Saving the Innocent, Revisited

Paul Cassell, writing at The Volokh Conspiracy, offers statistical evidence about the wrongful conviction rate:

Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher—at least 1%, and perhaps as high as 4% or even more.

My article suggests a much lower estimate is appropriate. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062%—a range that comfortably embraces Justice Scalia’s often-criticized figure.

This reminds me of a pair of posts from 13 years ago, which I combine below, with minor editing.

*    *     *

Better that ten guilty persons escape than that one innocent suffer.

— English jurist William Blackstone

 

“n” — the number of guilty persons — has increased since the late 1700s, when Blackstone wrote. Alexander “Sasha” Volokh offers some useful perspective:

Charles Dickens generously endorsed a value of n = “hundreds” for capital cases, and not just “that hundreds of guilty persons should escape,” but that they should escape “scot-free.” Dickens was, in fact, so generous that hundreds of guilty persons escaping scot-free was not only better than one innocent person suffering — it was even better “than that the possibility of any innocent man or woman having been sacrificed, should present itself, with the least appearance of reason, to the minds of any class of men!”…

Of course, such blithe invocation could easily lead too far down the road to “inconsiderate folly” and “pestiferous nonsense.” As one author noted, there is “nothing so dangerous as a maxim”:

Better that any number of savings-banks be robbed than that one innocent person be condemned as a burglar! Better that any number of innocent men, women, and children should be waylaid, robbed, ravished, and murdered by wicked, wilful, and depraved malefactors, than that one innocent person should be convicted and punished for the perpetration of one of this infinite multitude of crimes, by an intelligent and well-meaning though mistaken court and jury! Better any amount of crime than one mistake in well-meant endeavors to suppress or prevent it!…

Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:

We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished….

James Fitzjames Stephen suggested that Blackstone’s maxim

resembles a suggestion that soldiers should be armed with bad guns because it is better that they should miss ten enemies than that they should hit one friend. . . . Everything depends on what the guilty men have been doing, and something depends on the way in which the innocent man came to be suspected….

The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?”

That’s the question, isn’t it? Better for whom? It’s better for the guilty, who may claim more victims, but certainly not better for those victims.

Now I read this (on July 27, 2005):

[Texas] Gov. Rick Perry changed the 28 sentences to life in prison after the Supreme Court ruled that juveniles cannot be executed because of the Eighth Amendment ban on cruel and unusual punishment.

History shows release is possible for some of them.

Death penalties [in Texas] were halted for four years after the 1972 Supreme Court decision in Furman vs. Georgia.

According to state prison records reviewed by The Dallas Morning News, 40 of the 47 Texas inmates who left death row then have been released from prison.

Two died in prison and five remain behind bars.

At least two who were released killed again. One was Kenneth McDuff, who was convicted in 1992 for killing two women. He was executed in 1998.

Of the 40 who were released, 22 committed new offenses ranging from misdemeanors to murder. About half of those paroled returned to prison because of new crimes or violations of parole. Many led quiet lives.

Evidently, in our “enlightened” society, it is better that many innocent persons be victimized so that some murderers can lead “quiet lives.”

The Decline of Collegiality

Since the end of World War II there have been 35 floor votes in the Senate to confirm or reject Supreme Court nominees. Unsurprisingly, the outcome of the 35 votes reveals a striking decline in the Senate’s collegiality.

To quantify the decline, I constructed an index of collegiality (C):

C = Fraction of votes in favor of confirming a nominee/fraction of Senate seats held by the nominating president’s party

A C score greater than 1 implies some degree of (net) support from the opposing party. The higher the C score, the greater the degree of support from the opposing party.

Examples:

  1. Tom Clark, nominated by Democrat Harry Truman, was confirmed on August 18, 1949, by a vote of 73-8; that is, he received 90 percent of the votes cast. Democrats then held a 54-42 majority in the Senate, just over 56 percent of the Senate’s 96 seats. Dividing Clark’s share of the vote by the Democrats’ share of Senate seats yields C = 1.60. Clark, in other words, received 1.6 times the number of votes controlled by the party of the nominating president.
  2. Samuel Alito, nominated by Republican George W. Bush, was confirmed on January 31, 2006, by a vote of 58-42; that is, he received 58 percent of the votes cast. Republicans then held 55 percent of the Senate’s 100 seats. The C score for Alito’s nomination is 1.05 (0.58/0.55).

Nine nominees were approved by acclamation, that is, by a unanimous voice vote. In such cases, the value of the numerator in C is 1. But C varies, even in cases of acclamation, because of variations in the fraction of seats held by the party of the nominating president. In any event, the last confirmation by acclamation was in 1965 — an ill omen for collegiality.

Three nominations were rejected in an “up or down” vote. (Several others failed, by withdrawal or lack of cloture, before reaching a final vote.) Two of the rejections were of Nixon nominees: Clement Haynsworth (1969) and G. Harold Carswell (1970). One was a Reagan nominee: Robert Bork (1987). Because the GOP held such a small fraction of Senate seats in 1969 and 1970, the C values for Haynsworth and Carswell actually exceed 1. But Bork was so roundly defeated that the C value for his nomination is less than 1 — the only such case. Kavanaugh’s nomination came close, at 1.004 — the lowest C value for a confirmation in the past 73 years.

All of this, and more, is captured in the following graph:

C peaked in 1975 with the confirmation of John Paul Stevens, a nominee of Republican Gerald Ford. (One of many disastrous nominations by GOP presidents.) It has gone downhill since then. The treatment of Brett Kavanaugh caps four decades of generally declining collegiality.

The decline began in Reagan’s presidency, and gained momentum in the presidency of Bush Sr. Clinton’s nominees fared about as well (or badly) as those of his two predecessors. But new lows (for successful nominations) were reached during the presidencies of Bush Jr., Obama, and Trump.

None of this is surprising given the deterioration of political discourse over the past several decades — and especially given the demonization of Republicans by Democrats and their allies in the media. What is surprising — gratifying, really — is that Republicans seem to be waking up to the fact that playing Mr. Nice Person will not win them any points with Democrats, the media, or their base.

The only way to win, in the present and foreseeable political climate, is to fight hard, and fight to the bitter (or sweet) end.


Related pages and posts:

Constitution: Myths and Realities (see especially “The Framers’ Fatal Error”)
Leftism
Spygate
U.S. Supreme Court: Lines of Succession and Ideological Alignmen

Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
America: Past, Present, and Future
IQ, Political Correctness, and America’s Present Condition
The Barbarians Within and the State of the Union
The World Turned Upside Down
The View from Here
“We the People” and Big Government
The Culture War
The Fall and Rise of American Empire
O Tempora O Mores!
Presidential Treason
A Home of One’s Own
The Criminality and Psychopathy of Statism
Decline
Two-Percent Tyranny
A Sideways Glance at Public “Education”
Greed, Conscience, and Big Government
Democracy, Human Nature, and the Future of America
1963: The Year Zero
The Beginning of the End of Liberty in America
Society
How Democracy Works
“Cheerful” Thoughts
How Government Subverts Social Norms
Turning Points
The Twilight’s Last Gleaming?
Polarization and De-facto Partition
How America Has Changed
Civil War?
Freedom of Speech and the Long War for Constitutional Governance
Retrospective Virtue-Signalling
The Left and Violence
Leftist Condescension
Red-Diaper Babies and Enemies Within
Equality
The Vast Left-Wing Conspiracy
Academic Freedom, Freedom of Speech, and the Demise of Civility
Leftism As Crypto-Fascism: The Google Paradigm
What Is Going On? A Stealth Revolution
Down the Memory Hole
“Why Can’t We All Just Get Along?”
Mass Murder: Reaping What Was Sown
“Democracy” Thrives in Darkness — and Liberty Withers
Preemptive (Cold) Civil War
The Framers, Mob Rule, and a Fatal Error
Whence Polarization?
Social Norms, the Left, and Social Disintegration
The Lesson of Alfie Evans
Can Left and Right Be Reconciled?
Freedom of Speech: Getting It Right
Justice Thomas on Masterpiece Cakeshop
Suicide or Destiny?
“Liberalism” and Virtue-Signaling
Freedom of Speech, to What End?
Conservatism vs. Ideology
O.J.’s Glove and the Enlightenment
James Burnham’s Misplaced Optimism
Where I Stand on Kavanaugh
No More SCOTUS “Swing Vote”? Good!

No More SCOTUS “Swing Vote”? Good!

NOTE: I HAVE UPDATED “U.S. SUPREME COURT: LINES OF SUCCESSION AND IDEOLOGICAL ALIGNMENT” TO REFLECT THE CONFIRMATION OF BRETT MICHAEL KAVANAUGH AS AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT.

Justice Elena Kagan — voicing the fears of leftists — says this about the replacement of Anthony Kennedy by Brett Kavanaugh:

I think it’s been an extremely important thing for the court that in the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who people — found the center where people couldn’t predict in that sort of way. And that’s enabled the court to look as though it was not owned by one side or another, and was indeed impartial and neutral and fair. And it’s not so clear that — I think, going forward, that sort of middle position — you know, it’s not so clear whether we’ll have it.

All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is….

It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply an extension of a terribly polarizing process.

So the job of the Supreme Court isn’t to uphold the Constitution, but to find a middle ground between constitutional and anti-constitutional views.

I am hopeful — but not yet certain — that the addition of Justice Kavanaugh to the Court’s lineup will end the three decades of uncertainty praised by Kagan, and that it will put the Court back in the business of firmly upholding the Constitution. A business that it began to abandon in earnest during the New Deal.

Drawing on statistics kept at SCOTUSblog, I have constructed an index of defection (D) for each justice, for the 2005-2017 terms:

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

The wings are the “conservative” wing (Gorsuch, Alito, Thomas, Scalia, Roberts, and Kennedy) and the “liberal” wing (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.

Roberts slipped a bit in the 2017 term but was still more in step with the “conservative” wing than he had been in the 2014-2015 terms.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017). His slippage in the 2017 term may have been due to the mix of cases at stake.

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

The record of the past six terms (2012-2017) is clear. The “liberals” stick together much more often than the “conservatives”. Perhaps that will change with Justice Kavanough on the Court.

New Pages

In case you haven’t noticed the list in the right sidebar, I have converted several classic posts to pages, for ease of access. Some have new names; many combine several posts on the same subject:

Abortion Q & A

Climate Change

Constitution: Myths and Realities

Economic Growth Since World War II

Intelligence

Keynesian Multiplier: Fiction vs. Fact

Leftism

Movies

Spygate

Freedom of Speech, to What End?

The left, in its drive to impose its agenda on the nation, has become censor-at-large. (See, for example, this, this, this, this, this, and this. Also, this, which addresses Google’s slanting of search results about climate research. YouTube is at it, too.)

If you have followed this blog for many years, you will know that I am not a free-speech absolutist. (See this, this, and this, for example.) Nor do I subscribe to the conceit that the “best” ideas will emerge triumphant in the so-called marketplace of ideas. (See this and this.) The “marketplace of ideas” ensures only that the most popular ideas or those with the strongest political backing will prevail. Nor is science immune to persistent error.

Regarding freedom of speech, I draw on James Burnham‘s The Struggle for the World:

Democracy in practice has never, and could never, interpret the right of free speech in an absolute and unrestricted sense. No one, for example, is allowed to advocate, and organize for, mass murder, rape, and arson. No one feels that such prohibitions are anti-democratic….

We may generalize as follows. The principles of an organized society cannot be interpreted in practice in such a way as to make organized society impossible. The special principles of a special form of government, in this case democratic government, cannot be interpreted in practice in such a way as to make that form of government impossible.

Here is Burnham again, in Suicide of the West:

Liberalism [of the kind that prevailed in the early 1960s] defines free speech and the related freedoms of assembly and association, as it does “peace” and “disarmament,” in abstraction, without tying them to specific persons and circumstance. For liberalism, these freedoms are the procedural rules sustaining a democratic society that rests on the will of the majority and solves its internal conflicts of interest and opinion through continuous discussion, negotiation and compromise. But this meaning of free speech and the related freedoms is significant and operable only for those who share the wish or at least willingness to have and preserve some sort of free and constitutional society. For those others— and they are not few among us— whose aim is to subvert, overthrow and replace free and constitutional society, these freedoms of speech, assembly and the rest are merely convenient levers to use in accomplishing their purpose.

The liberal ideologue is thus caught in the inescapable dilemma of his own making that we have previously examined. If he extends the freedoms to the subverters, they will use them, as they have done in one nation after another, to throw the free society into turmoil and in the end to destroy it. But if he denies the freedoms to anyone, he will feel, does feel, that he has betrayed his own principles, “imitated the methods of the enemy,” and thus joined the company of subverters. So, when a showdown with the subverters comes, as it comes from time to time to all nations, the liberals are demoralized in advance, if they do finally forget ideology and decide to resist, by the guilt generated from this feeling of self-betrayal. Let us note that this is a purely ideological trap. Common sense, unlike ideology, understands that you can play a game only with those who accept the rules; and that the rules’ protection does not cover anyone who does not admit their restrictions and penalties.

