Judging the Justices: The Thomas Standard

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

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I draw on the SCOTUSsblog Stat Packs to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.

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

Graphically:

The “trend” for Gorsuch would be worrying, except for its brevity. The truly worrying trend is Chief Justice Roberts’s greater inclination to part ways with Thomas since the 2011 term. I am not comforted by the current (2018) term’s first divided opinion. Thomas wrote for a 5-4 majority and Roberts was in the minority with Kagan, Ginsburg, and Sotomayor.

There’s not much to say about the Court’s “liberal” wing, except to note its egregious record, especially in the last three terms.

On the other side, Alito’s steadfastness, marred only by the peculiar 2015 term, is a comfort. I still have high hopes for Gorsuch — and Kavanaugh. If RBG would throw in the towel this year, the Court could still have a conservative majority even if Roberts goes full Kennedy (or worse).


Related post: The Polarized Court

Freedom of Speech and the Real Resistance

Freedom of speech, under present law, encompasses many things, including this small sample of repugnant acts:

  • counseling abortion
  • disrespecting the emblems of the United States
  • advocating illegal immigration
  • “guiding” children toward transgenderism
  • advocating socialism
  • advocating the disarmament of the United States

The real resistance in America consists of those Americans who push back against the disruptive and destructive movements that have been empowered by “freedom of speech” — such as those represented above.


Related posts:

Rethinking the Constitution: “Freedom of Speech, and of the Press”
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility
Freedom of Speech: Getting It Right
Freedom of Speech, to What End?

Nullification and Secession

Joe Wolverton II, writing at The New American, quotes from a five-year old speech by Matthew Whitaker:

As a principle, it has been turned down by the courts and our federal government has not recognized it. Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?

Wolverton then mounts an effective defense of Whitaker’s position; for example:

… Whitaker asserted that the states “set up the federal government.” There is no logical way to dispute that historical fact.

When the Articles of Confederation (our first constitution) came under criticism from influential statesmen, Congress was compelled to invite delegates to a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.”

Congress’ invitation was sent not to the people, but to the state governments. The state legislatures were invited to send a delegation to help repair rips in the constitutional fabric. This historical fact is irrefutable evidence that a functioning agreement for a government of the United State was the goal. That government, if it was to exist at all, would be the creation of the states that participated in the formation of it.

Additional evidence of the claim that the states were the only interested parties in the compact of the Constitution is found in the way votes were taken and recorded at the convention in Philadelphia. Representatives voted as states, not as individuals. In fact, the journal where those votes were recorded catalogs the yeas and nays according to the name of state, not the name of the delegate.

Another clue to the identity of the parties to the Constitution, is found in Articles V and VII of the document itself.

Article V requires that amendments be “ratified by the legislatures of three-fourths of the states or by conventions in three-fourths thereof.” Not only was the Constitution a binding contract among the states, but any alterations of the provisions of that contract had to be signed off by a super majority of the parties.

Next, the prose and purpose of Article VII makes the issue so clear as to permit no reasonable alternative interpretation. In this brief statement the role of the states as the sine qua non of the Constitution is established. Article VII reads, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Plainly and purposefully the framers of the Constitution recognized that the document they signed in September 1787 was an agreement among the states represented. Every article was written by the states, voted on by the states, accepted or rejected by the states, ultimately approved by the states, and it would only become binding upon states who ratified it.

Why were the people not polled or asked to vote up or down on the Constitution? Because this was neither a popular nor a national compact; it was a compact creating a confederation of sovereign states.

As constitutional attorney Kent Masterson Brown explains, “The idea that the constitution that they [the framers] had drafted and ratified was entered into ‘by the people,’ as opposed to the states, and was irrevocable once ratified was absolutely unknown to the framers and ratifiers.”

I would add that had these men been convinced that such an arrangement was advocated or even so much as contemplated by those pushing for acceptance of the Constitution, it never would have been ratified by the requisite number of states, and the embryonic American republic would have been stillborn in Philadelphia.

If nullification is to be successfully deployed and defended, states lawmakers must remember that the Constitution is a creature of the states and that the federal government was given very few and very limited powers over objects of national importance. Any act of Congress, the courts, or the president that exceeds that small scope is null, void, and of no legal effect.

