Anyway, here’s to another fun year of polite political discussion. I’d love for it to contain less trump and Congressional investigation but both appear to be on the docket.
What’s the betting line on who will be the next speaker?
I’m a fan of somebody who didn’t try to overthrow the government or help those who did. That shouldn’t be as high a bar as it seems to be…
I’ve been informed that saying some people currently in Congress were involved with attempting to “overthrow the government” is ridiculous hyperbole that can shut down discussion.
As I’ve stated here many many times before, I appreciate discussion with people having different views. I always have. So for anybody offended in that way, please read around that and let’s move on with my apologies.
I’ll restate: I’d prefer the Republicans elect as speaker an individual who was not involved, directly or indirectly, with any of the violence of January 6, 2021 or in the lead-up to it, or in supporting the violent people afterward.
A more unlikely hope: the not-crazy part of the GOP caucus gets together with the not-crazy part of the Democrat caucus and elects somebody who will work to get legislation passed that has a chance of becoming law with a Democrat-controlled senate and presidency.
@FritzCat You mean they should take the initiative and just do it? That would be interesting. I’d love to see that happen, including what would hopefully be a bunch of bipartisan legislation over the coming two years.
I have no idea who that would be, but the one person I’ve heard mentioned a couple times is the GOP head of the “problem solver’s caucus”.
@davirom@dirtdoctor@FritzCat Kinzinger. He’s way too conservative for me policy-wise but he at least believes that the government should operate from a factual basis and he strikes me as an honest person. I wouldn’t be upset if they nominated him. There’s no rule that the speaker needs to be an elected member of the house.
@davirom@FritzCat@klezman I don’t agree with all his thoughts on policies either, but at least it seemed like he actually wanted to govern and wasn’t just about himself, fundraising, or getting likes on social media. People can disagree about best way forward for country, but we all can’t have our “alternative” facts, or whatever Kellyanne Conway called it.
Here we have the spectacle of 20-odd (and I do mean odd) representatives holding the House and by extension Congress and America hostage to their extreme views. By extreme, I mean “My Kevin” is too liberal for them. With the House so evenly split between D’s and R’s, so long as they act as a block they can extort concessions from so-called mainstream Republicans. But to what avail? Ask Kevin how giving concessions is working for him.
My impression is that what the 20-odd want from government is to shut it down, and they are succeeding.
@davirom That’s also what I’m wondering. What’s Kevin’s end-game here? Just the prestige of being called “speaker” until he loses a motion to vacate? He’s given away so many concessions that even if he ends up in the chair he’s got basically no power.
And good point about the 20-odd wanting government to be broken. Arsonists in the fire department.
@davirom I’m not sure they’ve suggested that Kevin is too liberal. They literally just don’t like him despite him offering concessions previously unheard of within his caucus.
Since every Congressional race has become nationalized, every bit of sensational behavior is rewarded and they have been liberated from requiring party funds to campaign for office.
@canonizer@davirom@Mark_L Agree on term limits, but if I could change only 1 thing, it would be to eliminate gerrymandering. That should reduce the number of far left and right representatives that can win districts. It would also lead to a more representative government, at both the federal and state level.
@davirom@dirtdoctor@Mark_L as someone who identifies as liberal/progressive, i will say that it is not as easy just to eliminate districts when urban areas are going to be more liberal and rural ones more conservative. Drawing competitive districts that could lead either way would probably look artificially hub and spoke visually.
@canonizer@davirom@dirtdoctor@Mark_L
Term limits - sure. I don’t think this will be as effective as many others do.
No more gerrymandering - 100%. Independent distributing commissions, zero consideration of partisan affiliation in the process, and generally trying to follow existing administrative lines.
Two more that I think would help:
The house needs more members. Like 100 more. The representation is getting more and more skewed as large states like California and Texas are underrepresented and small states are war overrepresented.
Ranked choice voting. This can help eliminate both the extreme candidates but also the stranglehold the two parties have on the system. Alaska has it right on this one.
@davirom@dirtdoctor@klezman@Mark_L oh, we are short 100s of representatives. it should be locked against the least populous state and proportionately distributed from there. I think this started in the 20s? I once knew the story of why the House stopped growing but can no longer recall. There’s no reason for small states to be protected by over representation in both chambers.
@davirom@dirtdoctor@klezman@Mark_L Eh, I don’t get this argument. Wyoming has 550k people and 1 rep in the house. California has over 40m. The senate is supposed to be the body that gives over representation to small states but to equalize the voice of californians would require 72 congresspeople. It’s a distorted overrepresentation.
I can understand the argument against growing the civil service or bureaucracy in the hypothetical but I don’t understand how a person can be against both direct democracy and fair representation.
@canonizer@davirom@dirtdoctor@klezman Using Wyoming as the basis for “over-representation” is not a very good argument. Since each state (rightfully, IMO) is guaranteed at least one representative, the smallest population (WY) might appear to have a disproportionately “large” advantage (1 rep. for 58K population). The states with 4 or more representatives are all very close to 1 representative per 750K of population. There is almost no “unfairness” to be found.
@canonizer@davirom@dirtdoctor@Mark_L I would actually be ok with Congressional districts going across state lines to equalize the population in each district. This is one of those things that sounds better in theory than in practice, though. Too many other issues to sort out to make something like that work.
Failing that, I’ve not yet encountered a persuasive argument for over representing small states in the house. (Or for the electoral college in the 21st century, but that’s a debate for another day.)
@canonizer@davirom@dirtdoctor@Mark_L
Well, this is a question that’s easy to answer, but it depends on the definition.
According to the US Census, there are just over 761k per House seat on average after the 2020 census. Let’s first define “fair” as being within a 10% variance of that number. That gives us between 685-837k people per seat. I think that’s a very generous variation for this measure, but by that standard the following six states are overrepresented:
Maine, Montana, Nebraska, Rhode Island, Vermont, and Wyoming
These four are under represented: Delaware, Idaho, South Dakota, and West Virginia
If you instead tighten the window to 5%, you get 723-799k people. Then you get seven more that are overrepresented:
Alabama, Colorado, Connecticut, Minnesota, New Hampshire, New Mexico, Oregon
And you only get Utah added to the list of under represented states.
Of course this problem gets worse when you port it over to the electoral college. One way to quiet the calls for abolishing it is to have it be more fair by having more fair representation in the House. I happen to think the electoral college is anachronistic, but I know there are those who very strongly believe in its benefits, and those people would strengthen their argument, imo, by advocating for a larger house.
Let’s first define “fair” as being within a 10% variance of that number.
I consider that a fallacious definition of “fair”. States with smaller populations are very unlikely to fit that definition because the “granularity” of the 761K will automatically put some at a higher or lower distance from the average.
@canonizer@davirom@dirtdoctor@Mark_L that’s fine, I understand the math here. But to answer your question I had to pick a definition and so I picked two alternatives. Obviously when you’re dealing with integers there will be edge effects, like with Rhode Island and Delaware. We can agree no matter what they these will happen yet can still discuss the degree of over and under representation in the house when the number of Representatives hasn’t increased in many decades.
@canonizer@davirom@dirtdoctor@klezman I guess the question is, why the need to increase? (I tried to find the total cost of a representative, but didn’t get a clear answer. But I tend to think that we waste too much money on government and there is no need to add more.)
@canonizer@davirom@dirtdoctor@Mark_L more fair representation in the house and in voting for president if we’re keeping the electoral college.
100 Representatives more at even 5 million each (that buys a lot of staff!) is a whopping $1.65 per person per year in the country. For better governance that seems a bargain. (Although there’s certainly an argument to be made that more Representatives didn’t necessarily mean better governance.)
@davirom@dirtdoctor@klezman@Mark_L I guess my response to “why more” would be because this is one of the few places that we have actual representation. There is a fair critique that much of what does the actual governing of us comes from unelected officials.
The number of people each congressperson represents has increased steadily and maybe their constituencies are too big to do that adequately? By maybe, I think it’s definite.
Today President Biden awarded the Presidential Citizens Medal to 14 individuals, including 3 posthumously to DC police officers who died shortly after the insurrection, 5 to other police officers for their defense of the Capitol, and 3 to Republican election officials who resisted intimidation by Trump himself or his proxies to invalidate election results in their jurisdictions.
Fox’s lead on the story: “Biden says wrong day at January 6 ceremony honoring officers, remembers ‘what happened on July 6’”.
I rarely, RARELY, agree with conservative pundit Jonah Goldberg but he makes some good points in today’s op-ed that appeared in the LA Times. For those who don’t want to read it, basically he says the chaos in the House is not ideology driven, and it may not be possible to apply conventional ideological labels to the current crop of Republicans.
From Jonah Goldberg:
Kevin McCarthy’s epic struggle to become speaker of the House produced a lot of memorable images, but the most unforgettable was probably of Rep. Mike Rogers (R-Ala.) being physically restrained from opening a fresh can of whup-ass on Rep. Matt Gaetz (R-Fla.), after Gaetz ensured McCarthy’s 14th failure to get the gavel.
The significance of the near-altercation is that it had next to nothing to do with conventional ideological differences. Rogers is a very conservative Republican. Gaetz is a cable news popinjay who happens to be in Congress.
Indeed, the relentless torrent of never-in-doubt-but-often-in-error commentary last week exposed the poverty of our political vocabulary. While it’s true that 19 of the original 20 anti-McCarthy Republicans were members of the House Freedom Caucus (or were endorsed by its campaign arm in the midterms), the majority of the roughly 50 HFC members sided with McCarthy (R-Bakersfield). You might not have known this amidst all of the “establishment versus Freedom Caucus” punditry.
Similarly, the holdouts were routinely called “ultra-conservatives” or “hard-line conservatives” as if their opposition was driven by a deeper, more sincere commitment to conservative principles. But is anti-McCarthy Rep. Lauren Boebert (R-Colo.) really more “conservative” than pro-McCarthy loyalist Marjorie Taylor Greene (R-Ga.)? Heck, do either of them qualify as meaningfully “principled” at all?
Rep. Jim Jordan (R-Ohio), the rebels’ first choice for speaker among the anti-McCarthy forces, was a steadfast supporter of … Kevin McCarthy.
Even such non-ideological shorthand as “pro-Trump” and “anti-Trump” clarifies little. McCarthy has played Renfield to Trump’s Dracula for years now, but so did most of the folks on the “Never Kevin” roster. During the Trump years, Rogers voted with the president more than Gaetz, himself a thorough Trump sycophant.
One source of this confusion stems from the widespread cockamamie delusion in certain quarters of the right that being part of “the establishment” is code for “moderate,” “sell-out,” or “RINO.” Another magnet next to the compass for would-be navigators of the political landscape is the notion that Donald Trump is not now and has never been part of the Republican establishment, a view that seems to be counterintuitively held most adamantly by people who insist the GOP is forevermore Trump’s party.
Among the many problems at play here is that it is very difficult to have serious conversations about serious things if we don’t have accurate labels for the things we’re talking about. As George Orwell observed, language “becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.”
One way out of this morass is to talk less about ideology and more about factions. To the extent they ever existed, the days of the GOP’s ideological coherence are over. Just look around. According to the old standards, defeated Republican Rep. Liz Cheney of Wyoming was a fairly orthodox conservative, but she’s now a pariah for being a member of the anti-Trump faction. For years, opposition to abortion was a defining criteria for being politically conservative. Trump is now blaming that position for the GOP’s midterm losses. Defense spending, long a conservative litmus test, fully emerged last week as an intra-Republican fault line.
The chaos isn’t confined to Congress. Fox News brahmins were all over the place last week, with Sean Hannity carrying water for McCarthy while Tucker Carlson hurled epithets at the pro-McCarthy camp, including at colleagues.
