Scott Adams on Guns

Scott Adams’s stock in trade is provocation. Dilbert, Adams’s long-running comic strip, is a case in point. Adams packages a lot of subtle provocation behind the strip’s main premise, which is the frustration caused level-headed, logical Dilbert by the incompetence and posturing of his boss.

But in ways subtle and obvious, Adams makes known — and concisely illustrates — many unfortunate aspects of the modern, bureaucratized workplace; for example: the idiocy of hiring to fill quotas, the time-wasting fads of management “science”, and the ability of a trouble-maker protected by a group identity to cause trouble and impede productive work. In sum, Adams strikes at political correctness and its implementation by government edicts. This stance is at odds with the views of various elites, ranging from politicians of both parties to corporate executives to most members of the academic-media-information-technology complex. Adams gets away with it because the strip is (usually) humorous and its targets are caricatures, not actual persons with whom some readers might sympathize.

But when Adams ventures beyond Dilbert, to expound views on current political issues, it’s another matter. For example, according to Adams’s blog entry for July 11, 2016,

Some of you watched with amusement as I endorsed Hillary Clinton for my personal safety. What you might not know is that I was completely serious. I was getting a lot of direct and indirect death threats for writing about Trump’s powers of persuasion, and I made all of that go away by endorsing Clinton. People don’t care why I am on their side. They only care that I am.

You might have found it funny that I endorsed Clinton for my personal safety. But it was only funny by coincidence. I did it for personal safety, and apparently it is working. Where I live, in California, it is not safe to be seen as supportive of anything Trump says or does. So I fixed that.

Again, I’m completely serious about the safety issue. Writing about Trump ended my speaking career, and has already reduced my income by about 40%, as far as I can tell. But I’m in less physical danger than I was.

Despite the claimed loss of income, Adams almost certainly is wealthy beyond the aspirations of most Americans. He can attack sacred cows with impunity, knowing that (a) his personal stands don’t seem to affect the popularity of Dilbert, and (b) even if they did, he would still be extremely wealthy.

But candor doesn’t mean correctness. If it did, then I would have to bow to the likes of Bernie Sanders, Elizabeth Warren, Alexandria Occasio-Cortez, and the dozens of dim-wits like them who are cluttering the air waves and internet with proposals that, if adopted, would turn America into a fourth-world country.

I have — finally — set the stage for a discussion of Scott Adams and guns. In a blog post dated September 1, 2019, Adams says this:

You might find this hard to believe, but I’m about to give you the first opinion you have ever heard on the topic of gun ownership in the United States.

What? You say lots of people have opinions on that topic?

No, they don’t. Everyone in the United States except me has a half-pinion on the topic. I have the only full opinion. Here it is:

My opinion: I am willing to accept up to 20,000 gun deaths per year in the United States in order to preserve the 2nd Amendment right to own firearms.

For reference, the current rate of gun deaths is about double that number. In other words, I would be open to testing some gun ownership restrictions to see if we can get the number of gun deaths down.

A full opinion on any topic considers both the benefits and the costs. A half-pinion looks at only the costs or only the benefits in isolation. Ask yourself who else, besides me, has offered a full opinion on the topic of gun ownership. Answer: No one. You just saw the world’s first opinion on the topic.

So let’s stop pretending we have differences of opinion on gun ownership. What we have is exactly one citizen of the United States who has one opinion. Until someone disagrees with me with a full opinion of their own, there is no real debate, just blathering half-pinions.

This is hardly a “full opinion” because it doesn’t explain what measures might cut the rate of gun deaths in half. Nor does it address the costs of taking those measures, which include but aren’t limited to the ability of Americans to defend themselves and their property if the measures involve confiscation of guns.

Moreover, as Adams points out in a later post (discussed below), about half of the 40,000 gun deaths recorded annually are suicides. Actually, according to this source, suicides account for 24,000 of the 40,000 gun deaths, which is 60 percent of them. Suicide by gun, on that scale, can be reduced drastically only by confiscating all guns that can be found or turned in by law-abiding citizens, or by some kind of “red flag” law that would almost certainly ensnare not just suicidal and homicidal persons but thousands of persons who are neither. If those change could be effected, I daresay that the rate of gun deaths would drop by far more than half — though almost all of the remaining gun deaths would be killings of innocent persons by criminals.

