractive alternative.

But there is a more attractive alternative! You just have to reject the idea that one of the two major parties must get your vote and that “anything else is wasted.”

That’s especially easy to do if your state is deep red or deep blue, as you can relax (knowing your vote won’t sway any race) and vote your conscience (not voting for a “lesser evil”) as a signal to the major parties that America is tired of shit sandwiches on the menu.

Dick Bionidi

Dick Bionidi has died. For a midwesterner of a certain age, he was a pretty big deal.

Anniversary

Tomorrow, Saturday July 29, 9:03 pm, is the 58th anniversary of my motorcycle accident. I was hurt memorably, but not grievously or maimingly (if that’s a word).

We are in the grip of a grim, despairing rebellion against reality that imagines itself to be the engine of moral progress.

R.R. Reno

The end of the world as we know it is not the end of the world.

You can read most of my more impromptu stuff here (cathartic venting) and here (the only social medium I frequent, because people there are quirky, pleasant and real). Both should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it. I’m even playing around a bit here, but uncertain whether I’ll persist.

Wednesday, 12/7/22

Today is my father’s 103rd birthday. I’m now officially past the "I wish he were still with us" stage (though he regularly appears in dreams), since he presumably would be pretty miserable if he were.

Yes, his 22nd birthday got quite a cloud over it.

Legalia

How long, O Lord?

How many times do Republican- and Trump-appointed federal judges have to totally smack down Team Trump arguments before the mainstream media stop insinuating that Republican judges uniquely cannot separate law and politics?

303 Creative

Cage Fighting comes to SCOTUS

I listened to about an hour of Supreme Court Oral Argument in Monday’s 303 Creative case.

I thought I was confused because I’m old and rusty, but two younger, un-rusty commentators, Sara Isgur and David French, flagged the argument as very low-caliber and peppered with lurid hypotheticals designed not to explore the the implications of each advocate’s position, but to make the advocates whose arguments they disfavored look monstrous.

In other words, it was more like a televised Senate hearing than an ordinary Oral Argument. (Pro tip: if you consistently defend free speech, you can be “hypoed” into defending really abhorrent speech. Get a backbone.)

I am relieved. I may be rusty, but it was a poor argument, courtesy of the Justices.

Look for very sharp dissents from the justices on the losing side, because both sides seemed pretty heavily-invested.

An academic frames the question

The question is whether civil rights protections properly include the suppression of speech that disagrees with legal norms, or compels speech that celebrates those norms. Alternatively: do artists (including web designers) have the freedom to depict what subjects they wish, and how—even if they take money for doing it, and even if their perspective is hurtful (to some people)?

Prof. Michael McConnell

Moore v. Harper

Prof. Akhil Amar’s oddly-compelling, low-tech podcast had a couple of podcasts (October 26 and followup episodes with Steven Calabresi) on the Independent State Legislature doctrine purportedly at issue in Wednesday’s Moore v. Harper SCOTUS oral argument.

For the first time, though, I’m now feeling misled by Prof. Amar. Wednesday’s Wall Street Journal features two pieces, one by the Editorial Board and one by lawyers, casting the controversy in terms that seem to make Prof. Amar’s argument peripheral if not irrelevant to the real issues.

Prof. Amar legitimately notes that each state legislature is created by that state’s constitution, and the boundaries of the “legislature” vary according to things like whether the governor has veto power, thus making him a part of the legislative process. This matters because elections are unusually entrusted not to the states generally, but specifically to their legislatures.

The Wall Street Journal pieces legitimately note that under no sane construal are state courts part of the legislative process. Thus, state courts have no role in overseeing federal elections, though federal courts may.

That is perhaps an over-simplification, but it struck me as a powerful point against the backdrop of state courts making up anti-gerrymander rules not found explicitly in their state constitutions, or overruling the legislature’s absentee ballot deadlines in favor of their own.

Maybe litigants took more extreme positions, justifying Prof. Amar’s characterization of ISL’s danger.

I expect SCOTUS, as I almost always do, to adopt narrow reasoning in Moore v. Harper — to deal with the case(s) at hand without sweeping pronouncements that they might regret later.

P.S.: I listened to a half-hour or so of arguments in the case Wednesday, and it seems that SCOTUS views the case more as does Wall Street Journal, less as does Akhil Reed Amar.