The advantage of the term “faction” is that it’s inherently non-ideological. The founders anticipated that factional conflict would define our politics, and it has. But for most of our history, those factions often had less to do with clear ideological disputes than regional, economic or cultural conflicts.
The challenge with mothballing ideological language in describing today’s GOP is that it makes the comfortable right-left, us-versus-them verbiage that rules everything from fundraising to punditry obsolete.
Some factions today do have ideological flavors like nationalism, populism or, relatedly, foreign policy non-interventionism. But what fuels — and funds — them is a cultivated radicalism and contrived hostility to an establishment that barely exists beyond the formal powers of leadership. If anyone in power amounts to “the establishment” then, sure, McCarthy and Sen. Mitch McConnell (R-Ky.), the Senate minority leader, are the establishment.
The question for Republican leaders is whether they will be able to forge a governing faction, particularly in a climate where Democrats have every incentive to let Republicans feast on each other, and the conservative base values opposition for its own sake. Thanks to the GOP’s tiny majority, last week’s rebels have learned the power of faction. Whether the majority can exert similar power remains to be seen.
The Dangerous Decline of the Historical Profession
Jan. 14, 2023
An image shows a row of books, all in different colors, which say “History” on their spines. They decline in size as the image moves from left to right.
Credit…Soohee Cho
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By Daniel Bessner
Mr. Bessner is a historian.
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When I received my Ph.D. in history in 2013, I didn’t expect that within a decade fights over history — and historiography, even if few people use that word — would become front-page news. But over the last few years that is precisely what has happened: Just look at the recent debates over America’s legacy of slavery, what can be taught in public schools about the nation’s founders and even the definition of what constitutes fascism. The interpretation of the American past has not in recent memory been as public or as contentious as it is now.
Maybe it started with The New York Times Magazine’s 1619 Project, which sought to “reframe the country’s history by placing the consequences of slavery and the contributions of Black Americans at the very center of our national narrative” and which accompanied a national reckoning around race. That provoked, perhaps inevitably, a right-wing backlash in the form of “The 1776 Report,” a triumphalist, Donald Trump-directed effort. Then came a raft of laws in conservative-governed states across the country aiming to restrict and control how history is taught in public schools.
History, as the historian Matthew Karp has written, has become “a new kind of political priority” for people across the political spectrum, a means to fight over what it is to be an American: which values we should emphasize, which groups we should honor, which injustices we should redress.
The historical profession has likewise been roiled by controversy. Last August, James H. Sweet, the president of the American Historical Association, published an essay in which he argued that present-focused narratives of African slavery often represent “historical erasures and narrow politics.” The piece engendered a firestorm of reproach, with scholars variously accusing Dr. Sweet of attempting to delegitimize new research on topics including race and gender; some even accused Dr. Sweet of outright racism.
Yet as Americans fight over their history, the historical profession itself is in rapid — maybe even terminal — decline. Twelve days after Dr. Sweet published his column, the A.H.A. released a “Jobs Report” that makes for grim reading: The average number of available new “tenure track” university jobs, which are secure jobs that provide living wages, benefits and stability, between 2020 and 2022 was 16 percent lower than it was for the four years before the pandemic.
The report further notes that only 27 percent of those who received a Ph.D. in history in 2017 were employed as tenure track professors four years later. The work of historians has been “de-professionalized,” and people like myself, who have tenure track jobs, will be increasingly rare in coming years. This is true for all academic fields, not just history. As Adrianna Kezar, Tom DePaola and Daniel T. Scott note in their book “The Gig Academy,” about 70 percent of all college professors work off the tenure track. The majority of these professors make less than $3,500 per course, according to a 2020 report by the American Federation of Teachers. Jobs that used to allow professors to live middle-class lives now barely enable them to keep their heads above water.
What is to blame? In the past generation the American university has undergone a drastic transformation. To reduce costs, university administrators have dramatically reduced tenure. And as the protections of tenure have withered away, the size of nonteaching university staffs have exploded. Between 1976 and 2018, “full-time administrators and other professionals employed by those institutions increased by 164 percent and 452 percent, respectively,” according to a 2021 paper on the topic. Professors have been sacrificed on the altar of vice deans.
At the same time, in an effort to fund research that might redound to their financial benefit and to demonstrate their pragmatic value to politicians and to the public, universities have emphasized science, technology, engineering and math at the expense of the humanities. As the American Academy of Arts and Sciences reported, citing data from 2019, “spending for humanities research equaled 0.7 percent of the amount dedicated to STEM R.&D.”
The humanities, including history, are often considered more an object of ridicule than a legitimate lane of study. Look no further than statements from politicians: Rick Scott, the former governor of Florida, assembled a task force in 2012 that recommended that people who major in history and other humanities fields be charged higher tuition at state universities. In 2016, Gov. Matt Bevin of Kentucky said that “French literature majors” should not receive state funding for their degrees. Even more recently, in 2021, Gov. Ron DeSantis of Florida mocked people who go into debt to “end up with degrees in things like zombie studies.” And it’s not just Republicans: President Barack Obama remarked in 2014 that “folks can make a lot more, potentially, with skilled manufacturing or the trades than they might with an art history degree,” implying that if a degree didn’t make money it wasn’t worth it. (Mr. Obama later apologized to a University of Texas art historian for his remarks, clarifying that he did believe art history was a valuable subject.)
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These material and ideological assaults have engendered a steep decline in undergraduate humanities majors. In the 2018-19 academic year, only 23,923 graduating undergraduates received degrees in history and related fields, which, the A.H.A. notes, is “down more than a third from 2012 and the smallest number awarded since the late 1980s.”
Private groups, which traditionally provided significant financial support to budding humanities scholars, have taken the hint and increasingly stopped supporting the humanities and soft social sciences. The Social Science Research Council recently ended its International Dissertation Research Fellowship program, which in the last 25 years funded over 1,600 scholars exploring “non-U.S. cultures” and “U.S. Indigenous communities,” declaring that the program “accomplished many of the goals it had set for itself.” The Ford Foundation has similarly decided to conclude its long-running National Academies fellowship program for historically marginalized scholars in order, the foundation’s president declared, “to invest more deeply in movement-building work.”
It’s the end of history. And the consequences will be significant.
Entire areas of our shared history will never be known because no one will receive a living wage to uncover and study them. It’s implausible to expect scholars with insecure jobs to offer bold and innovative claims about history when they can easily be fired for doing so. Instead, history will be studied increasingly by the wealthy, which is to say those able to work without pay. It’s easy to see how this could lead American historical scholarship to adopt a pro-status-quo bias. In today’s world, if you don’t have access to elite networks, financial resources or both, it just doesn’t make sense to pursue a career in history. In the future, history won’t just be written by the victors; it’ll also be written by the well-to-do.
If Americans don’t seriously invest in history and other humanities disciplines, we encourage the ahistoric ignorance upon which reaction relies. Many Republican politicians support “divisive concepts” laws that try to regulate what college professors teach. Are they aiming at an easy target in the culture war? Perhaps. But it’s also true that a humanities education encourages thinking that often challenges xenophobic and racist dogma. Progress depends on studying and arguing about the past in an open and informed manner. This is especially true in a moment like our own, in which Americans use history to fight over which vision of the country will dominate politics. If there are no historians to reflect meaningfully and accurately on the past, then ignorance and hatred are sure to triumph.
Without professional historians, history education will be left more and more in the hands of social media influencers, partisan hacks and others unconcerned with achieving a complex, empirically informed understanding of the past. Take, for example, Bill O’Reilly’s 12-books-and-counting “Killing” series — the best-selling nonfiction series of all time, according to Mr. O’Reilly’s publishers — whose very framing sensationalizes the past by focusing on “the deaths and destruction of some of the most influential men and powerful nations in human history.” The same could be said about Rush Limbaugh’s “Rush Revere” series for young people, in which a time-traveling and tri-corner-hatted Mr. Limbaugh teaches “about some of the most exceptional Americans.” Or consider Twitter, where debates over history regularly erupt — and just as regularly devolve into name-calling. If professional historians become a thing of the past, there will be no one able to temper these types of arguments with coolheaded analysis and bring a seriousness of purpose, depth and thoughtful consideration to discussions of who Americans are and who we want to be as a nation.
Americans must do everything in their power to avert the end of history. If we don’t, exaggerations, half-truths and outright lies will dominate our historical imagination and make it impossible to understand, and learn from, the past.
Daniel Bessner is an associate professor of international studies in the Henry M. Jackson School of International Studies at the University of Washington and a co-host of the foreign affairs podcast “American Prestige.”
@canonizer This is yet another symptom of the dysfunctional nature of wages in today’s USA (and plenty of other places, too). Value to society != value to shareholders, and I’d argue society is more important than shareholders.
Zero Growth Economy:
As a normal American consumer, that concept struck me as, well, “unAmerican”.
However, there seem to be some thinkers who are considering the possibility, and it might just be the solution to many of the world’s problems.
There are books by the likes of Tim Jackson, which I haven’t read yet. But, for a starter, here’s a short article in the New Yorker.
@FritzCat I’ve seen that idea kicking around for a few years now. The expected infinite growth of the economy is simply not sustainable if we want to have a planet to live on, so other solutions are welcome. I think most of them include done form of internalizing what are now external costs, like the millions of tonnes of microplastic now out in the ocean, in our food, and in the air that we breathe.
@canonizer I am as well, but this seems to be a function of big spending and tax cut bills being passed only when one party controls both legislatures, with no support from the other party. On one hand, I can understand (although don’t agree with it) Republicans trying to use any leverage they have since Democrats passed most of the recent spending bills without any Republican support. If Democrats had a similar mechanism to dispute tax cuts, I’m sure they’d try to use it as leverage as well.
At the same time, I don’t recall these same Republicans requiring spending cuts before passing the Trump tax cuts. The theory that tax cuts pay for themselves through increased growth rarely happens, and didn’t happen with the latest tax cuts. If these Republicans truly cared about fiscal responsibility, they would come to the table with a plan addressing both sides of the equation, not just spending cuts.
@canonizer@dirtdoctor
I like the approach of the executive claiming that the 14th amendment prohibits the country from defaulting on its debt and letting the Congress sue if they disagree. That’d end the stalemate.
I agree with pretty much everything else you said. I’d just add that the Republicans don’t really seem like they care about balancing the budget. Trickle down economics has been shown to not work. Tax cuts don’t pay for themselves. So let’s see what, if anything, the house majority can come up with on policy. I would like to see what a serious Republican fiscal policy would look like under this leadership.
@dirtdoctor@klezman agree with both of you. Both sides have contributed to the growing debt. The Republicans use as a leverage tool is horrible. The party doesn’t seem to understand that upsetting the dollar so reserve currency is bad.
A very useful, imo, commentary on judicial decisionmaking.
Humanism Should Replace Formalism In The Courts
By Thomas Moukawsher ·
Contemporary American judges have more in common with medieval monks than just wearing robes.
Today’s courts are dominated by formalists. After reviewing decisions from the last several months — about guns, abortion and industrial pollution — they remind me of work by the 13th and 14th century scholastics, dominated by the monks who dictated thinking in Europe prior to the Renaissance.
Scholastics believed they could find truth using formal exercises handed down from Aristotle through men like St. Thomas Aquinas. They typically began their work by studying a book on the topic at hand by a renowned scholar.
Scholastics might then study documents related to that book. They would debate snippets of competing text. They would scrutinize minutely the meaning of individual words and then use formal logic to show that contradictions were merely mistakes of subjectivity by the reader.