Not once during the deliberations at the Constitutional Convention was there a proposal that their work be presented for approval to the body of the populace acting as individuals. From the beginning of the process that culminated on September 17, 1787 with the signing of the Constitution, it was understood that the ratification by at least nine states was the sine qua non of the start of the new government.

Still, the establishment and their media mouthpieces obstinately deny one irrefutable fact: The Constitution never would have gone into legal effect and the federal government never would have been created if state conventions had not met and ratified the document.

I have argued similarly many times. In “Constitution: Myths and Realities“, I say this about the myth that “the people” ratified the Constitution:

The idea that the Constitution is the creature of “the people” is balderdash. It is balderdash of a high order because it was lent credence by none other than John Marshall, Chief Justice of the Supreme Court from 1801 to 1835, whose many opinions shaped constitutional jurisprudence for better and for worse….

Marshall argues [in McCulloch v. Maryland (1819)] against a strawman of his own construction: the insinuation that the Constitution was somehow ratified by “the American people”. He does not come out and say that, but he implies that holding the ratifying conventions in the various States was necessary because of the impracticality of holding a national convention of “the people”. The fact is that the conventions in the States were of modest size. The table given here shows that the total number of delegates voting yea and nay in each State ranged from a low of 26 to a high of 355, for an average of 127 per State. This was hardly anything like “one common mass” of the American people. The 1,648 delegates who voted in the thirteen conventions represented about two-tenths of one percent of the free white males aged 16 and older at the time (and presumably far less than one-half of one percent of the free-white males considered eligible for a convention).

The fact is that the ratifying conventions were held in the States because it was left to each State whether to join the new union or remain independent. The conventions were conducted under the auspices of the State legislatures. They were, in effect, special committees with but one duty: to decide for each State whether the State would join the union.

This view is supported by Madison’s contemporaneous account of the ratification process:

[I]t appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. [The Federalist No. 39, as published in the Independent Journal, January 16, 1788]

But I go further than Wolverton does (though he might agree with me). I concur in the legitimacy of nullification (which is a form of departmentalism). But I also argue that the Constitution’s provenance as a creature of the States makes secession a legal (constitutional) act. Here are excerpts of my model resolution of secession:

[I]n a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly legitimates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the national government.

The national government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which is but one of the ways in which the Constitution makes the national government a party to the constitutional contract. More generally, the high officials of the national government acknowledge that government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Those high officials have nevertheless have committed myriad abuses of the national government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact….

As outlined above, the national government has routinely and massively violated Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Secession isn’t the only possible remedy for the central government’s long record of unconstitutional behavior. Go there and read the whole thing.

The Polarized Court

First of all, polarization isn’t necessarily a bad thing. Imagine (horror of horrors) a Supreme Court whose members voted en bloc with Ruth Bader Ginsburg. What’s left of the Constitution would disappear in no time.

So, hurrah for polarization when it means that the likes of RBG and her allies on the Court are opposed by — and sometimes defeated by — the likes of Clarence Thomas and his allies on the Court. As of now, Justice Thomas’s allies are (with certainty) Justices Gorsuch and Alito, (sometimes) Chief Justice Roberts, and (one hopes) Justice Kavanaugh, who replaces the too-often compromising Justice Kennedy.

It is therefore my earnest hope that the Court will be, if anything, more polarized than it has been in recent years and decades. How polarized is that? According to Richard L. Hasen, a professor of law at the University of California,

[t]he trend toward presidents choosing more ideologically reliable court appointments began with Democratic president Bill Clinton, following two surprises under Republican president Ronald Reagan. The conservative Reagan appointed perennial “swing” justices Anthony Kennedy and Sandra Day O’Connor (Bartels 2015). Reagan chose Kennedy after the Senate rejected Judge Robert Bork, a more conservative nominee on some key issues (Epstein & Segal 2005).

The days of ideological surprise from appointed justices appear to be over. Today, presidents place “near-exclusive focus on ideological compatibility and reliability” (Bartels 2015, p. 177). Devins & Baum (2017) argue that although both Democratic and Republican presidents have increasingly taken ideology into account in the last four decades, there has been more dramatic movement on the Republican side since the Reagan administration—the first to consider conservative ideology the paramount criteria for selecting nominees. They further contend that the Federalist Society, a private organization of conservative and libertarian lawyers, judges, and activists, has played a central mediating role in the cultivation and choice of Republican judicial nominees (Devins & Baum 2017). This trend has only accelerated in the Trump administration….