Trumpish

Snivelling cowards cool on Florida Man

He used us to win the White House. We had to close our mouths and eyes when he said things that horrified us.

Mike Evans, a former member of Trump’s evangelical advisory board, via Michelle Goldberg

You only had to close your mouth if you valued power and proximity over integrity. Don’t come snivelling to me now.

Pissing away Georgia — again

I’m gratified at the loss of Herschel Walker in the Georgia runoff for U.S. Senate.

I loved Walker as a football player. I probably could tolerate him as a former football player, bastard children and absentee fatherhood notwithstanding.

But his only claim to qualification for the U.S. Senate is that Florida Man endorsed him and encouraged him, despite patent unfitness intellectually. And when his sins found him out, his response was not that of a repentant Christian, but of someone with a sense of entitlement.

To drive a stake squarely through Florida Man’s heart, I only wish Walker had lost by more. He now has twice cost the GOP some national elective offices from Georgia that really should have been theirs:

All of this [context of Trump behavior] predictably helped make the runoff a fractal of the larger 2022 pattern: Under Trump’s influence, with Trump’s preferred candidates, the Republican Party first sacrificed a potential Senate majority and then sacrificed one more Senate seat for good measure.

Ross Douthat

Unrealistic, but instructive nonetheless

National Review’s Charlie Cooke would like a word with those arguing that, because Donald Trump’s call to suspend the Constitution won’t be heeded, it doesn’t really matter. “During the closing days of the 2020 election, I wrote repeatedly about the seriousness of Joe Biden’s refusal to reject his party’s growing demand to ‘pack’—i.e. destroy—the United States Supreme Court,” Cooke writes. “Not once did I receive an email from a Trump voter telling me that my alarm was misplaced on the grounds that, in all likelihood, Biden would not have the votes to do it. Back then—and rightly so—the mere fact that Biden was entertaining the idea was deemed instructive: ‘When people tell you what they want to do with power,’ my correspondents invariably opined, ‘you should believe them. Joe Biden cannot be trusted with power.’ Well, so it is with Donald Trump once again. … American patriots do not seek to overturn legitimate election results or recommend the suspension of the United States Constitution; they respect and defend both at all costs. Donald Trump is not a patriot. He is, in his heart of hearts, a tyrant. Take note, America.”

The Morning Dispatch

[S]ubordinating truth to politics is a game which tyrants and bullies always win.

Jonathan Rauch, The Constitution of Knowledge

To believe that wealth is the only significant measure of the worth of an individual, a family, or a community is to reject the teaching of nearly every religion and wisdom tradition that ever was.

Mark Mitchell and Nathan Schlueter, The Humane Vision of Wendell Berry

The Orthodox "phronema" [roughly, mind-set] cannot be programmitized or reduced to shibboleths.

Fr. Jonathan Tobias

More miscellany, 3/25/20

Some argue that Christianophobia, which is an unreasonable hatred or anger towards Christians, does not exist but rather Christians are merely losing their privilege and being treated like everyone else. But given that the evidence that in academia individuals feel free to support anti-Christian occupational discrimination, it is hard to say that being denied a job due to religious bigotry is merely a loss of privilege.

… I found that 29.9% of all Americans have anti-Christian hostility. This is a bit higher than the 16.4% of the population who are anti-Muslim according to these same techniques.

George Yancey

Of course, I don’t know for sure that I have covid-19, because there is no testing where I live. People talk about testing on TV all day long. Usually, I’m listening through a scrim of fitful sleep. It’s like being stuck in the Loch Ness Monster programming on basic cable. There is no Nessie and no testing, but the talk goes on and on and on.

… Seven days into the waves of fever, I was drifting half in and half out of sleep. I was wearing a down jacket with the hood cinched around my head. I was buried under the covers, teeth chattering. A week like that is a very long time. (Nine days, and counting, is still longer.)

David Von Drehle. These are called “mild to moderate” symptoms. Yech!

Though the Erik Wemple Blog is no great booster of cable-news programming, we’ll take it any day over a rambling and lying President Trump. CNN and MSNBC, in fact, need to be more aggressive in cutting off the president in these briefings. There’s no reason their staffers can’t scour the briefing, produce a package with the newsworthy highlights and air it moments after the session concludes. If ever there were a time when Americans can wait for a few minutes, coronavirus is it.

