What Do Wokesters Want?

I am using “wokesters” as a convenient handle for persons who subscribe to a range of closely related movements, which include but are not limited to wokeness, racial justice, equity, gender equality, transgenderism, social justice, cancel culture, environmental justice, and climate-change activism. It is fair to say that the following views, which might be associated with one or another of the movements, are held widely by members of all the movements (despite the truths noted parenthetically):

Race is a social construct. (Despite strong scientific evidence to the contrary.)

Racism is a foundational and systemic aspect of American history. (Which is a convenient excuse for much of what follows.)

Racism explains every bad thing that has befallen people of color in America. (Ditto.)

America’s history must be repudiated by eradicating all vestiges of it that glorify straight white males of European descent. (Because wokesters are intolerant of brilliance and success of it comes from straight white males of European descent.)

The central government (when it is run by wokesters and their political pawns) should be the sole arbiter of human relations. (Replacing smaller units of government, voluntary contractual arrangements, families, churches, clubs, and other elements of civil society through which essential services are provided, economic wants are satisfied efficiently, and civilizing norms are inculcated and enforced), except for those institutions that are dominated by wokesters or their proteges, of course.)

[You name it] is a human right. (Which — unlike true rights, which all can enjoy without cost to others — must be provided at cost to others.)

Economics is a zero-sum game; the rich get rich at the expense of the poor. (Though the economic history of the United States — and the Western world — says otherwise. The rich get rich — often rising from poverty and middling circumstances — by dint of effort risk-taking, and in the process produce things of value for others while also enabling them to advance economically.)

Profit is a dirty word. (But I — the elite lefty who makes seven figures a year, thank you, deserve every penny of my hard-earned income.)

Sex gender is assigned arbitrarily at birth. (Ludicrous).

Men can bear children. (Ditto.)

Women can have penises. (Ditto.)

Gender dysphoria in some children proves the preceding poiXXXX

Children can have two mommies, two daddies, or any combination of parents in any number and any gender. And, no, they won’t grow up anti-social for lack of traditional father (male) and mother (female) parents. (Just ask blacks who are unemployed for lack of education and serving prison time after having been raised without bread-winning fathers.)

Blacks, on average, are at the bottom of income and wealth distributions and at the top of the incarceration distribution — despite affirmative action, subsidized housing, welfare payments, etc. — because of racism. (Not because blacks, on average, are at the bottom of the intelligence distribution and have in many black communities adopted and enforced a culture the promotes violence and denigrates education?)

Black lives matter. (More than other lives? Despite the facts adduced above?)

Police are racist Nazis and ought to be de-funded. (So that law abiding blacks and other Americans can become easier targets for rape, murder, and theft.)

Grades, advanced placement courses, aptitude tests, and intelligence tests are racist devices. (Which happen to enable the best and brightest — regardless of race, sex, or socioeconomic class — to lead the country forward scientifically and economically, to the benefit of all.)

The warming of the planet by a couple of degrees in the past half-century (for reasons that aren’t well understood but which are attributed by latter-day Puritans to human activity) is a sign of things to come: Earth will warm to the point that it becomes almost uninhabitable. (Which is a case of undue extrapolation from demonstrably erroneous models and a failure to credit the ability of capitalism — gasp! — to adapt successfully to truly significant climatic changes.)

Science is real. (Though we don’t know what science is, and believe things that are labeled scientific if we agree with them. We don’t understand, or care, that science is a process that sometimes yields useful knowledge, or that the “knowledge” is always provisional, always in doubt, and sometimes wrong. We support the movement of recent decades to label some things as scientific that are really driven by a puritanical, anti-humanistic agenda, and which don’t hold up against rigorous, scientific examination, such as the debunked “science” of “climate change”; the essential equality of the races and sexes, despite their scientifically demonstrable differences; and the belief that a man can become a woman, and vice versa.)

Illegal immigrants migrants are just seeking a better life and should be allowed free entry into the United States. (Because borders are arbitrary — except when it comes to my property — and it doesn’t matter if the unfettered enty ro illegal immigrants burdens tax-paying Americans and takes jobs from working-class Americans.)

The United States spends too much on national defense because (a) borders are arbitrary (except when they delineate my property), (b) there’s no real threat to this country (except for cyberattacks and terrorism sponsored by other states, and growing Chinese and Russian aggression that imperils the economic interests of Americans), (c) America is the aggressor (except in World War I, World War II, the Korean War, the Vietnam War, Gulf War I, the terrorist attacks on 9/11, and in the future if America significantly reduces its defense forces), and (d) peace is preferable to war (except that it is preparedness for war that ensures peace, either through deterrence or victory).

What wokesters want is to see that these views, and many others of their ilk, are enforced by the central government. To that end, steps will be taken to ensure that the Democrat Party is permanently in control of the central government and is able to control most State governments. Accordingly, voting laws will be “reformed” to enable everyone, regardless of citizenship status or other qualification (perhaps excepting age, or perhaps not) to receive a mail-in ballot that will be harvested and cast for Democrat candidates; the District of Columbia and Puerto Rico (with their iron-clad Democrat super-majorities) will be added to the Union; the filibuster will be abolished; the Supreme Court and lower courts will be expanded and new seats will be filled by Democrat nominees; and on, and on.

Why do wokesters want what they want? Here’s my take:

  • They reject personal responsibility.
  • They don’t like the sense of real community that is represented in the traditional institutions of civil society.
  • They don’t like the truth if it contradicts their view of what the world should be like.
  • They are devoid of true compassion.
  • They are — in sum — alienated, hate-filled nihilists, the produce of decades of left-wing indoctrination by public schools, universities, and the media.

What will wokesters (and all of us) get?

At best, what they will get is a European Union on steroids, a Kafka-esque existence in a world run by bureaucratic whims from which entrepreneurial initiative and deeply rooted, socially binding cultures have been erased.

Somewhere between best and worst, they will get an impoverished, violent, drug-addled dystopia which is effectively a police state run for the benefit of cosseted political-media-corprate-academic elites.

At worst (as if it could get worse), what they will get is life under the hob-nailed boots of Russia and China:; for example:

Russians are building a military focused on killing people and breaking things. We’re apparently building a military focused on being capable of explaining microaggressions and critical race theory to Afghan Tribesmen.

A country whose political leaders oppose the execution of murderers, support riots and looting by BLM, will not back Israel in it’s life-or-death struggle with Islamic terrorists, and use the military to advance “wokeism” isn’t a country that you can count on to face down Russia and China.

Wokesters are nothing but useful idiots to the Russians and Chinese. And if wokesterst succeed in weakening the U.S. to the point that it becomes a Sino-Soviet vassal, they will be among the first to learn what life under an all-powerful central government is really like. Though, useful idiots that they are, they won’t survive long enough to savor the biter fruits of their labors.

The Great Breakup?

I end “The Great Breakup (I Hope)” with this:

The nation is almost certainly broken, and broken irrevocably. That leaves the question of what is to be done about it. I have offered options in the past. The only one that can deliver (a lot of us) from the evil that bears down is a concerted secession effort by many States, perhaps leading to a negotiated partition of the country. The choice is stark: either a breakup or a complete takeover by America’s domestic enemies.

(Do read the whole thing. It is replete with keen observations and bons mots.)

Victor Davis Hanson rehearses the many reasons for a breakup in “How Much Ruin Do We Have Left?” (American Greatness, April 21, 2021); for example:

The military—after costly strategic stagnation in Afghanistan, Iraq, and Libya—is now turning on its own. Some of the politicized top brass seem more worried about the politics of their own soldiers than the dangers of foreign militaries.

Our public schools and colleges are systematically downplaying meritocratic curricula and substituting in their places ideological, racial, and cultural litmus tests. Admissions now often hinge as much on race, gender, and ethnicity than quantifiable achievement. The First and Fifth Amendments—free speech and due process—have vanished from most college campuses.

2020 saw the most destructive riots in American history. Yet very few of the looters, arsonists, and rioters were ever indicted. Most were never arrested….

Private monopolies that control most written communications of Americans censor expression entirely on the basis of politics….

Our officials at the Justice Department and the United Nations either will not or cannot defend the history and reputation of their own homeland.

Record natural gas and oil production had formerly given the public affordable heating, cooling, and transportation. Self-sufficiency in energy made the United States exempt from worries over Mideast wars or foreign oil embargoes. The more we produced our own natural gas, the cleaner became our air and the smaller our collective carbon footprint.

Yet in just 100 days, energy prices have soared. The Left has canceled pipelines and limited energy leasing on federal lands—with promises to all but end our own gas and oil independence in just a few years.

In the drought-stricken West, key irrigation water is still being diverted from farms to the ocean. Billions of dollars in farm aid are doled out on the basis of race. And promised new regulations and estate taxes may well kill off what’s left of family farms.

Not to mention higher taxes and more regulations, which penalize success and deter business formation and expansion. Not to mention the murderous anti-life stance of “devout Catholic” Biden and his henchpersons. And on and on it goes.

All of which leads Oliver Wiseman (“Disunited States“, The Critic, May 2021) to recall that more than 180 years ago

John Quincy Adams gave a speech to mark 50 years since the presidential inauguration of George Washington. “If the day should ever come, (may Heaven avert it) when the affections of the people of these states shall be alienated from each other; when the fraternal spirit shall give away to cold indifference, or collisions of interest shall fester into hatred,” he told a New York audience, “far better will it be for the people of the disunited states, to part in friendship from each other, than to be held together by constraint.” Collisions of interest festering into hatred? That sounds familiar. The Trump years were famously light on fraternal spirit and, as the divisions deepened, “parting in friendship” started to look awfully attractive to a growing number of Americans.