This should sound familiar to readers of opinions by contemporary court formalists who prefer labels like “textualist” and “originalist.” Read U.S. Supreme Court Justice Clarence Thomas’ 2022 opinion holding that requiring license applicants to show the need for a handgun violated the Second Amendment in New York State Rifle & Pistol Association Inc. v. Bruen.[1]
Justice Thomas’ approach intentionally did not consider the relevant human condition — mass shootings, out-gunned police officers and the like — and a concurring opinion by Justice Samuel Alito said the dissent erred by considering them.
Instead, Justice Thomas focused on the structure and definition of the words in the Constitution and then invoked scholarship from the “founding era” and the 19th century while laboring over the precise relevance of English history, only to have this antique scholarship disputed and contradicted by the ancient manuscript studies invoked by former Justice Stephen Breyer in dissent.
Indeed, to Justice Thomas it was not appropriate to consider whether the ruling might lead to more shootings. Instead, he wondered whether the court should give more weight to thinking from 1791 when the Second Amendment was adopted or to 1868 when the Fourteenth Amendment that applied to the states was adopted.
Like the scholastics, Justice Thomas focused on this process of scholarship as a way to weed out the subjectivity from his decision and gave us a “true” answer. Justice Alito used a similar approach in his 2022 decision in Dobbs v. Jackson Women’s Health Organization where the court held that women had no constitutional right to an abortion.[2]
Justice Alito studied sources about women’s historical rights to abortion while noting that it was not appropriate to consider what the court’s ruling meant to specific women or the general public.
This other worldliness may dissatisfy many of us in the same way Renaissance humanists were dissatisfied with the pronouncements of church scholastics 700 years ago. It’s because, when we look closely, we can see that the writer’s preferences decided the issues more than logical compulsion.
In his Second Amendment decision, Justice Thomas continued the practice of giving no force to the words “well-regulated militia,” which are often labeled a merely “prefatory clause” to the actual rule — its “operative clause.”
He continued to discount the predominately military origins of what it meant to “bear arms.” Instead, he echoed earlier rulings giving decisive weight to “the right of the people to keep … arms” and to his selective history.
In Dobbs, Justice Alito chose to rely on the Supreme Court’s 1997 ruling in Washington v. Glucksberg that assisted suicide wasn’t protected under the Constitution because it wasn’t deeply rooted in American history and tradition.
By choosing this precedent over the forward-looking reasoning of cases like the Supreme Court’s 1954 Brown v. Board of Education where the court overturned school segregation, he guaranteed that he would find, as was historically the case, that a woman had no rights, including to an abortion.
It’s hard to credit claims of objectivity when we can see the decisive personal choices being made. It was no surprise that medieval scholastic monks usually sided with Catholic orthodoxy.
Was anyone surprised that Justice Thomas and Justice Alito voted against gun control and abortion rights? Wouldn’t the justices have been more convincing if they admitted they were using personal judgment and then justified that judgment against current realities?
This isn’t to criticize such conservatism in any century or to praise it either. It’s to say that judges are more credible when they are open about their judgments and defend them in terms we can understand.
In favor of gun rights, Justice Thomas might have argued that the right to self-defense today is as vital as it ever was in a country of vast spaces and limited law enforcement.
Justice Alito might have argued that granting women a constitutional right to abortion strikes the balance between two lives, or one real and one potential life, too strongly in favor of the one over the other. It’s the failure to place the real human issues at the center of the discussion that’s the problem, even for those who agree with Justices Thomas’ and Alito’s views.
Today, the formula in the formalist approach dominates most legal opinions, including in business litigation.
Consider Judge Michelle Friedland’s 2023 opinion about the Clean Water Act for the U.S. Court of Appeals for the Ninth Circuit in American Rivers v. American Petroleum Institute.[3]
There’s nothing sinister about it. It’s just typically inaccessible contemporary judicial reasoning. First, despite the ease of finding this information from the court’s online docket, readers must slog through eight pages of information about the numerous parties and their status in the case.
The staff-created summary takes up three pages, and then three pages are needed to list all the lawyers. Is it helpful to readers to take up 14 pages before we see what the court has to say?
Mercifully, Judge Friedland begins her opinion by summarizing the holding: Courts remanding to an agency a challenge to a regulation can’t vacate the regulation during the remand without finding the regulation unlawful. This is helpful, except we don’t know why they can’t, and why is what matters.
To know why, the court then takes us through the usual formula. The text of the law at issue and its background are described at needless length. While reading it we have no idea of why it’s important. It’s more of an incantation.
About 20 pages in, we get back to where the court started — can it vacate a regulation during a remand.
Like many opinions, but later than most opinions, the court then detours again to address challenges to the court’s jurisdiction — now needlessly common in most cases. This takes another four pages, and, 25 pages in, we still haven’t heard anything about the core matter — why the court can’t vacate a regulation while it’s remanded.
When the issue is finally joined, it’s back to the sacred manuscripts. Precedent says that the court’s equitable powers are limited by those of the English equity courts at the time of separation.
Thankfully, the court makes no deep dive in this subjective direction, but then it does something worse. It leans mostly on the fallacy that because a court hasn’t vacated a regulation on remand before, the court can’t do it. Why is that a bar? There is a first for everything.
Next, the opinion jumps to a scholastic favorite, the canon expressio unius est exclusio alterius — the law says we can set aside unlawful regulations, therefore we can’t set aside regulations not held unlawful.
Of the opinion’s 31 pages, only about five address the main issue. They are filled mostly by quotations from other courts. There are five or six sentences reflecting the court’s own thinking. They rely mostly on dogma.
The least attention is given to what matters to the people and businesses involved in the case. Remanding the case leaves a potentially unlawful regulation in place — probably for years.
Perhaps the court should have thought more seriously about ruling on the legality of the regulation rather than spending years litigating precisely how to avoid the question by sending it back to the agency.
The decision records that the challenged regulation was adopted by the Trump administration. The Biden administration wants the remand to potentially remove the regulation.
By the time it gets around to doing it, there may be another Trump administration, DeSantis administration, or what have you. Courts decide what is law. Avoiding the task, delaying the task, often makes the courts useless.
Likewise, vacating a regulation without finding anything wrong with it is as unfair to businesses relying on it as it is to assume a person is guilty until proven innocent. The court’s equitable powers certainly embrace finding at least this much common sense.
In short, the court would have done better to address the human values and consequences at stake then to spend most of its opinion on collateral matters only to resolve the case with a fallacy and a canon of construction.
Courts haven’t always acted this way. Justice Oliver Wendell Holmes and Justice Louis Brandeis were perfect opponents of scholasticism and formalism. Justice Holmes declared that the law was alive, not “a brooding omnipresence in the sky,” and that “the life of the law has not been logic but experience.”
Similarly, Justice Brandeis understood that human values and consequences matter most in arguing that: “If we desire respect for the law, we must first make the law respectable.” Where did we go wrong?
Perhaps it has just become easier for us to point to mechanical means of reaching a decision rather than dealing with the flesh, bones and blood of a living controversy. We say: “It’s just the law talking, not me.” But this should worry us. The triumph of formalism in American decision writing has coincided with an historic decline in respect for the courts.
To reverse this trend, courts should place humanism above scholasticism and formalism in decision making. Trial courts should say who wins and why under the basic legal principle at stake and the facts of the case before them — not the facts of some other case.
Appellate courts should develop understandable legal standards and justify them in human terms — how will they affect the fortunes of the parties in the case and the parties who come after them. Appellate courts should have the courage to speak in their own voices and not speak principally through disembodied quotations from decisions they have chosen to quote over other contrary decisions.
It’s not hard. Indeed, decisions are easier to write when a judge sees them for what they are — their opinions. Matters of judgment. By a human. About other humans — standing alone or gathered in a business. Whatever a judge’s perspective, we all have a stake in judges writing credible opinions for the sake of a credible judiciary and a more stable nation.
Judges should take this to heart. They should throw off formalism and speak to the parties in front of them and the nation at large as people trying earnestly to sort out the troubles of litigants using principles embodied in law and wisdom.
It’s fine for judges to wear robes, but we would all profit if they would throw off their cowls and look us in the eye.
@klezman Don’t personally care, because ProPublica isn’t the most honest reporting outfit and even judges make mistakes, but James Taranto of the WSJ has a really long piece discussing the errors in their report:
"ProPublica troika made a sloppy reporting error, the effect of which is to cast Justice Thomas’s disclosures in a falsely unfavorable light—to make them look shambolic or perhaps even dishonest when in fact they followed the filing instructions without fail.
The reporters’ error involves a confusion about what Justice Thomas did disclose. “By the early 2000s,” ProPublica reports, “ he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as ‘rental property at ## 1, 2, & 3’ in Savannah.” It’s worth noting—ProPublica doesn’t—that the filing instructions (on page 32) prescribe disclosing rental properties in precisely this manner."
@KitMarlot I’m not a WSJ subscriber so I can’t read that.
But the bit you quoted doesn’t actually say he properly reported the largesse from a conservative activist. Nor was it complaining about the lack of discussion addresses.
@davirom Pretty sure the WSJ hasn’t published reporting from illegally obtained tax forms, but I could be mistaken.
Full text from the article I reference above
The Truth About Clarence Thomas’s Disclosures
By James Taranto
Clarence Thomas lost his beloved maternal grandparents barely a month apart in the spring of 1983. Myers Anderson, whom his grandson knew as “Daddy,” died of a stroke on March 30. Christine Anderson, known as “Aunt Tina,” suffered a stroke as well and died on May 1. “Perhaps, I thought, she’d lost the will to live,” Justice Thomas writes in his 2007 memoir, “My Grandfather’s Son.”
The Andersons, who were 75 and 70 respectively, are buried at Palmyra Baptist Church in Liberty County, Ga. When they died, Mr. Thomas was 34 and chairman of the Equal Employment Opportunity Commission. “Losing Aunt Tina a month after Daddy was more painful than I could ever have imagined,” he writes. “How could I have let myself grow away from her, or from the man who . . . was the only real father I’d ever had?”
Mr. Thomas inherited a one-third interest in a few modest houses Myers Anderson owned. Forty years later, ProPublica has taken a different kind of interest in those properties. ProPublica describes itself as “an independent, nonprofit newsroom that produces investigative journalism with moral force.” It promises “deepdive reporting” dedicated to “exposing corruption, informing the public about complex issues, and using the power of investigative journalism to spur reform.”
Give ProPublica credit for admitting its journalism has an agenda. So does mine, as the word “opinion” atop this page should make clear. But ProPublica’s acknowledgment that it’s in the opinion business doesn’t excuse it from the obligation to report facts accurately, carefully and thoroughly.
ProPublica has at least three reporters working the Clarence Thomas beat—Justin Elliott, Joshua Kaplan and Alex Mierjeski. Their story, published last Thursday, is titled “Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal.” The troika write that the lack of disclosure “appears to be a violation of the law, four ethics law experts told Pro-Publica.” That statement is equivocal because it’s a legal theory based on incomplete facts. Justice Thomas didn’t respond to ProPublica’s questions or to mine.
Some facts are known and undisputed. Mr. Crow, a Dallas developer and friend of the justice, confirmed in a written statement to ProPublica that Savannah Historic Development LLC, a company he established, bought “the childhood home of Justice Thomas,” which Mr. Crow plans to convert into a museum “telling the story of our nation’s second black Supreme Court Justice.” Public documents show that the company paid Anderson’s heirs a total of $133,363 for the Savannah house and two adjacent empty lots. According to Pro-Publica, Justice Thomas’s mother, 94year-old Leola Williams, lived in the house at least until 2020 and possibly still does.
Assuming Justice Thomas received one-third of the sale price (or any amount more than $1,000), the text of the federal financial-disclosure statute would require him to have reported the transaction in Part VII (“Investments and Trusts”) of his annual AO-10 form for 2014. He didn’t do so and may need to file an amended form.