Eric Wemple

I was grateful when my local 6 pm News interrupted Trump’s crypto-campaigning to give us actual news. Wemple is right.

But Team Trump pretends otherwise:

In an email to the Erik Wemple Blog, White House press secretary Stephanie Grisham denounced the truncated airing of the briefing:

The President has gone to the briefing room every day, along with many experts in various fields in an effort to inform the American public. He and the group are very generous with their time and take many questions from the press. It is astonishing to me that the media is now in the business of deciding what the American people should hear from their President — that’s not their job. It is also the height of hypocrisy for the complaint to now be that the briefings are “too long.” In addition to the most updated information for the health and safety of the country, the President will continue to deliver a message of hope, because that is what a true leader does.

(Emphasis added)

The Senate appeared ready to pass this vital legislation Sunday — until suddenly Democrats balked. They attacked the stabilization program as a “slush fund” and started to issue demands that the relief bill include a host of left-wing priorities that had nothing to do with the coronavirus. Rep. James E. Clyburn (D-S.C.), the House minority whip, told fellow Democrats in a conference call over the weekend that the relief bill was “a tremendous opportunity to restructure things to fit our vision.” House Speaker Nancy Pelosi (D-Calif.) introduced competing legislation that included elements of Democrats’ Green New Deal, including a requirement that airlines fully offset their carbon emissions and list their greenhouse gas emissions from every flight. It includes a requirement that any company receiving loans must report on pay equity and corporate board diversity, and adds other extraneous items such as guaranteed collective bargaining for all federal workers, a bailout for the U.S. Postal Service and requirements that all states allow early voting and same-day voter registration. With the backing of the Democrats’ presumptive nominee Joe Biden, Democrats have also demanded that any relief bill include a minimum of $10,000 per person in forgiveness for federal student loans, despite the fact that President Trump already waived interest on those loans for 60 days starting March 13 and gave student borrowers the option to request a 60-day forbearance on repayments.

Marc Thiesen

Reno, who’s a friend of mine, is passing harsh judgment on priests who are not serving mass to congregations today, accusing them of a lack of faith, and of moral courage. This is so, so wrong. Nobody — not those priests, not the faithful — wants to be away from church now. We do it not out of fear, but as a temporary sacrifice to save lives. You really can communicate the virus to others by your presence.

Rod Dreher

As if his idiocy might not be idiotic enough otherwise, our President insists on Tweeting in ALL CAPS!

If, on March 31, Trump declares “mission accomplished” and tweets that America should be open for business again, each and every governor could simply say no. They could go their own way.

David French

Could and should.

We have multiple things to worry about every day, but Anthony Fauci has been worrying about something like the coronavirus for a long time. An Intelligence Matters podcast from September 2018 that is more timely than ever.

When the Catholic editor of the leading conservative Christian magazine allows the fanatically pro-abortion Andrew Cuomo to outflank him on the issue of the sanctity of human life, well, we have a problem.

Rod Dreher, on R.R. Reno’s perverse column.

Unfortunately, Rod doesn’t stop there:

I have been saying on Twitter this week that I believe the Democrats would be wise to find a way to ease Joe Biden out of the presidential race, and nominate Cuomo. This would be a terrible thing for religious and social conservatives. As I said, Cuomo is a hardcore progressive, spiter of social and religious conservatives, and personally ruthless. He has also been quite good in this crisis. As with Rudy Giuliani after 9/11, he might be an SOB, but an SOB is what we needed at that time.

Yeah, right. Elect a known SOB because he seems to be just what the moment calls for. That worked out so well in 2016.

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Secularism, I submit, is above all a negation of worship. I stress:—not of God’s existence, not of some kind of transcendence and therefore of some kind of religion. If secularism in theological terms is a heresy, it is primarily a heresy about man. It is the negation of man as a worshiping being, as homo adorans: the one for whom worship is the essential act which both “posits” his humanity and fulfills it.

Alexander Schmemann, For the Life of the World, Appendix 1

[O]nce you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness,
And they will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach ….

Wendell Berry, Do Not Be Ashamed

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Second Circuit blows it

The Second U.S. Circuit Court of Appeals now has the distinction of being the only Federal Court, District or Circuit, to uphold Team Trump’s denial of Byrne Grants to cities that do not actively comply with its congressionally-unauthorized immigration rules:

The Justice Department praised the decision, issuing a statement calling it a “major victory for Americans” and saying it recognizes that the attorney general has authority to ensure that grant recipients are not thwarting federal law enforcement priorities.