After reciting many reasons for a breakup, and offering some reasons why it may not come to pass, Wiseman ends with this:

For now, secession threats are still mostly part of a bigger fight for the future of the country as a whole: a nuclear option in a cold civil war. America may lurch forwards having loud arguments that belie an underlying stability. But if divides grow wider and differences on fundamental constitutional questions start to look irreconcilable, more and more Americans might agree with John Quincy Adams: better to part in friendship rather than being held together in constraint.

It can’t happen soon enough for me, even though I may end up on the wrong side of the divide because of my impending move from Texas to Virginia.


Related page: Constitution: Myths and Realities, Part VI

Racial Profiling?

A point that I — and many fact-driven observers — have made over the years: Blacks are disproportionately “targeted” for arrest and incarceration because blacks are disproportionately prone to commit crimes, especially crimes of violence.

The cold facts are corroborated by the preponderance of blacks in the mugshots that have become a too-frequent feature of Austin’s local newscasts.

I am, praise be, leaving Austin for a somewhat less-populous city in a considerably less-populous metropolitan area. I have already begun to subscribe to that city’s newspaper. I was struck by the photos of the suspects in all of the murders covered on the front page of that newspaper. Here they are:

I wonder how much longer it will be before Biden’s Department of Injustice enjoins the media from displaying mugshots of black persons (or is it Black Persons)?

Double Jeopardy by Any Other Name …

… is still double jeopardy. The Constitution — as interpreted to date — still allows double jeopardy, despite the Fifth Amendment. A case in point is the federal indictment against Derek Chauvin (and other ex-Minneapolis police officers):

The Biden DOJ has indicted former police officer Derek Chauvin and three other former Minneapolis police officers on federal civil rights charges for their roles in the death of George Floyd.

The indictment alleges that Chauvin, along with J. Alexander Kueng, Tou Thao and Thomas Lane violated Floyd’s rights when they saw him lying on the ground “in clear need” of medical attention, but instead “willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm.”

This is essentially an indictment of Chauvin for the same actions that led to his arrest, trial, and conviction under Minnesota law.

I call a foul. This isn’t a new, pro-Chauvin call. I’ve held this position for many years. It’s documented (among other places) in a page that I published almost five years ago, “Constitution for the 21st Century“:

8. A citizen of the United States may not be:…

b. brought before a criminal or civil court to answer for the same act or acts that had been judged previously, under any rubric of law, by any criminal or civil court of any State or the United States;

I wrote that, despite the fact the O.J. Simpson — who was wrongly found not guilty of the murder of his ex-wife and her friend — was later found responsible for the murders in a civil trial. Which just goes to show how fair-minded I am.

Is a Reckoning at Hand?

If it is, it will arrive on two fronts: political and economic.

On the political front, Conrad Black and Victor Davis Hanson are (sort of) optimistic that the left’s audacious power-grab will fail. A recent op-ed by Black at Epoch Times ends with this:

But we are almost at the point where this administration’s attempt to revolutionize American elections by practically abolishing any verification process for ballots and turning election day into a weeks-long orgy of ballot-harvesting, while packing the Senate and the Supreme Court and gagging congressional minorities, will collide with public opposition to all of these measures.

In those circumstances, the Supreme Court, its attempt at appeasement of the Democrats by abdicating as head of a co-equal third branch of government having failed, might also reassert the legitimacy of the Constitution.

A turning in the road is almost at hand.

Hanson’s view complements Black’s:

We are becoming cynical 1980s Eastern Europeans who quietly scoffed at their daily government news. And this is step one to a repudiation of the lies we have been living with—that masks were necessary outdoors even for those fully vaccinated; that derelict, sexual harasser Andrew Cuomo is a noted author, Emmy-winner and national icon rather than a reckless sexual-harasser and responsible for needless death and misery by his unhinged long-term facilities policies; that Oprah, LeBron, and the Obamas are genuine voices of what it is like to be oppressed in America, and all the subsidiary untruths: the “brave” former intelligence officials who signed campaign-sensitive affidavits seconding Joe Biden’s insistence that Hunter’s laptop was a Russian disinformation trick; that Trump scoffed at “proof” that Russians put bounties on Americans in Afghanistan as they were appease;, and that Joe Biden has no cognitive issues and never did, at least of the sort that prompted his predecessor to take cognitive tests and draw the attention of a Yale psychiatry professor to diagnose him as unhinged in absentia.

In sum, the woke movement daily, hourly, second-by-second hinges on untruth, from the 1619 canard to America is systemically racist. And the number who spot the lies is beginning to outnumber the number who lives by them—which means the Revolution is likely to follow the Jacobin rather than Bolshevik fate.

On the economic front, the huge increase in government spending over the past two years — which Biden wants to perpetuate — will bear rotten fruit.

Here is the increase, in perspective:


Derived from Bureau of Economic Affairs, Table 1.1.5 Gross Domestic Product (billions of dollars, seasonally adjusted at annual rates) and Table 3.1. Government Current Receipts and Expenditures (billions of dollars, seasonally adjusted at annual rates)

As I have amply documented, government spending doesn’t “multiply”. If fact, it “divides”; that is, it causes real GDP to decline because government spending (and the regulatory activities funded by it) result in the transfer of resources from productive private uses to unproductive and counterproductive government uses, while also discouraging business expansion and productive investments in capital formation.

The bottom line is that a sustained increase in the share of GDP spent by government from about 33 percent (the average for the 10 years before the recent surge) to about 45 percent (the average for the recent surge) would cause a long-term reduction 4 percent of real GDP. If that doesn’t seem like a lot, consider that it would be the equivalent of a Great Recession that lasts for years on end instead of two or three years.

Voters flocked to the Democrat Party in the 1930s because they believed (mistakenly) that it — and especially FDR’s “New Deal” — would rescue them from the Great Depression. Voters will flock the the GOP in the 2020s if the Democrat Party remains stubbornly “woke” and persists in economic policies that impoverish them.

And if voters fail to switch in droves, it will prove the wisdom of the Framers’ (long-abandoned) Constitution, which was designed to prevent demagogues from pillaging the nation.


Related reading:

Victor Davis Hanson, “Are Americans Becoming Sovietized?“, The Daily Signal, May 6, 2021
Patricia McCarthy, “Aldous Huxley Foresaw Our Despots — Fauci, Gates, and Their Vaccine Crusaders“, American Thinker, May 5, 2021
Jeffrey A. Tucker, “Is the U.S. Economy a Virtual Reality?“, AIER, May 2, 2021

Related post: Turning Points

A 100-Day Scorecard

On January 6, 2021, in “Here We Go … “, I essayed 17 predictions about changes Democrats would attempt to consolidate their grip on America and make it over into a European-style “social democracy” with the added feature of subservience to China and Russia. As I said in the original post, not every item on the list will be adopted, but it won’t be for want of trying.

How are my predictions panning out? Quite well, sadly.

Judge for yourself. Here they are:

1. Abolition of the Senate filibuster.

2. An increase of at least two seats on the U.S. Supreme Court (USSC), though there may be some vacancies to be filled.

3. Adoption of an interstate compact by states controlling a total of at least 270 electoral votes, committing each member state’s electoral votes to the presidential candidate who compiles the most popular votes nationwide, regardless of the outcome of the popular vote in each state that is a party to the compact. (This may seem unnecessary if Biden wins, but it will be a bit of insurance against the possibility of a Republican victor in a future election.)

4. Statehood for either the District of Columbia or Puerto Rico, or for both of them. (Each would then have two senators and a requisite number of representatives with full voting privileges in their respective bodies. All of them will be Democrats, of course.)

5. Empowerment of the executive branch to do at least three of the following things:

a. Regulate personal and business activity (in new ways) with the expressed aim of reducing CO2 emissions.

b. Commit at least $500 billion in new obligational authority for research into and/or funding of methods of reducing and mitigating CO2 emissions.

c. Issue new kinds of tax rebates and credits to persons/households and businesses that spend money on any item on a list of programs/technologies that are supposed to reduce CO2 emissions.

d. Impose tax penalties on persons/households and businesses for their failure to spend money on any item in the list mentioned above (shades of the Obamacare tax penalty).

e. Impose penalties on persons/households and businesses for failing to adhere to prescribed caps on CO2 emissions.

f. Establish a cap-and-trade program for CO2 emissions (to soften the blow of the previous item). (Needless to say, the overall effect of such initiatives would deal a devastating blow to economic activity – meaning massive job losses and lower real incomes for large swaths of the populace.)

6. Authorization for an agency or agencies of the federal government to define and penalize written or spoken utterances that the agency or agencies declare “unprotected” by the First Amendment, and to require media enforcement of bans on “unprotected” utterances and prosecution of violators (e.g., here). (This can be accomplished by cynically adopting the supportable position that the First Amendment protects only political speech. The purported aim would be to curb so-called hate speech, but when censorship is in full swing — which would take only a few years — it will be illegal to criticize or question, even by implication, such things as illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, the confiscation of firearms, or the policies of the federal government. Violations will be enforced by fines and prison sentences — the latter sometimes called “sensitivity training”, “citizenship education”, or some other euphemistic term. Candidates for public office will be prime targets of the enforcers, which will suppress open discussion of such matters.)