Adams is being sloppy or slippery. But in either case, his “opinion”, which is hardly the only one on the subject, is practically worthless.

In a subsequent post, Adams assesses “dumb arguments” (pro and con) about gun control. I will address the more egregious of those assessments, beginning here:

Slippery slope

Slippery slope arguments are magical thinking. Everything in this world changes until it has a reason to stop. There is nothing special about being “on a slippery slope.” It is an empty idea. Society regulates all manner of products and activities, but we don’t worry about those other regulations becoming a slippery slope. We observe that change stops when the majority (or vocal minority) decide enough is enough. To put it another way, mowing the lawn does not lead to shaving your dog.

I take these assertions to be an attempt to rebut those who say that the enactment more restrictive laws about the ownership of guns would merely be a step toward confiscation. Adams, is entirely in the wrong here. First, “we” do worry about other regulations becoming a slippery slope. Regulations are in fact evidence of the slippery slope that leads to greater government control of things that government need not and should not control. The mere establishment of a regulatory agency is the first big step toward more and more regulation. Nor does it stop even when a vocal minority — consititutionalists, economists, and lovers of liberty in general — protest with all of the peaceful means at their disposal, including carefully argued legal and economic treatises that prove (to fair-minded audiences) the illegitimacy, inefficiency, and costliness of regulations. But the regulations keep on coming (even during the Reagan and Trump administrations) because it is almost impossible, politically, to do what needs to be done to stop them: (a) enforce the non-delegation doctrine so that Congress takes full and direct responsibility for its acts, and (b) abolish regulatory agencies right and left.

I will go further and say that the Antifederalists foresaw the slippery slope on which the Constitution placed the nation — a slope that unquestionably led to the creation and perpetuation of a vastly powerful central government. As “An Old Whig” put it in Antifederalist No. 46:

Where then is the restraint? How are Congress bound down to the powers expressly given? What is reserved, or can be reserved? Yet even this is not all. As if it were determined that no doubt should remain, by the sixth article of the Constitution it is declared that “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shalt be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitutions or laws of any State to the contrary notwithstanding.” The Congress are therefore vested with the supreme legislative power, without control. In giving such immense, such unlimited powers, was there no necessity of a Bill of Rights, to secure to the people their liberties?

Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? And who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character?

Indeed.

Despite the subsequent adoption of the Bill of Rights — and despite occasional resistance from the Supreme Court (in the midst of much acquiescence) — Congress (in league with the Executive) has for most of its 230 years been engaged in an unconstitutional power grab. And it was set in motion by the adoption of the Constitution, over the vocal objections of Antifederalists. Mr. Adams, please don’t lecture me about slippery slopes.

Next:

Criminals can always get guns

Criminals can always get guns if they try hard enough. But I’m more concerned about the 18-year old who has no criminal record but does have some mental illness. That kid is not as resourceful as career criminals. If that kid can’t get a firearm through the normal and legal process, the friction can be enough to reduce the odds of getting a weapon.

The 18-year-olds of Chicago and Baltimore don’t seem to find it difficult to get guns. Yes, it’s possible that the 18-year-old (or older) who is bent on committing mass murder at a school or workplace might be (emphasize “might”) be stopped by the application of a relevant law, but that would do almost nothing to the rate of gun deaths.

Which leads to this:

Gun deaths are not that high

About half of gun deaths are suicides. Lots of other gun deaths involve criminals shooting each other. If you subtract out those deaths, the number of gun deaths is low compared to other risks we routinely accept, such as the risk of auto accidents, overeating, sports, etc. If the current amount of gun violence seems worth the price to you, that would be a rational point of view. But it would not be rational to avoid testing some methods to reduce gun violence even further. Americans don’t stop trying to fix a problem just because only 10,000 people per year are dying from it. That’s still a lot. And if we can test new approaches in one city or state, why not?

I can’t think of a method to reduce gun violence by any significant amount that doesn’t involve confiscation, or something akin to it (e.g., extremely restrictive and vigorously enforced gun-ownership laws). The current amount of gun violence, balanced against the only effective alternative (confiscation), is “worth the price” to me and to millions of other persons who want to be able to defend themselves and their property from those who almost certainly wouldn’t comply with confiscatory laws.

Adams, clever fellow that he is, then tries to defuse that argument:

You are ignoring the lives saved by guns

No, I’m not. I’m looking at the net deaths by guns, which is what matters. If a new law improves the net death rate, that’s good enough, unless it causes some other problem.