But my review of Justice Thomas’s disclosures and other documents convinces me that any failure to disclose was an honest mistake. On all other matters involving his scanty real-estate inheritance, he followed the Filing Instructions for Judicial Officers and Employees, prepared by the Committee on Financial Disclosures of the Administrative Office of the U.S. Courts. Those instructions don’t make clear the statutory obligation to disclose the 2014 transaction.
Further, the ProPublica troika made a sloppy reporting error, the effect of which is to cast Justice Thomas’s disclosures in a falsely unfavorable light—to make them look shambolic or perhaps even dishonest when in fact they followed the filing instructions without fail.
The reporters’ error involves a confusion about what Justice Thomas did disclose. “By the early 2000s,” ProPublica reports, “ he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as ‘rental property at ## 1, 2, & 3’ in Savannah.” It’s worth noting—ProPublica doesn’t—that the filing instructions (on page 32) prescribe disclosing rental properties in precisely this manner.
The story continues: “Two of the houses were torn down around 2010, according to property records and a footnote in Thomas’ annual disclosure archived by Free Law Project.” That footnote in Justice Thomas’s 2010 disclosure states in full: “Part VII, Line 2 - Two of the Georgia rental properties have been torn down. The only remaining property is an old house in Liberty County.”
Liberty County is where our journey began, but the ProPublica troika somehow missed it on the map. Their story leads the reader to think that the “remaining property” was the Savannah house where Justice Thomas’s mother lived. A Friday letter from the Center for Responsibility and Ethics in Washington—co-signed by Virginia Canter, the first of Pro-Publica’s “four ethics experts”—expressly says so and accuses Justice Thomas of deceptively disclosing (rather than failing to disclose) the property’s disposition.
The footnote makes clear that this is wrong. There’s a fourth property. Justice Thomas’s 2009 disclosure listed three rental properties in “Sav., GA.” Beginning in 2010, he listed only one, in “Liberty Cty, GA.” Savannah is in Chatham County, not Liberty. But Liberty County is in the Savannah area, roughly a 45-minute drive from the city. For someone living hundreds of miles away, it would have been reasonable to describe the three rental properties collectively as being “in Savannah.”
That implies that Justice Thomas never disclosed his interest in the Savannah house where his mother lived. But he didn’t need to. “Information pertaining to a personal residence is exempted from reporting, unless the property generates rental income,” the filing instructions say on page 33. Nor was there any requirement to disclose the ownership of the other two Savannah properties after the houses were demolished. Who wants to rent an empty lot in Savannah?
When an asset isn’t sold but stops being reportable—in this case because it is no longer capable of generating rental income—page 50 of the filing instructions directs the filer to “insert ‘(Y)’ after the asset description in Column A and leave Columns blank, or include an explanatory note in Part VIII.” Justice Thomas did exactly that for the Savannah rental properties in 2010, and for the Liberty County property in 2015. The latter footnote reads simply: “Line 1: The asset listed on line 1 does not receive any rental income for this property.” This is the disclosure Ms. Canter and her co-signers mistake for a deception.
When my mother died in 2019, I inherited a one-third interest in her house, which I sold to my brother. I understand the statute to mean that if I had been a federal judge, I would be obligated to disclose that transaction. But if I hadn’t been made aware of the statute, it wouldn’t have occurred to me to think of my inheritance as an “investment,” and I searched the filing instructions in vain for language that makes plain a judge’s duty to disclose this sort of transaction.
In Justice Thomas’s circumstances, moreover, the instructions seem to say not to report the sale of the former rental properties. The above-quoted “insert ‘(Y)’ ” language on page 50 is followed immediately by this sentence: “In subsequent years, this asset should be deleted from Part VII.”
One may be tempted to think that of all people a judge should know what the law says. But that’s a nonsensical standard. A judge’s job isn’t to memorize statute books; it’s to discern laws’ meaning and their application to the facts in cases that litigants bring before him. Inasmuch as the law applies to the judge’s personal affairs and interests, he’s in the same boat with the rest of us—often dependent on lawyers or other specialists, such as the Committee on Financial Disclosures of the Administrative Office of the U.S. Courts, to make sense of his duties and rights.
The job of a journalist is similar in some ways to that of a judge. Both involve asking questions, testing arguments, and judiciously ascertaining facts and their significance. ProPublica failed to consider some obvious questions: Where is Liberty County? What is Justice Thomas’s connection to the place? If the remaining rental property was the house Mr. Crow’s company bought, what was it doing on Justice Thomas’s AO-10 for 2015, the year after the sale closed?
Journalists don’t memorize books either. I read “My Grandfather’s Son” when it came out in 2007, but as I researched this article I had to return to it and refresh my memory. “Daddy’s people worked on a three-thousand acre rice plantation in Liberty County,” Justice Thomas writes, “and after their manumission they stayed nearby. The maternal side of my mother’s family also came from Liberty County, and probably worked on the same plantation.”
Daddy grew up on a family plot known as “the farm,” which “ had been passed down undivided from generation to generation, as was often customary with land owned by southern blacks. Any family member was entitled to live there.” The fields were fallow by Christmas 1957, when Clarence was 9 and Daddy decided to build a house there. He enlisted the help of Clarence and his brother, Myers Thomas, and “by springtime we’d finished building a simple four-room house,” writes Justice Thomas, who spent his summers there until he left for college in 1967.
When Aunt Tina died in May 1983, “no sooner did Myers and I go home to the farm after the funeral than some of our relatives started fighting over the contents of the house, declaring that Aunt Tina would have wanted them to have this item or that,” Justice Thomas recounts. “Part of me was disgusted by their greed, but I couldn’t bring myself to care. Death had already stolen the only things in the house that mattered to me.”
Justice Thomas disclosed all this in a book that’s available on Kindle for $13.99. If you’re a journalist whose job is to investigate him, you probably ought to read it—especially if you aspire to produce work “with moral force.”
Mr. Taranto is the Journal’s editorial features editor.
@davirom@KitMarlot thanks for posting the whole thing.
I don’t think this article, regardless of the fact that it raises some good points, did anything to reduce the appearance of corruption by Thomas. Even if Crow hadn’t been the one to buy that property, the acceptance of hundreds of thousands of dollars in free travel and other perks by a conservative donor is precisely what ethics laws are supposed to prevent: the appearance of reality of corruption in public office. I submit that supreme court justices should be held to the highest ethical standards, not the lowest. Thomas fails that test in my opinion.
Why do businesses here struggle, and find better places to secure profit?
Because government has its big ass in there, feeding tax dollars (our money), to some over others. Does it meet the notion of the day, as they ‘think’ it should be?
Why has it become so damned hard, to differentiate male from female?
Once again, the government is pushing its big ass in, and trying to tell us what we already know.
Why are the Western nations suffering birth decline?
Well, it’s kind of hard when you can’t find a real woman, or man, anymore.
@CroutonOllie I read your diatribe this morning and thought; “phobe much?”. Assuming you were just another redneck a-hole. Then, I watched our local morning news show, and the broadcaster used the pronoun “they” instead of he or she on several occasions. I see your point.
@CroutonOllie@FritzCat While I don’t myself understand the desire to be called “they”, I also see precisely zero reason to not respect people’s preferences here. Freedom requires basic respect of others, something lacking in the social crusading of today.
@CroutonOllie@FritzCat@klezman My daughter has a friend who prefers they/them/their pronouns. It is not my concern how they wish to identify, but I find it grammatically taxing. They are married, so when discussing their news it can be difficult to know whether they are referring to one or two people. For instance, “They can’t meet us this weekend”. Does that mean one or both people can’t meet? I’m sure the grammar police are on the case (as it were).
@CroutonOllie@davirom@FritzCat Yeah, that’s my main issue with it also. It’s too bad (in some ways) society doesn’t agree with “it” as the singular non-gendered pronoun. But I get it…we’ve used that word for centuries to describe inanimate objects.
@Mark_L Science does not support that statement. Both biological sex and socially-constructed gender exist on a spectrum.
Dependable voice of reason here, and nice to see you.
Common sense seems to be in short supply when people start scratching their asses and wondering about things, but you still have it, even when I lose track for a moment.
@davirom@FritzCat@klezman@Mark_L
Spectrum is a horseshit notion; just another attempt at seeming studious. Different people are different ways, but no need to elevate the rights of the few ABOVE the many.
Mark, I started in your camp but have swung pretty far in the other direction. It sounds like I’m in the minority because calling people by preferred pronouns doesn’t feel onerous or taxing to me.
There is nothing scientific about gender. We don’t refer to animals as boys or girls (pets aside) - gender is a layer built on top of cultural norms surrounding sex. VERY recently (ie one century) - that has meant blue for boys, pants for men and a host of other things.Before that in Western culture, pink was not for girls and robes and skirts were much more common. What we think of as women gender oriented accoutrement in the US appear on males throughout the world, both historically and presently (long hair, dresses/skirts, heels, etc).
Pinks, blues, skirts, pants, gardening, hunting - who wears/does a thing has always been fluid.
Crouton, your opinions are so transparently parrotings of infotainment that it’s really hard to respond. The real problems in America must be with bud light sponsorships! Businesses are having so much trouble here that they are…recording record profits. Families are small because you can’t even find another person willing to procreate, not because of the abundant reasons many people want fewer children! bs bs bs culture warrior garbage bs bs bs.
You guys are the infotainment, as you can’t even figure the difference between male and female.
Record profits? Those are easy, when you don’t actually have to produce anything. I make tiles, not icons (cave drawings vs effort in the Louvre), I make candles (not things that produce but consume), or I make litigation (something that takes from those that produce, to those that consume.)
Which are you?
As for the procreation thing, some will fulfill each aspect of the circuit, without any precondition, but others are more responsible and want partners that will work, in the real sense, and be there as a responsible parent, to teach and guide. Maybe that is why so many are as they are, since they didn’t have that.
You guys are the infotainment, as you can’t even figure the difference between male and female.
Ok, this really isn’t hard. We refer to animals by sex (m/f) and people by gender (m/w) because gender does not equal sex.
Despite the importance of fingering children at elementary school athletic competitions to the casual fox news viewer, gender is not science, it is a cultural layering (which differs historically and geographically) onto sex.
It isn’t hard to understand, except for people who think the Carlson types have Valid Opinions ™.
Felt it necessary to give something non-controversial to think about: everyone has a right to an opinion, but unlike people, all opinions are not equal.
Some are based on facts, others on nonsense, and some only determined by people qualified to do so.
Nonsense: like the statement that the 2020 election was rigged/stolen and 30+ percent of Americans still believe because an egomaniac refused to admit he lost and a news organization promoted knowing it was crap because they were afraid to lose viewers/revenue.
@dirtdoctor@klezman “Valid opinion” is something of a logical oxymoron. An opinion is a form of argument, which is a connected series of statements (the “premises”) intended to prove a proposition (the “conclusion”). By definition, an opinion, in this context, is “a view or judgment formed about something, not necessarily based on fact or knowledge.” In order for an argument to be valid, each of the premises must both be true and related to the conclusion. The conclusion must also be true. Since there is no truth requirement for an opinion, it does not meet the minimum standards to be judged “valid”. An opinion could be valid, but only accidentally. An opinion may not be valid but might still be “good” or “strong”, but that is another kettle of fish.
Example of opinion: the judiciary seems to be relying more and more on the above definition for their “opinions”.
@davirom@dirtdoctor that’s kind of what I meant. If an argument or opinion rests on false premises then any conclusion must necessarily be false. (Or correct/valid only by luck. I guess in this case a valid opinion is analogous to a logically correct argument.)