7. Imposition of requirements for organizations of all kinds — businesses, universities, charitable organizations, clubs, and even churches — to favor anyone who isn’t a straight, white male of European descent. (The “protections” will be enacted, upheld, and enforced vigorously by federal agencies, regardless of their adverse economic and social effects.)

8. Effective nullification of the Second Amendment through orders/regulations/legislation, to enable gun confiscation (though there will be exemptions for private security services used by favored elites).

9. Use of law-enforcement agencies to enforce “hate speech” bans, mandates for reverse discrimination, and gun-confiscation edicts. (These things will happen regardless of the consequences; e.g., a rising crime rate, greater violence against whites and Asians, and flight from the cities and near-in suburbs. The latter will be futile, anyway, because suburban and exurban police departments will also be co-opted.)

10. Criminalization of “sexual misconduct”, as it is defined by the alleged victim, de facto if not de jure. (Investigations and prosecutions will be selective, and aimed mainly at straight, white males of European descent and dissidents who openly criticize this and other measures listed here.)

11. Parallel treatment for the “crimes” of racism, anti-Islamism, nativism, and genderism. (This will be in addition to the measures discussed in #7.)

12. Centralization in the federal government of complete control of all health care and health-care related products and services, such as drug research, accompanied by “Medicare and Medicaid for All” mandates. (Private health care will be forbidden or strictly limited, though — Soviet-style — there will be exceptions for high officials and other favored persons. Drug research – and medical research, generally – will dwindle in quality and quantity. There will be fewer doctors and nurses who are willing to work in a regimented system. The resulting health-care catastrophe that befalls most of the populace will be shrugged off as necessary to ensure equality of treatment, while ignoring the special treatment accorded favored elites.)

13. Revitalization of the regulatory regime (which already imposes a deadweight loss of 10 percent of GDP). A quantitative measure of revitalization is an increase in the number of new rules published annually in the Federal Register by at least 10 percent above the average for 2017-2020.

14. Proposals for at least least two of the following tax-related initiatives:

a. Reversal of the tax-rate cuts enacted during Trump’s administration.

b. Increases in marginal tax rates for the top 2 or 3 income brackets.

c. Imposition of new taxes on wealth.

15. Dramatic enlargement of domestic welfare programs. Specifically, in addition to the creation of “Medicare and Medicaid for All” programs, there would be a “fix” for Social Security that mandates the payment of full benefits in the future, regardless of the status of the Social Security Trust Fund (which will probably be abolished). (Initiatives discussed in #5, #7, #9, #10, #11, #12, #13, #14, and #15 would suppress investment in business formation and expansion, and would disincentivize professional education and training, not to mention work itself. All of that would combine to push the real rate of economic growth toward a negative value.)

16. Reduction of the defense budget by at least 25 percent, in constant dollars, by 2031 or sooner. (Eventually, the armed forces will be maintained mainly for the purpose of suppressing domestic uprisings. Russia and China will emerge as superpowers, but won’t threaten the U.S. militarily as long as the U.S. government acquiesces in their increasing dominance and plays by their economic rules.)

17. Legalization of all immigration from south of the border, and the granting of citizenship to new immigrants and the illegals who came before them. (The right to vote, of course, is the right that Democrats most dearly want to bestow because most of the newly-minted citizens can be counted on to vote for Democrats. The permanent Democrat majority will ensure permanent Democrat control of the White House and both houses of Congress.)


If you’re keeping up with the news, you will know that almost all of those actions are underway or clearly telegraphed by official statements. It’s hard to chosse the most chilling of those statements, but the one that clearly reveals Biden’s totalitarian urge is his campaign against “white supremacy as domestic terrorism”. This will morph into the suppression of anyone who dares question the doctrine that blacks are where they are because of white racism, and not because of their generally inferior intelligence and cultural traits, or anyone who questions the justice of racial discrimination when it favors blacks. Stay tuned.

The Second Coming of Who?

William Butler Yeats’s “The Second Coming” is quoted often these days, especially the line “Things fall apart; the centre cannot hold”. And with good reason, given the maelstrom of strife and lunacy in which the nation and the world seem to be swirling.

Science and mathematics are in the grip of irrational forces; that is to say, sadly, the academic-media-information technology-corporate élites who have swallowed “wokeness” hook, line, and sinker. The same élites are responsible for the wholesale violation of immigration laws; the advancement of shiftless, violent, and less-intelligent citizens (and non-citizens) at the expense of blameless others; the risible belief that one’s sex is “assigned at birth”, to justify self-destructive and child-destructive gender-shifting; the repudiation of America’s past (the good with the bad); the destruction of the religious, social, and economic freedoms that have served all Americans well; the blatant theft of a presidential election; and much more that is equally distressing to contemplate.

Yeats wrote “The Second Coming” in 1919, in the aftermath of what was then the world’s most destructive war and in the midst of the pandemic known as the Spanish flu, which was far more lethal than the one from which the world is now emerging. It was a time of moral and physical exhaustion.

What is most remarkable about Yeats’s poem is its prescient second stanza:

Surely some revelation is at hand;

Surely the Second Coming is at hand.

The Second Coming!

Hardly are those words out

When a vast image out of Spiritus Mundi

Troubles my sight: somewhere in sands of the desert

A shape with lion body and the head of a man,

A gaze blank and pitiless as the sun,

Is moving its slow thighs, while all about it

Reel shadows of the indignant desert birds.

The darkness drops again; but now I know

That twenty centuries of stony sleep

Were vexed to nightmare by a rocking cradle,

And what rough beast, its hour come round at last,

Slouches towards Bethlehem to be born?

And thus did those “rough beasts” Lenin, Hitler, Mussolini, and the Japanese warlords — all “men on horseback” — emerge to take advantage of the moral and physical exhaustion of the time.

No such person is now on the horizon in America (though the élites feared that Trump might be that man). But if the maelstrom continues to swirl, a man on horseback will emerge, either from within or from without. In the latter case, given the feckless leadership in America, the man on horseback is likely to ride out of China, perhaps accompanied by a Russian.

And given a choice between a man or horseback and the élites who have corrupted America and who pamper the rabble, the man on horseback will be welcomed with open arms by those who are suffering at the hands of the élites.

Thinking about Thinking — and Other Things: Beliefs, Herds, and Oppression

This is the sixth and final post in a series. The previous posts are here, here, here, here, and here.

What this series adds up to is that human beings can and will believe anything. And much of what they believe – even “science” – is either mistaken or beyond proof. Belief, at bottom, is a matter of faith; it is a matter of what we choose to believe.

And why do we choose what to believe? We choose to believe those things that make us feel good about ourselves in one way or another. Here are four (not mutually exclusive) ways in which our beliefs serve that purpose:

  • Logical or epestimic consistency, which can be intellectually satisfying even if the logic is fatally flawed or the knowledge is cherry-picked to fit a worldview.
  • The (usually false) reassurance that a belief has been proclaimed “true” by an authority — “science”, religious leaders, political leaders, etc.
  • No skin in the game: The holding of views (for reasons listed above) that are inconsequential to the holder of the views but which (when put into action) are harmful to others (e.g., a rich person who has private security forces and lives and works in secure settings who calls for defunding the police).
  • Groupthink: Going along to get along, also known as “taking sides”.

On the last point, I defer to Michael Huemer:

There’s … a study that finds that political beliefs are heritable. (Alford et al, “Are Political Orientations Genetically Transmitted?”) They get a heritability estimate of 0.53 for political orientation (p. 162), much larger than the influence of either shared environment or unshared environment. That’s kind of weird, isn’t it — who knew that you could genetically transmit political beliefs? But of course, you don’t directly transmit beliefs; you genetically transmit personality traits, and people pick their political beliefs based on their personality traits.

But, as Huemer notes,

the primary choice people make is not so much which propositions they want to be wedded to, but which group of people they want to affiliate with. Maybe there’s only a very tenuous link between some personality trait and some particular political position, but it’s enough to make that position slightly more prevalent, initially, among people with that trait. But once those people decide that they belong to “the same side” in society, there’s psychological pressure for individual members of the tribe to conform their beliefs to the majority of their tribe, and to oppose the beliefs of “the other side”.

So, e.g., you decide that fetuses don’t have rights because the fetus-rights position is associated with the other tribe, and you don’t want to be disloyal to your own side by embracing one of the other side’s positions. Of course, you never say this to yourself; you just automatically find all of your side’s arguments “more plausible”.

And, as we have seen, belonging to a “side” and signaling one’s allegiance to that “side” seems to have become the paramount desideratum among huge numbers of Americans. “Liberals”, who not long ago were ardent upholders of freedom of speech are now its leading opponents. And many “liberals” – executives and employees of Big Tech companies, for example – demonstrate their opposition daily by suppressing the expression of ideas that they don’t like and denying the means of expression to persons whose views they oppose. They can conjure sophisticated excuses for their hypocrisy, but they are obvious and shallow excuses for their evident unwillingness to countenance “heretical” views.

This hypocrisy extends beyond partisan politics. It extends into discussions of race (i.e., the suppression of “bad news” about blacks and research findings about the intelligence of blacks). It extends into discussions of scientific matters (e.g., labeling as a “science denier” any scientist who writes objectively about the evidence against CO2 as the primary cause of a recent warming trend that is probably overstated, in any case, because of the urban heat island effect). It extends elsewhere, of course, but there’s no point in belaboring the obvious.

