“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


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

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.

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 34 justices* who have resigned or retired since 1900:

  • Half of them (17) left office under a president of the same party as the president who nominated them. The last of these was Sandra Day O’Connor, who was nominated by Reagan and retired 12 years ago, during the presidency of G.W. Bush.
  • 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 would be poetic justice (pun intended) if Kennedy were to retire during Trump’s presidency, to be replaced by someone in the mold of Alito, Thomas, or Gorsuch.

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:


__________
* 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)

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.

Abortion Q and A

A new entry at Realities. Using a Q&A format, this article summarizes my writings on abortion over the past 14 years, since I first voiced my opposition to 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“.

Recommended Reading

Leftism, Political Correctness, and Other Lunacies (Dispatches from the Fifth Circle Book 1)

 

On Liberty: Impossible Dreams, Utopian Schemes (Dispatches from the Fifth Circle Book 2)

 

We the People and Other American Myths (Dispatches from the Fifth Circle Book 3)

 

Americana, Etc.: Language, Literature, Movies, Music, Sports, Nostalgia, Trivia, and a Dash of Humor (Dispatches from the Fifth Circle Book 4)

Courtship or Molestation?

Several weeks ago I happened upon a statement by Keith Burgess-Jackson (KBJ) about an blog post that he published in November 2017, which became a cause célèbre:

(That is the entire blog post, as reproduced in Alex Macon’s “UT-Arlington Professor: ‘What’s the Big Deal’ About Adult Men Dating Underage Girls?“, Dmagazine.com, November 30, 2017.)

There is presumably a connection between that post and the demise of Keith Burgess-Jackson (KBJ’s eponymous blog), where it was posted. But it is to KBJ’s credit that he quickly resumed blogging at Just Philosophy, and wasn’t cowed by the notoriety resulting from his post.

But I must say that my own reaction was similar to that of KBJ’s detractors:

I was trying to find a way into Keith Burgess-Jackson’s eponymous blog, which seems to have been closed to public view since he defended Roy Moore’s courtship of a 14-year-old person. (Perhaps Moore might have been cut some slack by a segment of the vast left-wing conspiracy had the person been a male.)

That is to say, I read KBJ’s post as a defense of Roy Moore’s “courtship” of a 14-year-old girl (or young woman). KBJ argues strenuously in his statement that he wasn’t defending Moore, who had been accused of more than “courting” the young woman. This account, from Wikipedia, refers to reportage that predates KBJ’s post:

On November 9, 2017, The Washington Post outlined an account of a woman, Leigh Corfman, who said that Moore initiated a sexual encounter with her in 1979, when she was 14 and he was 32 years old.[18] Corfman said that Moore met her and her mother in the hallway of the county courthouse, where Moore was working as an assistant district attorney, and offered to sit with Corfman while her mother went into a courtroom to testify.[18] Corfman said that during that discussion he asked for her phone number, which she gave him, they later went on two dates, for each date he picked her up in his car around the corner from her house and drove her to his house, and on the first date he “told her how pretty she was and kissed her”. On a second date, Moore allegedly “took off her shirt and pants and removed his clothes … touched her over her bra and underpants … and guided her hand to touch him over his underwear”.[18]

The incident, as described by Ms. Corfman, doesn’t resemble courtship as I have understood it in my lifetime, and I am older than KBJ and Roy Moore. Christian minister Patricia Bootsma explains that

in contrast to the modern conception of dating, in “courtship, time together in groups with family or friends is encouraged, and there is oversight by and accountability to parents or mentors”.[7] She further states that with courtship, “commitment happens before intimacy”.[7]

That is courtship, and I’m surprised when an erudite man who uses language precisely (i.e., KBJ) doesn’t know the difference between it and “making out“, which is more or less what Moore was (allegedly) bent on doing. Perhaps KBJ picked up the term from another news story, or perhaps he chose to use it as a euphemism for the acts described in the Post‘s story (which were repeated throughout the news media).

But I can understand the objections to KBJ’s post because (a) the story wasn’t about “courtship”, it was about a 32-year-old man (allegedly) making sexual advances to a 14-year-old girl-woman. Moreover, the alleged behavior took place in 1979, not in 1922, when KBJ’s maternal grandparents were “courting” or courting, as the case may be.

In 1922, legislative battles about age-of-consent laws had only recently been settled (for the most part):

While the general age of consent is now set between 16 and 18 in all U.S. states, the age of consent has widely varied across the country in the past. In 1880, the age of consent was set at 10 or 12 in most states, with the exception of Delaware where it was 7.[2] The ages of consent were raised across the U.S. during the late 19th century and the early 20th century.[3][4] By 1920 ages of consent generally rose to 16-18 and small adjustments to these laws occurred after 1920. As of 2015 the final state to raise its age of general consent was Hawaii, which changed it from 14 to 16 in 2001.[5]

By contrast, Alabama’s age of consent (which was 10 in 1880) had been 16 since 1920. Sexual behavior that might have been deemed acceptable in 1922, when old ways were a fresh memory, was surely beyond the pale in 1979 — 59 years after Alabama’s age of consent had been raised to 16.

So to answer KBJ’s question: It was a very big deal if Moore had in fact done the things that he is accused of having done with a 14-year-old girl-woman. Things were different in 1979 than in 1922. As someone who is older than KBJ, I will even say that things were nearly as different in 1979 as they were in 2017. The Mad Men days were by 1979 almost a faint memory. (Not in Hollywood, politics, or the upper echelons of the business world, but the Mad Men days never ended there — or not until recently, maybe. I’m talking about the workaday world of real people, when sexual harassment had by 1979 become widely frowned on, if not always suppressed.)