Any opinions on the big CNN and Fox firings? I personally think they came far too late for both, but I prefer straight news versus opinion “news”. At the same time, it’s not like I watched either person for more than one or two minutes before changing channels.
@dirtdoctor Tucker Carlson is a cancer on American society and I hope he never gets another platform.
I have no opinion on Don Lemon. Never seem anything he said and I never watch CNN.
The Lemon stuff gets weirder and weirder. Yesterday’s rumor was that CNN wanted a meeting and, assuming he was being fired, tweeted as much. So he fired himself.
If Tucker runs for president, I hope the only ad we see against him are his emails to Hunter Biden asking for help to get his daughter into college. He is sniveling piece of sh*t. I hope he enjoys getting to know his fans up close and personally, rather from the distance of a tv studio.
Turns Out Republicans Don’t Hate Big Government
April 21, 2023
By Jamelle Bouie
Opinion Columnist
In the conventional view, American politics is a contest between a party of “big” government and a party of “small” government.
You know the clichés. Democrats want a larger role for the state; Republicans want to “drag it into the bathroom and drown it in the bathtub.”
But a glance at the historical record shows that, at least in the postwar period, the size of government was never really the issue. A modern state needs a large, active government. The real political question revolves around the activity itself. It’s about both the scope of government — to whom and for what it should provide — and its reach. Will the state take a light touch, or will it intrude on and control the lives of its citizens?
With this in mind, consider one of the most common criticisms of the current Republican Party: that it stands for nothing other than chaos, dysfunction and a cultlike devotion to Donald Trump.
But that’s not right. With or without Trump in control, the Republican Party has a clear, well-articulated agenda. It just falls outside the usual categories. It’s not that today’s Republicans have a vision for “big” government or “small” government; it’s that Republicans have a vision for intrusive government, aimed at the most vulnerable people in our society.
In Iowa, for example, Republicans want to kick as many people as possible off the state’s Supplemental Nutrition Assistance Program, better known as SNAP, citing fraud and misuse. The Republican State Legislature, Kyle Swenson reported in The Washington Post, is “poised to approve some of the nation’s harshest restrictions on SNAP. They include asset tests and new eligibility guidelines.”
In the preceding fiscal year, according to a 2022 report from the Iowa Department of Inspections and Appeals, the state disqualified 195 SNAP recipients out of a total enrollment of 287,000 people, a fraud rate of 0.07 percent.
Nonetheless, Iowa will spend nearly $18 million in administrative costs over the next three years to snoop into the finances of every SNAP recipient in the state, all to make sure that a working parent or a struggling senior doesn’t get $1 more than deserved in food assistance.
Of course, the crown jewel of the Republican effort to build a more intrusive, domineering government is the set of laws passed to ban or sharply limit abortion, regulate gender expression and otherwise restrict bodily autonomy. These laws, by their very nature, create a web of state surveillance that brings the government into the most private reaches of an adult’s life, or a child’s.
In Idaho this month, Republicans passed a law explicitly restricting out-of-state travel for abortions if the patient is a minor. Anyone caught helping a pregnant minor leave the state for abortion can be punished with up to five years in prison. Helping here means not just giving a minor a ride; it’s also giving her money or connecting her with assistance or organizing the doctor’s visit.
In Kansas, Republicans overrode a veto from Gov. Laura Kelly, a Democrat, to pass a bill that bans transgender athletes from girls’ and women’s sports, from kindergarten through college. Although there’s no language in the bill to explain how schools would enforce the ban, its sponsor said that enforcement would occur through “sports physicals” or some other kind of bodily inspection by a doctor or nurse who would presumably be acting with the imprimatur of the state.
There are many more examples of intrusive government than just those two. To qualify for a rape or incest exception under a new six-week abortion ban that Gov. Ron DeSantis signed this week in Florida, victims must show proof that they’ve been victimized. In the absence of proper documentation, Florida says, there is no way to obtain care.
The State of Missouri has put itself between patients and doctors and effectively banned gender-affirming care for adults within its borders, and Kentucky has restricted its residents’ access to medication abortion.
You could say that there is limited government in those conservative states, as long as you live the way Republicans want you to live.
Not everyone is subject to the Republican vision of intrusive government. There are vanishingly few limits in most Republican-led states on the ability to buy, sell, own and carry firearms. And working on behalf of some employers and other business interests, Republicans in at least 11 states have taken steps to loosen limits on the ability of children to work in factories, meatpacking facilities and other such places.
When it comes to the demands of capital or the prerogatives of the “right” kind of Americans, Republicans believe, absolutely, in the light touch of a “small” government that stays out of the way. But when it comes to Americans deemed deviant for their poverty or their transgressions against a traditional code of patriarchal morality, Republicans believe, just as fervently, that the only answer is the heaviest and most meddlesome hand of the state.
This gets to one of the most important truths of political life. At times, the state will treat different groups in different ways. For those of us with more egalitarian sentiments, the goal is to make that treatment as fair and as equal as possible. For those whose sentiments run in the other direction, the task is to say who gets the worst and most degrading aspects of the state’s attention and who gets its concierge service.
@klezman Bouie is one of the only columnists I like at the times and (obviously to any here) I share his politics. He’s also a decent writer, which can’t be said for some of the others.
I think the R party consists mostly of culture warrior brainwashing. The idea that it is acceptable to challenge the 20 year old FDA approvals without any standing or merit other than hurt fees fees is only another bale of straw thrown on top of the dead camel’s back.
There is a handshake among the people who want the lowest possible taxes and the fewest number of abortions, damning the idea that we live in an interdependent society.
@rjquillin Read the story (not particularly surprised). Will be interesting to see how much media attention is given to it (along with stories about whistleblowers on the Biden family corruption).
@rjquillin Scoreboard:
Durham investigation- 43 months, 3 indictments, 2 of which were found not guilty, 1 guilty plea which was based on information from an earlier investigation by the inspector general, rather than by Durham’s team, and resulted in probation.
Mueller investigation - 22 months, 34 indictments, 8 convictions and 1 guilty plea, some of whom got prison time and 5 of whom were pardoned by Trump. Mueller made clear at a news conference on May 29, 2019 that his team never considered indicting Trump because the Justice Department prohibits the prosecution of a sitting president.
The Four Freedoms, According to Republicans
May 19, 2023
By Jamelle Bouie
Opinion Columnist
On Tuesday, Republicans in North Carolina overrode Gov. Roy Cooper’s veto to pass a strict limit on bodily autonomy in the form of a 12-week abortion ban.
In addition to this new limit on abortion, the law extends the waiting period for people seeking abortions to 72 hours and puts onerous new rules on clinics. As intended, the net effect is to limit access to abortion and other reproductive health services to everyone but those with the time and resources to seek care outside the state.
North Carolina Republicans are obviously not the only ones fighting to ban, limit or restrict the right to bodily autonomy, whether abortion or gender-affirming health care for transgender people. All across the country, Republicans have passed laws to do exactly that wherever they have the power to do so, regardless of public opinion in their states or anywhere else. The war on bodily autonomy is a critical project for nearly the entire G.O.P., pursued with dedication by Republicans from the lowliest state legislator to the party’s powerful functionaries on the Supreme Court.
You might even say that in the absence of a national leader with a coherent ideology and agenda, the actions of Republican-led states and legislatures provide the best guide to what the Republican Party wants to do and the best insight into the society it hopes to build.
I have already made note of the attack on bodily autonomy, part of a larger effort to restore traditional hierarchies of gender and sexuality. What else is on the Republican Party’s agenda, if we use those states as our guide to the party’s priorities?
There is the push to free business from the suffocating grasp of child labor laws. Republican lawmakers in Arkansas, Iowa, Missouri and Ohio have advanced legislation to make it easier for children as young as 14 to work more hours, work without a permit and be subjected to more dangerous working conditions. The reason to loosen child labor laws — as a group of Wisconsin Republicans explained in a memo in support of a bill that would allow minors to serve alcohol at restaurants — is to deal with a shortage of low-wage workers in those states.
There are other ways to solve this problem — you could raise wages, for one — but in addition to making life easier for the midsize-capitalist class that is the material backbone of Republican politics, freeing businesses to hire underage workers for otherwise adult jobs would undermine organized labor and public education, two bêtes noires of the conservative movement.
Elsewhere in the country, Republican-led legislatures are placing harsh limits on what teachers and other educators can say in the classroom about American history or the existence of L.G.B.T.Q. people. This week in Florida, Gov. Ron DeSantis signed a bill that bans discussion in general education courses at public institutions of “theories that systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States and were created to maintain social, political and economic inequities.” He also signed a bill that prohibits state colleges and universities from spending on diversity, equity and inclusion programs beyond what is necessary to retain accreditation as educational institutions.
Nationwide, Republicans in at least 18 states have passed laws or imposed bans designed to keep discussion of racial discrimination, structural inequality and other divisive concepts out of classrooms and far away from students.
Last but certainly not least is the Republican effort to make civil society a shooting gallery. Since 2003, Republicans in 25 states have introduced and passed so-called constitutional carry laws, which allow residents to have concealed weapons in public without a permit. In most of those states, according to the Giffords Law Center to Prevent Gun Violence, it is also legal to openly carry a firearm in public without a permit.
Republicans have also moved aggressively to expand the scope of “stand your ground” laws, which erode the longstanding duty to retreat in favor of a right to use deadly force in the face of perceived danger. These laws, which have been cited to defend shooters in countless cases, such as George Zimmerman in 2013, are associated with a moderate increase in firearm homicide rates, according to a 2022 study published in JAMA Network Open. Republicans, however, say they are necessary.
“If someone tries to kill you, you should have the right to return fire and preserve your life,” said Representative Matt Gaetz, who introduced a national “stand your ground” bill this month. “It’s time to reaffirm in law what exists in our Constitution and in the hearts of our fellow Americans,” he added. “We must abolish the legal duty of retreat everywhere.”
It should be said as well that some Republicans want to protect gun manufacturers and dealers from lawsuits. Gov. Bill Lee of Tennessee did just that this month — after a shooting in Nashville killed six people, including three children, in March — signing a bill that gives additional protections to the gun industry.
What should we make of all this? In his 1941 State of the Union address, Franklin Roosevelt said there was “nothing mysterious about the foundations of a healthy and strong democracy” and that he, along with the nation, looked forward to “a world founded upon four essential human freedoms.” Famously, those freedoms were the “freedom of speech and expression,” the “freedom of every person to worship God in his own way,” the “freedom from want” and the “freedom from fear.” Those freedoms were the guiding lights of his New Deal, and they remained the guiding lights of his administration through the trials of World War II.
There are, I think, four freedoms we can glean from the Republican program.
There is the freedom to control — to restrict the bodily autonomy of women and repress the existence of anyone who does not conform to traditional gender roles.
There is the freedom to exploit — to allow the owners of business and capital to weaken labor and take advantage of workers as they see fit.
There is the freedom to censor — to suppress ideas that challenge and threaten the ideologies of the ruling class.
And there is the freedom to menace — to carry weapons wherever you please, to brandish them in public, to turn the right of self-defense into a right to threaten other people.
Roosevelt’s four freedoms were the building blocks of a humane society — a social democratic aspiration for egalitarians then and now. These Republican freedoms are also building blocks not of a humane society but of a rigid and hierarchical one, in which you can either dominate or be dominated.
The First Name of a Supreme Court Justice Is Not Justice
June 2, 2023
By Josh Chafetz
Josh Chafetz (@joshchafetz) is a law professor at Georgetown and the author of “Congress’s Constitution.” This essay is adapted from a forthcoming article in The St. Louis University Law Journal.
Although the Supreme Court has been deciding cases at a glacial pace this term — and that with an almost comically small docket of only 59 merits cases — the justices have found other ways to keep busy. They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).