The worst part of it is that the hypocrisy isn’t practiced just by lay persons who wish to signal their allegiance to “progressivism”. It’s practiced by scientists, academicians, and highly educated persons who hold important positions in the business world (witness Big Tech’s censorship practices and the “wokeness” of major corporations).

In other words, the herd instinct is powerful. It sweeps all before it. Even truth. Especially truth when it contravenes the herd’s dogmas — which are its “truths”.

And a herd that runs wild — driven hither and thither by ever-shifting “truths” — is dangerous, as we are seeing now in the suppression of actual truth, the suppression of political speech, firings for being associated with the wrong “side”, etc.

Today’s state of affairs is often likened to that which prevailed in the years leading up to the Civil War. There is a good reason for that comparison, for the two epochs are alike in a fundamental way: One side (Unionists then, the “woke” now) assumes the mantle of virtue and thus garbed presumes to dictate to the other side.

Yes, slavery was wrong. But that did not justify the (successful) attempt of the Unionists to prevent the Confederacy’s secession on the principle of self-determination — the very principle that inspired the American Revolution that led to the Union.

Yes, it is fitting and proper to treat the (relatively) poor, persons of color, and persons whose sexual proclivities are “unusual” with respect and equality under the law. But that does not justify the wholesale violation of immigration laws, the advancement of the “oppressed” at the expense of blameless others (who are mainly straight, white, males of European descent), the repudiation of America’s past (the good with the bad), or the destruction of the religious, social, and economic freedoms that have served all Americans well.

Ironically, the power of the central government, which was enabled by the victory of the Unionists, now enables “progressivism” to advance its dictatorial agenda with little effective opposition.

Donald J. Trump did oppose that agenda, and opposed it with some success for four years. That is why it was imperative for the “progressive” establishment — abetted by pusillanimous “conservatives” and never-Trumpers — to undermine Trump from the outset and, in the end, to remove Trump from power by stealing the election of 2020. There has never, in American politics, been a more heinous case of wholesale corruption than was evidenced in the machinations against Trump.

Having said all of that, what will happen to America? The slide toward fascism, which has been underway (with interruptions) for more than a century, now seems to have reached its destination: the dictation of myriad aspects of social and economic intercourse by our “betters” in Washington and their cronies in the academy, the media, and corporate America.

And most Americans — having been brainwashed by the “education system”, bought off by various forms of welfare, and cowed by officious officials and mobs — will simply acquiesce in their own enslavement.


Related reading:

Matt, “Varieties of Opinion“, Imlac’s Journal, March 14, 2021

Frank Furedi, “Big Brother Comes to America“, Spiked, February 8, 2021

Victor Davis Hanson, “Our Animal Farm“, American Greatness, February 7, 2021

Arnold Kling, “Rationalist Epistemology“, askblog, February 26, 2021

Arnold Kling, “Cultural Brain Hypothesis“, askblog, March 5, 2021

Mark J. Perry, “Quotation of the Day on Truths That We Are No Longer Allowe to Speak About … “, Carpe Diem, February 2, 2021

Malcolm Pollack, “The Enemy Within“, American Greatness, February 13, 2021

Quilette editorial, “With a Star Science Reporter’s Purging, Mob Culture at The New York Times Enters a Strange New Phase“, Quilette, February 9, 2021

The End of Freedom of Speech?

Vivek Ramaswamy and Jed Rubenfeld, writing in The Wall Street Journal (“Save the Constitution from Big Tech“; January 11, 2021), opine about an issue that I addressed almost three years ago. Here’s some of what Ramaswamy and Rubenfeld say in their piece:

Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so….

Section 230 is the carrot, and there’s also a stick: Congressional Democrats have repeatedly made explicit threats to social-media giants if they failed to censor speech those lawmakers disfavored [emphasis and link added]. In April 2019, Louisiana Rep. Cedric Richmond warned Facebook and Google that they had “better” restrict what he and his colleagues saw as harmful content or face regulation: “We’re going to make it swift, we’re going to make it strong, and we’re going to hold them very accountable.” New York Rep. Jerrold Nadler added: “Let’s see what happens by just pressuring them.”

Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on “hate speech.” It’s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech’s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to “a shift in the political winds.”

There are idiots in the so-called libertarian legal community who still defend Big Tech’s right to censor conservatives because Big Tech is “private”. Power is power, and the nation is under the thumb of a power elite, of which Big Tech is a leading-edge component.

My recommendations (here and here) for swift action against Big Tech and its allies weren’t heeded. But I will borrow from them here, beginning with the predicate for action.

Apple, Google, Facebook, Microsoft, Amazon, and other information-technology companies represent just one facet of the complex of institutions in the thought-control business.

A second facet consists of the so-called mainstream media (MSM) — the print and broadcast outlets that for the most part, and for many decades, have exploited their protected status under the First Amendment to heavily lard their offerings with “progressive” propaganda. MSM’s direct influence via the internet has been diluted slightly by the plethora of alternative sources, many of them libertarian and conservative, but Google and friends do a good job of throttling the alternative sources.

I need say little about a third facet — the “entertainment” industry — which also exploits its First-Amendment privilege to spew left-wing propaganda.

The academy and its spawn, public education indoctrination, form a fourth facet. The leftward tilt of most academic administrations and goodly chunks of the professoriate is no secret. Neither is the stultifying atmosphere on college campuses.

These information-entertainment-media-academic institutions are important components of what I call the vast left-wing conspiracy in America. Their purpose and effect is the subversion of the traditional norms that made America a uniquely free, prosperous, and vibrant nation.

Clearly, the information-entertainment-media-academic complex is striving for a monopoly on the expression and transmission of political thought in America. Such a monopoly would be tantamount to state action (see this and this), and must therefore be prevented before it can be perfected. For, if it can be perfected, the First Amendment will quickly become obsolete.

Complete victory for the enemies of liberty is nearly upon us. The squishy center of the American electorate — as is its wont — will swing back toward the Democrat Party. With a Democrat in the White House, a Democrat-controlled Congress, and a few party switches in the Supreme Court [or perhaps without those switches], the dogmas of the information-entertainment-media-academic complex will become the law of the land.

Here is what should have been done before it was too late:

Enforce the First Amendment against information-entertainment-media-academic complex. This would begin with action against high-profile targets (e.g., Google and a few large universities that accept federal money). That should be enough to bring the others into line. If it isn’t, keep working down the list until the miscreants cry uncle.

What kind of action do I have in mind? This is a delicate matter because the action must be seen as rescuing the First Amendment, not suppressing it; it must be taken solely by the executive; and it must comport with legitimate authority already vested in the executive. Even then, the hue and cry will be deafening, as will the calls for impeachment. It will take nerves of steel to proceed on this front.

Here’s a way to do it:

EXECUTIVE ORDER NO. __________

The Constitution is the supreme law of the land. (Article V.)

Amendment I to the Constitution says that “Congress shall make no law … abridging the freedom of speech”.

Major entities in the telecommunications, news, entertainment, and education industries have exerted their power to suppress speech because of its content. (See appended documentation.) The collective actions of these entities — many of them government- licensed and government-funded — effectively constitute a governmental violation of the Constitution’s guarantee of freedom of speech (See Smith v. Allwright, 321 U.S. 649 (1944) and Marsh v. Alabama, 326 U.S. 501 (1946).)

As President, it is my duty to “take Care that the Laws be faithfully executed”. The Constitution’s guarantee of freedom of speech is a fundamental law of the land.

Therefore, by the authority vested in me as President by the Constitution, it is hereby ordered as follows:

1. The United States Marshals Service shall monitor the activities of the entities listed in the appendix, to ascertain whether those entities are discriminating against persons or groups based on the views, opinions, or facts expressed by those persons or groups.

2. Wherever the Marshals Service observes effective discrimination against certain views, opinions, or facts, it shall immediately countermand such discrimination and order remedial action by the offending entity.

3. Officials and employees of the entities in question who refuse to cooperate with the Marshals Service, or to follow its directives pursuant to this Executive Order, shall be suspended from duty but will continue to be compensated at their normal rates during their suspensions, however long they may last.

4. This order shall terminate with respect to a particular entity when the President is satisfied that the entity will no longer discriminate against views, opinions, or facts on the basis of their content.

5. This order shall terminate in its entirety when the President is satisfied that freedom of speech has been restored to the land.

I recommended those because of the imminent danger to what was left of Americans’ liberty and prosperity. The alternative was to do nothing and watch liberty and prosperity vanish from view. There was nothing to be lost, and much to be gained.

It is now too late to act. The deluge is upon us. The enemies of free speech are in power, and their allies in the information-entertainment-media-academic complex will do their bidding, quite willingly.


Related reading:

David Marcus, “Don’t Worry, It’s Just Corporate Fascism“, The Federalist, January 19, 2021

Niall Ferguson, “The Tech Supremacy: Silicon Valley Can No Longer Conceal Its Power“, The Spectator, January 22, 2021

Here We Go …

Down the tubes. It is almost certain that the Democrat candidates will be declared the winners of Georgia two Senate seats. The Senate will then be divided 50-50, and control will pass to the Democrats because VP Harris will cast deciding votes in the case of ties.