Net deaths by guns isn’t what matters. What matters is whether the deaths are those of criminals or law-abiding citizens. I wouldn’t shed a tear if deaths rose because more citizens armed themselves and were allowed to carry guns in high-risk areas (i.e., “gun free” zones), if those additional deaths were the deaths of would-be killers or armed robbers.

I could go on and on, but that’s enough. Scott Adams is a provocative fellow who is sometimes entertaining. He is of that ilk: a celebrity who cashes in on his fame to advance ideas about matters that are beyond his ken — like Einstein the socialist.

There’s an oft-quoted line, “Shut up and sing”, which in Adams’s case (when it comes to guns, at least) should be “Shut up and draw”.

“Justice on Trial” A Brief Review

I recently read Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway and Carrie Severino. The book augments and reinforces my understanding of the political battle royal that began a nanosecond after Justice Kennedy announced his retirement from the Supreme Court.

The book is chock-full of details that are damning to the opponents of the nomination of Brett Kavanaugh (or any other constitutionalist) to replace Kennedy. Rather, the opponents would consider the details to be damning if they had an ounce of honesty and integrity. What comes through — loudly, clearly, and well-documented — is the lack of honesty and integrity on the part of the opponents of the Kavanaugh nomination, which is to say most of the Democrats in the Senate, most of the media, and all of the many interest groups that opposed the nomination.

Unfortunately, it is unlikely the authors’ evident conservatism and unflinching condemnation of the anti-Kavanaugh forces will convince anyone but the already-convinced, like me. The anti-Kavanaugh, anti-Constitution forces will redouble their efforts to derail the next Trump nominee (if there is one). As the authors say in the book’s closing paragraphs,

for all the hysteria, there is still no indication that anyone on the left is walking away from the Kavanaugh confirmation chastened by the electoral consequences or determined to prevent more damage to the credibility of the judiciary… [S]ooner or later there will be another vacancy on the Court, whether it is [RBG’s] seat or another justice’s. It’s hard to imagine how a confirmation battle could compete with Kavanaugh’s for ugliness. But if the next appointment portends a major ideological shift, it could be worse. When President Reagan had a chance to replace Louis Powell, a swing vote, with Bork, Democrats went to the mat to oppose him. When Thurgood Marshall, one of the Court’s most liberal members, stood to be replaced by Clarence Thomas, the battle got even uglier. And trading the swing vote Sandra Day O’Connor for Alito triggered an attempted filibuster.

As ugly as Kavanaugh’s confirmation battle became, he is unlikely to shift the Court dramatically. Except on abortion and homosexuality, Justice Kennedy usually voted with the conservatives. If Justice Ginsburg were to retire while Trump was in the White House, the resulting appointment would probably be like the Thomas-for-Marshall trade. Compared with what might follow, the Kavanaugh confirmation might look like the good old days of civility.

Indeed.

Did Nixon Get a Bum Rap?

Geoff Shephard, writing at The American Spectator (“Troubling Watergate Revelations, Too Late to Matter“), argues in the affirmative:

August 9 is the 45th anniversary of the resignation of Richard Nixon [on this date in 1974], the only president in American history to resign or be removed from office. We know what triggered his resignation. He was already on the ropes after two and a half years of Watergate revelations, but what ended any and all defense was the release of the “smoking gun” transcript on August 5 [1974]. It showed that Nixon had concurred with his staff’s suggestion that they get the CIA to tell the FBI not to interview two Watergate witnesses.

As astonishing as it may be to Americans, who have been assured that the smoking gun tape is proof positive of Nixon’s early cover-up involvement, every person connected to that particular conversation now agrees that the CIA gambit was an effort to prevent disclosure of prominent Democrats who had made substantial contributions to Nixon’s re-election campaign under assurances of absolute secrecy.

I should know. I was there: a member of Nixon’s Watergate defense team, the third person to hear the smoking gun tape, the one who first transcribed it, and the one who termed it “the smoking gun.” Here is a much fuller explanation of what actually happened. But the bottom line remains unchanged. Nixon’s Watergate defense lawyers completely misinterpreted the tape, and their mistake ended his presidency….

But Nixon did resign — in the aftermath of the release of the smoking gun transcript. Three months later, when prosecutors sought to prove their allegation of Nixon’s personal approval during the course of the Watergate cover-up trial — with their witnesses having to testify under oath and subject to cross-examination — they were totally unable to do so….