In the cases it has decided, the Supreme Court has gutted an important provision of the Clean Water Act and made it easier for private litigants to mount constitutional challenges to an administrative agency’s structure or existence. Opinions still to come threaten to strike down everything from affirmative action in education to student debt relief to the Indian Child Welfare Act.
Court observers might be tempted to describe all this as a relatively recent development, a function of the court’s 6-to-3 Republican-appointed supermajority. The University of Michigan law professor Leah Litman has called this the “YOLO court” (for “you only live once”), because of the majority’s apparent sense of liberation in pursuing long-held conservative goals. Mark Lemley of Stanford placed the beginning of the “imperial Supreme Court” in 2020.
Mr. Lemley is right to decry the self-aggrandizing nature of the court. But his dating is somewhat off. Judicial self-aggrandizement has been in the works for a lot longer: It has been a hallmark of the John Roberts years.
Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.
The result has been a judicial power grab.
Judges have long portrayed themselves as neutral, apolitical conduits of the law, in contrast to the sordid political branches. This portrayal serves to obscure the institution of the judiciary and to foreground the abstract, disembodied concept of the law. In turn, it serves to empower judges, who present themselves not as one type of political actor but rather as the voice of the majestic principles of the law.
But Mr. Roberts’s judiciary has increasingly taken subtext and made it text. Here are three thematic examples out of many.
Campaign Finance Law
Starting with Citizens United in 2010, the Republican-appointed majority on the court has consistently struck down provisions limiting the influence of money in politics, including provisions that it previously upheld. In a 2014 case, Mr. Roberts wrote that campaign finance regulations that pursue objectives other than eradicating quid pro quo corruption or its appearance “impermissibly inject the government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”
In this brief passage, Mr. Roberts implicitly distances his own institution from “the government” of which it is obviously a part, implies that the court stands outside the processes of governance, and suggests that there is something self-dealing and borderline corrupt about campaign finance laws passed by elected legislatures.
In these same cases, the justices have described nonjudicial political speech in terms that make it sound kind of … icky. It involves “sound bites, talking points and scripted messages that dominate the 24-hour news cycle,” in Justice Anthony Kennedy’s words. This sort of speech deserves protection for the same reasons that “flag burning, funeral protests and Nazi parades” do, in Mr. Roberts’s.
Yet there has been one glaring exception to the majority’s hostility to campaign finance regulations: In the context of state judicial elections, they have upheld restrictions that they would be highly unlikely to tolerate in the context of nonjudicial elections. Tellingly, these cases describe judges in a manner that starkly contrasts with how they have described nonjudicial officeholders.
As Mr. Kennedy put it in a 2009 case about when campaign spending required a state judge to recuse himself, “Precedent and stare decisis and the text and purpose of the law and the Constitution, logic and scholarship and experience and common sense, and fairness and disinterest and neutrality are among the factors at work” when judges consider cases — a far cry from the “sound bites, talking points and scripted messages” of nonjudicial political speech.
And in a 2015 case upholding a Florida law that forbade candidates for judicial office from personally soliciting campaign contributions, Mr. Roberts, anachronistically appealing to the authority of Magna Carta, wrote that judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity” and concluded that “judges are not politicians, even when they come to the bench by way of the ballot.”
Mr. Roberts’s protestations to the contrary notwithstanding, judges are political actors, and striking down federal election laws is an aggressive act of governance by the judiciary. And the justices’ language in these cases, holding up judges as noble instruments of the law and denigrating other officeholders as power-grubbing and superficial, serves to reinforce and justify the notion that they are uniquely qualified to govern us.
Congressional Oversight
On one day in 2020, the court decided two cases dealing with very similar subpoenas for information about President Donald Trump’s financial and business dealings. One set of subpoenas came from congressional committees; the other came from a New York State grand jury.
Mr. Roberts wrote both opinions. In the case dealing with congressional subpoenas, he worried that Congress may aim to “harass the president or render him ‘complaisan[t] to the humors of the legislature.’” Accordingly, the subpoenas must be superintended by the courts, lest the legislature “‘exert an imperious controul’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” (The internal quotations there are from the Federalist Papers to provide a patina of antiquity.) He thus announced a multipart balancing test that applies only when Congress seeks the personal papers of the president.
While that decision made the president a supercitizen vis-à-vis congressional subpoenas, the other opinion emphasized that he is just a regular citizen when it comes to judicial subpoenas. Unlike Congress, apparently, a grand jury requires “all information that might possibly bear on its investigation.” Whereas Mr. Roberts worried about Congress harassing the president, “we generally ‘assume[] that state courts and prosecutors will observe constitutional limitations.’”
Not only do these opinions stymie congressional oversight — the papers were not handed over to the committees until nearly two years into the Biden administration — they also do so using language that elevates judicial institutions while denigrating legislative ones.
Federal Regulation
Congress is not alone; administrative agencies also bear the brunt of the justices’ disdain. In a series of recent cases that, for example, struck down the E.P.A.’s clean power plan for addressing climate change, the Republican-appointed justices have invented the so-called major questions doctrine. If they consider an issue major — and they have not told us what makes a question major beyond “vast economic and political significance” or “earnest and profound debate across the country” — then they will not allow an agency to regulate in that manner unless Congress has clearly stated that it may.
To use an analogy: If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to “eat any dessert it chooses.” It must legislate that the agency can “eat any dessert it chooses, including ice cream cones.” But Congress has no way of knowing whether eating an ice cream cone is major until it sees what a majority of justices have to say about it.
In justifying this doctrine, the justices have raised the specter of out-of-control bureaucrats intruding on the liberty of citizens, undermining legal stability, serving only special interests and invading the domain of the states.
You might think that this doctrine is meant to protect congressional power, except that it dictates to Congress how it must legislate, despite the fact that Congress has no way of knowing in advance what issues will be considered major. Moreover, as the legal scholar Beau Baumann has noted, Justice Neil Gorsuch and his colleagues have justified the doctrine on the grounds that Congress is too eager to delegate to agencies in order to avoid political responsibility, so the courts must keep Congress in line. In other words, the justices are paternalistically claiming to protect Congress from itself.
In all of these areas and in plenty more, the justices have seized for themselves an active role in governance. But perhaps even more consequentially, in doing so, they have repeatedly described other political institutions in overwhelmingly derogatory terms while either describing the judiciary in flattering terms or not describing it at all — denying its status as an institution and positioning it as simply a conduit of disembodied law.
This is the ideological foundation for the Roberts-era judicial power grab.
It is also worth noting that this ideological project is bipartisan. Republican-appointed justices dominate the court and have for many decades, but their Democratic-appointed colleagues — while dissenting in many individual opinions — evince no desire to contest the underlying disdain for other institutions or elevation of their own. When Mr. Roberts recently refused to testify before the Senate Judiciary Committee, nothing stopped Justices Sonia Sotomayor, Elena Kagan or Ketanji Brown Jackson from volunteering to testify, but they did not. Nothing is stopping them from publicly calling for a binding ethics code or from questioning not just the correctness but also the legitimacy of their institution’s assertiveness, but they have not.
Recognizing the justices’ ideological project also points to the beginning of the solution. We ought to begin talking about the justices the way we talk about other political actors — recognizing that their first name is not Justice and that they, like other politicians, should be identified by their party.
We should stop talking about another branch’s potential defiance of a judicial opinion as an attack on “the rule of law” and instead understand it as an attack on rule by judges, one that may (or may not) be a justified response to some act of judicial governance. And those other branches should be more willing — as they have at other moments in American history — to use the tools at their disposal, including cutting the judiciary’s funding, to put the courts in their place.
In recent years, the judiciary has shown little but contempt for other governing institutions. It has earned a little contempt in return.
By Abandoning Civics, Colleges Helped Create the Culture Wars
Sept. 3, 2023
By Debra Satz and Dan Edelstein
Professor Satz is the dean of Stanford’s School of Humanities and Sciences, where Professor Edelstein is the faculty director of the civic, liberal and global education program.
Free speech is once again a flashpoint on college campuses. This year has seen at least 20 instances in which students or faculty members attempted to rescind invitations or to silence speakers. In March, law school students at our own institution made national news when they shouted down a conservative federal judge, Kyle Duncan. And by signing legislation that undermines academic freedom in Florida, Gov. Ron DeSantis is carrying out what is effectively a broad assault against higher education.
We believe that this intolerance of ideas is not just a consequence of an increasingly polarized society. We think it also results from the failure of higher education to provide students with the kind of shared intellectual framework that we call civic education. It is our responsibility as educators to equip students to live in a democratic society whose members will inevitably disagree on many things. To strengthen free speech on campuses, we need to return civic education to the heart of our curriculum.
Throughout the 20th century, many colleges and universities had a required first-year course that honed these skills. Typically, this course was known as Western Civ (short for “civilization”). Such courses became standard during the interwar period, as immigration transformed the student body and liberal democracy itself was under threat around the world.
Western Civ also served another, often unintentional, purpose: It provided a mutually intelligible set of references that situated students’ disagreements on common ground.
Generations of students grappled with Socrates’ argument that the rule of law cannot survive if people simply ignore laws they don’t support. By debating plausible answers, students learned to see disagreement as a necessary ingredient of both learning and of life. They also confronted hard questions about civil disobedience and social change. And the common references that students picked up in their first year provided a foundation for future conversations and courses.
The limitations of Western Civ are evident from its title. It exposed students to Western ideas only, implicitly (or sometimes explicitly) suggesting that these ideas were superior to those from other cultures.
Eventually, these limitations proved intractable. In 1987, activists at Stanford denounced the European-Western and male bias of the university’s first-year requirement, then called Western Culture. The course was replaced with a program that had no Western focus.
From 1964 to 2010, almost all selective schools (Columbia being an exception) abandoned first-year requirements featuring a common humanities curriculum. Instead, they opted for a buffet model, in which students could choose from various curricular tracks. Between 1995 and 2012, Stanford students could pick from around a dozen first-year humanities classes, from a course on gender roles in Chinese families to Technological Visions of Utopia. While many of these courses were excellent, they had no common core of readings nor any transparent rationale for why they were required.
Many colleges said the change was a pragmatic one, given the disagreements about which texts should be mandatory. We believe there was another reason universities turned toward an à la carte curriculum: They had come under the spell, like much of society at that time, of a free-market ideology. In this vision, individual choice and individual advancement take center stage. Requirements are recast as paternalistic; freedom is understood as doing as one pleases.
Freedom of choice is an important value. But without common foundations, it can lead to people shouting one another down. An educational model that leaves no room for a core curriculum shaped by the demands of 21st-century democracies leaves students woefully ill equipped for dealing with disagreements. In a world where individual choice is supreme, how do we learn to accept that there are alternative perspectives to our own that may also be valid? If my goals are the only ones that matter, those who do not share them can too easily be viewed as obstacles that need to be swept away. In the educational context, the invisible hand can turn into an iron fist.
The widespread adoption of a free-market approach to the college curriculum has had other noxious effects, as well: It has fueled a rampant vocationalism among students, leading them to desert humanities classes in favor of preprofessional tracks aimed at lucrative careers. When universities do not signal the intrinsic value of certain topics or texts by requiring them, many students simply follow market cues.
Civic education, by contrast, is a public good. Left to the market, it will always be undersupplied. It is rarely a priority for employers or for job seekers to promote the skills of active listening, mutual reasoning, respecting differences and open-mindedness. We need to reinvest in it.