Bear in mind that Burnham was writing when “liberals” actually subscribed to the notion of unfettered speech — in principle, at least. The ACLU, a leading “liberal” institution, had consistently defended the speech rights of so-called hate groups and political figures deemed unpalatable by the left. I say “had” because the ACLU has joined the ban-wagon against “hate” speech, that is, speech which offends the sensitivities of “liberals”.

If there is one idea that today’s “liberals” (leftists) share with conservatives, it is that absolute freedom of speech can undermine liberty. The rub is that leftists mean something other than liberty when they use the word. Their idea of liberty includes, among many anti-libertarian things (e.g., coerced redistribution of income), the rejection and suppression of facts and opinions just because they are disagreeable to the left. (In addition to the items linked to in the first paragraph, see this item about the reaction to the mayor of Chicago’s statement about the cause of the high homicide rate in his city, and this small sample of relevant posts: here, here, here, here, here, and here.)

In sum, the left’s stance on freedom of speech has nothing to do with the preservation of liberty and everything to do with the advancement of an anti-libertarian agenda.

Here’s the game plan:

  • Define opposition to illegal immigration, Islamic terrorism, same-sex marriage, transgenderism, and other kinds violent and anti-social behavior as “hate“.
  • Associate “hate” with conservatism.
  • Watch as normally conservative politicians, business people, and voters swing left rather than look “mean” and put up a principled fight for conservative values.
  • Watch as Democrats play the “hate” card to retake the White House and Congress.

With the White House in the hands of a left-wing Democrat (is there any other kind now?) and an aggressive left-wing majority in Congress, freedom of speech, freedom of association, and property rights will become not-so-distant memories. “Affirmative action” (a.k.a. “diversity”) will be enforced on an unprecedented scale of ferocity. The nation will become vulnerable to foreign enemies while billions of dollars are wasted on the hoax of catastrophic anthropogenic global warming and “social services” for the indolent. The economy, already buckling under the weight of statism, will teeter on the brink of collapse as the regulatory regime goes into high gear and entrepreneurship is all but extinguished by taxation and regulation.

All of that will be secured by courts dominated by left-wing judges — from here to eternity.

The left’s game plan is threatened by those who speak against illegal immigration, Islamic terrorism, etc.; for freedom of association, property rights, etc.; and for the right to speak about such things. Thus the left’s virulent, often violent, and increasingly conspiratorial attacks on conservatives and the suppression of conservative discourse.

This all came to pass because of free-speech absolutism. Unfettered speech isn’t necessary to liberty. In fact, it can undermine it, given that liberty, properly understood, is not a spiritual state of bliss. It is, as I have written,

a modus vivendi, not the result of a rational political scheme. Though a rational political scheme, such as the one laid out in the Constitution of the United States, could promote liberty.

The key to a libertarian modus vivendi is the evolutionary development and widespread observance of social norms that foster peaceful coexistence and mutually beneficial cooperation.

Unfettered speech, obviously, can undermine the modus vivendi. It can do so directly, by shredding social norms — the bonds of mutual trust, respect, and forbearance that underlie the modus vivendi that is liberty. And it can do so indirectly by subverting the institutions that preserve the modus vivendi. One of those institutions, in the United States, is the rule of law under a Constitution that was meant to limit the power of government, leaving people free to govern themselves in accordance with the norms of civil society. The steady rise of governmental power has in fact shredded social norms and subverted civil society. Which is precisely what the left wants, so that it can remake “society” to its liking.

It follows, therefore, that liberty can be rescued only by suppressing the left’s anti-libertarian actions. If that seems anti-libertarian, I refer you back to James Burnham.

Winning and preserving liberty is not for the faint of heart, or for free-speech absolutists whose rationalism clouds their judgment. They are morally equivalent to pacifists who declare that preemptive war is always wrong, and who would wait until the enemy has struck a mortal blow before acting against the enemy — if then.

The left is at war against liberty, and has been for a long time. Preemptive war against the left is therefore long overdue. If the left wins, will there be freedom of speech and a “marketplace of ideas” (however flawed)? Of course not.

Ironically, leftists subscribe to the view that “extremist ideas” should be suppressed. This is from a piece at The Verge by Laura Hudson (writing before Twitter joined the ban-wagon against Alex Jones):

While many, including [Jack] Dorsey [co-founder of Twitter] seem to fear that striking Jones down from media platforms will only make him more powerful, media manipulation research lead Joan Donovan at the research institute Data & Society tells The Verge that throughout her work, she has observed the opposite: once you remove the biggest megaphones from bad actors, their power diminishes and their ability to attract larger audiences and sow disinformation decreases. Instead of promoting no-holds-barred speech, he might instead embrace the principle suggested by Boyd and Donovan in their case for quarantining extremist ideas: “all Americans have the right to speak their minds, but not every person deserves to have their opinions amplified, particularly when their goals are to sow violence, hatred and chaos.”

The second link in that quotation leads to an article at The Guardian by Arwa Mahdawi. She begins with the American Nazi Party of George Lincoln Rockwell:

Campus by campus, from Harvard to Brown to Columbia, [Rockwell] would use the violence of his ideas and brawn of his followers to become headline news. To compel media coverage….

Contemporary Jewish community groups challenged journalists to consider not covering white supremacists’ ideas. They called this strategy “quarantine”….

In regions where quarantine was deployed successfully, violence remained minimal and Rockwell was unable to recruit new party members….

Strategic silence is not a new idea. The Ku Klux Klan of the 1920s considered media coverage their most effective recruitment tactic and accordingly cultivated friendly journalists. According to Felix Harcourt, thousands of readers joined the KKK after the New York World ran a three-week chronicle of the group in 1921. Catholic, Jewish and black presses of the 1920s consciously differed from Protestant-owned mainstream papers in their coverage of the Klan, conspicuously avoiding giving the group unnecessary attention. The black press called this use of editorial discretion in the public interest “dignified silence”, and limited their reporting to KKK follies, such as canceled parades, rejected donations and resignations. Some mainstream journalists also grew suspicious of the KKK’s attempts to bait them with camera-ready spectacles. Eventually coverage declined….

The emphasis of strategic silence must be placed on the strategic over the silencing. Every story requires a choice and the recent turn toward providing equal coverage to dangerous, antisocial opinions requires acknowledging the suffering that such reporting causes. Even attempts to cover extremism critically can result in the media disseminating the methods that hate groups aim to spread, such as when Virginia’s Westmoreland News reproduced in full a local KKK recruitment flier on its front page. Media outlets who cannot argue that their reporting benefits the goal of a just and ethical society must opt for silence.

Newsrooms must understand that even with the best of intentions, they can find themselves being used by extremists. By contrast, they must also understand they have the power to defy the goals of hate groups by optimizing for core American values of equality, respect and civil discourse. All Americans have the right to speak their minds, but not every person deserves to have their opinions amplified, particularly when their goals are to sow violence, hatred and chaos [emphasis added].

I agree completely with the italicized passage. Leftists are violent and hateful toward those who disagree with them. Their return to power and the success of their agenda, which may not be far away, will result in the complete destruction of the social norms and civilizing institutions that held this country more or less together between the end of the Civil War and the 1960s. The left’s return to power will result in the suppression and criminalization of anything and anyone standing in the way of its destructive agenda.

Will a new (shooting) civil war result if (when) the left takes full control of the central government? There is much talk about the possibility, accompanied by inflated rhetoric about the people with guns (mainly conservatives) “kicking ass” of the people without guns (mainly leftists). But that is wishful and possibly suicidal thinking. If a new (shooting) civil war comes it will come only after the left has assumed control of the central government and begun its reign of terror. It will then control surveillance systems, troops, and weapons for which a mostly untrained “army” of rifle-toting patriots will be no match. Terrorist acts by the patriots, unless carefully aimed at government installations and troops actually engaged in suppressive operations, will only backfire and cause the silent majority to scurry into the protective arms of the central government.

I counsel a step back from the brink of civil war. But it’s a step that can be taken only while there is a Republican president in the White House. The left is right about strategic silence. And it works both ways. The left’s censorious ways must be , for liberty’s sake. Here is how to do it, constitutionally.

Not-So-Random Thoughts (XXII)

This is a long-overdue entry; the previous one was posted on October 4, 2017. Accordingly, it is a long entry, consisting of these parts:

Censorship and Left-Wing Bias on the Web

The Real Collusion Story

“Suicide” of the West

Evolution, Intelligence, and Race

Will the Real Fascists Please Stand Up?

Consciousness

Empathy Is Over-Rated

“Nudging”



CENSORSHIP AND LEFT-WING BIAS ON THE WEB

It’s a hot topic these days. See, for example, this, this, this, this, and this. Also, this, which addresses Google’s slanting of search results about climate research. YouTube is at it, too.

A lot of libertarian and conservative commentators are loath to demand governmental intervention because the censorship is being committed by private companies: Apple, Facebook, Google, Twitter, YouTube, et al. Some libertarians and conservatives are hopeful that libertarian-conservative options will be successful (e.g., George Gilder). I am skeptical. I have seen and tried some of those options, and they aren’t in the same league as the left-wingers, which have pretty well locked up users and advertisers. (It’s called path-dependence.) And even if they finally succeed in snapping up a respectable share of the information market, the damage will have been done; libertarians and conservatives will have been marginalized, criminalized, and suppressed.

The time to roll out the big guns is now, as I explain here:

Given the influence that Google and the other members of the left-wing information-technology oligarchy exert in this country, that oligarchy is tantamount to a state apparatus….

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….

What will happen in America if that conspiracy succeeds in completely overthrowing “bourgeois culture”? The left will frog-march America in whatever utopian direction captures its “feelings” (but not its reason) at the moment…

Complete victory for the enemies of liberty is only a few election cycles away. 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, the dogmas of the information-entertainment-media-academic complex will become the law of the land….

[It is therefore necessary to] 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?…

Executive action against state actors to enforce the First Amendment:

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).)

And so on. Read all about it here.



THE REAL COLLUSION STORY

Not quite as hot, but still in the news, is Spygate. Collusion among the White House, CIA, and FBI (a) to use the Trump-Russia collusion story to swing the 2016 election to Clinton, and (b) failing that, to cripple Trump’s presidency and provide grounds for removing him from office. The latest twist in the story is offered by Byron York:

Emails in 2016 between former British spy Christopher Steele and Justice Department official Bruce Ohr suggest Steele was deeply concerned about the legal status of a Putin-linked Russian oligarch, and at times seemed to be advocating on the oligarch’s behalf, in the same time period Steele worked on collecting the Russia-related allegations against Donald Trump that came to be known as the Trump dossier. The emails show Steele and Ohr were in frequent contact, that they intermingled talk about Steele’s research and the oligarch’s affairs, and that Glenn Simpson, head of the dirt-digging group Fusion GPS that hired Steele to compile the dossier, was also part of the ongoing conversation….

The newly-released Ohr-Steele-Simpson emails are just one part of the dossier story. But if nothing else, they show that there is still much for the public to learn about the complex and far-reaching effort behind it.

My take is here. The post includes a long list of related — and enlightening — reading, to which I’ve just added York’s piece.



“SUICIDE” OF THE WEST

Less “newsy”, but a hot topic on the web a few weeks back, is Jonah Goldberg’s Suicide of the West. It received mixed reviews. It is also the subject of an excellent non-review by Hubert Collins.

Here’s my take:

The Framers held a misplaced faith in the Constitution’s checks and balances (see Madison’s Federalist No. 51 and Hamilton’s Federalist No. 81). The Constitution’s wonderful design — containment of a strictly limited central government through horizontal and vertical separation of powers — worked rather well until the Progressive Era. The design then cracked under the strain of greed and the will to power, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The design then broke during the New Deal, which opened the floodgates to violations of constitutional restraint (e.g., Medicare, Medicaid, Obamacare,  the vast expansion of economic regulation, and the destruction of civilizing social norms), as the Supreme Court has enabled the national government to impose its will in matters far beyond its constitutional remit.

In sum, the “poison pill” baked into the nation at the time of the Founding is human nature, against which no libertarian constitution is proof unless it is enforced resolutely by a benign power.

See also my review essay on James Burnham’s Suicide of the West: An Essay on the Meaning and Destiny of Liberalism.



EVOLUTION, INTELLIGENCE, AND RACE

Evolution is closely related to and intertwined with intelligence and race. Two posts and a page of mine (here, here, and here) delve some of the complexities. The latter of the two posts draws on David Stove‘s critique of evolutionary theory, “So You Think You Are a Darwinian?“.

Fred Reed is far more entertaining than Stove, and no less convincing. His most recent columns on evolution are here and here. In the first of the two, he writes this:

What are some of the problems with official Darwinism? First, the spontaneous generation of life has not been replicated…. Nor has anyone assembled in the laboratory a chemical structure able to metabolize, reproduce, and thus to evolve. It has not been shown to be mathematically possible….