By this time, however, the total refutation of their secret allegation concerning Nixon’s payoff instructions had become irrelevant. Nixon had resigned the previous August, and the smoking gun tape seemed to prove his early cover-up involvement in any event. Since no one knew of their allegation of Nixon’s personal wrongdoing, it was as though it had never happened, and no one could claim that Nixon had been unfairly hounded from office. The underlying facts — and their significance — have only emerged in recent years.

I will leave it to the reader to parse Mr. Shepard’s full argument, which includes portions of the transcript of the “smoking gun” conversation, which occurred on June 23, 1972. (There is a more complete version here.) I will say only this: If the “smoking gun” was not really a “smoking gun”, as Mr. Shepard argues, then Mr. Nixon probably got a bum rap.

Why? Because The New York Times published, in May 1974, The White House Transcripts, a compendium of the transcripts of Oval Office conversations pertaining to Watergate that had been released before the so-called smoking gun tape emerged. In those days, when the Times was still relatively fair and balanced — and dealt mainly in news rather than opinion — R.W. Apple concluded the book’s introduction with this:

Throughout the period of the Watergate affair the raw material of these recorded confidential conversations establishes that the President had no prior knowledge of the break-in and that he had no knowledge of any cover-up prior to March 21, 1973. In all of the thousands of words spoken, even though they often are undlear and ambiguous, not once does it appear that the President of the United States was engaged in a criminal plot to obstruct justice.

On March 21, 1973, when the President learned for the first time of allegations of such a plot and an alleged attempt to blackmail the White House, he sought to find out the facts first from John Dean and then others. When it appeared as a result of these investigations that there was reason to believe that there may have been some wrongdoing he conferred with the Attorney General and with the Assistant in charge of the criminal division of the Department of Justice and cooperated fully to bring the matter expeditiously before the grand jury.

Ultimately Dean has pled guilty to a felony and seven former White House officials stand indicted. their innocence or guilt will be determined in a court of law.

This is as it should be.

The recent acquittals of former Secretary Stans and former Attorney General Mitchell in the Vesco case demonstrate the wisdom of the President’s actions in insisting that the orderly process of the judicial system be utilized to determine the guilt or innocence of individuals charged with crime, rather than participating in trials in the public media [emphasis added].

In any event, the “smoking gun” tape proved to be Nixon’s undoing:

Once the “smoking gun” transcript was made public, Nixon’s political support practically vanished. The ten Republicans on the House Judiciary Committee who had voted against impeachment in committee announced that they would now vote for impeachment once the matter reached the House floor. He lacked substantial support in the Senate as well; Barry Goldwater and Hugh Scott estimated no more than 15 Senators were willing to even consider acquittal. Facing certain impeachment in the House of Representatives and equally certain conviction in the Senate, Nixon announced his resignation on the evening of Thursday, August 8, 1974, effective as of noon the next day.

A gross miscarriage of justice? I report, you decide.

Vive le collège électoral!

Long live the Electoral College!

As long as the States retain their power under the Constitution, they remain co-sovereign with the government of the United States. The election of a president by the Electoral College recognizes the co-sovereignty of the States, and the separate voice that each of them has in the election of a president.

It is not for the voters of California to dictate the winner of a presidential election, as they would have done in 2016 had a nationwide tally of popular votes by State been decisive. Rather, it is for the voters of each State, in the aggregate, to cast what amounts to a State-wide vote through the Electoral College. One can quibble with the constitutional compromise that gave less-populous States a slightly disproportionate say in the outcome. (The number of electoral votes cast by each State is equal to the number of its Representatives in Congress — thus roughly proportional to its population — plus the number of its Senators in Congress, which is two for every State regardless of its population.) But the principle remains, regardless of the quibble: Each State is independent of every other State and its aggregate preference should not be submerged in the mythical nationwide popular-vote tally.

These observations are prompted by Victor Davis Hansen’s perceptive analysis of the meaning and consequences of the election of Donald Trump in 2016. Had it not been for the Electoral College, Hillary Clinton would have won the election and the United States would have been led deeper into costly and counterproductive spending and regulatory activity to combat “climate change” and various “social injustices”; the southern border would have been thrown open to all and sundry welfare-moochers; and the charade known as the Iran nuclear deal would have played out to its predictable end — the sudden emergence of an Iran armed with long-range nuclear missiles. In the meanwhile, the disarmament of America would have continued, in the face of the rising power of China and Russia. And those nations would (sooner later) have had carte blanche to commit economic and military blackmail against the interests of American citizens and companies.