This won’t be the first time that Democrats have controlled Congress and the White House, but this Democrat Party isn’t your grandfather’s party, or your father’s party. It isn’t even the party that was led by Barack Obama, who was (and is) an ardent advocate of government control. Today’s party is filled with Obamas and politicians who make the Obamas seem moderate.

What, exactly, happens now (or as soon as Democrats get organized)? The follow list is borrowed from an earlier post. Not every item on the list will be adopted, but it won’t be for want of trying.

1. Abolition of the Senate filibuster.

2. An increase of at least two seats on the U.S. Supreme Court (USSC), though there may be some vacancies to be filled.

3. Adoption of an interstate compact by states controlling a total of at least 270 electoral votes, committing each member state’s electoral votes to the presidential candidate who compiles the most popular votes nationwide, regardless of the outcome of the popular vote in each state that is a party to the compact. (This may seem unnecessary if Biden wins, but it will be a bit of insurance against the possibility of a Republican victor in a future election.)

4. Statehood for either the District of Columbia or Puerto Rico, or for both of them. (Each would then have two senators and a requisite number of representatives with full voting privileges in their respective bodies. All of them will be Democrats, of course.)

5. Empowerment of the executive branch to do at least three of the following things:

a. Regulate personal and business activity (in new ways) with the expressed aim of reducing CO2 emissions.

b. Commit at least $500 billion in new obligational authority for research into and/or funding of methods of reducing and mitigating CO2 emissions.

c. Issue new kinds of tax rebates and credits to persons/households and businesses that spend money on any item on a list of programs/technologies that are supposed to reduce CO2 emissions.

d. Impose tax penalties on persons/households and businesses for their failure to spend money on any item in the list mentioned above (shades of the Obamacare tax penalty).

e. Impose penalties on persons/households and businesses for failing to adhere to prescribed caps on CO2 emissions.

f. Establishment of a cap-and-trade program for CO2 emissions (to soften the blow of the previous item). (Needless to say, the overall effect of such initiatives would deal a devastating blow to economic activity – meaning massive job losses and lower real incomes for large swaths of the populace.)

6. Authorization for an agency or agencies of the federal government to define and penalize written or spoken utterances that the agency or agencies declare “unprotected” by the First Amendment, and to require media enforcement of bans on “unprotected” utterances and prosecution of violators (e.g., here). (This can be accomplished by cynically adopting the supportable position that the First Amendment protects only political speech. The purported aim would be to curb so-called hate speech, but when censorship is in full swing — which would take only a few years — it will be illegal to criticize or question, even by implication, such things as illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, the confiscation of firearms, or the policies of the federal government. Violations will be enforced by fines and prison sentences — the latter sometimes called “sensitivity training”, “citizenship education”, or some other euphemistic term. Candidates for public office will be prime targets of the enforcers, which will suppress open discussion of such matters.)

7. Imposition of requirements for organizations of all kinds — businesses, universities, charitable organizations, clubs, and even churches — to favor anyone who isn’t a straight, white male of European descent. (The “protections” will be enacted, upheld, and enforced vigorously by federal agencies, regardless of their adverse economic and social effects.)

8. Effective nullification of the Second Amendment through orders/regulations/legislation, to enable gun confiscation (though there will be exemptions for private security services used by favored elites).

9. Use of law-enforcement agencies to enforce “hate speech” bans, mandates for reverse discrimination, and gun-confiscation edicts. (These things will happen regardless of the consequences; e.g., a rising crime rate, greater violence against whites and Asians, and flight from the cities and near-in suburbs. The latter will be futile, anyway, because suburban and exurban police departments will also be co-opted.)

10. Criminalization of “sexual misconduct”, as it is defined by the alleged victim, de facto if not de jure. (Investigations and prosecutions will be selective, and aimed mainly at straight, white males of European descent and dissidents who openly criticize this and other measures listed here.)

11. Parallel treatment for the “crimes” of racism, anti-Islamism, nativism, and genderism. (This will be in addition to the measures discussed in #7.)

12. Centralization in the federal government of complete control of all health care and health-care related products and services, such as drug research, accompanied by “Medicare and Medicaid for All” mandates. (Private health care will be forbidden or strictly limited, though — Soviet-style — there will be exceptions for high officials and other favored persons. Drug research – and medical research, generally – will dwindle in quality and quantity. There will be fewer doctors and nurses who are willing to work in a regimented system. The resulting health-care catastrophe that befalls most of the populace will be shrugged off as necessary to ensure equality of treatment, while ignoring the special treatment accorded favored elites.)

13. Revitalization of the regulatory regime (which already imposes a deadweight loss of 10 percent of GDP). A quantitative measure of revitalization is an increase in the number of new rules published annually in the Federal Register by at least 10 percent above the average for 2017-2020.

14. Proposals for at least least two of the following tax-related initiatives:

a. Reversal of the tax-rate cuts enacted during Trump’s administration.

b. Increases in marginal tax rates for the top 2 or 3 income brackets.

c. Imposition of new taxes on wealth.

15. Dramatic enlargement of domestic welfare programs. Specifically, in addition to the creation of “Medicare and Medicaid for All” programs, there would be a “fix” for Social Security that mandates the payment of full benefits in the future, regardless of the status of the Social Security Trust Fund (which will probably be abolished). (Initiatives discussed in #5, #7, #9, #10, #11, #12, #13, #14, and #15 would suppress investment in business formation and expansion, and would disincentivize professional education and training, not to mention work itself. All of that would combine to push the real rate of economic growth toward a negative value.)

16. Reduction of the defense budget by at least 25 percent, in constant dollars, by 2031 or sooner. (Eventually, the armed forces will be maintained mainly for the purpose of suppressing domestic uprisings. Russia and China will emerge as superpowers, but won’t threaten the U.S. militarily as long as the U.S. government acquiesces in their increasing dominance and plays by their economic rules.)

17. Legalization of all immigration from south of the border, and the granting of citizenship to new immigrants and the illegals who came before them. (The right to vote, of course, is the right that Democrats most dearly want to bestow because most of the newly-minted citizens can be counted on to vote for Democrats. The permanent Democrat majority will ensure permanent Democrat control of the White House and both houses of Congress.)

*      *     *

The list is in keeping with the direction in which the country is headed and, in many cases, has been headed since the 1930s — despite Reagan and Trump, and with the connivance of Ike, Nixon, the Bushes, and (in some crucial cases) the USSC.

The Constitution’s horizontal and vertical separation of powers, system of checks and balances, and limitations on the power of the federal government have been eroded almost to the point of irrelevance. The next few years will put an end to the pretense (or false hope) of governance in accordance with the Constitution as it was written. The next few years will see the destruction of liberty, the bankruptcy of America, and the onset of obeisance to Russia and China.

Texas v. Pennsylvania — The Supremes Cut and Run

UPDATED 12/14/20

I was right about the Supreme Court, though the scenario played out differently than I had expected it to. As it turns out, there wasn’t a single justice with the guts to admit that Texas attorney general Ken Paxton had it right:

[T]he 2020 election suffered from significant and unconstitutional irregularities in the Defendant States [Georgia, Michigan, Pennsylvania, and Wisconsin]:

Non-legislative actors’ purported amendments to States’ duly enacted election laws, in violation of the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.

Intrastate differences in the treatment of voters, with more favorable allotted to voters–whether lawful or unlawful–in areas administered by local government under Democrat control and with populations with higher ratios of Democrat voters than other areas of Defendant States.

The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws.All these flaws–even the violations of state election law–violate one or more of the federal requirements for elections (i.e., equal protection, due process, and the Electors Clause) and thus arise under federal law. See Bush v Gore, 531 U.S. 98, 113 (2000)(“significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question”) (Rehnquist, C.J., concurring). Plaintiff State respectfully submits that the foregoing types of electoral irregularities exceed the hanging-chad saga of the 2000 election in their degree of departure from both state and federal law.Moreover, these flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections.Taken together, these flaws affect an outcome-determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes.

In sum, the citizens of States that were won by Trump were denied equal protection of the laws: Their votes were nullified because Georgia, Michigan, Pennsylvania, and Wisconsin flouted their own election laws. (To say nothing of massive instances of fraud, of which there is ample evidence, Democrats and media enablers to the contrary notwithstanding.)

William Rehnquist, who presided over Bush v. Gore twenty years ago, must be spinning in his grave.

This may have been a (futile) attempt by Roberts et al. to forestall court-packing, which surely will happen as soon as the Democrats garner a working majority in the Senate. Which is one reason among many to hope that the January 5 runoff elections in Georgia result in victories by the two Republican candidates.

Update:

An esteemed reader and correspondent sent me a link to a piece in which Alan Dershowitz is quoted at length. Here’s some of it:

Dershowitz agreed with Justices Samuel Alito and Clarence Thomas, who indicated that Texas did have standing, saying they ”get the better of the argument,” but that the court just didn’t want to deal with what may be perceived as political.

”This Supreme Court decision sends a message,” Dershowitz said. ”The majority included the three justices appointed by President [Donald] Trump, and they all said, ‘We’re not going to hear the Texas case. We’re not going to get involved in this election.’

”I think this sends a message. It’s not a legal message, but it’s a practical message: the Supreme Court is out of this game.”

Elsewhere, Mollie Hemingway weighs in:

[H]ow can the state of Texas not have a judicially cognizable interest in her sister states living up to the compact they entered when they entered the Union?