Sooner or later, a hypothesis must be either confirmed or abandoned. Which? When? Doesn’t science require evidence, reproducibility, demonstrated theoretical possibility? These do not exist….

Other serious problems with the official story: Missing intermediate fossils–”missing links”– stubbornly remain missing. “Punctuated equilibrium,” a theory of sudden rapid evolution invented to explain the lack of fossil evidence, seems unable to generate genetic information fast enough. Many proteins bear no resemblance to any others and therefore cannot have evolved from them. On and on.

Finally, the more complex an event, the less likely it is to  occur by chance. Over the years, cellular mechanisms have been found to be  ever more complex…. Recently with the discovery of epigenetics, complexity has taken a great leap upward. (For anyone wanting to subject himself to such things, there is The Epigenetics Revolution. It is not light reading.)

Worth noting is that  that the mantra of evolutionists, that “in millions and millions and billions of years something must have evolved”–does not necessarily hold water. We have all heard of Sir James Jeans assertion that a monkey, typing randomly, would eventually produce all the books in the British Museum. (Actually he would not produce a single chapter in the accepted age of the universe, but never mind.) A strong case can be made that spontaneous generation is similarly of mathematically vanishing probability. If evolutionists could prove the contrary, they would immensely strengthen their case. They haven’t….

Suppose that you saw an actual monkey pecking at a keyboard and, on examining his output, saw that he was typing, page after page, The Adventures of Tom Sawyer, with no errors.

You would suspect fraud, for instance that the typewriter was really a computer programmed with Tom. But no, on inspection you find that it is a genuine typewriter. Well then, you think, the monkey must be a robot, with Tom in RAM. But  this too turns out to be wrong: The monkey in fact is one. After exhaustive examination, you are forced to conclude that Bonzo really is typing at random.

Yet he is producing Tom Sawyer. This being impossible, you would have to conclude that something was going on that you did not understand.

Much of biology is similar. For a zygote, barely visible, to turn into a baby is astronomically improbable, a suicidal assault on Murphy’s Law. Reading embryology makes this apparent. (Texts are prohibitively expensive, but Life Unfolding serves.) Yet every step in the process is in accord with chemical principles.

This doesn’t make sense. Not, anyway, unless one concludes that something deeper is going on that we do not understand. This brings to mind several adages that might serve to ameliorate our considerable arrogance. As Haldane said, “The world is not only queerer than we think, but queerer than we can think.” Or Fred’s Principle, “The smartest of a large number of hamsters is still a hamster.”

We may be too full of ourselves.

On the subject of race, Fred is no racist, but he is a realist; for example:

We have black football players refusing to stand for the national anthem.  They think that young black males are being hunted down by cops. Actually of  course black males are hunting each other down in droves but black football players apparently have no objection to this. They do not themselves convincingly suffer discrimination. Where else can you get paid six million green ones a year for grabbing something and running? Maybe in a district of jewelers.

The non-standing is racial hostility to whites. The large drop in attendance of games, of television viewership, is racial blowback by whites. Millions of whites are thinking, that, if America doesn’t suit them, football players can afford a ticket to Kenya. While this line of reasoning is tempting, it doesn’t really address the problem and so would be a waste of time.

But what, really, is the problem?

It is one that dare not raise its head: that blacks cannot compete with whites, Asians, or Latin-Americans. Is there counter-evidence? This leaves them in an incurable state of resentment and thus hostility. I think we all know this: Blacks know it, whites know it, liberals know it, and conservatives know it. If any doubt this, the truth would be easy enough to determine with carefully done tests. [Which have been done.] The furious resistance to the very idea of measuring intelligence suggests awareness of the likely outcome. You don’t avoid a test if you expect good results.

So we do nothing while things worsen and the world looks on astounded. We have mob attacks by Black Lives Matter, the never-ending Knockout Game, flash mobs looting stores and subway trains, occasional burning cities, and we do nothing. Which makes sense, because there is nothing to be done short of restructuring the country.

Absolute, obvious, unacknowledged disaster.

Regarding which: Do we really want, any of us, what we are doing? In particular, has anyone asked ordinary blacks, not black pols and race hustlers. “Do you really want to live among whites, or would you prefer a safe middle-class black neighborhood? Do your kids want to go to school with whites? If so, why? Do you want them to? Why? Would you prefer black schools to decide what and how to teach your children? Keeping whites out of it? Would you prefer having only black police in your neighborhood?”

And the big one: “Do you, and the people you actually know in your neighborhood, really want integration? Or is it something imposed on you by oreo pols and white ideologues?”

But these are things we must never think, never ask.

Which brings me to my most recent post about blacks and crime, which is here. As for restructuring the country, Lincoln saw what was needed.

The touchy matter of intelligence — its heritability and therefore its racial component — is never far from my thoughts. I commend to you Gregory Hood’s excellent piece, “Forbidden Research: How the Study of Intelligence is Crippled by Ideology“. Hood mentions some of the scientists whose work I have cited in my writings about intelligence and its racial component. See this page, for example, which give links to several related posts and excerpts of relevant research about intelligence. (See also the first part of Fred Reed’s post “Darwin’s Vigilantes, Richard Sternberg, and Conventional Pseudoscience“.)

As for the racial component, my most recent post on the subject (which provides links to related posts) addresses the question “Why study race and intelligence?”. Here’s why:

Affirmative action and similar race-based preferences are harmful to blacks. But those preferences persist because most Americans do not understand that there are inherent racial differences that prevent blacks, on the whole, from doing as well as whites (and Asians) in school and in jobs that require above-average intelligence. But magical thinkers (like [Professor John] McWhorter) want to deny reality. He admits to being driven by hope: “I have always hoped the black–white IQ gap was due to environmental causes.”…

Magical thinking — which is rife on the left — plays into the hands of politicians, most of whom couldn’t care less about the truth. They just want the votes of those blacks who relish being told, time and again, that they are “down” because they are “victims”, and Big Daddy government will come to their rescue. But unless you are the unusual black of above-average intelligence, or the more usual black who has exceptional athletic skills, dependence on Big Daddy is self-defeating because (like a drug addiction) it only leads to more of the same. The destructive cycle of dependency can be broken only by willful resistance to the junk being peddled by cynical politicians.

It is for the sake of blacks that the truth about race and intelligence ought to be pursued — and widely publicized. If they read and hear the truth often enough, perhaps they will begin to realize that the best way to better themselves is to make the best of available opportunities instead of moaning abut racism and relying on preferences and handouts.



WILL THE REAL FASCISTS PLEASE STAND UP?

I may puke if I hear Trump called a fascist one more time. As I observe here,

[t]he idea … that Trump is the new Hitler and WaPo [The Washington Post] and its brethren will keep us out of the gas chambers by daring to utter the truth (not)…. is complete balderdash, inasmuch as WaPo and its ilk are enthusiastic hand-maidens of “liberal” fascism.

“Liberals” who call conservatives “fascists” are simply engaging in psychological projection. This is a point that I address at length here.

As for Mr. Trump, I call on Shawn Mitchell:

A lot of public intellectuals and writers are pushing an alarming thesis: President Trump is a menace to the American Republic and a threat to American liberties. The criticism is not exclusively partisan; it’s shared by prominent conservatives, liberals, and libertarians….

Because so many elites believe Trump should be impeached, or at least shunned and rendered impotent, it’s important to agree on terms for serious discussion. Authoritarian means demanding absolute obedience to a designated authority. It means that somewhere, someone, has unlimited power. Turning the focus to Trump, after 15 months in office, it’s impossible to assign him any of those descriptions….

…[T]here are no concentration camps or political arrests. Rather, the #Resistance ranges from fervent to rabid. Hollywood and media’s brightest stars regularly gather at galas to crudely declare their contempt for Trump and his deplorable supporters. Academics and reporters lodged in elite faculty lounges and ivory towers regularly malign his brains, judgment, and temperament. Activists gather in thousands on the streets to denounce Trump and his voters. None of these people believe Trump is an autocrat, or, if they do they are ignorant of the word’s meaning. None fear for their lives, liberty, or property.

Still, other elites pile on. Federal judges provide legal backup, contriving frivolous theories to block administrations moves. Some rule Trump lacks even the authority to undo by executive order things Obama himself introduced by executive order. Governors from states like California, Oregon and New York announce they will not cooperate with administration policy (current law, really) on immigration, the environment, and other issues.

Amidst such widespread rebellion, waged with impunity against the constitutionally elected president, the critics’ dark warnings that America faces a dictator are more than wrong; they are surreal and damnable. They are what amounts to the howl of that half the nation still refusing to accept election results it dislikes.

Conceding Trump lacks an inmate or body count, critics still offer theories to categorize him in genus monsterus. The main arguments cite Trump’s patented belligerent personality and undisciplined tweets, his use of executive orders; his alleged obstruction in firing James Comey and criticizing Robert Mueller, his blasts at the media, and his immigration policies. These attacks weigh less than the paper they might be printed on.

Trump’s personality doubtless is sui generis for national office. If he doesn’t occasionally offend listeners they probably aren’t listening. But so what? Personality is not policy. A sensibility is not a platform, and bluster and spittle are not coercive state action. The Human Jerk-o-meter could measure Trump in the 99th percentile, and the effect would not change one law, eliminate one right, or jail one critic.

Executive Orders are misunderstood. All modern presidents used them. There is nothing wrong in concept with executive orders. Some are constitutional some are not. What matters is whether they direct executive priorities within U.S. statutes or try to push authority beyond the law to change the rights and duties of citizens. For example, a president might order the EPA to focus on the Clean Air Act more than the Clean Water Act, or vice versa. That is fine. But, if a president orders the EPA to regulate how much people can water their lawns or what kind of lawns to plant, the president is trying to legislate and create new controls. That is unconstitutional.

Many of Obama’s executive orders were transgressive and unconstitutional. Most of Trump’s executive orders are within the law, and constitutional. However that debate turns out, though, it is silly to argue the issue implicates authoritarianism.

The partisan arguments over Trump’s response to the special counsel also miss key points. Presidents have authority to fire subordinates. The recommendation authored by Deputy Attorney General Rod Rosenstein provides abundant reason for Trump to have fired James Comey, who increasingly is seen as a bitter anti-Trump campaigner. As for Robert Mueller, criticizing is not usurping. Mueller’s investigation continues, but now readily is perceived as a target shoot, unmoored from the original accusations about Russia, in search of any reason to draw blood from Trump. Criticizing that is not dictatorial, it is reasonable.

No doubt Trump criticizes the media more than many modern presidents. But criticism is not oppression. It attacks not freedom of the press but the credibility of the press. That is civically uncomfortable, but the fact is, the war of words between Trump and the media is mutual. The media attacks Trump constantly, ferociously and very often inaccurately as Mollie Hemingway and Glenn Greenwald document from different political perspectives. Trump fighting back is not asserting government control. It is just challenging media assumptions and narratives in a way no president ever has. Reporters don’t like it, so they call it oppression. They are crybabies.

Finally, the accusation that Trump wants to enforce the border under current U.S. laws, as well as better vet immigration from a handful of failed states in the Middle East with significant militant activity hardly makes him a tyrant. Voters elected Trump to step up border enforcement. Scrutinizing immigrants from a handful of countries with known terrorist networks is not a “Muslim ban.” The idea insults the intelligence since there are about 65 majority Muslim countries the order does not touch.

Trump is not Hitler. Critics’ attacks are policy disputes, not examples of authoritarianism. The debate is driven by sore losers who are willing to erode norms that have preserved the republic for 240 years.

Amen.



CONSCIOUSNESS

For a complete change of pace I turn to a post by Bill Vallicella about consciousness:

This is an addendum to Thomas Nagel on the Mind-Body Problem. In that entry I set forth a problem in the philosophy of mind, pouring it into the mold of an aporetic triad:

1) Conscious experience is not an illusion.

2) Conscious experience has an essentially subjective character that purely physical processes do not share.

3) The only acceptable explanation of conscious experience is in terms of physical properties alone.

Note first that the three propositions are collectively inconsistent: they cannot all be true.  Any two limbs entail the negation of the remaining one. Note second that each limb exerts a strong pull on our acceptance. But we cannot accept them all because they are logically incompatible.

This is one hard nut to crack.  So hard that many, following David Chalmers, call it, or something very much like it, the Hard Problem in the philosophy of mind.  It is so hard that it drives some into the loony bin. I am thinking of Daniel Dennett and those who have the chutzpah to deny (1)….

Sophistry aside, we either reject (2) or we reject (3).  Nagel and I accept (1) and (2) and reject (3). Those of a  scientistic stripe accept (1) and (3) and reject (2)….

I conclude that if our aporetic triad has a solution, the solution is by rejecting (3).

Vallicella reaches his conclusion by subtle argumentation, which I will not attempt to parse in this space.

My view is that (2) is false because the subjective character of conscious experience is an illusion that arises from the physical properties of the central nervous system. Consciousness itself is not an illusion. I accept (1) and (3). For more, see this and this.