What about 2020? Naive forecasts of the votes cast in the Electoral College based on trends in the GOP candidates’ share of each State’s popular vote (2000 to 2016 and 2012 to 2016) point to another win by Trump. The likely margin of victory is about the same as in 2016 or even larger if the pro-GOP trend continues in Maine, Minnesota, Nevada, or New Hampshire. (Any such projection is, of course, subject to great uncertainty — especially with respect to the state of the economy, the continuation of relative piece, the containment of terrorism, and other events that might jolt the electorate.)

John Paul Stevens, 1920-2019*

I do not mourn his passing because he

was the author of a diverse set of important opinions. In Chevron v. Natural Resources Defense Council, he wrote for a unanimous court in outlining the process by which courts should review federal agencies’ interpretation of the laws that the agencies administer. In Atkins v. Virginia, the court – by a vote of 6-3 – ruled that the Constitution bars the execution of the intellectually disabled. In Hamdan v. Rumsfeld, the court – by a vote of 5-3, with Chief Justice John Roberts recused – ruled that the use of military commissions to try terrorism suspects violated both the U.S. Uniform Code of Military Justice and the Geneva Convention and had not been authorized by Congress. And in Kelo v. City of New London, a divided court ruled that the city’s taking of private property to sell for private development as part of an economic development plan was a “public use” within the meaning of the Constitution’s takings clause – even if the land was not going to be used for the public.

Chevron required courts to defer to agencies’ interpretations of vague statutes, thus enabling agencies to legislate (and then to adjudicate based on their own legislation).

Atkins further weakened the efficacy of capital punishment by drawing a line where none need be drawn: murder is murder regardless of the perpetrator’s supposed state of mind or mental ability.

Hamdan undermined the ability of the president, as commander-in-chief, to wage war against America’s enemies.

Kelo was a body blow to property rights, which are an essential ingredient of liberty.

Nominating Stevens to the Supreme Court was Jerry Ford’s biggest mistake. In second place is his pardon of Nixon, who — unlike Trump — was actually guilty of offenses that were not only impeachable but also indictable.
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* The original title of this post was “John Paul Stevens, 1920-1919” — an epic typo that reflects my deep roots in the 20th century. The 21st still seems strange to me, for many reasons.

Law vs. Justice

Here. It’s a quick read.

In summary: Gorsuch went over to the dark side in voting with Ginsburg, Breyer, Sotomayor, and Kagan. In doing so, Gorsuch to made it harder to put convicted criminals behind bars when they violate the terms of parole. Gorsuch’s nit-picky reading of the Constitution — an erroneous reading according to Alito — opens the door to further rulings that will make it harder to protect the public from the bad guys.

The Essential Declaration of Independence

The core of the Declaration, brought up to date:

To secure life, liberty, and the pursuit of happiness, the present government of the United States was instituted by the Constitution of 1787. That government has long since become destructive of its legitimate ends, having enacted myriad abuses of its power while often failing to secure life, liberty, and the pursuit of happiness. It is therefore the right and duty of the people to alter, abolish, or secede from that government, and to replace it with a new government that strictly adheres to the original Constitution and Amendments I-X, XI-XV, XIX, XX, XXII, XXV, and XXVII.

(See “Constitution: Myths and Realities” for much more, including the legality of secession.)

Supreme Court Page, Updated

With the end of the October 2018 term of the U.S. Supreme Court just behind us, I have updated “U.S. Supreme Court: Lines of Succession and Ideological Agreement“. It consists of four parts: Lines of Succession, Ideological Alignment, Polarization, and Judging the Justices: The Thomas Standard. The last two sections are new to the page; I adapted them from now-outdated posts.

The Citizenship Question

The Supreme Court’s ruling in Department of Commerce v. New York has effectively killed the use of citizenship question in the 2020 census. The entire case and the arguments for and against the citizenship question seem to have missed the essential questions:

Why is there a census?

Who is to be counted for that purpose?

There is a census because — and only because* — Article I, Section 2, of the Constitution says that the

House of Representatives shall be composed of Members chosen every second Year by the People of the several States….

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States….