KBJ’s outrage about “people imposing their own moral standards on people of the past” is obviously misplaced. Because of that, any reasonable reader — even a leftist — could conclude that KBJ was attempting to excuse Moore’s alleged behavior.

I can’t quote portions of KBJ’s long, copyrighted statement because of the terms of the copyright (“Publishable in Its Entirety or Not at All”). I will just say that it struck me as an after-the-fact justification of a reflexive defense of Roy Moore (widely considered a conservative) by a conservative blogger who is (rightly) exasperated by the torrent of abuse that is heaped continuously on (actual and self-styled) conservatives.

Having said all of that, I should add that I am very much a fan of KBJ. I’m glad that he quickly resumed blogging, despite the barrage of criticism that was aimed at him — much of it, I’m sure, by leftists who attacked him reflexively because of his conservatism.

California Dreaming

EDITED 02/15/18

It is my long-held view that States have a constitutional right to secede from the union without the approval of other States or the central government. (See this post, for example.) If the Yes California movement succeeds, the political benefits to the rest of the United States (or at least the conservative parts of it) will be substantial; for example:

The last presidential election in which the GOP candidate won California’s electoral votes was in 1988. There wouldn’t have been a Bush-Gore controversy in 2000 with California out of the picture. And in 2016, Hillary would have lost the nationwide popular-vote tally by 1.4 million, thus putting to rest another baseless claim that the Democrat candidate was “robbed”.

The GOP would hold a bigger majority in the Senate (4 seats instead of 2) and House (74 seats instead of 47), thus enabling Republicans to move national policy to the right with less interference from RINOs.

Illegal immigrants will flock in greater numbers to welcoming California, thus reducing tax burdens and crime rates in Arizona, New Mexico, Texas, and the many States farther north that also absorb illegal immigrants.

According to the Yes California campaign, federal receipts from California are about equal to (perhaps a bit higher than) federal spending in California. Even a slight deficit would be worth it. That could easily be covered by spending cuts that might not otherwise occur because of the California Democrats in Congress.

And even more importantly, as commenter Timoid says, California’s wacky environmentalists wouldn’t be setting policy for the rest of the nation.

Last but best, Nancy Pelosi would no longer be a Congress-critter.

Scapegoating in Baltimore

WaPo reports that Baltimore’s police commissioner has been fired:

Baltimore’s mayor on Friday abruptly replaced Police Commissioner Kevin Davis weeks after the city ended 2017 with a record-setting homicide rate and amid increased political pressure to control crime….

The leadership change comes as Davis was overseeing the department during one of its most difficult eras. He was tasked with driving down violent crime that flared to historic levels after a young man’s death in police custody while simultaneously reforming an agency the Justice Department cited for discriminating against black residents.

You can see the problem immediately. Homicide in Baltimore, as in other cities, is mainly a black-on-black crime. But how are you going to police black areas of the city if, in doing so, you’re accused of discriminating against blacks?

As the WaPo story puts it,

Davis was left to balance trying to change a culture of policing the Justice Department called discriminatory while being tough enough on criminals to deliver safe streets.

Officers were not as aggressive as they might ordinarily have been out of fear “they, too, would be arrested for doing their jobs,” said Gene Ryan, a Baltimore police lieutenant who heads the Fraternal Order of Police labor union.

Chuck Wexler, executive director of the Police Executive Research Forum, said the average tenure of a police chief is three or four years but that Davis was “really between a rock and a hard place in trying to implement reform and deal with violent crime.”

“It’s almost like changing two tires on a car at the same time,” Wexler said.

What it’s really like is being expected to do a job without being allowed to use the requisite tools.

Baltimore’s soaring homicide rate is evidence of the Ferguson Effect, which Heather Mac Donald wrote about in “Yes, the Ferguson Effect Is Real” (National Review, September 26, 2016). She was seconded by John Hinderaker (“Violent Crime Jumped in 2015“, Power Line, September 26, 2016), who said:

I don’t know of any potential explanation for the jump last year other than the war on cops, Black Lives Matter, and the Obama administration’s anti-incarceration policies. Expect another increase when the numbers come in for 2016.

And he was right. See, for example, Mark Berman’s “Violent Crimes and Murders Increased for a Second Consecutive Year in 2016, FBI Says” (The Washington Post, September 25, 2017).

I get to the root of the problem in “Crime Revisited”, to which I added “Amen to That” and “Double Amen”. What’s the root of the problem? A certain, violence-prone racial minority, of course, and also under-incarceration. It’s not racism:

Criminologists talk about the race-crime connection behind closed doors, and often in highly guarded language; the topic is a lightning rod for accusations of racial hostility that can be professionally damaging. They avoid discussing even explicitly racist examples of black-on-white crime such as flash-mob assaults, “polar bear hunting,” and the “knockout game.” What criminologists won’t say in public is that black offending differences have existed since data have been collected and that these differences are behind the racial disparities in arrest, prosecution, and incarceration. They also won’t tell you that, despite claims of widespread racial discrimination in the justice system, legal variables—namely, the number of prior arrests and the seriousness of the crime for which the offender has currently been arrested—account for all but a small fraction of the variance in system outcomes. Nor will they tell you the truth about politically correct remedies, such as diversifying police forces, hiring black police chiefs, or training officers in the alleged effects of implicit bias: that these measures won’t reduce racial disparities in crime….