EMPATHY IS OVER-RATED

Andrew Scull addresses empathy:

The basic sense in which most of us use “empathy” is analogous to what Adam Smith called “sympathy”: the capacity we possess (or can develop) to see the world through the eyes of another, to “place ourselves in his situation . . . and become in some measure the same person with him, and thence from some idea of his sensations, and even feel something which, though weaker in degree, is not altogether unlike them”….

In making moral choices, many would claim that empathy in this sense makes us more likely to care about others and to consider their interests when choosing our own course of action….

Conversely, understanding others’ feelings doesn’t necessarily lead one to treating them better. On the contrary: the best torturers are those who can anticipate and intuit what their victims most fear, and tailor their actions accordingly. Here, Bloom effectively invokes the case of Winston Smith’s torturer O’Brien in Orwell’s Nineteen Eighty-four, who is able to divine the former’s greatest dread, his fear of rats, and then use it to destroy him.

Guest blogger L.P. addressed empathy in several posts: here, here, here, here, here, and here. This is from the fourth of those posts:

Pro-empathy people think less empathetic people are “monsters.” However, as discussed in part 2 of this series, Baron-Cohen, Kevin Dutton in The Wisdom of Psychopaths, and other researchers establish that empathetic people, particularly psychopaths who have both affective and cognitive empathy, can be “monsters” too.

In fact, Kevin Dutton’s point about psychopaths generally being able to blend in and take on the appearance of the average person makes it obvious that they must have substantial emotional intelligence (linked to cognitive empathy) and experience of others’ feelings in order to mirror others so well….

Another point to consider however, as mentioned in part 1, is that those who try to empathize with others by imagining how they would experience another’s situation aren’t truly empathetic. They’re just projecting their own feelings onto others. This brings to mind Jonathan Haidt’s study on morality and political orientation. On the “Identification with All of Humanity Scale,” liberals most strongly endorsed the dimension regarding identification with “everyone around the world.” (See page 25 of “Understanding Libertarian Morality: The psychological roots of an individualist ideology.”) How can anyone empathize with billions of persons about whom one knows nothing, and a great number of whom are anything but liberal?

Haidt’s finding is a terrific example of problems with self-evaluation and self-reported data – liberals overestimating themselves in this case. I’m not judgmental about not understanding everyone in the world. There are plenty of people I don’t understand either. However, I don’t think people who overestimate their ability to understand people should be in a position that allows them to tamper with, or try to “improve,” the lives of people they don’t understand….

I conclude by quoting C. Daniel Batson who acknowledges the prevailing bias when it comes to evaluating altruism as a virtue. This is from his paper, “Empathy-Induced Altruistic Motivation,” written for the Inaugural Herzliya Symposium on Prosocial Motives, Emotions, and Behavior:

[W]hereas there are clear social sanctions against unbridled self-interest, there are not clear sanctions against altruism. As a result, altruism can at times pose a greater threat to the common good than does egoism.



“NUDGING”

I have addressed Richard Thaler and Cass Sunstein’s “libertarian” paternalism and “nudging in many posts. (See this post, the list at the bottom of it, and this post.) Nothing that I have written — clever and incisive as it may be — rivals Deirdre McCloskey’s take on Thaler’s non-Nobel prize, “The Applied Theory of Bossing“:

Thaler is distinguished but not brilliant, which is par for the course. He works on “behavioral finance,” the study of mistakes people make when they talk to their stock broker. He can be counted as the second winner for “behavioral economics,” after the psychologist Daniel Kahneman. His prize was for the study of mistakes people make when they buy milk….

Once Thaler has established that you are in myriad ways irrational it’s much easier to argue, as he has, vigorously—in his academic research, in popular books, and now in a column for The New York Times—that you are too stupid to be treated as a free adult. You need, in the coinage of Thaler’s book, co-authored with the law professor and Obama adviser Cass Sunstein, to be “nudged.” Thaler and Sunstein call it “libertarian paternalism.”*…

Wikipedia lists fully 257 cognitive biases. In the category of decision-making biases alone there are anchoring, the availability heuristic, the bandwagon effect, the baseline fallacy, choice-supportive bias, confirmation bias, belief-revision conservatism, courtesy bias, and on and on. According to the psychologists, it’s a miracle you can get across the street.

For Thaler, every one of the biases is a reason not to trust people to make their own choices about money. It’s an old routine in economics. Since 1848, one expert after another has set up shop finding “imperfections” in the market economy that Smith and Mill and Bastiat had come to understand as a pretty good system for supporting human flourishing….

How to convince people to stand still for being bossed around like children? Answer: Persuade them that they are idiots compared with the great and good in charge. That was the conservative yet socialist program of Kahneman, who won the 2002 Nobel as part of a duo that included an actual economist named Vernon Smith…. It is Thaler’s program, too.

Like with the psychologist’s list of biases, though, nowhere has anyone shown that the imperfections in the market amount to much in damaging the economy overall. People do get across the street. Income per head since 1848 has increased by a factor of 20 or 30….

The amiable Joe Stiglitz says that whenever there is a “spillover” — my ugly dress offending your delicate eyes, say — the government should step in. A Federal Bureau of Dresses, rather like the one Saudi Arabia has. In common with Thaler and Krugman and most other economists since 1848, Stiglitz does not know how much his imagined spillovers reduce national income overall, or whether the government is good at preventing the spill. I reckon it’s about as good as the Army Corps of Engineers was in Katrina.

Thaler, in short, melds the list of psychological biases with the list of economic imperfections. It is his worthy scientific accomplishment. His conclusion, unsupported by evidence?

It’s bad for us to be free.

CORRECTION: Due to an editing error, an earlier version of this article referred to Thaler’s philosophy as “paternalistic libertarianism.” The correct term is “libertarian paternalism.”

No, the correct term is paternalism.

I will end on that note.

The Kennedy-Roberts Court in Retrospect

Despite Justice Kennedy’s return to the Court’s conservative wing in the term just concluded (details below), he was a central player in the Court’s war on federalism and long-standing social norms. Chief Justice Roberts has (nominally) presided over the Court for the past 13 terms. But Justice Kennedy — far more often than any justice of his era — has been the Court’s main (and inconsistent) “decider”.

Kennedy’s legacy has been dissected almost ad infiinitum in the several days since he announced his retirement. I will offer just two samples of the (rightly) negative commentary about Kennedy before turning to a statistical summary of the Kennedy-Roberts years.

Christopher Roach offers this in “Kennedy’s Departure Diminishes Supreme Court . . . And That’s a Good Thing” (American Greatness, June 29, 2018):

Since the Earl Warren era, the Supreme Court has assumed enormous power over our politics, and this has become a significant obstacle to the constitutional design of Americans living as a self-governing people….

[T]he Supreme Court routinely has interfered with American self-government, either undoing or forcing results at various levels of government in accordance with its idiosyncratic and elitist views….

The Court undid California’s referendum on gay marriage after having earlier reversed Colorado’s referendum preventing gays from being added to the long list of “protected classes” in employment laws. Using the broad and vague mandates of “substantive due process” and “equal protection,” the Court simply decided the people were wrong and “irrational,” and Justice Kennedy authored opinions that accorded with the views of his friends and neighbors in Washington, D.C. In the process, the Court forbade the people of California and Colorado from undertaking the most quintessentially self-governing act for which the Constitution was designed: passing laws on controversial matters through a referendum.

This is merely an example. The Supreme Court has also second-guessed how wars are conducted, how schools are run, … has created new rights while ignoring those enshrined in the Constitution itself, and generally assumed the role of “super legislature.”

In addressing salient social issues, the Supreme Court has functioned as something of a Delphic Oracle, divining hidden mysteries in the otherwise prosaic constitutional text that disallows historically permitted practices on immigration, the treatment of enemy prisoners, abortion, and much else where the Constitution’s text is either silent or agnostic.

While preempting legislative supremacy and the broad powers of the executive, the Court is, in fact, unrepresentative in all meaningful ways. It is not, of course, supposed to be a representative institution. It is supposed to be a technical and intellectual job, devoted to the analysis of laws in light of other laws and our general law in the form of the Constitution. But it hasn’t been that since the 1930s.

So, in that milieu, it should be, if not representative, at least faithful to and sympathetic with the American people. But far from being sympathetic, its progressivism has been hostile to the mass of people and their views, labeling them irrational and bigoted when they deviate from the very narrow consensus formed among the almost exclusively Ivy League pedigreed justices. The retiring Justice Kennedy mostly embraced this snobbish and busy-body ethos….

[H]e was central to the developing “gay marriage” jurisprudence, which short-circuited the development of such rules (and limits) through legislatures. The left is probably right that this (and other anti-majoritarian rulings) shaped public opinion and pulled it beyond what might have happened using legislative means by themselves. But, at the same time, this approach generated significant backlash and resentment. These types of decisions have also made presidential elections, which should be about governance, instead into potential proxy fights on every social issue under the sun, when such issues otherwise could be resolved organically and diversely through political processes among the various states.

Here is Elizabeth Slattery, writing in “The Legacy of Justice Kennedy” (The Daily Signal, June 27, 2018):

It’s not always been easy for Supreme Court watchers to pigeonhole Kennedy’s jurisprudence. In fact, one mainstay of his jurisprudence and view of the Constitution was its inconsistency.

He authored the majority opinion in Gonzales v. Carhart and co-authored the plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey, where abortion regulations were upheld under the most deferential standard of review (rational basis).

But then he joined the liberals in Whole Women’s Health v. Hellerstedt, requiring Texas to meet a higher standard of review for its commonsense regulation of abortion providers.

In Schuette v. BAMN, a case about a state’s ability to prohibit racial preferences in college admissions, Kennedy wrote:“It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Yet the following year, in Obergefell v. Hodges, Kennedy was unwilling to extend the same goodwill to voters to decide through the democratic process whether their states should recognize same-sex marriages, cutting short a vibrant public debate over the issue.

Writing for the majority in Fisher v. University of Texas at Austin in 2013, Kennedy held that the university must prove that its use of race in admissions met the requirements of the 14th Amendment’s Equal Protection Clause and sent the case back to the lower court. When the case returned in 2016, Kennedy wrote for the majority again, gutting his 2013 decision and allowing the university to continue sorting students by race without defining its diversity goals or proving that race was necessary to meet its goals.

Do the numbers bear out the impression of Kennedy as an unreliable “conservative”? Yes.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I have drawn on statistics provided by SCOTUSsblog to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (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.) The statistics yield an index of defection (D) for each justice, by term:

D = percentage disagreement with members of own wing/percentage disagreement with members of opposite wing.

The wings are the “conservative” wing (Gorsuch, Alito, Thomas, Scalia, Roberts, and Kennedy) and the “liberal” wing (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.

Roberts slipped a bit in the 2017 term but is more in step with the “conservative” wing than he had been in the 2014-2015 terms.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017). His slippage in the 2017 term may have been due to the mix of cases at stake.

Perhaps that’s the reason for Roberts’s slippage in the 2017 term — or perhaps Roberts is “growing in office”, as leftists like to say about apostate conservatives. Time will tell.

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

The record of the past 6 terms is clear. The “liberals” stick together much more often than the “conservatives”. Perhaps that will change with the replacement of Kennedy by (one hopes) a real conservative.


See also the page “Constitution: Myths and Realities“, and these posts:
Substantive Due Process, Liberty of Contract, and the States’ Police Power
Substantive Due Process and the Limits of Privacy
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Privacy Is Not Sacred
Our Perfect, Perfect Constitution
Constitutional Confusion
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
The Court in Retrospect and Prospect (II)
Abortion Rights and Gun Rights
Getting “Equal Protection” Right
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
Equal Protection in Principle and Practice
Freedom of Speech and the Long War for Constitutional Governance
Restoring the Contract Clause
The Kennedy Retirement: Hope Springs Eternal
Freedom of Speech: Getting It Right
Justice Thomas on Masterpiece Cakeshop

Justice Thomas on “Masterpiece Cakeshop”

It is well known by now that cake maker Jack Phillips, proprietor of Masterpiece Cakeshop in Denver, prevailed in an opinion written by Justice Kennedy.  At issue were the Colorado Civil Rights Commission’s actions in assessing Phillips’s reasons for declining to make a cake for a same-sex couple’s wedding celebration. The commission’s actions violated the free exercise clause of the First Amendment. Specifically, in Kennedy’s words:

The Commission gave “every appearance,” of adjudicating [Phillips’s] religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.

This is a narrow ruling, as many commentators have observed, in that it does not address the fundamental issue of the right of Phillips (or anyone similarly situated) to refuse to express views contrary to his beliefs — religious or not.

Justice Thomas, in a concurring opinion (joined by Justice Gorsuch), gets it right:

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits state laws that abridge the “freedom of speech.” When interpreting this command, this Court has distinguished between regulations of speech and regulations of conduct. The latter generally do not abridge the freedom of speech, even if they impose “incidental burdens” on expression….

Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law “ha[s] the effect of declaring . . . speech itself to be the public accommodation,” the First Amendment applies with full force…. When [a Massachusetts] law required the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor’s right to free speech. Parades are “a form of expression,” this Court explained, and the application of the public-accommodations law “alter[ed] the expressive content” of the parade by forcing the sponsor to add a new unit. The addition of that unit compelled the organizer to “bear witness to the fact that some Irish are gay, lesbian, or bisexual”; “suggest . . . that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals”;and imply that their participation “merits celebration.” While this Court acknowledged that the unit’s exclusion might have been “misguided, or even hurtful,” ibid., it rejected the notion that governments can mandate“thoughts and statements acceptable to some groups or,indeed, all people” as the “antithesis” of free speech….

The parade . . . was an example of what this Court has termed “expressive conduct.” This Court has long held that “the Constitution looks beyond written or spoken words as mediums of expression,” and that “[s]ymbolism is a primitive but effective way of communicating idea.” Thus, a person’s “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’” Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag….

Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing….

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”… If the only reason a public-accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”…

[T]he fact that this Court has now decided Obergefell v. Hodges [does not] somehow diminish Phillips’ right to free speech. [As CJ Roberts wrote in in dissenting opinion in Obergefell,] “It is one thing . . . to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled to express a different view. This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. [The majority opinion in ] Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” If Phillips’ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected….

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty,“as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used [in Justice Alito’s words] to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”

That should have been the majority opinion.


Related posts:
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Beginning of the End of Liberty in America
Marriage: Privatize It and Revitalize It
Equal Protection in Principle and Practice
Freedom of Speech and the Long War for Constitutional Governance
Freedom of Speech: Getting It Right

Freedom of Speech: Getting It Right

Congress shall make no law … abridging the freedom of speech….

Constitution of the United States, Amendment I

* * *

[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others….

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

John Stuart Mill, On Liberty (1869), Chapter I and Chapter II

* * *

[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Oliver Wendell Holmes Jr., Schenck v. United States (1919)

* * *

To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.

Louis D. Brandeis, Whitney v. People of State of California (1927),
joined by Holmes

* * *

The First Amendment has been systematically misapplied for the past 100 years, thanks mainly to Holmes and Brandeis. Mill’s generalizations are fatuous nonsense. Here is a palate-cleanser:

[O]nly where advocacy of and organization for an overthrow of government is deemed to be a “clear and present danger” can such advocacy or organization be curbed. Which is somewhat like waiting to shoot at an enemy armed with a long-range rifle until you are able to see the whites of his eyes. Or, perhaps more aptly in the 21st century, waiting until a terrorist strikes before acting against him. Which is too late, of course, and impossible in the usual case of suicide-cum-terror.

And therein lies the dangerous folly of free-speech absolutism….

The First Amendment, in the hands of the Supreme Court, has become inimical to the civil and state institutions that enable liberty….

[Mill’s harm principle] is empty rhetoric….

Harm must be defined. And its definition must arise from voluntarily evolved social norms. Such norms evince and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing, peaceful coexistence and beneficially cooperative behavior?

Behavior is shaped by social norms. Those norms once were rooted in the Ten Commandments and time-tested codes of behavior. They weren’t nullified willy-nilly in accordance with the wishes of “activists,” as amplified through the megaphone of the mass media, and made law by the Supreme Court. What were those norms? Here are some of the most important ones:

Marriage is a union of one man and one woman. Nothing else is marriage, despite legislative, executive, and judicial decrees that substitute brute force for the wisdom of the ages.

Marriage comes before children. This is not because people are pure at heart, but because it is the responsible way to start life together and to ensure that one’s children enjoy a stable, nurturing home life.

Marriage is until “death do us part.” Divorce is a recourse of last resort, not an easy way out of marital and familial responsibilities or the first recourse when one spouse disappoints or angers the other.

Children are disciplined — sometimes spanked — when they do wrong. They aren’t given long, boring, incomprehensible lectures about why they’re doing wrong. Why not? Because they usually know they’re doing wrong and are just trying to see what they can get away with.

Drugs are taken for the treatment of actual illnesses, not for recreational purposes.

Income is earned, not “distributed.” Persons who earn a lot of money are to be respected. If you envy them to the point of wanting to take their money, you’re a pinko-commie-socialist (no joke).

People should work, save, and pay for their own housing. The prospect of owning one’s own home, by dint of one’s own labor, is an incentive to work hard and to advance oneself through the acquisition of marketable skills.

Welfare is a gift that one accepts as a last resort, it is not a right or an entitlement, and it is not bestowed on persons with convenient disabilities….

A mother who devotes time and effort to the making of a good home and the proper rearing of her children is a pillar of civilized society. Her life is to be celebrated, not condemned as “a waste.”

Homosexuality is a rare, aberrant kind of behavior. (And that was before AIDS proved it to be aberrant.) It’s certainly not a “lifestyle” to be celebrated and shoved down the throats of all who object to it.

Privacy is a constrained right. It doesn’t trump moral obligations, among which are the obligations to refrain from spreading a deadly disease and to preserve innocent life.

Addiction isn’t a disease; it’s a surmountable failing….

Justice is a dish best served hot, so that would-be criminals can connect the dots between crime and punishment. Swift and sure punishment is the best deterrent of crime. Capital punishment is the ultimate deterrent because an executed killer can’t kill again.

Peace is the result of preparedness for war; lack of preparedness invites war.

The list isn’t exhaustive, but it’s certainly representative. The themes are few and simple: respect others, respect tradition, restrict government to the defense of society from predators foreign and domestic. The result is liberty: A regime of mutually beneficial coexistence based on mutual trust and respect. That’s all it takes — not big government bent on dictating new norms just because it can.

But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization….

The right “peaceably to assemble, and to petition the Government for a redress of grievances” has become the right to assemble a mob, disrupt the lives of others, destroy the property of others, injure and kill others, and (usually) suffer no consequences for doing so — if you are a leftist or a member of one of the groups patronized by the left, that is.

But that’s not the end of it. There’s a reverse slippery-slope effect when it comes to ideas opposed by the left. There are, for example, speech codes at government-run universities; hate-crime laws, which effectively punish speech that offends a patronized group; and penalties in some States for opposing same-sex “marriage”….

In sum, there is no longer such a thing as the kind of freedom of speech intended by the Framers of the Constitution. There is on the one hand license for “speech” that subverts and flouts civilizing social norms — the norms that underlie liberty. There is on the other hand a growing tendency to suppress speech that supports civilizing social norms.

Freedom of Speech and the Long War for Constitutional Governance“,
Politics and Prosperity

* * *

See also:
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Abortion and the Fourteenth Amendment
Privacy Is Not Sacred
The Contemporary Meaning of the Bill of Rights: First Amendment
How to Protect Property Rights and Freedom of Association and Expression
The Beginning of the End of Liberty in America
There’s More to It Than Religious Liberty
Equal Protection in Principle and Practice
Academic Freedom, Freedom of Speech, and the Demise of Civility
Preemptive (Cold) Civil War
The Framers, Mob Rule, and a Fatal Error
The Constitution: Myths and Realities

“This Has to Stop”

That’s a typical reaction to the latest (but, sadly, not last) mass shooting at a school (or anywhere else). What is the point of saying “this has to stop”? To express one’s outrage? It’s safe to assume that anyone who has an ounce of feeling for other people is outraged by mass shootings.

No, the point of it is virtue-signaling. But that’s all there is to it. Where’s the beef — the “solution” to the problem? Is it to tighten laws about access to guns, when the already tight laws aren’t being enforced well enough, and couldn’t be given the imperfections in human institutions? Is it to stop making “assault rifles” and large magazines when there are already so many in circulation that it won’t matter if no more are made. (Will there be an equally ridiculous and futile ban on the manufacture of knives and materials that can be made to explode?) Is the “solution” to clamp down on gun and ammunition sellers, period, when there are so many of them operating in the black market that it wouldn’t deter anyone who is serious about committing crimes?

Or is the “solution” to confiscate all firearms and ammunition (when they are volunteered or readily found), leaving law-abiding citizens at the mercy of those who scoff at the law? Yes, that must be it. Because it would be possible to confiscate millions of firearms and hundreds of millions of rounds of ammunition. And the resulting piles of guns and bullets would make an impressive showing on TV and in news photos. But it would be all for show. Except that the law-abiding Americans who turned in their guns and ammo would thenceforth be defenseless against the army of thugs and criminals that would remain at large.

What has to stop is the cultural erosion that has made almost routine something that was rare more than 50 years ago: mass murder. Mass murder isn’t happening because there are “too many” guns out there; America has been well armed since before the Revolutionary War. It’s happening because an increasing fraction of the population lacks a strong conscience, upbringing in an intact family, and strict discipline.


Related reading:
Gilbert T. Sewall, “How We Defined Deviancy Down and Got a Culture of Violence“, The American Conservative, May 22, 2018
Brandon J. Weichert, “Maybe America Should Ban Guns“, The American Spectator, May 24, 2018 (Weichert’s real target is moral decay, which the left has encouraged and abetted.)


Related posts:
Mass Murder: Reaping What Was Sown
Utilitarianism (and Gun Control) vs. Liberty

The Constitution: Myths and Realities

I have posted The Constitution: Myths and Realities at Realities. This very long article reworks and consolidates many posts at Politics & Prosperity. It’s worth your time if you haven’t thought critically about the role of the States in the creation of the Constitution, the legality of secession, and much more, including a strong argument that Americans aren’t morally bound by the Constitution.

The article runs 15,000 words, but still omits much relevant material from this blog. Thus the links to 21 posts in the pingbacks at the bottom of the article. Follow the links there for complementary and supplementary readings.

The Kennedy Retirement: Hope Springs Eternal

UPDATED 06/27/18, ON THE OCCASION OF KENNEDY’S RETIREMENT ANNOUNCEMENT

Law professor and blogger Tom Smith (The Right Coast) quotes from and comments on yet another speculative piece about the (hoped for) retirement of Justice Anthony Kennedy:

The Washington rumor mill is churning with speculation about whether Justice Anthony Kennedy will retire at the end of the Supreme Court’s term next month.

The rumors seem to pop up annually in recent years. But with Kennedy’s 30th year on the high court passing in February and the justice nearing 82, the whispers about his future seem to be growing louder.

via www.washingtonexaminer.com

But how will the country endure without its chief moral arbiter? At every turn, Justice Kennedy has been there to make the final, incoherent distinction between right and wrong, between popular and unpopular, between what strange and incomprehensible thing the Law seems to say and what the murk at the heart of his conscience demands, at least for now.

Somebody should write something about this — the making of uber-political decisions on the basis of law-like rhetoric, which everybody knows is just politics, but which everyone agrees should be cloaked as law, while still knowing it is politics. Maybe this is a good thing? Keeps the lid on and all that? But no one has practiced this craft (?), art (?), or rubbishy self-indulgence (?) more semi-artfully than Justice Kennedy. He’s the un-Bork, the un-Ginsburg. He’s what you get.

I couldn’t possibly have put it that well. Kennedy has been fairly consistent in his use of judicial power to undermine civilizing social norms and the rule of law. Although he came out on the correct and decisive side of some crucial issues in the waning days of his justiceship, he too eagerly strove for “balance” and too timidly took up the cause of liberty (e.g., Masterpiece Cakeshop).

There is a canard, which I have read many times during the past few years, that Supreme Court Justices tend to retire during the tenure of president who is of the same party as the president who nominated them. This is the kind of balderdash that becomes “knowledge” among reporters and pundits who can’t be bothered to look up the facts.

Well, I have looked up the facts, and here’s what they tell me about the 35 justices* who have resigned or retired since 1900:

  • Slightly more than half of them (18) left office under a president of the same party as the president who nominated them.
  • Nine others are Democrat appointees who retired with a Republican in the White House. The last of these was Thurgood Marshall, who was nominated by LBJ and retired 27 years ago, during the presidency of G.H.W. Bush. Marshall’s retirement was like a gift from heaven because it resulted in the nomination and (painful) confirmation of Clarence Thomas, a faithful constitutionalist.
  • The remaining eight were Republican nominees who retired with a Democrat in the White House. Three of the last four justices to retire are in this category: Harry Blackmun (author of the infamous Roe v. Wade decision), nominated by Nixon and retired under Clinton; David Souter (another RINO), nominated by G.H.W. Bush and retired under Obama; and John Paul Stevens (the biggest RINO in captivity), nominated by Gerald Ford and retired under Obama.

It is poetic (pun intended) that Kennedy decided to retire during Trump’s presidency, so that he can be replaced by a constitutionalist in the mold of Alito, Thomas, or Gorsuch. I assume plausibly that Trump will in fact nominate someone in that mold.