Texas attempted in its briefs to crystalize the harm by stressing its interest in who serves as vice president, given the vice president’s tie-breaking status in the Senate and senators’ role as the representatives of the states. But a simpler and stronger argument came in a brief submitted by would-be amicus curiae [in] Citizen’s United:

When one state allows the Manner in which Presidential Electors be chosen to be determined by anyone other than the state legislature, that state acts in breach of the presuppositions on which the Union is based. Each state is not isolated from the rest—rather, all states are interdependent. Our nation’s operational principle is E pluribus unum. Each state has a duty to other states to abide by this and other reciprocal obligations built into Constitution. While defendant states may view this suit as an infringement of its sovereignty, it is not, as the defendant states surrendered their sovereignty when they agreed to abide by Article II, § 1. Each state depends on other states to adhere to minimum constitutional standards in areas where it ceded its sovereignty to the union—and if those standards are not met, then the responsibility to enforce those standards falls to this Court.

On Friday, the Supreme Court voted not to enforce those standards.

Maybe there is a good reason. Maybe Rehnquist’s view was wrong. Maybe the court found the alleged violations not “significant” enough to reach the level of a constitutional violation. (How “significant” would a violation have to be?) Maybe the court viewed a violation of the compact on which our country was founded as beyond its purview.

There might be a satisfactory answer, but Americans have yet to hear it. And that was wrong, both for the court and the country.

As the old saying goes, “we wuz robbed” by a cabal of crooked umpires.

A Note to Proponents of Defunding the Police

Be careful what you wish for.

There are already 400 million privately owned firearms in the United States. It is obvious that most owners of those firearms are law-abiding citizens. But they are not supine or spineless citizens. They are prepared to defend themselves, their families, and their property. That’s why gun sales go up whenever there’s a perceived threat to law and order; for example:

What will happen if there are drastic cuts in the funding of police departments? Or if persistent physical and political attacks on police lead to understaffing of police departments and higher crime rates?

Here’s what I believe will happen. The number and size of community defense groups will increase rapidly. despite hostile reactions from leftist politicians (and some “political” police chiefs who are their lap dogs). And when the time comes for serious action and the police fail to do their duty — because they have been ordered not to, or because they are overwhelmed — the gun owners will be there. This is more likely to happen in suburbs and exurbs. But there is no reason that the beleaguered (and well-armed) denizens of big cities should continue to stand by while their homes and businesses are looted and burned.

Citizens who are defending themselves, their families, and their property are likely to be less discriminating than police when it comes to shooting someone who is perceived as a possible threat.

You have been warned.

A Congress of Unlimited Power?

Preamble

In the debates about the passage of the Patient Protection and Affordable Care Act (ACA), there were charges (and denials) that ACA would include “death panels”. In fact, a central feature of ACA was the now-defunct Independent Payment Advisory Board (IPAB), which was

to have the explicit task of achieving specified savings in Medicare without affecting coverage or quality….

Beginning in 2013, the Chief Actuary of the Centers for Medicare and Medicaid Services determined in particular years the projected per capita growth rate for Medicare for a multi-year period ending in the second year thereafter (the “implementation year”). If the projection exceeded a target growth rate, IPAB was to develop a proposal to reduce Medicare spending in the implementation year by a specified amount.

With regard to IPAB’s recommendations, the law said: “The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums … , increase Medicare beneficiary cost sharing (including deductibles, coinsurance, and co-payments), or otherwise restrict benefits or modify eligibility criteria.”

Defenders of ACA claimed that IPAB wasn’t a “death panel” (or an incipient one) because ACA specifically prohibited it from recommending the rationing of health care. But IPAB didn’t have to ration health care directly. All it had to do was “develop a proposal to reduce Medicare spending … by a specified amount”. Any such proposal, which would go into effect unless Congress overrode it, would have had the effect of forcing rationing of some kind, by some means (e.g., reducing or eliminating Medicare coverage for certain conditions, or reducing the compensation of providers who might treat certain conditions, thus discouraging them from treating those conditions in the first place).

It’s true that IPAB, or something like it, was (and still is) necessary in a government-run systems like Medicare and Medicaid, where the amount of money available to provide health care is limited by Congress. (In fact, some lefties openly admit it.) But that just moves the problem up a level. It means that Medicare and Medicaid, which are essentially mandatory for tens of millions of persons, constitute a system for rationing health care. (All misguided rhetoric to the contrary, free markets are not rationing mechanisms.)

But what if Medicare and Medicaid didn’t exist and many older Americans had to do without many of the health-care products and services that they enjoy because they couldn’t afford those products and services? The existence of Medicare and Medicaid, whatever their benefits, is tantamount to governmental rationing; that is, their existence forces the redistribution of income among citizens (beneficiaries of Medicare and Medicaid vs. those who subsidize it) and the reallocation of resources toward health care and away from other uses.

The bottom line: It’s true that ACA doesn’t mention death panels and prohibits rationing. But ACA in fact established a “death panel” (IPAB) and authorized (even more) rationing of health care than was already the case under Medicare and Medicaid, pre-ACA.

In sum, a thing can exist without being called by a particular name. Reverse discrimination, for example, exists because Affirmative Action and various “diversity” programs, as they are practiced, foster discrimination against straight, white males of European descent. But to say that Affirmative Action and “diversity” programs are discriminatory is verboten in left-speak.

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

The same principle — that a thing can exist without being called by a particular name — applies to the Constitution of the United States. An obvious case is found in the structure of the Constitution, which is characterized as a system of checks and balances. The term “check and balances” is found nowhere in the Constitution, but the Constitution does nevertheless provide checks on the power of the central government and balances between the powers of the central government’s branches and between the powers of the central government and State governments.

Likewise, the Constitution nowhere says that the powers of the central government are enumerated (and therefore limited). But they are, despite Richard Primus’s casuistry in “Herein of ‘Herein Granted’: Why Article I’s Vesting Clause Does Not Support the Doctrine of Enumerated Powers” (U of Michigan Public Law Research Paper No. 681, October 8, 2020).

What is the Vesting Clause? It is Section 1 of Article I, which says this:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Primus makes much of what he calls the lack of parallelism between that language and the its counterparts in Article II (which defines the executive branch) and Article III (which defines the judicial branch); viz.:

The executive Power shall be vested in a President of the United States of America.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Which, as I will show, is akin to making a mountain out of a molehill. To what end?

This: Primus’s attack on the Vesting Clause is really an attack on the doctrine of enumerated (and therefore limited) powers. As he says,

the idea that Article I’s Vesting Clause limits Congress to a set of textually enumerated powers was virtually unknown in the ratification debates of 1787-88. 18 It was also absent from the First Congress, and conspicuously so. The First Congress prominently featured conflict over the question of whether Congress was limited to powers specifically enumerated in the Constitution: think, for example, of the fight over chartering the Bank of the United States. The Representatives arguing for the enumerationist position in those debates had every incentive to point to the Vesting Clauses for support, if they thought the Vesting Clauses supported their view. None of them did, which suggests that none of them thought Article I’s Vesting Clause established the enumeration principle.

In all of the Federalist Papers, for example, thirty or so of which specifically addressed questions about the extent of congressional power, Publius invoked the Vesting Clause exactly zero times.

This is nothing but argumentative sleight of hand. The Vesting Clause may not have been invoked, but the Constitution was ratified on the clear understanding that the powers of the central government were limited because they were specifically enumerated (mainly in Section 8 of Article I). The proponents and opponents of specific legislation wouldn’t have argued about the broad language of the Vesting Clause. Rather, they would have argued about the specific inclusion or exclusion of the subject matter in text of the Constitution. The main repository of specific language is Section 1 of Article I.

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

Under the Articles of Confederation (Articles) that preceded the Constitution, the central government — such as it was — depended on the whims of member States to finance its operations. It therefore proved difficult to provide for such things as the defense of the United States, the conduct of foreign affairs on behalf of all of the States, and the free flow of trade among the States. Further, every State was equal to every other State — one State, one vote — which made it possible for regional coalitions and even individual States to wield disproportionate power. (Among the compromises that underlay the adoption and ratification of the Constitution was the creation of the Senate, which wields some amount of disproportionate power but not as completely as did the States of the confederation.)

The Constitution doesn’t specifically say that the powers of the central government are enumerated and limited, but they are, as a legacy of the Articles:

Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

(Aside: Whereas the Articles of Confederation refer specifically to a “perpetual Union” of the member States, the Constitution nowhere says or implies that the resulting union was meant to be perpetual.)

During the debates about the ratification of the Constitution, a great many speeches were given and great amounts of ink and paper were devoted to the issue of constraints on the central government. Alexander Hamilton, James Madison, and John Jay — leading advocates of ratification — issued their arguments in the series of essays that became known as The Federalist Papers. Among Madison’s contributions are Federalist Nos. 41, 42, 43, 44, and  45. Those five papers constitute a defense of the specific powers granted to the central government by the Constitution. Madison nowhere adverts to unmentioned, free-floating power because the Constitution doesn’t grant any such power to the central government.

As Madison puts it in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined [emphasis added]. Those which are to remain in the State governments are numerous and indefinite.


Related posts:

The Slippery Slope of Constitutional Revisionism
The Constitution: Original Meaning, Corruption, and Restoration
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Our Perfect, Perfect Constitution
Does the Power to Tax Give Congress Unlimited Power? (II)
The Constitution: Myths and Realities

Election 2020: What Will the Supreme Court Do?