… 50 years of research on the topic have failed to find the smoking gun linking justice-system disparities to racism. Claims to the contrary often manipulate data or ignore them altogether. [John Paul Wright and Matt DeLisis, “What Criminologists Don’t Say, and Why“, City Journal, Summer 2017]

Follow the links — and read and weep.

Look Out for That Slippery Slope

In the truly disgusting department:

Bestiality brothels are spreading through Germany faster than ever thanks to a law that makes animal porn illegal but sex with animals legal, a livestock protection officer has warned….

‘There are now animal brothels in Germany,’ Martin told the paper, adding that people were playing down the issue by by describing it as a ‘lifestyle choice’.

Armed with a host of similar case studies, Ms Martin is now calling for the government to categorically ban bestiality across the country….

German ‘zoophile’ group ZETA has announced it will mount a legal challenge should a ban on bestiality become law.

‘Mere concepts of morality have no business being law,’ said ZETA chairman Michael Kiok.

If inter-species “dating” catches on in the U.S., there is bound to be a legal movement to legalize inter-species marriage. If that happens while Anthony Kennedy is still the swing (pun intended) justice, I can easily imagine what his deciding opinion will say:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family, pack, flock, herd, etc. In forming a marital union, two animals (one of them human) become something greater than once they were. As some of the petitioners in these cases demonstrate, inter-species marriage embodies a love that may endure even past death. It would misunderstand these animals to say they disrespect the idea of marriage. Their plea (sometimes expressed by piteous looks rather than words) is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness (in a pasture, stable, doghouse, etc.), excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. Amen, baa, arf, moo, whinny, etc.

Oh, wait, that’s what he said in Obergefell v. Hodges (with a few immaterial changes). Well, recycling is an essential aspect of the “progressive” religion, is it not?

What greater tribute to the social benefits of traditional marriage than to extend it to different sexes and different species? In fact, why discriminate against pond scum and compost?

In the brave new world to which Justice Kennedy has led us, it can be literally true that a man is married to his golf game.

Sexual Misconduct: A New Crime, A New Kind of Justice

Not all bad behavior is, or should be, the subject of official investigation, prosecution, and punishment. It should be enough, in the vast majority of cases, to stop bad behavior and discourage its repetition by simply saying “no”, administering a spanking, or subjecting the miscreant to social scorn.

These time-honored methods gave way decades ago to the sob-sister school of pseudo-psychology, which instructs all and sundry that it is harmful to young psyches to say “no” without a long explanation (couched in psychological rather than moral terms), to spank (or otherwise administer corporal punishment), or to squelch “creativity” (i.e., mischief-making) by any method of communication, from frowning to screaming.

It should therefore come as no surprise that several generations of persons born after World War II — which includes almost all of today’s practicing politicians, lawyer, judges, and celebrities — have lacked the benefit of moral guidance. What they seem to have learned is not to eschew bad behavior, but to feign contrition for it when caught. Pseudo-contrition can be made to seem genuine by a method-acting technique: converting mortification for being caught into sorrow for having committed the offending deed.

Meanwhile, the broader system of justice, which encompasses the kinds of social censure discussed above, is shifting away from the inculcation of traditional morality (which would reinforce “white privilege” and “patriarchy”) and becoming a delivery vehicle for socio-political vengeance. This perversion seemed to have peaked with the Obama-Holder regime’s penchant for launching federal investigations of shootings by police when the persons shot were black, under the rubric of “civil rights”, and with the refusal of campus and municipal officials to curb violence committed by leftists and their protégés (e.g., Antifa and BLM).

But the perversion of justice has reached a new low with the wave of public accusations of sexual misconduct fomented by the #MeToo campaign,

to denounce sexual assault and harassment, in the wake of sexual misconduct allegations against film producer and executive Harvey Weinstein. The phrase, long used in this sense by social activist Tarana Burke, was popularized by actress Alyssa Milano, who encouraged women to tweet it to publicize experiences to demonstrate the widespread nature of misogynistic behavior.

Dozens of prominent or high-ranking men in politics, entertainment, and business have been accused of various acts of sexual misconduct. Many of them have lost their jobs as a result of the accusations. Roy Moore probably lost the special election in Alabama because of the accusations. It is a widely held view on the left that Donald Trump should lose his job because of accusations that have been leveled against him, and also because he’s a creepy loud-mouth who mainly takes a conservative political stance and is a “racist” to boot. (“Racist” is the go-to word for leftists who want to open the southern border to more waves of future Democrat voters.)

In other words, there’s a new crime on the block: sexual misconduct. It consists not only of actual crimes — such as rape — that ought to be prosecuted, and have been prosecuted since long before the #MeToo campaign. It also consists of any perceived sexism or slight on the part of a male toward a female.

This new, ill-defined crime is in the mind of the beholder. She may perceive a crime simply because she hates men or finds it psychologically satisfying to think of them as the enemy — along with Republicans, Israelis, “the rich” (one of which she may well be), climate-change “deniers”, NASCAR fans, and on and on.

In fact, it’s the old double-standard at work: Misogyny (real or imagined) is bad, but man-hating is good. Or so it has become among many women (and their male sycophants) who, with unintentional irony, call themselves “liberal” and “progressive”.  It is illiberal in the extreme to deprive someone of life, liberty, property, or a job based on mere accusations, but that is what is happening. It is regressive in the extreme to wage war against half the population (minus the mental cuckolds who are their allies) when it is the half of the population that does the really hard and dangerous jobs that make it possible for them to live in a hypocritical state of comfort and security.