Here’s the big picture, a plot of retirements by year and their effect on the nominal balance of party affiliations on the Supreme Court:

Party switches by justices
__________
* Here’s the chronological list of retirements, which the name of each retiring justice, the name of the president who nominated him (and year of accession to the Court), the name of the president at the time of the justice’s retirement (and year of retirement), and the effect of the retirement on the nominal party alignment of the Court:

Charles Evans Hughes – Taft 1910 – Wilson 1916 (GOP to Dem)
John Hessin Clarke – Wilson 1916 – Harding 1922 (Dem to GOP)
William Rufus Day – T. Roosevelt 1903 – Harding 1922 (Same)
William Howard Taft – Harding 1921 – Hoover 1930 (Same)
Oliver Wendell Holmes Jr. – T. Roosevelt 1902 – Hoover 1932 (Same)
Willis Van Devanter – Taft 1911 – F. Roosevelt 1937 (GOP to Dem)
George Sutherland – Harding 1922 – F. Roosevelt 1938 (GOP to Dem)
Louis Dembitz Brandeis – Wilson 1916 – F. Roosevelt 1939 (Same)
James Clark McReynolds – Wilson 1941 – F. Roosevelt 1941 (Same)
Charles Evans Hughes – Hoover 1930 – F. Roosevelt 1941 (GOP to Dem)
James Francis Byrnes – F. Roosevelt 1941 – F. Roosevelt 1942 (Same)
Owen Josephus Roberts – Hoover 1930 – Truman 1945 (GOP to Dem)
Robert Houghwout Jackson – F. Roosevelt 1941 – Eisenhower 1954 (Dem to GOP)
Sherman Minton – Truman 1949 – Eisenhower 1956 (Dem to GOP)
Stanley Forman Reed – F. Roosevelt 1938 – Eisenhower 1957 (Dem to GOP)
Harold Hitz Burton – Truman 1945 – Eisenhower 1958 (Dem to GOP)
Felix Frankfurter – F. Roosevelt 1939 – Kennedy 1962 (Same)
Arthur Joseph Goldberg – Kennedy 1962 – L. Johnson 1965 (Same)
Thomas Campbell Clark – Truman 1949 – L. Johnson 1967 (Same)
Abraham Fortas – L. Johnson 1965 – Nixon 1969 (Dem to GOP)
Earl Warren – Eisenhower 1954 – Nixon 1969 (Same)
Hugo Lafayette Black – F. Roosevelt 1937 – Nixon 1971 (Dem to GOP)
John Marshall Harlan II – Eisenhower 1955 – Nixon 1971 (Same)
William Orville Douglas – F. Roosevelt 1939 – Ford 1975 (Dem to GOP)
Potter Stewart – Eisenhower 1959 – Reagan 1981 (Same)
Warren Earl Burger – Nixon 1969 – Reagan 1986 (Same)
Lewis Franklin Powell Jr. – Nixon 1972 – Reagan 1987 (Same)
William Joseph Brennan Jr. – Eisenhower 1957 – Bush I 1990 (Same)
Thurgood Marshall – L. Johnson 1967 – Bush I 1991 (Dem to GOP)
Byron Raymond White – Kennedy 1962 – Clinton 1993 (Same)
Harry Andrew Blackmun – Nixon 1970 – Clinton 1994 (GOP to Dem)
Sandra Day O’Connor – Reagan 1981 – Bush II 2006 (Same)
David Hackett Souter – Bush I 1990 – Obama 2009 (GOP to Dem)
John Paul Stevens – Ford 1975 – Obama 2010 (GOP to Dem)
Anthony McLeod Kennedy – Reagan 1988 – Trump 2018 (Same)

The list includes Charles Evans Hughes twice. He first joined the Court in 1910, and resigned in 1916 to run for the presidency as a Republican. Hughes was then nominated as chief justice in 1930, to succeed William Howard Taft. Taft was the only person to have served as President of the United States and Supreme Court justice.

Fine-Tuning the Electorate

George Will, who seems to have “grown” in his old age (i.e., become soft-headed), is now crusading for the restoration of voting rights to felons. Paul Mirengoff is on the case:

George Will argues in favor of broad restoration of felons’ right to vote. How broad he doesn’t say, but his column effectively presents the case for a more expansive restoration than exists in many jurisdictions.

There are good arguments against moving in that direction, however. Roger Clegg presents them in a critique of Will’s piece. This is an issue over which reasonable people can differ, but I think Clegg has the stronger case.

Will asks, “What compelling government interest is served by felon disenfranchisement?” Clegg responds: “If you’re not willing to follow the law, then you should not have a role in making the law for everyone else, which is what you do when you vote — either directly (in the case of a referendum or ballot initiative) or indirectly (by choosing lawmakers and law enforcers).”…

If the government did not “fine-tune” the quality of the electorate this would mean, as Clegg points out, that “not only criminals but also children, non-citizens, and the mentally incompetent must be allowed to vote.” In fact, he continues, “we do have certain minimum, objective standards of responsibility and commitment to our laws that we require people to meet before they are given a role in the solemn enterprise of self-government.”

I would go much further than Clegg. I have said for years that democracy is an enemy of liberty. In one of the posts that you will find by following the link in the preceding sentence, I say this:

It is well understood that voters, by and large, vote irrationally, that is, emotionally, on the basis of “buzz” instead of facts, and inconsistently…. Voters are prone to vote against their own long-run interests because they do not understand the consequences of the sound-bite policies advocated by politicians (nor do politicians, for that matter). American democracy, by indiscriminately granting the franchise — as opposed to limiting it to, say, married property owners over the age of 30 who have children — empowers the run-of-the-mill politician who seeks office (for the sake of prestige, power, and perks) by pandering to the standard, irrational voter.

There should be a movement away from enfranchisement, not toward it.

Preemptive (Cold) Civil War, Without Delay

I make the case for a preemptive (cold) civil war here. Here are some key passages:

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.

But there’s far more at stake than the First Amendment. As Malcolm Pollack puts it,

the tremendous fissure in American culture and politics…. goes far deeper than mere disagreements about policy; it has reached the point in which the two sides have entirely different conceptions of moral, political, cultural, social, historical, and even human reality — views that are not only incommensurable, but mutually and bitterly antagonistic.

Complete victory for the enemies of liberty is only a few election cycles away. 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, the dogmas of the information-entertainment-media-academic complex will become the law of the land….

Are my fears exaggerated? I don’t think so. I have lived long enough and seen enough changes in the political and moral landscape of the United States to know that what I have sketched out can easily happen within a decade after Democrats seize total control of the central government….

All bets will be off when Democrats regain control of the central government….

What kind of action do I have in mind?

Go to the original post and you will see.

Here’s a hint from a piece by Scott McKay:

[W]e’re well past the point where we start discussing Google as an old-fashioned trust which can be dealt a similar fate to Ma Bell and Standard Oil. And we’re also past the point where the market can start looking for The Next Big Thing in terms of social media platforms to migrate to.

I am revisiting this matter because the need for immediate action becomes more obvious every day. Consider the abrupt firing of Kevin Williamson from The Atlantic (and I’m not a slavish Williamson fan).

Consider especially the following prescient piece, written before the 2016 election, which eerily anticipates my earlier post:

It’s now abundantly clear that most of Conservatism, Inc. wants Trump to lose and is giddy at the prospect. They’re dancing not just on his political grave (prematurely, and perhaps mistakenly) but on the supposed despondency of the rest of us over Trump’s presumed impending loss….

What do they expect from the outcome—the regime—they are manifestly rooting for? The second possible explanation is they must think a Hillary Clinton administration won’t be so bad—for them. Does this mean they admit, if only implicitly, that it might be bad for the rest of us?…

“Yes, we’ve been fulminating for a generation against this specific person, her specific policies, and those of her party. Did we mean it? Of course we did! So why are we acting to help her win now? What a question! We’re not doing that! We’re merely denouncing her opponent as uniquely unfit in the history of the republic. So we don’t think her policies will be that bad after all? Oh, they will be bad. But survivable. The same way that Obama and the past 100 years of Progressive liberalism have been survivable? Well, when you put it that way—yes.

“Do we think that mass amnesty and massive refugee inflows won’t tip the electorate permanently into Democratic Party’s camp? No, of course not. That’s racist! All we have to do is Refine Our Message. Bring out the “natural conservatism” of Family Values Hispanics and Religious Muslims.”…

I will spare you more of this insipid banter. I toss it out only so that you may better understand the mind of the modern “conservative.”

Personally, I think what’s coming for them will not be as rosy as they assume. At first, little will change. At first. The think-tank, think-mag archipelago will go on as before. Subscriptions may be down a bit, but the checks will still roll in. For a while.

But I suspect that over time two things will happen. First, Conservatism, Inc.’s donors will wake to the enterprise’s utter uselessness and stop, or at least begin to slow, the money flow. In the beginning, this will feel like uncomfortable belt-tightening, but survivable. No conference in Palm Beach this year, but we still have the cruise! Then as the economy continues to drag and rates, returns, and yields remain rock-bottom low, the donors will pull the plug, calculating (correctly) that they’ve wasted quite enough for zero effect.  Last may be personally insulated from this, since The Weekly Standard is owned by a very deep-pocketed billionaire. But the rest of Conservatism, Inc. isn’t and I expect it to dwindle into irrelevance—not in terms of influence (that already happened) but in funding, personnel, and size.

That is, if it doesn’t simply go out of business altogether.

If I may, as an aside, respond to an anticipated objection: How can this idiot Decius say that we have no influence while at the same time accusing us of electing Hillary? To which I reply: You have as much influence as the Megaphone—the mass media and cultural elites—allow you to have. When you are committing fratricide against “your” party’s nominee, of course the Left is happy to use the Megaphone to let you amplify its message.

But the time is coming when you will no longer be so useful, which points to my second expectation. I believe the Left, as it increasingly feels its oats, will openly discard the pretense that it need face any opposition. It’s already started. This will rise to a crescendo during the 2020 election, which the Left will of course win, after which it will be open-season on remaining “conservative” dissent. Audits. Investigations. Prosecutions. Regulatory dictates. Media leaks. Denunciations from the bully pulpit. SJW witch-hunts. The whole panoply of persecution tools now at their disposal, plus some they’ve yet to deploy or invent. [Publius Decius Mus, “It’s Clear That Conservatism Inc. Wants Trump to Lose“, American Greatness, October 12, 2016]

It can still happen here: 2020 is only two years away. The squishy center, having been bombarded by anti-Trump propaganda for four years is just as likely to turn against him as to re-elect him.
There’s no time to lost. The preemptive (cold) civil war must start yesterday.

Stop, Frisk, and Save Lives II

I ended the earlier post with this:

If you want less crime, you have to lock up criminals. In order to lock up criminals, you have to identify them.

There’s new proof of the wisdom of “stop and frisk”:

[A] reduction in stop and frisks by the Chicago Police Department that began at the very end of 2015 was responsible for the homicide spike starting immediately thereafter. Good reasons exist for believing that the decline in stop and frisks caused the spike. Simple visual observation of the data suggests a cause-and-effect change. In the chart below, we depict the (seasonally unadjusted) monthly number of stop and frisks (in blue) and the monthly number of homicides (in gold). The vertical line is placed at November 2015—the break point in the homicide data. This is precisely when stop and frisks declined in Chicago.

chart

Detailed regression analysis of the homicide (and related shooting) data strongly supports what visual observation suggests. Using monthly data from 2012 through 2016, we are able to control for such factors as temperature, homicides in other parts of Illinois, 9-1-1 calls (as a measure of police-citizen cooperation), and arrests for various types of crimes. Even controlling for these factors, our equations indicate that the steep decline in stop and frisks was strongly linked, at high levels of statistical significance, to the sharp increase in homicides (and other shooting crimes) in 2016. [Paul Cassell, “The 2016 Chicago Homicide Spike – Explained“, The Volokh Conspiracy, March 26, 2018]

You can’t drum me out of the libertarian camp. I left it voluntarily several years ago.

The Framers, Mob Rule, and a Fatal Error

The wise men who framed the Constitution would be aghast at the current, orchestrated, leftist-backed “children’s march” to stir up broad support for gun control confiscation. Not only because they saw gun ownership as an inalienable and necessary right, but also because they saw the mob for what it was — an enemy of reason and liberty. They saw, too, that a legislature could act like a mob; thus:

Federalist No. 10 (James Madison) —

[I]t may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.

Federalist No. 15 (Alexander Hamilton) —

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.

Federalist No. 55 (Madison) —

Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

Federalist No. 58 (Madison) —

[T]he more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few.

Federalist No. 63 (Madison) —

[T]here are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Federalist No. 71 (Hamilton) —

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it.

Federalist No. 73 (Hamilton) —

The primary inducement to conferring the power in question [the veto] upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.

For all of their wisdom, however, the Framers were far too optimistic about the effectiveness of the checks and balances in their design. Consider this, from Hamilton:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

Hamilton’s misplaced faith in the Constitution’s checks and balances is an example of what I call the Framers’ fatal error. The Framers underestimated the will to power that animates office-holders. The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will.

The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] … by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable…. [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.

Madison then went on to contradict what he had said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed (or asserted) that in creating a new central government with powers greatly exceeding those of the Confederacy a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself and the States’ ratifying conventions on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake.


Related reading: Jared Taylor, “A Libertarian for Our Side” (a review of Hans-Hermann Hoppe’s Democracy — The God that Failed: The Economics and Politics of Monarchy, Democracy and Natural Order), American Renaissance, January 2002

See also “The Constitution: Myths and Realities“.