Here’s my guess. Roberts, who has shown animus toward the Trump administration in some of his opinions will join the “liberals” — Breyer, Sotomayor, and Kagan — in decisions that favor Biden. Many commentators will simply ascribe Roberts’s rulings to his desire to maintain an appearance that the Court is non-political. They will also ascribe to him a desire to fend off court-packing by making it seem less threatening to Democrats, despite its supposed conservative majority. The mainstream media will simply ignore or minimized Roberts’s animus.

But Roberts plus the three lefties do not a majority make. So how will Roberts achieve his real objective, which is to remove Trump from office? He will appeal to Gorsuch, who seems to march to a different drummer than the Court’s real conservatives (Thomas, Alito, Kavanaugh, and Barrett). “Neil”, he’ll say, “here’s our chance to reassure the Democrats, who would surround us with their lackeys, that we aren’t rubber stamps for Republican policies.” And so Gorsuch will join Roberts and the lefties, for an anti-Trump majority. And perhaps (though I doubt it) Roberts will be able to recruit Kavanaugh or Barrett to the cause of making the Court seem to be above partisan politics. (Ironically, that’s precisely what Roberts will be engaged in, and everyone will know it.)

And so, Trump will lose despite evidence of massive election fraud in key Democrat-controlled States. And when the Democrats next get their hands on the Senate, court-packing will proceed apace, and Roberts will be an impotent chief justice who is dominated by the Court’s new, permanent left wing.

A Solid Conservative Majority on the Supreme Court … but for How Long?

Democrats vow “retaliation” for the confirmation of Amy Vivian Coney Barrett as an associate justice of the U.S. Supreme Court. Big deal! Democrats were certain to pack the Court anyway. John Roberts and Neil Gorsuch, though they wander off the conservative reservation from time to time, are nevertheless too conservative for Democrats. (That’s especially true of the up-and-coming radicals who will control the party in a few years.) The urge to pack will grow exponentially if Trump wins, the GOP holds the Senate, and Trump’s next nominee is a replacement for Stephen Breyer, now the Court’s oldest justice — by 10 years — at 82.

In the meantime, let us enjoy the fruits of the successful Trump-McConnell campaign to move the nation’s courts to the right. And hope that it’s not all undone in the next few years.


Related pageU.S. Supreme Court: Lines of Succession and Ideological Agreement (updated to reflect Barrett’s confirmation and the Court’s holdings in its 2019-2020 term)

Election 2020: Liberty Is at Stake

I have written many times over the years about what will happen to liberty in America the next time a Democrat is in the White House and Congress is controlled by Democrats. Many others have written or spoken about the same, dire scenario. Recently, for example, Victor Davis Hanson and Danielle Pletka addressed the threat to liberty that lies ahead if Donald Trump is succeeded by Joe Biden, in tandem with a Democrat takeover of the Senate. This post reprises my many posts about the clear and present danger to liberty if Trump is defeated and the Senate flips, and adds some points suggested by Hanson and Pletka. There’s much more to be said, I’m sure, but what I have to say here should be enough to make every liberty-loving American vote for Trump — even those who abhor the man’s persona.

Court Packing

One of the first things on the agenda will be to enlarge the Supreme Court and fill the additional seats with justices who can be counted on to support the following policies discussed below, should those policies get to the Supreme Court. (If they don’t, they will be upheld in lower courts or go unchallenged because challenges will be perceived as futile.)

Abolition of the Electoral College

The Electoral College helps to protect the sovereignty of less-populous States from oppression by more-populous States. This has become especially important with the electoral shift that has seen California, New York, and other formerly competitive States slide into leftism. The Electoral College therefore causes deep resentment on the left when it yields a Republican president who fails to capture a majority of the meaningless nationwide popular vote, as Donald Trump failed (by a large margin) in 2016), despite lopsided victories by H. Clinton in California, New York, etc.

The Electoral College could be abolished formally by an amendment to the Constitution. But amending the Constitution by that route would take years, and probably wouldn’t succeed because it would be opposed by too many State legislatures.

The alternative, which would succeed with Democrat control of Congress and a complaisant Supreme Court, is a multi-State compact to this effect: The electoral votes of each member State will be cast for the candidate with the most popular votes, nationwide, regardless of the popular vote in the member State. This would work to the advantage of a Democrat who loses narrowly in a State where the legislature and governor’s mansion is controlled by Democrats – which is the whole idea.

Some pundits deny that the scheme would favor Democrats, but the history of presidential elections contradicts them.

Electorate Packing

If you’re going to abolish the Electoral College, you want to ensure a rock-solid hold on the presidency and Congress. What better way to do that than to admit Puerto Rico and the District of Columbia? Residents of D.C. already vote in presidential elections, but the don’t have senators and or a voting representative in the House. Statehood would give them those things. And you know which party’s banner the additional senators and representative would fly.

Admitting Puerto Rico would be like winning the trifecta (for Democrats): a larger popular-vote majority for Democrat presidential candidates, two more Democrat senators, and five more Democrat representatives in the House.

“Climate Change”

The “science” of “climate change” amounts to little more than computer models that can’t even “predict” recorded temperatures accurately because the models are based mainly on the assumption that CO2 (a minor greenhouse gas) drives the atmosphere’s temperature. This crucial assumption rests on a coincidence – rising temperatures from the late 1970s and rising levels of atmospheric CO2. But atmospheric CO2 has been far higher in earlier geological eras, while Earth’s temperature hasn’t been any higher than it is now. Yes, CO2 has been rising since the latter part of the 19th century, when industrialization began in earnest. Despite that, temperatures have fluctuated up and down for most of the past 150 years. (Some so-called scientists have resolved that paradox by adjusting historical temperatures to make them look lower than the really are.)

The deeper and probably more relevant causes of atmospheric temperature are to be found in the Earth’s core, magma flow, plate dynamics, ocean currents and composition, magnetic field, exposure to cosmic radiation, and dozens of other things that — to my knowledge — are ignored by climate models. Moreover, the complexity of the interactions of such factors, and others that are usually included in climate models cannot possibly be modeled.

The urge to “do something” about “climate change” is driven by a combination of scientific illiteracy, power-lust, and media-driven anxiety.

As a result, trillions of dollars have been and will be wasted on various “green” projects. These include but are far from limited to the replacement of fossil fuels by “renewables”, and the crippling of industries that depend on fossil fuels. Given that CO2 does influence atmospheric temperature slightly, it’s possible that such measures will have a slight effect on Earth’s temperature, even though the temperature rise has been beneficial (e.g., longer growing seasons; fewer deaths from cold weather, which kills more people than hot weather).

The main result of futile effort to combat “climate change” will be greater unemployment and lower real incomes for most Americans — except for the comfortable elites who press such policies.

Freedom of Speech

Legislation forbidding “hate speech” will be upheld by the packed Court. “Hate speech” will be whatever the bureaucrats who are empowered to detect and punish it say it is. And the bureaucrats will be swamped with complaints from vindictive leftists.

When the system is in full swing (which will take only a few years) it will be illegal to criticize, even by implication, such things as illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, or the confiscation of firearms. Violations will be enforced by huge fines and draconian prison sentences (sometimes in the guise of “re-education”).

Any hint of Christianity and Judaism will be barred from public discourse, and similarly punished. Islam will be held up as a model of unity and tolerance – at least until elites begin to acknowledge that Muslims are just as guilty of “incorrect thought” as persons of other religions and person who uphold the true spirit of the Constitution.

Reverse Discrimination

This has been in effect for several decades, as jobs, promotions, and college admissions have been denied the most capable persons in favor or certain “protected group” – manly blacks and women.

Reverse-discrimination “protections” will be extended to just about everyone who isn’t a straight, white male of European descent. And they will be enforced more vigorously than ever, so that employers will bend over backward to favor “protected groups” regardless of the effects on quality and quantity of output. That is, regardless of how such policies affect the general well-being of all Americans. And, of course, the heaviest burden – unemployment or menial employment – will fall on straight, white males of European descent. Except, of course, for the straight while males of European descent who are among the political, bureaucratic, and management elites who favor reverse discrimination.

Rule of Law

There will be no need for protests riots because police departments will become practitioners and enforcers of reverse discrimination (as well as “hate speech” violations and attempts to hold onto weapons for self-defense). This will happen regardless of the consequences, such as a rising crime rate, greater violence against whites and Asians, and flight from the cities (which will do little good because suburban police departments will also be co-opted).

Sexual misconduct (as defined by the alleged victim), will become a crime, and any straight, male person will be found guilty of it on the uncorroborated testimony of any female who claims to have been the victim of an unwanted glance, touch (even if accidental), innuendo (as perceived by the victim), etc.

There will be parallel treatment of the “crimes” of racism, anti-Islamism, nativism, and genderism.

Health Care

All health care and health-care related products and services (e.g., drug research) will be controlled and rationed by an agency of the federal government. Private care will be forbidden, though ready access to doctors, treatments, and medications will be provided for high officials and other favored persons.

Drug research – and medical research, generally – will dwindle in quality and quantity. There will be fewer doctors and nurses who are willing to work in a regimented system.

The resulting health-care catastrophe that befalls most of the populace (like that of the UK) will be shrugged off as a residual effect of “capitalist” health care.