So, despite my schadenfreude about the comeuppance of many left-wing males (most of whom probably deserve it), I am unenthusiastic about this latest incarnation of the Salem witch-trials. It is too much of a piece with the many memes that have captured the fickle attentions of neurotic leftists in recent decades, years, months, weeks, and days; 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, forces 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.

Each “good” can be attained and each “bad” averted simply by enacting laws, regulations, and punishments. Though nature and human nature are not so easily controlled (let alone changed), the neurotic appetite for action can be sated temporarily by the mere enactment of laws, regulations, and punishments. And when these have been piled one on top of the other for decades, the results are as predicted by conservatives and libertarians: the suppression of liberty and economic growth.

There’s real crime for you.


Related posts:
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Liberalism and Sovereignty
Fascism with a “Friendly” Face
Penalizing “Thought Crimes”
Democracy and Liberty
The Interest-Group Paradox
Inventing “Liberalism”
Civil Society and Homosexual “Marriage”
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
The Near-Victory of Communism
Tocqueville’s Prescience
Accountants of the Soul
In Defense of Marriage
The Left
Rationalism, Social Norms, and Same-Sex “Marriage”
Our Enemy, the State
“Intellectuals and Society”: A Review
The Left’s Agenda
The Left and Its Delusions
“Occupy Wall Street” and Religion
Merit Goods, Positive Rights, and Cosmic Justice
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
More about Merit Goods
The Morality of Occupying Private Property
Prohibition, Abortion, and “Progressivism”
Liberty, Negative Rights, and Bleeding Hearts
Our Perfect, Perfect Constitution
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
The Fallacy of Human Progress
Fighting Modernity
Defining Liberty
The Culture War
Modern Liberalism as Wishful Thinking
Getting Liberty Wrong
Romanticizing the State
Governmental Perversity
The Pretence of Knowledge
“The Science Is Settled”
Ruminations on the Left in America
No Wonder Liberty Is Disappearing
Academic Ignorance
More About Social Norms and Liberty
The Euphemism Conquers All
Defending the Offensive
Superiority
The War on Conservatism
Whiners
A Dose of Reality
God-Like Minds
The Authoritarianism of Modern Liberalism, and the Conservative Antidote
Society, Polarization, and Dissent
Non-Judgmentalism as Leftist Condescension
An Addendum to (Asymmetrical) Ideological Warfare
The Rahn Curve Revisited
Social Justice vs. Liberty
The Left and “the People”
Why Conservatives Shouldn’t Compromise
Liberal Nostrums
Liberty and Social Norms Re-examined
Retrospective Virtue-Signalling
The Left and Violence
Four Kinds of “Liberals”
Leftist Condescension
If Men Were Angels
The Vast Left-Wing Conspiracy
The Left and Evergreen State: Reaping What Was Sown
Liberty in Chains
Leftism
Leftism As Crypto-Fascism: The Google Paradigm
What Is Going On? A Stealth Revolution
Libertarianism, Conservatism, and Political Correctness
“Liberalism” and Leftism
Disposition and Ideology
Much Ado about the Unknown and Unknowable
A (Long) Footnote about Science
Down the Memory Hole
The Dumbing-Down of Public Schools
Cakes and Liberty

Another (Big) Problem with “Nudging”

I’ve written recently about Richard Thaler’s Nobel prize and my objections to his (and Cass Sunstein’s) cheerleading for “nudging”. That’s a polite term for the use of business and government power to get people to make the “right” decisions. (“Right” according to Thaler, at least.) It’s the government part that really bothers me. Ilya Somin of The Volokh Conspiracy is of the same mind:

Thaler and many other behavioral economics scholars argue that government should intervene to protect people against their cognitive biases, by various forms of paternalistic policies. In the best-case scenario, government regulators can “nudge” us into correcting our cognitive errors, thereby enhancing our welfare without significantly curtailing freedom.

But can we trust government to be less prone to cognitive error than the private-sector consumers whose mistakes we want to correct? If not, paternalistic policies might just replace one form of cognitive bias with another, perhaps even worse one. Unfortunately, a recent study suggests that politicians are prone to severe cognitive biases too – especially when they consider ideologically charged issues….

Even when presented additional evidence to help them correct their mistakes, Dahlmann and Petersen found that the politicians tended to double down on their errors rather than admit they might have been wrong….

Politicians aren’t just biased in their evaluation of political issues. Many of them are ignorant, as well. For example, famed political journalist Robert Kaiser found that most members of Congress know little about policy and “both know and care more about politics than about substance.”….

But perhaps voters can incentivize politicians to evaluate evidence more carefully. They can screen out candidates who are biased and ill-informed, and elect knowledgeable and objective decision-makers. Sadly, that is unlikely to happen, because the voters themselves also suffer from massive political ignorance, often being unaware of even very basic facts about public policy.

Of course, the Framers of the Constitution understood all of this in 1787. And they wisely acted on it by placing definite limits on the power of the central government. The removal of those limits, especially during and since the New Deal, is a constitutional tragedy.

Not-So-Random Thoughts (XXI)

An occasional survey of web material that’s related to subjects about which I’ve posted. Links to the other posts in this series may be found at “Favorite Posts,” just below the list of topics.