Preemptive (Cold) Civil War

Parts I – IV are recommended as supplemental to “The Constitution: Myths and Realities“, which adapts the action recommendations of part V.

I. PROLOGUE

This post is driven by what I have seen of leftism over the years. Just a few hours before its scheduled publication I read a piece by Richard Jack Rail, “Our America or Theirs“, which captures the fighting spirit of this post:

Our adversary is nasty and pitiless. These people cheat, lie, and kill, and they don’t care about the country. They tout honor they don’t have and accuse us of having none.

We are facing evil and its fruits.

We can’t just let it go anymore. There is no place left for us to retreat to.  For decades, we’ve let them get away with their rowdy, insulting, destructive behavior. We’ve pretended they meant well when we knew they did not. We’ve allowed them to get away with their lies because it was so unpleasant fighting all the time.

We can’t do that anymore. It’s time to draw lines in the sand and fight back. Put them in prison and keep them there for crimes, rather than slap their wrists and pretend they’re harmless. Forcibly shut them up when they try to forcibly shut us up. Meet their obnoxious behavior with our own obnoxious behavior.

This is what they’ve pushed toward for 50 years, and it’s time to give it back to them. They have taken over the closest thing we have to a national police force – the FBI – and corrupted it at its core, using police powers not to protect America or U.S. citizens, but to go after political foes. This is the very definition of tyranny….

… There’s no “give” left.

It’s our America or theirs.

II. EXHIBIT A: THE WAR ON THE FIRST AMENDMENT

I hereby retract something that I said in “Leftism as Crypto-Fascism: The Google Paradigm“:

Google is a private company. I strongly support the right of private employers to fire anyone at any time for any reason. I am not here to condemn Google for having fired James Damore, the author of the now-notorious 10-page memo about Google’s ideological echo chamber.

Later in the same post, however, I said this:

What happened to James Damore is what happens where leftists control the machinery of the state.

Given the influence that Google and the other members of the left-wing information-technology oligarchy exerts in this country, that oligarchy is tantamount to a state apparatus. As Joel Kotkin puts it,

Silicon Valley is turning into something more of an emerging axis of evil. “Brain-hacking” tech companies such as Apple, Google, Facebook, Microsoft and Amazon, as one prominent tech investor puts it, have become so intrusive as to alarm critics on both right and left.

Firms like Google, which once advertised themselves as committed to being not “evil,” are now increasingly seen as epitomizing Hades’ legions. The tech giants now constitute the world’s five largest companies in market capitalization. Rather than idealistic newcomers, they increasingly reflect the worst of American capitalism — squashing competitors, using indentured servants, attempting to fix wages, depressing incomes, creating ever more social anomie and alienation.

At the same time these firms are fostering what British academic David Lyon has called a “surveillance society” both here and abroad. Companies like Facebook and Google thrive by mining personal data, and their only way to grow, as Wired recently suggested, was, creepily, to “know you better.” [“How Silicon Valley Went from ‘Don’t Be Evil’ to Doing Evil“, The Orange County Register, March 3, 2018]

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:

Sixty-one percent of U.S. college students agree that the climate on their campus prevents some people from expressing their views because others might find them offensive. In 2016, 54% of college students held this view.

These results are based on a 2017 Gallup/Knight Foundation survey of 3,014 randomly sampled U.S. college students about First Amendment issues. The survey is an update of a 2016 Knight Foundation/Newseum Institute/Gallup survey on the same topic….

While more students now agree that their campus climate stifles free speech, fewer students now (70%) than in 2016 (78%) favor having an open campus environment that allows all types of speech, even that which is offensive. In contrast, 29% of students now, up from 22% in 2016, would rather campuses be “positive learning environments for all students” by prohibiting certain speech that is offensive or biased….

When students perceive the campus climate as deterring certain people from speaking their minds, they may have conservative students in mind more than others. Sixty-nine percent of college students believe political conservatives can freely and openly express their views on campus. While still a majority, it is far less than the 92% who say the same about political liberals. Between 80% and 94% of students believe other campus groups, including many that have historically faced discrimination, can freely express their views. [quotations from a Gallup/Knight survey by William A. Jacobson in “Gallup/Knight Survey Shows Free Speech Crisis for Conservatives on Campus Is Real“, Legal Insurrection, March 12. 2018]

On top of that, there are the hordes of public-school teachers who are the willing adherents and disciples of the “progressive” orthodoxy, which they gleefully transmit to captive and impressionable students across the land.

III. THE BROADER, DEEPER PROBLEM: SUBVERSION OF LIBERTY AND PROSPERITY

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.

It is what Professors Amy Wax and Larry Alexander wrote about several months ago:

Too few Americans are qualified for the jobs available. Male working-age labor-force participation is at Depression-era lows. Opioid abuse is widespread. Homicidal violence plagues inner cities. Almost half of all children are born out of wedlock, and even more are raised by single mothers. Many college students lack basic skills, and high school students rank below those from two dozen other countries.

The causes of these phenomena are multiple and complex, but implicated in these and other maladies is the breakdown of the country’s bourgeois culture.

That culture laid out the script we all were supposed to follow: Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.

These basic cultural precepts reigned from the late 1940s to the mid-1960s. They could be followed by people of all backgrounds and abilities, especially when backed up by almost universal endorsement. Adherence was a major contributor to the productivity, educational gains, and social coherence of that period.

Did everyone abide by those precepts? Of course not. There are always rebels — and hypocrites, those who publicly endorse the norms but transgress them. But as the saying goes, hypocrisy is the homage vice pays to virtue. Even the deviants rarely disavowed or openly disparaged the prevailing expectations….

… The loss of bourgeois habits seriously impeded the progress of disadvantaged groups. That trend also accelerated the destructive consequences of the growing welfare state, which, by taking over financial support of families, reduced the need for two parents. A strong pro-marriage norm might have blunted this effect. Instead, the number of single parents grew astronomically, producing children more prone to academic failure, addiction, idleness, crime, and poverty.

This cultural script began to break down in the late 1960s. A combination of factors — prosperity, the Pill, the expansion of higher education, and the doubts surrounding the Vietnam War — encouraged an antiauthoritarian, adolescent, wish-fulfillment ideal — sex, drugs, and rock-and-roll — that was unworthy of, and unworkable for, a mature, prosperous adult society….

And those adults with influence over the culture, for a variety of reasons, abandoned their role as advocates for respectability, civility, and adult values. As a consequence, the counterculture made great headway, particularly among the chattering classes — academics, writers, artists, actors, and journalists — who relished liberation from conventional constraints and turned condemning America and reviewing its crimes into a class marker of virtue and sophistication.

All cultures are not equal. Or at least they are not equal in preparing people to be productive in an advanced economy. The culture of the Plains Indians was designed for nomadic hunters, but is not suited to a First World, 21st-century environment. Nor are the single-parent, antisocial habits, prevalent among some working-class whites; the anti-“acting white” rap culture of inner-city blacks; the anti-assimilation ideas gaining ground among some Hispanic immigrants. These cultural orientations are not only incompatible with what an advanced free-market economy and a viable democracy require, they are also destructive of a sense of solidarity and reciprocity among Americans. If the bourgeois cultural script — which the upper-middle class still largely observes but now hesitates to preach — cannot be widely reinstated, things are likely to get worse for us all….

… Among those who currently follow the old precepts, regardless of their level of education or affluence, the homicide rate is tiny, opioid addiction is rare, and poverty rates are low. Those who live by the simple rules that most people used to accept may not end up rich or hold elite jobs, but their lives will go far better than they do now. All schools and neighborhoods would be much safer and more pleasant. More students from all walks of life would be educated for constructive employment and democratic participation.

But restoring the hegemony of the bourgeois culture will require the arbiters of culture — the academics, media, and Hollywood — to relinquish multicultural grievance polemics and the preening pretense of defending the downtrodden. Instead of bashing the bourgeois culture, they should return to the 1950s posture of celebrating it. [“Paying the Price for the Breakdown of the Country’s Bourgeois Culture”, The Inquirer, August 9, 2017]

Needless to say, Alexander and Wax have been vilified and threatened with physical harm for daring to speak truth to the power of the vast left-wing conspiracy.

What will happen in America if that conspiracy succeeds in completely overthrowing “bourgeois culture”? The left will frog-march America in whatever utopian direction captures its “feelings” (but not its reason) at the moment; for example:

eugenics, prohibition, repeal of prohibition, peace through unilateral disarmament, overpopulation, global cooling, peak oil, global warming, carbon footprints, recycling, income inequality, unconscious racism, white privilege, forced integration, forced segregation (if blacks want it), coeducation, mixed-sexed dorms, single-sex schools, any reference to or image of a firearm, keeping score, winning, cultural appropriation, diversity, globalization, free speech (not), homophobia, same-sex “marriage”, smoking, gender “assignment” at birth, “free” college for all, “settled science”, collective guilt (but only of straight, white, conservative males of European descent, and Germans in 1933-1945), racial profiling and stereotyping (except when leftists do it), etc., etc., etc.

Further,

leftism’s utopian agenda has a chance of success only if everyone is forced to hew to its dictates. There’s no room in utopia for dissent or learning by trial and error — the kind of learning that fuels economic progress and yields stabilizing social norms.

The fact that a dictated utopian agenda really has no chance of success is beyond the imagining of a leftist. We have already seen what such an agenda does to economic progress, social comity, and liberty in places like the Soviet Union, Eastern Europe, China, Cuba, and Venezuela.

It is no coincidence that American leftists have always been quick to rationalize, dismiss, and cover up the brutal consequences of the regimes in those places. They have had exactly the kind of governance that leftists seek to bring to the United States as a whole, and have almost succeeded in imposing on many large cities and not a few Blue States.

Leftists are utopians, driven by impossible dreams and hooked on the nirvana fallacy. They are therefore immune to facts, and doomed to repeat the harsh lessons of history. Which would be fine if leftists governed only their ilk, but they are intent on making their fellow citizens suffer along with them — and they have succeeded far too well.

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.

But there’s far more at stake than the First Amendment. As Malcolm Pollack puts it,

the tremendous fissure in American culture and politics…. goes far deeper than mere disagreements about policy; it has reached the point in which the two sides have entirely different conceptions of moral, political, cultural, social, historical, and even human reality — views that are not only incommensurable, but mutually and bitterly antagonistic.

IV. THE END IS NEAR … ABSENT BOLD ACTION

Complete victory for the enemies of liberty is only a few election cycles away. 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, the dogmas of the information-entertainment-media-academic complex will become the law of the land; for example:

Billions and trillions of dollars will be wasted on various “green” projects, including but far from limited to the complete replacement of fossil fuels by “renewables”, with the resulting impoverishment of most Americans, except for comfortable elites who press such policies).

It will be illegal to criticize, even by implication, such things as abortion, illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, or the confiscation of firearms. These cherished beliefs will be mandated for school and college curricula, and 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. Other religions will be held up as models of unity and tolerance.

Reverse discrimination in favor of females, blacks, Hispanics, gender-confused persons, and other “protected” groups will become overt and legal. But “protections” will not apply to members of such groups who are suspected of harboring libertarian or conservative impulses.

Sexual misconduct will become a crime, and any male person may 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.

All health care in the United States will be subject to review by a national, single-payer agency of the central government. Private care will be forbidden, though ready access to doctors, treatments, and medications will be provided for high officials and other favored persons. 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.

The regulatory regime will rebound with a vengeance, contaminating 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 as their real prices rise as a fraction of incomes.

The dire economic effects of single-payer health care and regulation will be compounded by massive increases in other kinds of government spending (defense excepted). The real rate of economic growth will approach zero.

The United States will maintain token armed forces, mainly for the purpose of suppressing domestic uprisings. Given its economically destructive independence from foreign oil and its depressed economy, it will become a simulacrum of the USSR and Mao’s China — and not a rival to the new superpowers, Russia and China, which will largely ignore it as long as it doesn’t interfere in their pillaging of respective spheres of influence. A policy of non-interference (i.e., tacit collusion) will be the order of the era in Washington.

Though it would hardly be necessary to rig elections in favor of Democrats, given the flood of illegal immigrants who will pour into the country and enjoy voting rights, a way will be found to do just that. The most likely method will be election laws requiring candidates to pass ideological purity tests by swearing fealty to the “law of the land” (i.e., abortion, 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.

Are my fears exaggerated? I don’t think so. I have lived long enough and seen enough changes in the political and moral landscape of the United States to know that what I have sketched out can easily happen within a decade after Democrats seize total control of the central government.

Will the defenders of liberty rally to keep it from happening? Perhaps, but I fear that they will not have a lot of popular support, for three reasons:

First, there is the problem of asymmetrical ideological warfare, which favors the party that says “nice” things and promises “free” things.

Second, What has happened thus far — mainly since the 1960s — has happened slowly enough that it seems “natural” to too many Americans. They are like fish in water who cannot grasp the idea of life in a different medium.