(AP)

It is not a victory for Americans. Americans lose when the Federal government aggrandizes itself at the expense of cities and states without Constitutional warrant, and lose doubly when the Executive aggrandizes itself without congressional warrant as well.

And it’s not a matter of “thwarting federal law enforcement priorities” to refuse cooperation.

What kind of “conservative” impersonators do we have running DOJ?

Ilya Somin gives his own reasons on how the Second Circuit is miserably wrong.

I hope this decision doesn’t survive review by the full Second Circuit, as this was just a (3-judge?) panel, not the full Circuit.

If it does, look for a successful Supreme Court challenge now that there’s a “Circuit split,” probably striking down 8 USC Section 1373 in the process.

* * * * *

Secularism, I submit, is above all a negation of worship. I stress:—not of God’s existence, not of some kind of transcendence and therefore of some kind of religion. If secularism in theological terms is a heresy, it is primarily a heresy about man. It is the negation of man as a worshiping being, as homo adorans: the one for whom worship is the essential act which both “posits” his humanity and fulfills it.

Alexander Schmemann, For the Life of the World, Appendix 1

I appreciate Donald Trump’s judicial appointments and a few other things he has done, but I’m utterly opposed to allowing that hateful, unstable and completely self-serving man to serve as President. Maybe by saying it here, I’ll feel less compelled to fault his multiple daily outrages — mere corroboration of his dark soul and tormented mind — in the body of the blog.

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Clippings and (a little) comment

1

Social media is the miasma of mimetic desire. If you post pictures of your summer vacation in Greece, you can expect your “friends” to post pictures from some other desirable destination. The photos of your dinner party will be matched or outmatched by theirs. If you assure me through social media that you love your life, I will find a way to profess how much I love mine. When I post my pleasures, activities, and family news on a Facebook page, I am seeking to arouse my mediators’ desires. In that sense social media provides a hyperbolic platform for the promiscuous circulation of mediator-oriented desire. As it burrows into every aspect of everyday life, Facebook insinuates itself precisely into those areas of life that would keep people apart.

Certainly the enormous market potential of Facebook was not lost on Girard’s student Peter Thiel, the venture capitalist who studied with him at Stanford in the late 1980s and early 1990s. A devoted Girardian who founded and funds an institute called Imitatio, whose goal is to “pursue research and application of mimetic theory across the social sciences and critical areas of human behavior,” Thiel was the first outside investor in Facebook, selling most of his shares in 2012 for over a billion dollars (they cost him $500,000 in 2004). It took a highly intelligent Girardian, well schooled in mimetic theory, to intuit early on that Facebook was about to open a worldwide theater of imitative desire on people’s personal computers.

René Girard, The Prophet of Envy. I’ve got some Girard on the shelf among my many other unread books. I guess my excuse for not knowing him better is that nobody knew him better when I was getting my formal education.

2

Homo sapiens have been around for 200,000 years. Until the industrial revolution, we lived outside. How did we get through the Neolithic Era without sunscreen? Actually, perfectly well. What’s counterintuitive is that dermatologists run around saying, “Don’t go outside, you might die.”

Richard Weller, M.D. Quoted by Rowan Jacobsen, Is Sunscreen the New Margarine?.

More from the article, not from Dr. Weller:

Sunlight triggers the release of a number of other important compounds in the body, not only nitric oxide but also serotonin and endorphins. It reduces the risk of prostate, breast, colorectal, and pancreatic cancers. It improves circadian rhythms. It reduces inflammation and dampens autoimmune responses. It improves virtually every mental condition you can think of. And it’s free.

(Emphasis added) At the risk of sounding like Tucker Carlson, “and it’s free” explains why the establishment is against it, just as the sugar industry got the establishment to blame fat for the diseases sugar causes. (The article chooses how we were “sold” margarine as its analogy.)

We are always being told to replace something natural with some artificial pill or product that is going to improve our health, and it almost always turns out to be a mistake because we didn’t know enough. Multivitamins can’t replace fruits and vegetables, and vitamin D supplements are clearly no substitute for natural sunlight.