In the absence of civic education, it is not surprising that universities are at the epicenter of debates over free speech and its proper exercise. Free speech is hard work. The basic assumptions and attitudes necessary for cultivating free speech do not come to us naturally. Listening to people with whom you disagree can be unpleasant. But universities have a moral and civic duty to teach students how to consider and weigh contrary viewpoints, and how to accept differences of opinion as a healthy feature of a diverse society. Disagreement is in the nature of democracies.
Universities and colleges must do a better job of explaining to our students the rationale for free speech, as well as cultivating in them the skills and mind-set necessary for its practice. The free-market curriculum model is simply not equipped for this task. We cannot leave this imperative up to student choice.
At Stanford, since 2021, we once again have a single, common undergraduate requirement. By structuring its curriculum around important topics rather than canonical texts, and by focusing on the cultivation of democratic skills such as listening, reasonableness and humility, we have sought to steer clear of the cultural issues that doomed Western Civ. The new requirement was approved by our faculty senate in May 2020 without a single dissenting vote.
Called Civic, Liberal and Global Education, it includes a course on citizenship in the 21st century. Delivered in a small discussion-seminar format, this course provides students with the skills, training and perspectives for engaging in meaningful ways with others, especially when they disagree. All students read the same texts, some canonical and others contemporary. Just as important, all students work on developing the same skills. Preliminary assessments and feedback suggest that our new program is meeting its goals.
To be clear, our civic education does not aim at achieving consensus among students, nor at producing moderation. Our students, like all of us, will continue to disagree on many things. Nor are our students the only ones in need of such civic skills — numerous members of Congress and governors could no doubt use this curriculum, as well. (We’d be happy to share it.)
But it is our belief that by restoring a common curricular foundation centered on the democratic skills our students need to live in a diverse society, they will turn to more constructive ways to engage with those with whom they disagree than censorship or cancellation.
@klezman agreed. and more broadly, having any single class that all undergraduates take, regardless of major, helps to build that collegiate “bond”. I was able to complain about Psych 101 to anyone in my circle of friends, and we all knew about it. I would have liked to have a Civics/Government/Philosophy class that was the same.
I spent a few moments trying to decide whether to post this link here or in the pub. I decided here because climate change has become a political, rather than a scientific or existential, issue. A glass of wine with your climate crisis?
@davirom wineries have been adjusting to climate change and making long term decisions based on it for a decade now. See the rise of Lake county.
While politicians like to invent wedge issues to try to get more votes, those whose livelihoods are affected by climate change have long been acting in accordance with the science. Whether that’s planting different crops or trying to muddy the scientific waters the way the oil industry has approached it. (Seriously, read the complaint for the Multnomah County suit against the oil industry. Regardless of the legal theories, the documentary evidence in the complaint is shocking and appalling.)
@canonizer I am morbidly curious of who they will put up as the next speaker. What kind of chaos agent will it be?
McCarthy only had to agree to be responsible and the Democrats would have saved him. Major tactical error on his part.
@canonizer@klezman One would have to be both an idiot and a masochist to want to be speaker so long as 1 member can call for your ouster. Unfortunately, there are several candidates.
It’s nice to hear Biden call a spade a spade: Hamas terrorists.
I hope this latest terrorist assault on Israel can help push this conflict to a permanent resolution.
@losthighwayz What extent of resolution do you mean? Do you mean getting the hostages back that the terrorists kidnapped? Do you mean eradicating the terrorists? Do you mean full resolution of the Israel-Palenstinian conflict?
I’ve got quite different ideas about each of those.
But in sum, the terrorists should pay the ultimate price. They lost any right to their lives when they deliberately murdered children.
The broader conflict can only be solved with a demilitarized Palestinian state that repudiates all forms of terrorism living alongside Israel.
This headline enrages me. Not because it’s wrong, but because people somehow weren’t paying enough attention to see this for the past two decades:
On Israel, progressive Jews feel abandoned by their left-wing allies
Jewish leaders and voter said they were taken aback to discover that many of their ideological allies saw them as oppressors who deserved blame following the Israel attacks.
@rjquillin nope, not about Israel. But they publish Tom Friedman’s articles and he’s about as knowledgeable as anybody about the region. Even if I don’t always agree with him. (Which is the point.)
@klezman I’ve been mostly silent about what’s happening in Israel. It’s an event of compounding sadness. A friend just told me that the only way through was a one state solution and she called me “the most zionist person I know” when I look at her like she was bananas.
I firmly believe antimsemitism is alive and well AND that Israel’s response is going to have negative repercussions for the country. Normalizing relations with more arab states might have improved things but it is a damn volatile space.
With all of that said, I don’t believe the prognostications for world war. No one is really incentivized (in my own, non professional calculation) to enter in a meaningful way.
@canonizer I’m largely in agreement with everything you write there. A one-state solution is no solution at all - it’s the end of self-determination for the most consistently oppressed and hated group of the last 2000 years.
I don’t think the presence of antisemitism is a matter of opinion at this point. It’s alive and well, full stop.
The Missed Chance for Peace
Oct. 12, 2023
By David Brooks
Opinion Columnist
Throughout this horrible week, my mind has repeatedly flashed back to Dec. 23, 2000. That was the day the Palestinians were offered a path to having their own nation on roughly 95 percent of the land in the West Bank and 100 percent of the land in the Gaza Strip. Under that outline, Israel would also swap some of its own land to compensate the Palestinians in exchange for maintaining 80 percent of its settler presence in the West Bank.
The Palestinians would control, in President Bill Clinton’s formulation, “Arab areas” of East Jerusalem. And on the most sensitive religious sites, there would have been divided sovereignty or jurisdiction, with Palestinians controlling the Haram al-Sharif (including the Aqsa and Dome of the Rock mosques) and Israel controlling the Western Wall and the holy space of which it is a part. There would also be a return of many refugees into the new Palestinian state (without the right of return to Israel itself).
There were a million complexities — and many errors made by the Israeli, Palestinian and American sides along the way. But this offer pointed the way to the sort of fair solution negotiators had been struggling their way toward for years. It is hard to see this kind of option ever being on the table again. And the Palestinians let it slip away.
This memory comes hauntingly back because the misery that Palestinians and Israelis are now enduring did not have to happen. They could have reached some kind of moderately effective arrangement, which would have given the two nations a chance to pursue their own destinies.
Another reason I think back on this history is the way a simplistic oppressor/oppressed, colonizer/colonized, “apartheid Israel” narrative has been imposed on this conflict.
The real history is much more complicated. It is the story of the Palestinians who were offered a state in 1947 that the Arab states opposed. More recently, it is the story of flawed human beings on both the Israeli and Palestinian sides, who were confronted with a devilishly complicated situation. They worked doggedly to secure peace and made real, if stumbling, progress toward that end. It is the story of how radicals on both sides undermined their efforts, leading to the bloodshed we see today. This is what happens when the center does not hold.
The drive toward that 2000 peace offering began at the Madrid peace conference of 1991. Throughout that decade, there were a series of major peace efforts: the Oslo process, the Cairo Agreement, Oslo II, the Hebron Protocol, the Wye River Plantation meeting.
Along the way, the momentum was nearly derailed. An Israeli settler assassinated Prime Minister Yitzhak Rabin as he strode toward peace. There were cascades of bombings authored by Hamas and other terrorist groups.
But Israelis continued to support a two-state solution. On May 17, 1999, the Labor Party leader, Ehud Barak, running on an aggressive peace platform, defeated Benjamin Netanyahu in the race for prime minister.
Bill Clinton hosted an Israeli-Palestinian summit at Camp David in July 2000. In many ways that summit was premature. But as the chief U.S. negotiator at the time, Dennis Ross, told me this week, Barak led “the most forthcoming government in Israel’s history,” and Clinton seized the opportunity.
The summit failed to yield an agreement, and the enemies of peace struck back. Ariel Sharon took a stroll on the Temple Mount — where Haram al-Sharif stands and non-Muslim entry is restricted — that provoked Palestinian rage. The Palestinian leadership launched the second intifada, bringing a reign of terror to Israeli streets.
Still, Clinton and negotiators persisted with meetings at Sharm al-Sheik. By the end of the year, Clinton brought the two sides to the White House. At the pivotal meeting in December, he slowly read aloud the peace plan that would come to be known as the Clinton Parameters. It called for uncomfortable sacrifices from both parties but gave each side what the U.S. negotiators believed they needed.
A few days later, the Israeli cabinet voted to accept the plan. Yasir Arafat did what he generally did. He never said no, but he never said yes. The Saudi and Egyptian ambassadors in Washington strongly pressured him to agree to a deal, but perhaps feeling pressure from back home or sensing where Palestinian public opinion was or feeling that the provisions for the refugees were insufficient, Arafat dallied. Momentum was frittered away. Just before Clinton left office, he had one of his final conversations with Arafat. Arafat told him he was a great man. According to his memoir, Clinton replied: “I am not a great man. I am a failure, and you have made me one.”
Arafat’s nondecision further discredited the peace camp in Israel, suggesting that if he wouldn’t go for this, he would never go for any negotiated settlement. Sharon soared to victory in the next election. In “The Missing Peace,” Ross’s definitive 872-page history of this period, Ross concluded that Arafat never transformed himself from a guerrilla outsider to the kind of leader capable of forming and governing a nation. The Palestinians “surely were betrayed in the past, and they surely have suffered,” Ross wrote. “But they have also helped to ensure their status as victims. Never seizing opportunities when they presented themselves. Blaming others for their predicament. Declaring unmistakable defeats as victories.”
In the ensuing decades, Israel and its settlers have expanded their occupation of the Palestinian territories, Israeli politics have shifted sharply rightward, and the Hamas fundamentalist death cult has grown stronger and more satanically daring.
As I went back and revisited all these events, I was struck by how negotiators on both sides were immersed in resolving practical issues. Now politics is mostly theater and psychodrama. Hamas and its followers cultivate the fantasy that Israel, a permanent Middle Eastern nation, will magically cease to exist. Its terrorists seek to avenge the wounds of injustice and humiliation with mass murder, without anything remotely resembling a firm plan to improve the quality of Palestinian lives.
And in the United States, some students and activists create rally posters with paragliders to celebrate the murderers who descended on the Israeli music festival. It’s all vicious posturing, to make people feel avant-garde and self-righteous, no matter how many decades of real human suffering lie ahead.
What’s the betting line on who will be the next speaker?
I’m a fan of somebody who didn’t try to overthrow the government or help those who did. That shouldn’t be as high a bar as it seems to be…
I’ve been informed that saying some people currently in Congress were involved with attempting to “overthrow the government” is ridiculous hyperbole that can shut down discussion.
As I’ve stated here many many times before, I appreciate discussion with people having different views. I always have. So for anybody offended in that way, please read around that and let’s move on with my apologies.
I’ll restate: I’d prefer the Republicans elect as speaker an individual who was not involved, directly or indirectly, with any of the violence of January 6, 2021 or in the lead-up to it, or in supporting the violent people afterward.
A more unlikely hope: the not-crazy part of the GOP caucus gets together with the not-crazy part of the Democrat caucus and elects somebody who will work to get legislation passed that has a chance of becoming law with a Democrat-controlled senate and presidency.
@klezman Perhaps the Democrats should start voting for a Republican who they think they can work with. Perhaps one who is not an ardent Trumper.
@FritzCat You mean they should take the initiative and just do it? That would be interesting. I’d love to see that happen, including what would hopefully be a bunch of bipartisan legislation over the coming two years.
I have no idea who that would be, but the one person I’ve heard mentioned a couple times is the GOP head of the “problem solver’s caucus”.
@FritzCat @klezman Interesting concept, but I’m afraid it would be the kiss of death politically for the Republican in question. Witness Liz Cheney.
@davirom @FritzCat @klezman Too bad they gerrymandered the Illinois rep that was willing to sit on January 6th committee. I forget his name.