… The actual Enumeration [i.e., census for the purpose of determining the apportionment of Representatives among the States, and not for the purpose of counting bedrooms, bathrooms, and square footage] shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years…

At this point, we must turn to Sections 1 and 2 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside [thus overturning Dred Scott v. Sandford, which declared blacks to be non-citizens].

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

I don’t know how the idea arose that non-citizens should be counted, but I chalk it up to sloppy usage. The words “person” and “citizen” are used interchangeably throughout the Constitution. But a “person”, for the purpose of the enumeration that determines the apportionment of Representatives, is a citizen:

All persons born or naturalized in the United States … are citizens….

Representatives shall be apportioned among the several States according to their respective numbers [of citizens, a.k.a. persons]….

The challenge to the citizenship question should have been blown out of the water at the outset. Instead, States that have disproportionate shares of illegal immigrants will have disproportionate representation in the House of Representatives, and will claim disproportionate shares of “free stuff”. California, I’m looking at you.
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* it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration”. It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made. The census has become an intrusive inquiry into the private affairs of citizens because Congress has stretched its constitutional mandate to “enumerate” because it has enacted unconstitutional laws (e.g., aid to States, public schools, housing subsidies) that require the asking of unconstitutional questions.

The New York Times Has More to Worry About, Part 2

In “If the New York Times Is Worried [I’m Happy]” I quote an opinion piece by a law professor; in particular:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

In a sequel, “The New York Times Has More to Worry About“, I write about Justice Gorsuch’s majority opinion in United States v. Davis; this passage in particular:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

I go on to say this:

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

John C. Eastman, writing at RealClearPolitics, underscores the significance of Alito’s seemingly miscast vote in Gundy v. United States, where he sided with the Court’s “liberals”:

[Gundy] lost because Justice Brett Kavanaugh was recused from the case, and [Justice Samuel Alito] rather than casting a vote in line with his own previously expressed views on the subject (“The principle that Congress cannot delegate away its vested powers exists to protect liberty,” [as] he noted in the American Railroads case), … concurred in the judgment against Gundy, providing the necessary fifth vote to Justice Elena Kagan’s plurality opinion upholding the delegation of authority in this particular case.

To understand how strategic a vote that was, a little inside-baseball background is required.  When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided” court.”  In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case.  Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent.  But neither would it have been a majority, because of Kavanaugh’s recusal.  Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day.  Indeed, the public would not even know what the actual line-up of the justices was, as the perfunctory affirmance by an equally divided court doesn’t even list which justices were on which side of the divide, much less their reasons.

Yet Alito left no doubt where he stands on the matter.  Significantly, he did not join Kagan’s opinion (thereby making it only a plurality opinion), but concurred only in the judgment, noting that he could not say the statute lacks a “discernible standard that is adequate” to support the delegation “under the approach this Court has taken for many years.”  But he added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”  In a case in which Kavanaugh is not recused, there is likely to be the necessary majority to undertake the very reconsideration that Alito said he would support. Kavanaugh’s tenure on the D.C. Circuit was marked, after all, by a strong devotion to separation-of-powers principles, and there is no separation of powers principle more basic than the non-delegation doctrine.  So I say to the non-delegation doctrine, “Welcome back!”

Hear, hear!

The New York Times Has More to Worry About

A few days ago I wrote about a piece in the NYT, in which a lawprof worries that the Supreme Court might curb Congress’s unconstitutional delegation of power to executive-branch agencies. Here is a quotation from that piece, with my comments in brackets:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Today, Justice Gorsuch issued the majority opinion in United States v. Davis, in which he wrote this:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

A Bad Bargain

Justice Oliver Wendell Holmes Jr. (1841-1935) wrote in an opinion that “Taxes are what we pay for civilized society”. Well, since Holmes issued his fatuous dictum in 1927, the tax burden on Americans has rise from 10 percent of GDP to nearly 40 percent of GDP.

If taxes promote civilization, so do regulations, a fortiori. The federal regulatory burden, which was nearly zero in the 1920s is now so imposing that its myriad strictures reduce GDP by more than 10 percent. (I haven’t found an estimate of the undoubtedly huge State and local burden.)

So the total burden of government on the U.S. economy has increased more than five-fold in the past 90 years. Has the United States become a more civilized country as a result? I submit that since the advent of the Great Society, when the tax and regulatory burdens began to rise in earnest, things have gone to hell in a handbasket.