Rowan Jacobsen, Is Sunscreen the New Margarine? H/T Christopher Chelpka

3

When one of his colleagues voiced frustration with the slow pace of conservative reform in the 1990s, Newt Gingrich replied, “Rome wasn’t burned in a day.” That’s a good line, and it says something that is true, but conservatives dread disorder. We aren’t vandals. In this, conservatives are a breed apart from the Jacobins of the Right who have their unsteady hands on the tiller of the SS GOP just now, steering it in the direction of every iceberg they can identity.

…

The drive for coast-to-coast conformity and homogeneity in political matters — particularly in cultural matters — is one of the most important drivers of the polarization of our politics. A devout Mormon and an evangelical atheist living next door to each other can be perfectly contented neighbors and friends — unless it is decided that one of their creeds and mode of life must prevail over the other’s and become mandatory. Then, they are enemies.

Kevin D. Williamson

4

My wife is a teacher who has worked at both public and church-run schools, and she says that from an orthodox Christian point of view the church-run ones are worse – precisely because they pretend to offer a religious education while what they actually do hardly deserves to be called that. As a Catholic, I would love to see Catholic schools in Germany develop and practice concepts for a thoroughly Christian education, in the sense that not only the contents that are taught, but also the methods of teaching are permeated by the Christian faith. But to be honest, I just cannot imagine our bishops endorsing such an idea. They seem much too busy trying to convince the secular society that Christians aren’t so different from Non-Christians after all.

Tobias Klein (emphasis added), commenting on the German social context of the court ruling there against the homeschooling parents.

5

The most interesting thing in conservative politics right now is … an ideological battle over Tucker Carlson’s recent Fox News soliloquy, in which he accused his fellow Republicans of building an anti-family, finance-dominated economic system that might be “the enemy of a healthy society.”

… [Carlson] went somewhere that Fox hosts rarely go — from culture into economics, from a critique of liberal cosmopolitanism into a critique of libertarianism, from a lament for the decline of the family to an argument that this decline can be laid at the feet of consumer capitalism as well as social liberalism.

Just about every conservative worth reading was provoked into responding …

If there is to be a healthy American right, after Donald Trump or ever, this is the argument that conservatives should be having. And it is especially an argument that Fox News should be highlighting, since Fox is frequently responsible for stoking populism but keeping it vacuous or racialized, evading the debates the right really needs.

Ross Douthat

6

… “pearl-clutching lefty gays” … “desperate for villains” because they have “no one left to hate.”
“What’s not to love about Trump? He’s a drag queen. He’s a cartoon character. He’s fabulous. He’s a Kardashian!”
“If you love mischief, if you love upsetting delicate people, I don’t know where else you would be right now than the gay right.”

Chadwick Moore, gay “conservative” Fox provocateur

“I don’t hear any coherent vision for what the Democratic leadership believes in — most of what I hear is constant demonizing of Trump and his supporters,” she said. “I told Jill: ‘Let’s say I had a MAGA hat on. I wouldn’t, but let’s say I did. How far do you think I’d get down the street in New York, San Francisco or Berkeley before somebody spit on me or hit me?’

Ann, ex-Domocrat lesbian

“Trying to engage people in a thoughtful debate about ideas during the Donald Trump era seems like something very few people want to do,” he said. “I spend a lot more time thinking about how to exist during this time of political lunacy than I do about being a gay conservative.”

Ben Holden, another gay conservative.

These quotes are all from the same New York Times long-form article on gay conservatives in the age of Trump, published Saturday.

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Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

The most radical guy in the race

I’m going to take the liberty (you can’t stop me) of pulling some quotes from David Brooks but re-arranging them.

Only 18 percent of Americans say the federal government does the right thing most or nearly all of the time. In July 2016, as Ronald Brownstein has pointed out, only 29 percent of Trump supporters and 23 percent of Clinton supporters thought that electing their candidate would actually lead to progress.
According to a 2015 Heartland Monitor poll, 66 percent of Americans believe that their local area is moving in the right direction.
To have a chance, [a] third-party candidate would have to emerge as the most radical person in the race. That person would have to argue that the Republicans and Democrats are just two sides of a Washington-centric power structure that has ground to a halt. That person would have to promise to radically redistribute power across American society.
All recent presidential candidates have run against Washington, but on the premise that they could change Washington. Today, a third-party candidate would have to run on creating different kinds of power structures at different levels.