Today no one doubts that the Supreme Court is growing more polarized in its decision making. The Court has long been divided into two ideological camps, liberal and conservative, in a bimodal distribution with a center fluctuating in size. While the Court long has been polarized on the basis of ideology [see Clark (2009) on the ways this polarization has been measured over time], it used to boast a larger center and fewer justices at the poles. Ideological polarization has increased in the last 50 years (Gooch 2015)….

For the past few decades and until recently, the Court featured four generally conservative justices, all appointed by Republican presidents; four generally liberal justices, all appointed by Democratic presidents; and swing justice Anthony Kennedy, who often sided with conservatives but sometimes sided with liberals on issues such as same-sex marriage (Bartels 2015, p. 172; Devins & Baum 2017; Hasen 2016)….

… Gone are justices appointed by Democratic presidents who sometimes voted conservatively (Kennedy-appointed Justice Byron White voted against abortion rights) and justices appointed by Republican presidents who sometimes voted liberally (Ford-appointed Justice John Paul Stevens voted in favor of abortion rights) (Bartels 2015, Devins & Baum 2017). Today, each justice’s ideology is better defined and aligned with the political party of the appointing president. Justices are more likely to be ideologically in line with the interests of their nominating president’s party and less likely to drift ideologically (or “evolve”).

Those observations, which will surprise no one who is more than a casual observer of the Court, are from Hasen’s “Polarization and the Judiciary“, Annual Review of Political Science, May 2019 (forthcoming). (Literature cited in parentheses is listed at the end of the paper.)

Hasen goes off course when he ventures into quantitative measures of polarization on the Court:

Bartels (2015) notes a “polarization paradox” whereby the percentage of 5–4 (or other one vote margin) Supreme Court decisions has been increasing at the same time that the percentage of unanimous opinions is increasing. Figure 2 shows both of these increases from 1971 to 2016 (Epstein et al. 2015, Washington University Law 2017). Note the sharp drop-off in one-margin decisions and sharp rise of unanimous decisions following the 2016 death of Justice Scalia, a temporary period of a 4–4 evenly divided partisan Supreme Court.

In fact, the Court wasn’t evenly divided during the interregnum between Scalia and Gorsuch. The only reliable conservative votes were those of Alito and Thomas. Kennedy and Roberts were swing votes, as discussed later in this post. Breyer, Ginsburg, Kagan, and Sotomayor formed a solid “liberal” bloc.

Moreover, Hasen’s figure 2 looks odd. Here it is:

Neither of the lines in Hasen’s figure 2 resembles, in shape, the results I derived from the Stat Packs at SCOTUSblog, which cover the 1995-2017 terms:

Unanimous decisions include all cases in which there was no dissenting vote, including per curiam decisions, even where the majority opinion was accompanied by one or more concurring opinions. Given the similarity of the two graphs with respect to unanimous opinions, that must be the definition used by Epstein et al. (the source of Hasen’s figure 2).

I am especially struck by the disparity between Hasen’s figure 2 and my graph with respect to the trend (or lack thereof) in decisions with a one-vote margin. (All such decisions during the 1995-2017 terms were by a 5-4 vote.) There is no “polarization paradox”. To the contrary — and as one would expect — there is a strong (though not perfect) negative relationship between unanimous and 5-4 decisions:

Color me unimpressed by Professor Hasen, at least on the evidence of “Polarization and the Judiciary”.

Just how polarized is the Court — or, rather, how polarized has it been recently? Quite polarized.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I draw on the SCOTUSsblog Stat Packs to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) The statistics yield an index of polarization (P) for each justice, by term:

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

Graphically:

A slight upward trend over the past 13 terms? Perhaps. But trend or no trend, it’s clear that there has been a great deal of polarization among most of the justices. Roberts joined Kennedy in the middle during the past four terms, but there have been (at least) seven highly polarized justices on the Court. In the past two terms, it has been Alito, Gorsuch, and Thomas (on the right) against Breyer, Ginsburg, Kagan, and Sotomayor (on the left).

I relish the hope that Kavanaugh will shore up the right. Now, if Roberts would only revert to his 2005-2013 form….