Regulation

The regulatory regime, which already imposes a deadweight loss of 10 percent of GDP, will rebound with a vengeance, touching every corner of American life and regimenting all businesses except those daring to operate in an underground economy. The quality and variety of products and services will decline – another blow to Americans’ general well-being.

Taxation

Incentives to produce more and better products and services will be further blunted by increases on corporate profits, a more “progressive” structure of marginal tax rates (i.e., soaking the “rich”), and — perhaps worst of all — taxing wealth. Such measures will garner votes by appealing to economic illiterates, the envious, social-justice warriors, and guilt-ridden elites who can afford the extra taxes but don’t understand how their earnings and wealth foster economic growth and job creation. (A Venn diagram would depict almost the complete congruence of economic illiterates, the envious, social-justice warriors, and guilt-ridden elites.)

Government Spending and National Defense

The dire economic effects of the foregoing policies will be compounded by massive increases in government spending on domestic welfare programs, which reward the unproductive at the expense of the productive. All of this will suppress investment in business formation and expansion, and in professional education and training. As a result, the real rate of economic growth will approach zero, and probably become negative.

Because of the emphasis on domestic welfare programs, the United States will maintain token armed forces (mainly for the purpose of suppressing domestic uprisings). The U.S. will pose no threat to the new superpowers — Russia and China. They won’t threaten the U.S. militarily as long as the U.S. government acquiesces in their increasing dominance.

Immigration

Illegal immigration will become legal, and all illegal immigrants now in the country – and the resulting flood of new immigrants — will be granted citizenship and all associated rights. The right to vote, of course, is the right that Democrats most dearly want to bestow because most of the newly-minted citizens can be counted on to vote for Democrats. The permanent Democrat majority will ensure permanent Democrat control of the White House and both houses of Congress.

Future Elections and the Death of Democracy

Despite the prospect of a permanent Democrat majority, Democrats won’t stop there. In addition to the restrictions on freedom of speech discussed above, there will be election laws requiring candidates to pass ideological purity tests by swearing fealty to the “law of the land” (i.e., unfettered immigration, same-sex marriage, freedom of gender choice for children, etc., etc., etc.). Those who fail such a test will be barred from holding any kind of public office, no matter how insignificant.

The Supreme Court: A Scorecard

The following table summarizes the frequency with which the justices disagreed with one another in non-unanimous cases during the recently completed 2019-2020 term (October Term 2019). (For a complete treatment of the terms during which John Roberts has been chief justice — OT2005-OT2019 — go here and scroll down past the three-part table that traces the Court’s lines of succession.) The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.

DEFECTIONS

I used the statistics that underlie the preceding table, and its counterparts for the preceding 14 terms, to construct the following index of defection (D) for each justice, by term:

D = percentage disagreement (in non-unanimous cases) with members of own wing/percentage disagreement (in non-unanimous cases) with members of opposite wing.

The “conservative” wing’s members during the 2005-2019 terms were and are Alito, Gorsuch, Kavanaugh, Kennedy, Roberts, Thomas, and Scalia. The “liberal” wings members in the period were and are Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens.

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing. Whereupon he retired and was succeeded by Kavanaugh.

Roberts’s slippage in the 2011-2015 terms has never been fully reversed, and his performance in the 2019 term bodes ill for the future of the “conservative” wing. Roberts’s transparent attempts to protect the Court from accusations of political bias (e.g., the Obamacare, census, and DACA cases), have rightly caused conservatives to be wary of him.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017), but he seems to be a fairly solid “conservative”, with some notable exceptions (e.g., LGBTQ rights).

Kavanaugh’s record in his second term aligns him with Gorsuch as somewhat of a “conservative” maverick — but not in the same league as Kennedy and Roberts.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term and sudden return to it in his final term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

Despite Kennedy’s retirement, the presence of Roberts (and to a lesser extent, Gorsuch and Kavanaugh), ensures that the “conservative” wing will be less monolithic than the “liberal” wing.

POLARIZATION

The statistics also yield an index of polarization (P) for each justice, by term:

P = maximum percentage of non-unanimous cases in which a justice disagreed with any other justice during the term

Graphically:

A slight upward trend over the past 15 terms? Perhaps. But there has been definite movement toward polarization since Kennedy’s peak defection terms (2014-2015). Trend or no trend, it’s clear that there is and has been a great deal of polarization among most of the justices. The exceptions are among the “conservatives”, namely Gorsuch, Kavanaugh, and Roberts — which is why the “liberal” wing is more monolithic.

THE THOMAS STANDARD

I would be pleased no end if the Supreme Court consisted of Clarence Thomas and eight clones of him. It seems to me that Justice Thomas has been the most faithful adherent of the Constitution among all of the justices who have served on the Court since I became interested in its doings more than 50 years ago. Taking Thomas as the standard for constitutional judging, it is possible to grade some of the other justices who have served with him, including all of his present colleagues.

Reversing the numbers discussed thus far, so that degree of disagreement becomes degree of agreement, and focusing on the extent to which other justices agree with Thomas non-unanimous cases, I obtain the following statistics:

Graphically:

Scalia was a stalwart “conservative”, albeit somewhat quirky inn criminal cases, as is Gorsuch. Alito remains a stalwart, and Kavanaugh shows promise. Roberts continues to slip away. Breyer, Ginsburg, Kagan, and Sotomayor remain stalwart “liberals”. At the present rate, Sotomayor will find herself alone on the Court’s far-left fringe.

Racism in Action

Here. It’s not what you expected, is it?

The perp — a young-ish black man — had previously been arrested more than 100 times

Why was he walking around free?

Why aren’t white’s rioting and burning down buildings?

(See also “Crime Revisited“.)

Less Discrimination Means More Discrimination

From a piece by Jordan Davidson in The Federalist:

The United States Supreme Court on Monday ruled [in Bostock v. Clayton] that the definition of sex in a federal civil rights law expanded to include sexual orientation and gender identity, ensuring the protection of gay, lesbian, and transgender people from being reprimanded or fired at work. This controversial decision comes after multiple failed legislation attempts in Congress over the last 15 years to rewrite the definition of the word “sex” into law.

The ruling was 6-3 with Justice Gorsuch and Justice Roberts, both appointed by Republican presidents, voting with the majority while Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented on the grounds that the definition of sex is not the Court’s decision.

Kavanaugh’s dissent includes this conciliatory aside:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Granting more “equality” to yet another identity group means that employers are less likely to hire and promote — and more likely to fire — white, heterosexual males under the age of 40 who are undeniably of European descent. It’s the only group that can’t claim employment discrimination. Well, maybe it’s not the only group, but it’s certainly the only group that comprises more than a fraction of a percent of the populace. And you can bet that the minuscule minorities will eventually acquire more “rights” than the aforementioned white, heterosexual males.

So much for equal treatment under the law. To paraphrase George Orwell’s observation in Animal Farm: All persons are equal, but some persons are more equal than others.

Is Trump Taking My Advice?

I made a case, here and here, for preemptive action against Big Tech’s censorship of conservative viewpoints. There has been some movement along anti-trust lines, but Trump’s executive order on social media is a big step in the right direction. Stewart Baker (The Volokh Conspiracy) explains:

The order really only has two and a half substantive provisions, and they’re all designed to increase the transparency of takedown decisions.

The first provision tells NTIA (the executive branch’s liaison to the FCC) to suggest a rulemaking to the FCC. The purpose of the rule is to spell out what it means for the tech giants to carry out their takedown policies “in good faith.” The order makes clear the President’s view that takedowns are not “taken in good faith if they are “deceptive, pretextual, or inconsistent with a provider’s terms of service” or if they are “the result of inadequate notice, the product of unreasoned explanation, or [undertaken] without a meaningful opportunity to be heard.” This is not a Fairness Doctrine for the internet; it doesn’t mandate that social media show balance in their moderation policies. It is closer to a Due Process Clause for the platforms.  They may not announce a neutral rule and then apply it pretextually. And the platforms can’t ignore the speech interests of their users by refusing to give users even notice and an opportunity to be heard when their speech is suppressed.

The second substantive provision is similar. It asks the FTC, which has a century of practice disciplining the deceptive and unfair practices of private companies, to examine social media takedown decisions through that lens.  The FTC is encouraged (as an independent agency it can’t be told) to determine whether entities relying on section 230 “restrict speech in ways that do not align with those entities’ public representations about those practices.”

(The remaining provision is an exercise of the President’s sweeping power to impose conditions on federal contracting. It tells federal agencies to take into account the “viewpoint-based speech restrictions imposed by each online platform” in deciding whether the platform is an “appropriate” place for the government to post its own speech. It’s hard to argue with that provision in the abstract. Federal agencies have no business advertising on, say, Pornhub. In application, of course, there are plenty of improper or unconstitutional ways the policy could play out. But as a vehicle for government censorship it lacks teeth; one doubts that the business side of these companies cares how many federal agencies maintain their own Facebook pages or Twitter accounts. And in any event, we’ll have time to evaluate this sidecar provision when it is actually applied.)

That’s it.  The order calls on social media platforms to explain their speech suppression policies and then to apply them honestly. It asks them to provide notice, a fair hearing, and an explanation to users who think they’ve been treated unfairly or worse by particular moderators.

I would take a much harder line (follow the links in the first sentence of this post). But something is better than nothing. It’s a shot across the bow of Big Tech, though I would prefer a nuclear-tipped torpedo below the water line.