Fred Reed, in a perceptive post worth reading in its entirety, says this:

Democracy works better the smaller the group practicing it. In a town, people can actually understand the questions of the day. They know what matters to them. Do we build a new school, or expand the existing one? Do we want our children to recite the pledge of allegiance, or don’t we? Reenact the Battle of Antietam? Sing Christmas carols in the town square? We can decide these things. Leave us alone….

Then came the vast empire, the phenomenal increase in the power and reach of the federal government, which really means the Northeast Corridor. The Supreme Court expanded and expanded and expanded the authority of Washington, New York’s store-front operation. The federals now decided what could be taught in the schools, what religious practices could be permitted, what standards employers could use in hiring, who they had to hire. The media coalesced into a small number of corporations, controlled from New York but with national reach….

Tyranny comes easily when those seeking it need only corrupt a single Congress, appoint a single Supreme Court, or control the departments of one executive branch. In a confederation of largely self-governing states, those hungry to domineer would have to suborn fifty congresses. It could not be done. State governments are accessible to the governed. They can be ejected. They are much more likely to be sympathetic to the desires of their constituents since they are of the same culture.

Tyranny is often justified by invoking “the will of the people”, but as I say here:

It is a logical and factual error to apply the collective “we” to Americans, except when referring generally to the citizens of the United States. Other instances of “we” (e.g., “we” won World War II, “we” elected Barack Obama) are fatuous and presumptuous. In the first instance, only a small fraction of Americans still living had a hand in the winning of World War II. In the second instance, Barack Obama was elected by amassing the votes of fewer than 25 percent of the number of Americans living in 2008 and 2012. “We the People” — that stirring phrase from the Constitution’s preamble — was never more hollow than it is today.

Further, the logical and factual error supports the unwarranted view that the growth of government somehow reflects a “national will” or consensus of Americans. Thus, appearances to the contrary (e.g., the adoption and expansion of national “social insurance” schemes, the proliferation of cabinet departments, the growth of the administrative state) a sizable fraction of Americans (perhaps a majority) did not want government to grow to its present size and degree of intrusiveness. And a sizable fraction (perhaps a majority) would still prefer that it shrink in both dimensions. In fact, The growth of government is an artifact of formal and informal arrangements that, in effect, flout the wishes of many (most?) Americans. The growth of government was not and is not the will of “we Americans,” “Americans on the whole,” “Americans in the aggregate,” or any other mythical consensus.


I am pleased to note that my prognosis for Trump’s presidency (as of December 2016) was prescient:

Based on his appointments to date — with the possible exception of Steve Bannon [now gone from the White House] — he seems to be taking a solidly conservative line. He isn’t building a government of bomb-throwers, but rather a government of staunch conservatives who, taken together, have a good chance at rebuilding America’s status in the world while dismantling much of Obama’s egregious “legacy”….

Will Donald Trump be a perfect president, if perfection is measured by adherence to the Constitution? Probably not, but who has been? It now seems likely, however, that Trump will be a far less fascistic president than Barack Obama has been and Hillary Clinton would have been. He will certainly be far less fascistic than the academic thought-police, whose demise cannot come too soon for the sake of liberty.

In sum, Trump’s emerging agenda seems to resemble my own decidedly conservative one.

But anti-Trump hysteria continues unabated, even among so-called conservatives. David Gelertner writes:

Some conservatives have the impression that, by showing off their anti-Trump hostility, they will get the networks and the New York Times to like them. It doesn’t work like that. Although the right reads the left, the left rarely reads the right. Why should it, when the left owns American culture? Nearly every university, newspaper, TV network, Hollywood studio, publisher, education school and museum in the nation. The left wrapped up the culture war two generations ago. Throughout my own adult lifetime, the right has never made one significant move against the liberal culture machine.

David Brooks of The New York Times is one of the (so-called) conservatives who shows off his anti-Trump hostility. Here he is writing about Trump and tribalism:

The Trump story is that good honest Americans are being screwed by aliens. Regular Americans are being oppressed by a snobbish elite that rigs the game in its favor. White Americans are being invaded by immigrants who take their wealth and divide their culture. Normal Americans are threatened by an Islamic radicalism that murders their children.

This is a tribal story. The tribe needs a strong warrior in a hostile world. We need to build walls to keep out illegals, erect barriers to hold off foreign threats, wage endless war on the globalist elites.

Somebody is going to have to arise to point out that this is a deeply wrong and un-American story. The whole point of America is that we are not a tribe. We are a universal nation, founded on universal principles, attracting talented people from across the globe, active across the world on behalf of all people who seek democracy and dignity.

I am unaware that Mr. Trump has anything against talented people. But he rightly has a lot against adding to the welfare rolls and allowing jihadists into the country. As for tribalism — that bugbear of “enlightened” people — here’s where I stand:

There’s a world of difference between these three things:

  1. hating persons who are different because they’re different
  2. fearing persons of a certain type because that type is highly correlated with danger
  3. preferring the company and comfort of persons with whom one has things in common, such as religion, customs, language, moral beliefs, and political preferences.

Number 1 is a symptom of bigotry, of which racism is a subset. Number 2 is a sign of prudence. Number 3 is a symptom of tribalism.

Liberals, who like to accuse others of racism and bigotry, tend to be strong tribalists — as are most people, the world around. Being tribal doesn’t make a person a racist or a bigot, that is, hateful toward persons of a different type. It’s natural (for most people) to trust and help those who live nearest them or are most like them, in customs, religion, language, etc. Persons of different colors and ethnicities usually have different customs, religions, and languages (e.g., black English isn’t General American English), so it’s unsurprising that there’s a tribal gap between most blacks and whites, most Latinos and whites, most Latinos and blacks, and so on.