Saving the Innocent, Revisited

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

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

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

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

*    *     *

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

— English jurist William Blackstone

 

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

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

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

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

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

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

James Fitzjames Stephen suggested that Blackstone’s maxim

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

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

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

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

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

History shows release is possible for some of them.

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

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

Two died in prison and five remain behind bars.

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

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

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

The Decline of Collegiality

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

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

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

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

Examples:

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

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

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

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

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

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

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

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


Related pages and posts:

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

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

No More SCOTUS “Swing Vote”? Good!

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

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

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

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

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

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

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

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

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

The wings are the “conservative” wing (Gorsuch, Alito, Thomas, Scalia, Roberts, and Kennedy) and the “liberal” wing (Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens).

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

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

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

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

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

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

New Pages

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

Abortion Q & A

Climate Change

Constitution: Myths and Realities

Economic Growth Since World War II

Intelligence

Keynesian Multiplier: Fiction vs. Fact

Leftism

Movies

Spygate

Freedom of Speech, to What End?

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

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

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

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

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

Here is Burnham again, in Suicide of the West:

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

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

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

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

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

Here’s the game plan:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Not-So-Random Thoughts (XXII)

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

Censorship and Left-Wing Bias on the Web

The Real Collusion Story

“Suicide” of the West

Evolution, Intelligence, and Race

Will the Real Fascists Please Stand Up?

Consciousness

Empathy Is Over-Rated

“Nudging”



CENSORSHIP AND LEFT-WING BIAS ON THE WEB

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

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

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

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

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

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

Complete victory for the enemies of liberty is only a few election cycles away. The squishy center of the American electorate — as is its wont — will swing back toward the Democrat Party. With a Democrat in the White House, a Democrat-controlled Congress, and a few party switches in the Supreme Court, the dogmas of the information-entertainment-media-academic complex will become the law of the land….

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

What kind of action do I have in mind?…

Executive action against state actors to enforce the First Amendment:

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

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

And so on. Read all about it here.



THE REAL COLLUSION STORY

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

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

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

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



“SUICIDE” OF THE WEST

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

Here’s my take:

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

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

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



EVOLUTION, INTELLIGENCE, AND RACE

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

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

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

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

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

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

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

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

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

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

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

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

We may be too full of ourselves.

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

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

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

But what, really, is the problem?

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

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

Absolute, obvious, unacknowledged disaster.

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

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

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

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

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

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

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

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

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



WILL THE REAL FASCISTS PLEASE STAND UP?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amen.



CONSCIOUSNESS

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

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

1) Conscious experience is not an illusion.

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

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

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

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

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

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

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

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



EMPATHY IS OVER-RATED

Andrew Scull addresses empathy:

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

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

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

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

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

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

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

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

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

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



“NUDGING”

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

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

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

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

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

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

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

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

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

It’s bad for us to be free.

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

No, the correct term is paternalism.

I will end on that note.

The Kennedy-Roberts Court in Retrospect

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The wings are the “conservative” wing (Gorsuch, Alito, Thomas, Scalia, Roberts, and Kennedy) and the “liberal” wing (Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens).

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

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

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

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

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

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

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


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

Justice Thomas on “Masterpiece Cakeshop”

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

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

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

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

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

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

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

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

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

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

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

That should have been the majority opinion.


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

Freedom of Speech: Getting It Right

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

Constitution of the United States, Amendment I

* * *

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

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

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

* * *

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

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

* * *

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

“This Has to Stop”

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

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

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

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


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


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

The Constitution: Myths and Realities

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

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

The Kennedy Retirement: Hope Springs Eternal

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

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

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

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

via www.washingtonexaminer.com

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

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

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

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

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

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

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

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

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

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

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

Fine-Tuning the Electorate

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

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

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

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

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

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

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

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

Preemptive (Cold) Civil War, Without Delay

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

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

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

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

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

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

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

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

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

Complete victory for the enemies of liberty is only a few election cycles away. The squishy center of the American electorate — as is its wont — will swing back toward the Democrat Party. With a Democrat in the White House, a Democrat-controlled Congress, and a few party switches in the Supreme Court, the dogmas of the information-entertainment-media-academic complex will become the law of the land….

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

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

What kind of action do I have in mind?

Go to the original post and you will see.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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