Government seems to be a bad bargain. I demand a refund.

If The New York Times Is Worried …

… I’m happy.

In particular, there’s an opinion piece in today’s Times by one Nicholas Bagley, who is identified as a professor of law at the University of Michigan. The professor writes:

In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.

For now, the four more-liberal justices have brushed back the challenge, ruling 5 to 3, with Justice Samuel Alito, that Congress can give to the executive branch the authority to implement that specific law. But a close reading of the decisions in the case — and the fact that Justice Brett Kavanaugh was recused — suggests that the liberals may not have the votes to turn back the conservative assault on Congress’s powers.

Federal agencies have been vested with expansive authority since the dawn of the republic, but the administrative state as we know it really took off in the 20th century. The rise of agencies like the Office of Price Administration, the Social Security Administration and the Environmental Protection Agency was essential to the prosecution of two world wars, the creation of the post-New Deal welfare state and the regulation of novel risks such as industrial pollution.

Slippery stuff, that argument. The “conservative assault” isn’t on Congress’s powers, but on Congress’s unconstitutional delegation of its powers, not to mention the judiciary’s powers, to the executive branch. Furthe, Bagley implicitly assumes that OPA, SSA, EPA, and a long list of unnamed co-conspirators are both constitutional in themselves, and that they actually perform beneficial functions. There is a a lot of evidence that most of the agencies of the executive branch have made things worse for Americans. (See, for just one example, “Economic Growth since World War II“.)

Bagley continues:

Since 1935, the Supreme Court has approved laws telling agencies to regulate “in the public interest” and to set pollution standards “requisite to protect the public health.” Not once in the 84 years since has the Supreme Court invalidated a law because it offends the so-called nondelegation doctrine.

And for good reason. To run a functional, modern government, Congress has no choice but to delegate authority and discretion to federal agencies. Doing so allows Congress to make use of agencies’ resources and scientific expertise, to enable a nimble response to emerging problems and to insulate technocratic decisions from raw politics.

In other words, it’s okay with Bagley (and a host of “liberals”) if unelected bureaucrats tell people — in minute detail — how to run their businesses and lives, and to act as judge and jury of the people whose actions do not comport with bureaucratic wisdom. Oh, and about those “nimble” bureaucracies — have you ever encountered one?

Bagley nevertheless says something that makes me happy:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Near the end, Bagley asserts this:

The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

If follows, by Bagley’s “logic”, that Congress could write a law which delegates all of its power — and all of the judicial branch’s power — to executive-branch agencies. Why not just resurrect the Third Reich or Stalin’s USSR and be done with it?

Gearing Up for the 2020 Census

You probably received in the mail a first notice from the Census Bureau, demanding that you complete an online questionnaire. I ignored that one, and received a follow-up questionnaire a few days later, which I will also ignore. But I did take the time to annotate the second notice for your amusement:

This is in keeping with my non-compliance with the desires of the census snoops in 2000 and 2010, as I relate here and here. The reason for my non-compliance is given in the post at the first link:

[T]he Constitution mandates the census, for the purpose of apportioning membership in the House of Representatives among the States. And it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration.” It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made.

The census form (even the short one) has long since become intrusive and vastly overblown in relation to the constitutional purpose of the census. Now, as in 2000 and 2010, I refuse to violate the Constitution.

Justice Thomas Throws Down Another Gauntlet

In connection with the overturning of Roe v. Wade (see this), I noted here Justice Thomas’s

concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Inc., [which] is devastating in its revelations about the racist motives of Margaret Sanger, a founder of Planned Parenthood, and of abortion’s “disparate impact” on blacks. For a synopsis of Thomas’s opinion, see “Clarence Thomas, Ruth Bader Ginsburg, and Margaret Sanger Walk Into a Segregated Bar…“, by John Zmirak, The Stream, May 29, 2019.

Now, from Fox News, comes this:

In a concurring opinion in a Supreme Court case announced Monday, Justice Clarence Thomas issued a lengthy call for his colleagues to overturn “demonstrably erroneous decisions” even if they have been upheld for decades — prompting legal observers to say Thomas was laying the groundwork to overturn the seminal 1973 case Roe v. Wade, which established a constitutional right to abortion.