Third, although change for the worse has accelerated in recent years, it has occurred mainly in forums that seem inconsequential to most Americans, for example, in academic fights about free speech, in the politically correct speeches of Hollywood stars, and in culture wars that are conducted mainly in the blogosphere. The unisex-bathroom issue seems to have faded as quickly as it arose, mainly because it really affects so few people. The latest gun-control mania may well subside — though it has reached new heights of hysteria — but it is only one battle in the broader civil war being waged by the left. And most Americans lack the political and historical knowledge to understand that there really is a civil war underway — just not a “hot” one (yet).

V. A PREEMPTIVE STRATEGY TO PRESERVE LIBERTY AND PROSPERITY

As a firm believer in preemptive war as a means of preserving liberty, I recently recommended this “war” strategy:

The only way out, as I see it, is for majorities of the people some States to demand that their governments resist Leviathan by selectively ignoring some of its decrees. If California can do it, surely some of the 15 States that went for Trump by more than 60 percent can do it.

Once the ice is broken, nullification — the refusal to abide by unconstitutional laws and decrees emanating from Washington — will become a national movement. Federalism will return after an absence of almost 90 years. National “democracy” will be a thing of the past. The citizens of each State will have greater control over the reach of government into their lives. It won’t be nirvana, but it will be better than the present state of affairs.

Quasi-secession, as I would call it, is the only peaceful way out. It’s the only “democratic” way out. If that doesn’t work, there’s always the real thing, which is legal.

But, as I have said elsewhere, there’s an underlying problem that won’t be solved by quasi-secession or even by the real thing:

I am … pessimistic about the willingness of the left to allow a return to the true federalism that was supposed to have been ensured by the Constitution. The left’s mantra is control, control, control — and it will not relinquish its control of the machinery of government. The left’s idea of liberty is the “liberty” to follow its dictates.

All bets will be off when Democrats regain control of the central government. And there is precious little time in which to default to federalism, either through quasi-secession or the real things (which even deep-Red States are likely to resist). An Article V convention of the States might do the job. But it would take too many years in which to authorize, organize and complete a convention, and to implement the new guarantees of liberty that (should) issue from such a convention.

Add a convention of the States to the several other options that I outlined a few years ago, and you have a nice, round 10 ways of restoring liberty (not all of them mutually exclusive). All of the options are flawed in one way or another, and (except for a risky coup) are unlikely to have decisive results.

There is an eleventh option, which I have discussed elsewhere, one that could be exercised now — and with decisive results. It is departmentalism. What is that? Here’s an explanation by Matthew J. Franck:

It’s one thing to say that the Supreme Court, at the apex of the federal judiciary, has a binding authority over the states to see that the Constitution means the same thing in every part of the country, when cases and controversies necessitate the performance of this duty.  It is quite another thing to say, as [the Supreme Court in] Cooper [v. Aaron] did, that Supreme Court rulings are “the supreme law of the land” owing to an exact identity with the Constitution itself, and thus binding with Article VI force on all rival interpreters of the Constitution.  From this it would follow that Congress and the president, no less than the states, are bound by their oaths to accept Supreme Court decisions as binding expositions of the meaning of the Constitution.

That is the proposition that departmentalism challenges, and rightly so.

Michael Stokes Paulsen and Luke Paulsen, writing in The Constitution: An Introduction, put it more directly:

All branches of government are equally bound by the Constitution. No branch of the federal government— not the Congress, not the President, not even the Supreme Court— can legitimately act in ways contrary to the words of the Constitution. Indeed, Article VI requires that all government officials— legislative, executive, and judicial, state and federal—“ shall be bound by Oath or Affirmation, to support this Constitution.” Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy: In America, no branch of government is supreme. The government as a whole is not supreme. The Constitution is supreme. It is the written Constitution that prevails over every other source of authority in the United States.

Here’s what needs to happen, and happen soon:

Compile a documented dossier of the statutes, regulations, and judicial decisions of the United States government that grievously countermand the Constitution. Such a tabulation would include, but be far from limited to, enactments like Social Security, Medicare, Medicaid, and Obamacare that aren’t among the limited and enumerated powers of Congress, as listed in Article I, Section 8. They would also include judicial interference in matters that are rightly the president’s, under the Constitution and constitutional laws and regulations.

Prioritize the list, roughly according to the degree of damage each item does to the liberty and prosperity of Americans.

Re-prioritize the list, to eliminate or reduce the priority of items that would be difficult or impossible to act on quickly. For example, although Social Security, Medicare, and Medicaid are unconstitutional, they have been around so long that it would be too disruptive and harmful to eliminate them without putting in place a transition plan that takes many years to execute.

Of the remaining high-priority items, some will call for action (e.g., implementation of the “travel ban” before the Supreme Court can act on it); some will call for passivity (e.g., allowing individual States to opt out of federal programs without challenging those States in court).

Mount a public-relations offensive to explain departmentalism and its benefits, with hints as to the kinds of actions that will be taken to reassert the primacy of the Constitution.

Announce the actions to be taken with regard to each high-priority item. There would be — for general consumption — a simplified version that explains the benefits to individuals and the country as a whole. There would also be a full, legal explanation of the constitutional validity of each action. The legal explanation would be “for the record”, in the likely event of a serious attempt to impeach the president and his “co-conspirators”. The legal version would be the administration’s only response to judicial interventions, which the administration would ignore.

One of the actions would be to 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.

(Note to constitutional law experts: Please chime in.)

VI. NOTHING TO LOSE BY TRYING

The drastic actions recommended here are necessary because of the imminent danger to what is left of Americans’ liberty and prosperity. (See IV.) The alternative is to do nothing and watch liberty and prosperity vanish from view. There is nothing to be lost, and much to be gained.

There is now a man in the White House who seems to have the nerve and commitment to liberty that is called for. Another such president is unlikely to come along before it’s too late.

I beseech you, Mr. Trump, to strike preemptively now … for the sake of America’s liberty and prosperity.


Related reading:
Niall Ferguson, “Tech vs. Trump: The Great Battle of Our Time Has Begun“, The Spectator, October 17, 2017
Christian Gonzalez, “Looking through an Ideological Lens at Columbia“, Heterodox Academy, March 15, 2018
Brandon Moore, “The Censorship of Conservatives on the Internet Is Approaching Critical Levels of Bad“, Red State, March 15, 2018
Nikita Vladimirov, “Scholar Traces Current ‘Campus Intolerance’ to ’60s Radicals“, Campus Reform, March 14, 2018
Matthew J. Peterson, “Total Political War“, American Greatness, March 23, 2018
Joel Kotkin, “Is This the End for the Neoliberal World Order?“, The Orange County Register, March 24, 2018
William A. Nitze, “The Tech Giants Must Be Stopped“, The American Conservative, April 16, 2018


Related posts:
Slopes, Ratchets, and the Death Spiral of Liberty
The Slippery Slope of Constitutional Revisionism
The Ruinous Despotism of Democracy
A New (Cold) Civil War or Secession?
The Constitution: Original Meaning, Corruption, and Restoration
Asymmetrical (Ideological) Warfare
The Culture War
Judicial Supremacy: Judicial Tyranny
The Tenor of the Times
The Answer to Judicial Supremacy
Turning Points
Independence Day 2016: The Way Ahead
An Addendum to (Asymmetrical) Ideological Warfare
The Rahn Curve Revisited
Polarization and De-facto Partition
Civil War?
Freedom of Speech and the Long War for Constitutional Governance
Roundup: Civil War, Solitude, Transgenderism, Academic Enemies, and Immigration
If Men Were Angels
Academic Freedom, Freedom of Speech, and the Demise of Civility
Liberty in Chains
Self-Made Victims
The Social Security Mess Revisited
The Public-Goods Myth
Libertarianism, Conservatism, and Political Correctness
Sexual Misconduct: A New Crime, a New Kind of Justice
Politics and Prosperity: A Natural Experiment
As the World Lurches
A Not-So-Stealthy Revolution
“Tribalists”, “Haters”, and Psychological Projection
Utilitarianism (and Gun Control) vs. Liberty
Utopianism, Leftism, and Dictatorship
“Democracy” Thrives in Darkness — and Liberty Withers

Restoring the Contract Clause

Here is George Leef, writing today at National Review online:

For decades, the Court has allowed the Constitution’s contract clause (in Article I, Section 10, along with other things the states aren’t allowed to do) atrophy. It reads “No state shall enact any law impairing the obligation of contracts” and was meant to help stabilize the national economy at a time when the states often passed laws that rewrote or erased contracts to benefit certain parties or themselves….

The good news is that the Court is about to hear arguments in a case that could revive the Originalist view of the contract clause. I write about that case in my latest article for Forbes.

Leef fleshes out the sad story of the Contract Clause in the Forbes piece:

American courts took the Contract Clause very seriously until the New Deal. Professor James W. Ely’s recent book The Contract Clause: A Constitutional History (which I reviewed here) recounts the way the Marshall Court esteemed the clause and how it held up quite well (although with some erosion) during the “Progressive” era.

Then came the Great Depression.

Just as the Court turned its back on other cornerstones of limited government and the rule of law during that era, so did it jettison the once-formidable Contract Clause. In a 1934 decision, Home Building & Loan Association v. Blaisdell, Chief Justice Hughes decided that during the “emergency” of the Depression, the Court had to allow legislatures to impose a moratorium on mortgage foreclosures. In an early exemplar of “living Constitution” theory, the Chief Justice said that the Contract Clause “is not an absolute one and is not to be read with literal exactness….” He went on to say that the Constitution’s restraints on power “must not be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them.”

Just imagine if the First Amendment had been treated that way, giving the government wide latitude to censor or punish free speech and the press on the breezy, “Well, times have changed” approach. The First Amendment would be cowering in the shadows today.

Conversely, imagine if the Court had developed a robust, pro-contract jurisprudence based on the Contract Clause to match its pro-speech jurisprudence emanating the its favored First Amendment. Lots of governmental interference with people’s liberty to shape their lives through contracts they want — or don’t want — would have been prevented, such as minimum wage laws.

But that’s not what happened to the Contract Clause. The courts kept allowing the states to whittle away at it by devising a three-factor “balancing test” whereby the assertion of the slightest state interest in meddling with contracts was usually good enough….

But what’s wrong with the current approach to the Contract Clause, one that, as Chief Justice Hughes said in Blaisdell is based on the “growing appreciation of public needs and the necessity of finding ground for a rational compromise between individual rights and public welfare”?

A lot, Ely argues. It tears apart the plain meaning of the Clause, whose words, wrote Chief Justice Marshall, “are express and incapable of being misunderstood.” Nor, Ely continues, was there ever any justification for the politically expedient “let’s forget about this Clause because the country is facing an emergency” rationale of Blaisdell and subsequent cases. The truth is that the Clause was inserted precisely because the nation needed contractual stability in the distressed times of 1787 and no amount of economic turmoil can be alleviated by allowing states to rewrite contracts….

Furthermore, Ely contends, the current interpretation of the Clause (again, Marshall would laugh at the idea that it needs any “interpretation”) is far too vague, giving lower courts little guidance. They are only supposed to apply the Contract Clause only if the legislative interference is “substantial” and “unreasonable.” Ely comments, “Yet it is sadly ironic that the Court has fashioned such an amorphous test for the Contract Clause – the one constitutional provision that, more than any other, was designed to ensure stability and predictability in commercial relationships.”

The Supreme Court will hear oral arguments in the case [of  Sveen v. Melin] on March 19. It would be one of the great results of its current term if the justices would not merely uphold the Eighth Circuit [which upheld the contract at issue, despite a Minnesota law that abrogated it] but also give a full-throated declaration that the Contract Clause will henceforth be read just as it was written.

The Supreme Court of 1934 effectively ripped the Contract Clause out of the Constitution. I fervently hope for its restoration. Many things are at stake. As Leef says, a living Contract Clause would have prevented “governmental interference with people’s liberty to shape their lives through contracts they want — or don’t want”. Leef mentions minimum wage laws as an example. In the same category, namely, laws that inhibit job creation, are mandates that require paid family leave and paid sick leave. (The latter was recently dictated by the proglodytes of Austin”s city council.)

Had the Court not killed the Contract Clause in 1934, compulsory recognition of labor unions — one of the biggest job-killers of them all — could have been made purely optional in 1937. It was then that the Court decided in favor of the Wagner Act by invoking the Commerce Clause.

The Commerce Clause has had a long and dishonorable career as an all-purpose justification for dictatorship from D.C. It was taken down a peg in NFIB v. Sibelius (2014) — the nugget of gold in a disgraceful opinion that salvaged Obamacare by other means.

In any event, here’s to the restoration of the Contract Clause — and to the demise of the “modern” reading of the Commerce Clause.

Related posts:
Freedom of Contract and the Rise of Judicial Tyranny
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Obamacare: Neither Necessary nor Proper
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
Obamacare and Zones of Liberty
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Why Liberty of Contract Matters

See also “The Constitution: Myths and Realities“.