David Brooks, who may have written a great column because of having read a great book (which I haven’t read yet).

When I look at the great New York Times 2016 electoral map, and ponder the eventuality of the populous cities being thwarted in Presidential elections by millions of square miles of geography in the heartland, lowering the stakes by making Washington, DC just one power structure among many, limited to things like national defense, is very attractive.

Caveat: Washington cannot directly devolve power to, say, Tippecanoe County, but it can devolve power to Indiana (sorry, Illinois, Connecticut and other states that have been mis-governed), and can jawbone for further devolution.

What’s not to like? Federalism vindicated and subsidiarity as national policy. Pretty soon, we might have a full-blown modus vivendi.

* * * * *

Learning how to think really means learning how to exercise some control over how and what you think. It means being conscious and aware enough to choose what you pay attention to and to choose how you construct meaning from experience. Because if you cannot exercise this kind of choice in adult life, you will be totally hosed.

(David Foster Wallace via Jason Segedy, Why I’m Leaving Twitter Behind.)

By modernity, I mean the project to create social orders that would make it possible for each person living in such orders “to have no story except the story they choose when they have no story.”

Stanley Hauerwas, Wilderness Wanderings

Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Economic Civil War

New York Governor Andrew Cuomo says the Republicans have declared economic war on blue states:

The new tax law’s limit on of the state and local deduction may pose a fiscal threat to high-tax states and their affluent taxpayers. But it’s also a political gift to Democratic officials in those states seeking to raise their national profiles by challenging President Donald Trump and circumventing the law.

For Democratic leaders in New York, California and New Jersey, finding state-level workarounds to the new tax code could deliver on a pocketbook issue for a key constituency: voters in high-cost suburbs from Orange County, Calif. to Westchester who are set to lose out most from the SALT cap.

The Wall Street Journal’s William McGurn has some fun with this. Excerpts:

The effective tax hike on New York residents, the governor complains, “could cause people to leave the state.”

… Mr. Cuomo and other blue-state governors are right about the pain. The SALT deduction operated as an effective federal subsidy for blue-state taxpayers because it returned to them some of the high taxes they paid to their state governments. With the deduction now capped at $10,000, citizens in states such as New York, New Jersey, California and Connecticut will be feeling more keenly the pinch of their states’ tax and spending policies.

“SALT is one of many maneuvers that have let states spend without facing reality,” says Eileen Norcross, director for the State and Local Policy Project at George Mason University’s Mercatus Center …

Ironically, in the course of denouncing the attack from Republicans in Congress and the White House, Mr. Cuomo ceded their core argument: Tax rates affect behavior. For in his declaration of war, Mr. Cuomo admitted his worry that hiking the marginal tax rate on New Yorkers gives them an incentive to relocate. Until now it was supposed to be a Republican canard that highly taxed blue staters defect to lower-taxed red states.

Just as illuminating, this is a battle being waged for the wealthy. In his speech Mr. Cuomo hailed the Empire State as a progressive “beacon” unto the nation. But in a Monday post, Thurston Powers, a legislative analyst for the American Legislative Exchange Council’s Center for State Fiscal Reform, noted that 88% of the savings from the SALT deduction were enjoyed by people with incomes of $100,000 or more.

Note to New York City mayor and self-styled Progressive in Chief Bill de Blasio : The elimination of this deduction diminishes an effective subsidy for wealthier taxpayers. So where are the shouts of support for making the rich pay their “fair share”?

An interesting claim from some of the elided McGurn material: that the high-tax blue states politically cannot cut budgets (and taxes) because so large a portion of the fat comes from Democrat subservience to public employee unions. That seems plausible, but requires me to refine my claim (I’m confident I’ve claimed it in this blog, but I’m not going to look it up) that the Democrats around 1972 abandoned the working class that had been, through labor unions, a key constituency. The refinement would be to carve out public employee unions, which have not been abandoned.

Finally, if you want to see cynicism at work, consider one of the transparently bogus options blue-state Democrats are considering:

Like his counterparts in California and New Jersey, he’s considering mechanisms for taxpayers to fund state and local government with charitable contributions that are then credited against their tax liability ….

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“No man hath a velvet cross.” (Samuel Rutherford, 17th century Scotland)

Some succinct standing advice on recurring themes.

Where I glean stuff.