Thomas’ blunt opinion came in Gamble v. United States, a case concerning the so-called “double-jeopardy” doctrine, which generally prohibits an individual from being charged twice for the same crime. But both pro-life and pro-choice advocates quickly noted the implications of his reasoning for a slew of other future cases, including a potential revisiting of Roe.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote.

Hear, hear.

But will Roberts and Kavanaugh heed Thomas? Roberts is erratic and Kavanaugh may have sold his soul (on abortion) to win the vote and endorsement of Susan Collins.

Abortion Q & A: Justice Thomas Tells It Like It Is

I have updated the “Abortion Q & A” page with this:

Justice Clarence Thomas’s concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Inc., is devastating in its revelations about the racist motives of Margaret Sanger, a founder of Planned Parenthood, and of abortion’s “disparate impact” on blacks. For a synopsis of Thomas’s opinion, see “Clarence Thomas, Ruth Bader Ginsburg, and Margaret Sanger Walk Into a Segregated Bar…“, by John Zmirak, The Stream, May 29, 2019.

War on Women or War on Babies?

The index page at Fox News proclaims “Dems Decry War on Women” in the pointer to this story, which includes such profundities as these:

“We are not going to allow them to move our country backward,” Sen. Amy Klobuchar of Minnesota vowed as she spoke to the crowd.

Another White House hopeful, Sen. Kirsten Gillibrand of New York, called the measures “the beginning of President Trump’s war on women.”

And Sen. Cory Booker of New Jersey urged those protesting to “wake up more men to join this fight.”

The country moved backward — with a jolt — 46 years ago when the Supremes legalized abortion in Roe v. Wade. You would think that the opponents of capital punishment would be decidedly against the execution of innocents. But that would require a degree of logical consistency that eludes the “liberal” mind. Roe v. Wade wasn’t just a defeat for the unborn, it was also a victory for post-coital birth control — a judicial ratification of irresponsibility.

As for Trump’s nascent “war on women”, hadn’t “liberals’ long ago decided that Trump’s war began when he hit puberty, if not before?

What’s missing from all of this drama is the central fact that the Democrat Party long ago declared war on babies. And the war goes on, more shrilly than ever.

Anthony Kennedy, Still a Useless Idiot

I quote:

“This award will inspire me in future years to bring again the message of civility and decency and progress to all of those who, like you, revere the law,” retired Justice Anthony Kennedy promised today as he received the Henry J. Friendly Medal at the American Law Institute’s annual meeting.

Two summers ago, “it seemed to me appropriate to re-read Plato and Aristotle,” Kennedy related, remarking that “it always irritated me that they gave a low grade to democracy” in their evaluations of different forms of governance. The philosophers held this view, Kennedy explained, “because they thought that democracy did not have the capacity to mature.”

“It is our destiny to prove them wrong,” Kennedy continued; “at the moment, we are not doing that.”

Nor will “we” ever. Democracy is an inherently corrupt and corrupting institution when its mandate is limitless and it empowers the rabble. (Democracy = demos, the mob + kratos, rule.)

Kennedy lives in a fool’s “paradise”, some of which is of his own making. See, for example, “A Nation of Enemies“, “Judging the Justices: The Thomas Standard“, “The Kennedy-Roberts Court in Retrospect“, “The Kennedy Retirement“, “The Kennedy Retirement: Hope Springs Eternal“, “It’s Official: Kennedy Is Now a Member of the Court’s “Liberal” Wing“, and “Anthony Kennedy: Useless Idiot“.

The Alabama Abortion Law

This newly enacted law is a likely vehicle by which to bring the issue of abortion back to the Supreme Court. If the issue does return to the Court, Roe v. Wade could be overturned if at least five justices follow the logic prescribed in a post that I wrote before Alabama acted.

I fear, however, that Roberts or Kavanaugh (or both) might try to assuage the left — which is a futile and therefore stupid thing to do. But it would be in the long and sad tradition of conservative cuckoldry to the left.

Rules

There are three types of rule:

1. Social norms that arise from and serve voluntary, beneficial social and economic intercourse. (The Golden Rule is a general statement of such a norm.)

2. State-enforced rules that apply social norms (e.g., the prohibition of murder, theft, battery, etc.)

3. State-enforced rules that are contrived to serve particular interests, including but far from limited to the power-lust of state actors. Such rules go far beyond the scope of social norms, and often contravene and subvert them. (These rules are contrived in accordance with meta-rules that govern the operations of the state.)