Tribalism has deep evolutionary-psychological roots in mutual aid and mutual defense. The idea that tribalism can be erased by sitting in a circle, holding hands, and singing Kumbaya — or the equivalent in social-diplomatic posturing — is as fatuous as the idea that all human beings enter this world with blank minds and equal potential. Saying that tribalism is wrong is like saying that breathing and thinking are wrong. It’s a fact of life that can’t be undone without undoing the bonds of mutual trust and respect that are the backbone of a civilized society.

If tribalism is wrong, then most blacks, Latinos, members of other racial and ethnic groups, and liberals are guilty of wrong-doing.

None of this seems to have occurred to Our Miss Brooks (a cultural reference that may be lost on younger readers). But “liberals” — and Brooks is one of them — just don’t get sovereignty.


While we’re on the subject of immigration, consider a study of the effect of immigration on the wages of unskilled workers, which is touted by Timothy Taylor. According to Taylor, the study adduces evidence that

in areas with high levels of low-skill immigration, local firms shift their production processes in a way that uses more low-skilled labor–thus increasing the demand for such labor. In addition, immigrant low-skilled labor has tended to focus on manual tasks, which has enabled native-born low-skilled labor to shift to nonmanual low-skilled tasks, which often pay better.

It’s magical. An influx of non-native low-skilled laborers allows native-born low-skilled laborers to shift to better-paying jobs. If they could have had those better-paying jobs, why didn’t they take them in the first place?

More reasonably, Rick Moran writes about a

Federation for American Immigration Reform report [which] reveals that illegal aliens are costing the U.S. taxpayer $135 billion.  That cost includes medical care, education, and law enforcement expenses.

That’s a good argument against untrammeled immigration (legal or illegal). There are plenty more. See, for example, the entry headed “The High Cost of Untrammeled Immigration” at this post.


There’s a fatuous argument that a massive influx of illegal immigrants wouldn’t cause the rate of crime to rise. I’ve disposed of that argument with one of my own, which is supported by numbers. I’ve also dealt with crime in many other posts, including this one, where I say this (and a lot more):

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….

But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization. There is among Americans the greatest degree of mutual enmity (dressed up as political polarization) since the Civil War.

The mutual enmity isn’t just political. It’s also racial, and it shows up as crime. Heather Mac Donald says “Yes, the Ferguson Effect Is Real,” and Paul Mirengoff shows that “Violent Crime Jumped in 2015.” I got to the root of the problem in “Crime Revisited,” to which I’ve added “Amen to That” and “Double Amen.” What is the root of the problem? A certain, violence-prone racial minority, of course, and also under-incarceration (see “Crime Revisited”).

The Ferguson Effect is a good example of where the slippery slope of free-speech absolutism leads. More examples are found in the violent protests in the wake of Donald Trump’s electoral victory. 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.

How real is the Ferguson effect? Jazz Shaw writes about the rising rate of violent crime:

We’ve already looked at a couple of items from the latest FBI crime report and some of the dark news revealed within. But when you match up some of their numbers with recent historical facts, even more trends become evident. As the Daily Caller reports this week, one disturbing trend can be found by matching up locations recording rising murder rates with the homes of of widespread riots and anti-police protests.

As we discussed when looking at the rising murder and violent crime rates, the increases are not homogeneous across the country. Much of the spike in those figures is being driven by the shockingly higher murder numbers in a dozen or so cities. What some analysts are now doing is matching up those hot spots with the locations of the aforementioned anti-police protests. The result? The Ferguson Effect is almost undoubtedly real….

Looking at the areas with steep increases in murder rates … , the dots pretty much connect themselves. It starts with the crime spikes in St. Louis, Baltimore and Chicago. Who is associated with those cities? Michael Brown, Freddie Gray and Laquan McDonald. The first two cities experienced actual riots. While Chicago didn’t get quite that far out of hand, there were weeks of protests and regular disruptions. The next thing they have in common is the local and federal response. Each area, rather than thanking their police for fighting an increasingly dangerous gang violence situation with limited resources, saw municipal leaders chastising the police for being “too aggressive” or using similar language. Then the federal government, under Barack Obama and his two Attorney Generals piled on, demanding long term reviews of the police forces in those cities with mandates to clean up the police departments.

Small wonder that under such circumstances, the cops tended to back off considerably from proactive policing, as Heather McDonald describes it. Tired of being blamed for problems and not wanting to risk a lawsuit or criminal charges for doing their jobs, cops became more cautious about when they would get out of the patrol vehicle at times. And the criminals clearly noticed, becoming more brazen.

The result of such a trend is what we’re seeing in the FBI report. Crime, which had been on the retreat since the crackdown which started in the nineties, is back on the rise.


It is well known that there is a strong, negative relationship between intelligence and crime; that is, crime is more prevalent among persons of low intelligence. This link has an obvious racial dimension. There’s the link between race and crime, and there’s the link between race and intelligence. It’s easy to connect the dots. Unless you’re a “liberal”, of course.

I was reminded of the latter link by two recent posts. One is a reissue by Jared Taylor, which is well worth a re-read, or a first read if it’s new to you. The other, by James Thompson, examines an issue that I took up here, namely the connection between geography and intelligence. Thompson’s essay is more comprehensive than mine. He writes:

[R]esearchers have usually looked at latitude as an indicator of geographic influences. Distance from the Equator is a good predictor of outcomes. Can one do better than this, and include other relevant measures to get a best-fit between human types and their regions of origin?… [T]he work to be considered below…. seeks to create a typology of biomes which may be related to intelligence.

(A biome is “a community of plants and animals that have common characteristics for the environment they exist in. They can be found over a range of continents. Biomes are distinct biological communities that have formed in response to a shared physical climate.”)

Thompson discusses and quotes from the work (slides here), and ends with this:

In summary, the argument that geography affects the development of humans and their civilizations need not be a bone of contention between hereditarian and environmentalist perspectives, so long as environmentalists are willing to agree that long-term habitation in a particular biome could lead to evolutionary changes over generations.

Environment affects heredity, which then (eventually) embodies environmental effects.


Returning to economics, about which I’ve written little of late, I note a post by Scott Winship, in which he addresses the declining labor-force participation rate:

Obama’s Council of Economic Advisers (CEA) makes the argument that the decline in prime-age male labor is a demand-side issue that ought to be addressed through stimulative infrastructure spending, subsidized jobs, wage insurance, and generous safety-net programs. If the CEA is mistaken, however, then these expensive policies may be ineffective or even counterproductive.

The CEA is mistaken—the evidence suggests there has been no significant drop in demand, but rather a change in the labor supply driven by declining interest in work relative to other options.

  • There are several problems with the assumptions and measurements that the CEA uses to build its case for a demand-side explanation for the rise in inactive prime-age men.
  • In spite of conventional wisdom, the prospect for high-wage work for prime-age men has not declined much over time, and may even have improved.
  • Measures of discouraged workers, nonworkers marginally attached to the workforce, part-time workers who wish to work full-time, and prime-age men who have lost their job involuntarily have not risen over time.
  • The health status of prime-age men has not declined over time.
  • More Social Security Disability Insurance claims are being filed for difficult-to-assess conditions than previously.
  • Most inactive men live in households where someone receives government benefits that help to lessen the cost of inactivity.

Or, as I put it here, there is

the lure of incentives to refrain from work, namely, extended unemployment benefits, the relaxation of welfare rules, the aggressive distribution of food stamps, and “free” healthcare” for an expanded Medicaid enrollment base and 20-somethings who live in their parents’ basements.


An additional incentive — if adopted in the U.S. — would be a universal basic income (UBI) or basic income guarantee (BIG), which even some libertarians tout, in the naive belief that it would replace other forms of welfare. A recent post by Alberto Mingardi reminded me of UBI/BIG, and invoked Friedrich Hayek — as “libertarian” proponents of UBI/BIG are wont to do. I’ve had my say (here and here, for example). Here’s I said when I last wrote about it:

The Basic Income Guarantee (BIG), also known as Universal Basic Income (UBI), is the latest fool’s gold of “libertarian” thought. John Cochrane devotes too much time and blog space to the criticism and tweaking of the idea. David Henderson cuts to the chase by pointing out that even a “modest” BIG — $10,000 per adult American per year — would result in “a huge increase in federal spending, a huge increase in tax rates, and a huge increase in the deadweight loss from taxes.”

Aside from the fact that BIG would be a taxpayer-funded welfare program — to which I generally object — it would necessarily add to the already heavy burden on taxpayers, even though it is touted as a substitute for many (all?) extant welfare programs. The problem is that the various programs are aimed at specific recipients (e.g., women with dependent children, families with earned incomes below a certain level). As soon as a specific but “modest” proposal is seriously floated in Congress, various welfare constituencies will find that proposal wanting because their “entitlements” would shrink. A BIG bill would pass muster only if it allowed certain welfare programs to continue, in addition to BIG, or if the value of BIG were raised to a level that such that no welfare constituency would be a “loser.”

In sum, regardless of the aims of its proponents — who, ironically, tend to call themselves libertarians — BIG would lead to higher welfare spending and more enrollees in the welfare state.


-30-

From Cigarettes to Guns to Opioids

UPDATED 09/29/17

Here we go again, blaming the manufacturer instead of the user.

Cigarettes were known to be a health hazard long before the link between smoking and lung cancer was proved. But people continued to smoke, even after the unsurprising news about the link became official. People who wanted to smoke just fooled themselves into believing that cancer couldn’t happen to them. Or they just didn’t contemplate it. They could have quit smoking — millions of others did — despite their so-called nicotine addiction. Whose fault was it that they didn’t quit? Did Big Tobacco hire enforcers to shove cigarettes into the mouths of smokers?

Guns don’t kill people. People with guns — and knives, baseball bats, garrotes, rebar, fists, and many other things — kill people. It’s an old truism, but valid nonetheless, that if guns are confiscated only outlaws will have guns.

Now comes the opioid “crisis” or “epidemic”, as the media like to call it. Instead of (or perhaps in addition to) an addiction to nicotine, there is apparently a growing addiction to pain-killers. There’s no addiction without an addict: a person who can’t say “no” because he doesn’t want to say “no”.

But it’s easier to blame “soulless” corporations than it is to blame people who die of lung cancer, gunshot wounds, and pain-killers. Well, it’s easier for leftists, because it plays into their denial of personal responsibility. Nothing is your fault, you see (unless you’re a straight, white male of European descent), so just lay all your troubles on Big Daddy government and he will take care of you — for “free”.

UPDATE:

I should have included the subprime mortgage crisis, which contributed greatly to the financial crisis that led to the Great Recession. The mortgage crisis had many ingredients, including pressure from Congress and regulators to boost lending to low-income persons, mortgage securitization by “Wall Street” (approved by regulators), a housing price bubble, and loose money (the Fed at work, again). But at the bottom of it all was the eagerness of low-income borrowers to get in over their heads. It’s not politic to blame them, especially because they were disproportionately black. So the blame is apportioned elsewhere, with the left’s favorite target being “Wall Street”, of course. So much for personal responsibility.

Rush to Judgment?

Suppose you see a man with a gun chasing another man down the street. You are armed and decide to intervene. You yell at the pursuer to stop or you’ll shoot him. He pays you no heed and continues his pursuit. You shoot the pursuer in the back and he drops dead. The pursued man continues his flight and soon disappears from your view.

You call the police to report the incident, and an investigative team soon arrives on the scene. The crime-scene investigator turns the dead man over and sees that he is a fellow police officer. The investigator calls the officer’s unit to determine the officer’s assignment at the time of the shooting.

The investigator learns that the officer had been about to make an arrest in a drug sting. The man he was chasing was probably a mid-level drug dealer who was in charge of a drug-dealing operation that spanned one-fourth of the large city in which you live. On further investigation, these facts are confirmed. You are charged with manslaughter.

But if the person you shot had been a criminal intent on killing the fleeing man, you would have been hailed as a hero.

This hypothetical situation can be thought of as a metaphor for the possibility that a jury will convict an innocent person for a crime that carries the death penalty.

There is almost always some degree of uncertainty about the guilt of a person who is convicted of murder. Most murder convictions are based on “circumstantial” evidence, though it should be compelling evidence to secure a conviction. But a murderer is seldom caught at the scene of the crime in a manner that points unambiguously to (a) his culpability and (b) lack of mitigating circumstances (e.g., self-defense). Rock-solid, 100-percent certainty of guilt is hard to come by.

There are many who argue that such considerations — wrongful conviction, less-than-certainty — call for abolition of the death penalty.

There are two ancillary arguments against the death penalty. The first is that the execution of a person is an irrevocable act which can’t be reversed if evidence surfaces to prove the person’s innocence or, at least, cast reasonable doubt on his guilt. But imprisonment can’t be reversed, either. Awards of monetary damages in cases of wrongful conviction aren’t truly compensatory; time can’t be rewound.

Thus I am unpersuaded that  the death penalty is wrong because it is irreversible. All penalties except strictly monetary ones, repaid with interest, are irreversible. And even those have some costs attached to them (e.g., time lost, shame) that can’t be erased.

The second ancillary argument — which isn’t really an argument — is that the death penalty is barbaric. I am unpersuaded that the death penalty is barbaric. It is a penalty for the commission of a barbaric act. To call it barbaric is to stoop to the kind of emotionalism that typifies the left, whence flows most opposition to the death penalty. (If it’s not barbaric, it’s racist; if it’s not racist, it’s primitive; and on into the night.)

Lost in all the noise are the the essential purposes of punishment: vengeance, deterrence, and security. Restitution and rehabilitation are pipe dreams.

Capital punishment is the capstone of a system of justice that used to work quite well in this country because it was swift, certain, and harsh. But the erosion of the capstone has led to the erosion the edifice beneath it. When the worst crimes merit less than death, the next worse crimes merit lesser punishments than before, and so on down the line. At the end of the line, there are increasing numbers of police officers who refrain from intervening in criminal activity lest they themselves be charged with brutality. It’s little wonder that the rate of violent crime has risen for the past two years.

There must be a hierarchy of penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished. When punishment is made less severe and less certain, crime flourishes and law-abiding citizens become less secure. (Some of the related posts listed below provide relevant statistical evidence.)

There are those who argue that the deterrent effect of capital punishment isn’t what it used to be. But that is because the death penalty is rarer and less certain than it used to be. The deterrent effect would be greater if there were a strict limit on the number of appeals and the time available for such appeals.

In any event, even if capital punishment had no deterrent effect, the execution of a murderer eliminates the possibility that he will murder again.

What about the possibility of a mistaken conviction? That possibility argues not for the abolition of the death penalty, but for strict scrutiny of the evidence against an accused to ensure that it is completely and timely divulged to the defense. It also calls for a special class of defense counsel: lawyers who specialize in and are knowledgeable of the kinds of evidence that are (and should be) presented and examined in capital cases (e.g., evidence about DNA, ballistics, poisons, etc.).

As a taxpayer, I would rather subsidize the training, testing, and monitoring of such lawyers than put up with the seemingly endless rounds of death-sentence appeals and the costs associated with them. The tradeoff would be enshrined in law: a definite limit as to the number of appeals and the length of time allowed for them, on the one hand, and a greater assurance of robust defense for the accused, on the other hand.

Justice delayed is justice denied.


Related reading: John Paul Wright and Matt DeLisi, “What Criminologists Don’t Say, and Why“, City Journal, Summer 2017

Related posts:
I’ll Never Understand the Insanity Defense
Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Saving the Innocent?
Saving the Innocent?: Part II
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
A Precedent for the Demise of the Insanity Defense?
Another Argument for the Death Penalty
Less Punishment Means More Crime
Clear Thinking about the Death Penalty
What Is Justice?
Why Stop at the Death Penalty?
In Defense of Capital Punishment
Lock ‘Em Up
Free Will, Crime, and Punishment
Stop, Frisk, and Save Lives
Poverty, Crime, and Big Government
Crime Revisited