@FritzCat @klezman there’s no benefit for Democrats to cut this short other than to confirm a democrat or possibly someone not in Congress
@davirom @dirtdoctor @FritzCat Kinzinger. He’s way too conservative for me policy-wise but he at least believes that the government should operate from a factual basis and he strikes me as an honest person. I wouldn’t be upset if they nominated him. There’s no rule that the speaker needs to be an elected member of the house.
@davirom @FritzCat @klezman I don’t agree with all his thoughts on policies either, but at least it seemed like he actually wanted to govern and wasn’t just about himself, fundraising, or getting likes on social media. People can disagree about best way forward for country, but we all can’t have our “alternative” facts, or whatever Kellyanne Conway called it.
@davirom @dirtdoctor @FritzCat couldn’t have said it better myself
Here we have the spectacle of 20-odd (and I do mean odd) representatives holding the House and by extension Congress and America hostage to their extreme views. By extreme, I mean “My Kevin” is too liberal for them. With the House so evenly split between D’s and R’s, so long as they act as a block they can extort concessions from so-called mainstream Republicans. But to what avail? Ask Kevin how giving concessions is working for him.
My impression is that what the 20-odd want from government is to shut it down, and they are succeeding.
@davirom That’s also what I’m wondering. What’s Kevin’s end-game here? Just the prestige of being called “speaker” until he loses a motion to vacate? He’s given away so many concessions that even if he ends up in the chair he’s got basically no power.
And good point about the 20-odd wanting government to be broken. Arsonists in the fire department.
@davirom I’m not sure they’ve suggested that Kevin is too liberal. They literally just don’t like him despite him offering concessions previously unheard of within his caucus.
Since every Congressional race has become nationalized, every bit of sensational behavior is rewarded and they have been liberated from requiring party funds to campaign for office.
@canonizer @davirom Just impose term limits and 99% of the problems will be flushed away.
@canonizer @davirom @Mark_L Agree on term limits, but if I could change only 1 thing, it would be to eliminate gerrymandering. That should reduce the number of far left and right representatives that can win districts. It would also lead to a more representative government, at both the federal and state level.
@davirom @dirtdoctor @Mark_L as someone who identifies as liberal/progressive, i will say that it is not as easy just to eliminate districts when urban areas are going to be more liberal and rural ones more conservative. Drawing competitive districts that could lead either way would probably look artificially hub and spoke visually.
@canonizer @davirom @dirtdoctor @Mark_L
Term limits - sure. I don’t think this will be as effective as many others do.
No more gerrymandering - 100%. Independent distributing commissions, zero consideration of partisan affiliation in the process, and generally trying to follow existing administrative lines.
Two more that I think would help:
The house needs more members. Like 100 more. The representation is getting more and more skewed as large states like California and Texas are underrepresented and small states are war overrepresented.
Ranked choice voting. This can help eliminate both the extreme candidates but also the stranglehold the two parties have on the system. Alaska has it right on this one.
@davirom @dirtdoctor @klezman @Mark_L oh, we are short 100s of representatives. it should be locked against the least populous state and proportionately distributed from there. I think this started in the 20s? I once knew the story of why the House stopped growing but can no longer recall. There’s no reason for small states to be protected by over representation in both chambers.
@canonizer @davirom @dirtdoctor @klezman Personally, I think one of our problems is that we already have too much government.
@canonizer @davirom @dirtdoctor @Mark_L Does “too much government” equal “too many representatives”?
@davirom @dirtdoctor @klezman @Mark_L Eh, I don’t get this argument. Wyoming has 550k people and 1 rep in the house. California has over 40m. The senate is supposed to be the body that gives over representation to small states but to equalize the voice of californians would require 72 congresspeople. It’s a distorted overrepresentation.
I can understand the argument against growing the civil service or bureaucracy in the hypothetical but I don’t understand how a person can be against both direct democracy and fair representation.
@canonizer @davirom @dirtdoctor @klezman Using Wyoming as the basis for “over-representation” is not a very good argument. Since each state (rightfully, IMO) is guaranteed at least one representative, the smallest population (WY) might appear to have a disproportionately “large” advantage (1 rep. for 58K population). The states with 4 or more representatives are all very close to 1 representative per 750K of population. There is almost no “unfairness” to be found.
@canonizer @davirom @dirtdoctor @Mark_L I would actually be ok with Congressional districts going across state lines to equalize the population in each district. This is one of those things that sounds better in theory than in practice, though. Too many other issues to sort out to make something like that work.
Failing that, I’ve not yet encountered a persuasive argument for over representing small states in the house. (Or for the electoral college in the 21st century, but that’s a debate for another day.)
@canonizer @davirom @dirtdoctor @klezman I should have said 1 rep for 580K in WY.
@canonizer @davirom @dirtdoctor @klezman
Are there any over represented small states that you can specify, beyond the guarantee of one representative?
@canonizer @davirom @dirtdoctor @Mark_L
Well, this is a question that’s easy to answer, but it depends on the definition.
According to the US Census, there are just over 761k per House seat on average after the 2020 census. Let’s first define “fair” as being within a 10% variance of that number. That gives us between 685-837k people per seat. I think that’s a very generous variation for this measure, but by that standard the following six states are overrepresented:
Maine, Montana, Nebraska, Rhode Island, Vermont, and Wyoming
These four are under represented: Delaware, Idaho, South Dakota, and West Virginia
If you instead tighten the window to 5%, you get 723-799k people. Then you get seven more that are overrepresented:
Alabama, Colorado, Connecticut, Minnesota, New Hampshire, New Mexico, Oregon
And you only get Utah added to the list of under represented states.
Source: https://www2.census.gov/programs-surveys/decennial/2020/data/apportionment/apportionment-data-table.pdf
Of course this problem gets worse when you port it over to the electoral college. One way to quiet the calls for abolishing it is to have it be more fair by having more fair representation in the House. I happen to think the electoral college is anachronistic, but I know there are those who very strongly believe in its benefits, and those people would strengthen their argument, imo, by advocating for a larger house.
@canonizer @davirom @dirtdoctor @klezman
I consider that a fallacious definition of “fair”. States with smaller populations are very unlikely to fit that definition because the “granularity” of the 761K will automatically put some at a higher or lower distance from the average.
@canonizer @davirom @dirtdoctor @Mark_L that’s fine, I understand the math here. But to answer your question I had to pick a definition and so I picked two alternatives. Obviously when you’re dealing with integers there will be edge effects, like with Rhode Island and Delaware. We can agree no matter what they these will happen yet can still discuss the degree of over and under representation in the house when the number of Representatives hasn’t increased in many decades.
@canonizer @davirom @dirtdoctor @klezman I guess the question is, why the need to increase? (I tried to find the total cost of a representative, but didn’t get a clear answer. But I tend to think that we waste too much money on government and there is no need to add more.)
@canonizer @davirom @dirtdoctor @Mark_L more fair representation in the house and in voting for president if we’re keeping the electoral college.
100 Representatives more at even 5 million each (that buys a lot of staff!) is a whopping $1.65 per person per year in the country. For better governance that seems a bargain. (Although there’s certainly an argument to be made that more Representatives didn’t necessarily mean better governance.)
@davirom @dirtdoctor @klezman @Mark_L I guess my response to “why more” would be because this is one of the few places that we have actual representation. There is a fair critique that much of what does the actual governing of us comes from unelected officials.
The number of people each congressperson represents has increased steadily and maybe their constituencies are too big to do that adequately? By maybe, I think it’s definite.
Today President Biden awarded the Presidential Citizens Medal to 14 individuals, including 3 posthumously to DC police officers who died shortly after the insurrection, 5 to other police officers for their defense of the Capitol, and 3 to Republican election officials who resisted intimidation by Trump himself or his proxies to invalidate election results in their jurisdictions.
Fox’s lead on the story: “Biden says wrong day at January 6 ceremony honoring officers, remembers ‘what happened on July 6’”.
@davirom “Fair and balanced”, my ass. Or have they retired that slogan now?
Now we get to hear all about Hunter’s laptop.
I rarely, RARELY, agree with conservative pundit Jonah Goldberg but he makes some good points in today’s op-ed that appeared in the LA Times. For those who don’t want to read it, basically he says the chaos in the House is not ideology driven, and it may not be possible to apply conventional ideological labels to the current crop of Republicans.
From Jonah Goldberg:
Kevin McCarthy’s epic struggle to become speaker of the House produced a lot of memorable images, but the most unforgettable was probably of Rep. Mike Rogers (R-Ala.) being physically restrained from opening a fresh can of whup-ass on Rep. Matt Gaetz (R-Fla.), after Gaetz ensured McCarthy’s 14th failure to get the gavel.
The significance of the near-altercation is that it had next to nothing to do with conventional ideological differences. Rogers is a very conservative Republican. Gaetz is a cable news popinjay who happens to be in Congress.
Indeed, the relentless torrent of never-in-doubt-but-often-in-error commentary last week exposed the poverty of our political vocabulary. While it’s true that 19 of the original 20 anti-McCarthy Republicans were members of the House Freedom Caucus (or were endorsed by its campaign arm in the midterms), the majority of the roughly 50 HFC members sided with McCarthy (R-Bakersfield). You might not have known this amidst all of the “establishment versus Freedom Caucus” punditry.
Similarly, the holdouts were routinely called “ultra-conservatives” or “hard-line conservatives” as if their opposition was driven by a deeper, more sincere commitment to conservative principles. But is anti-McCarthy Rep. Lauren Boebert (R-Colo.) really more “conservative” than pro-McCarthy loyalist Marjorie Taylor Greene (R-Ga.)? Heck, do either of them qualify as meaningfully “principled” at all?
Rep. Jim Jordan (R-Ohio), the rebels’ first choice for speaker among the anti-McCarthy forces, was a steadfast supporter of … Kevin McCarthy.
Even such non-ideological shorthand as “pro-Trump” and “anti-Trump” clarifies little. McCarthy has played Renfield to Trump’s Dracula for years now, but so did most of the folks on the “Never Kevin” roster. During the Trump years, Rogers voted with the president more than Gaetz, himself a thorough Trump sycophant.
One source of this confusion stems from the widespread cockamamie delusion in certain quarters of the right that being part of “the establishment” is code for “moderate,” “sell-out,” or “RINO.” Another magnet next to the compass for would-be navigators of the political landscape is the notion that Donald Trump is not now and has never been part of the Republican establishment, a view that seems to be counterintuitively held most adamantly by people who insist the GOP is forevermore Trump’s party.
Among the many problems at play here is that it is very difficult to have serious conversations about serious things if we don’t have accurate labels for the things we’re talking about. As George Orwell observed, language “becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.”
One way out of this morass is to talk less about ideology and more about factions. To the extent they ever existed, the days of the GOP’s ideological coherence are over. Just look around. According to the old standards, defeated Republican Rep. Liz Cheney of Wyoming was a fairly orthodox conservative, but she’s now a pariah for being a member of the anti-Trump faction. For years, opposition to abortion was a defining criteria for being politically conservative. Trump is now blaming that position for the GOP’s midterm losses. Defense spending, long a conservative litmus test, fully emerged last week as an intra-Republican fault line.
The chaos isn’t confined to Congress. Fox News brahmins were all over the place last week, with Sean Hannity carrying water for McCarthy while Tucker Carlson hurled epithets at the pro-McCarthy camp, including at colleagues.
The advantage of the term “faction” is that it’s inherently non-ideological. The founders anticipated that factional conflict would define our politics, and it has. But for most of our history, those factions often had less to do with clear ideological disputes than regional, economic or cultural conflicts.
The challenge with mothballing ideological language in describing today’s GOP is that it makes the comfortable right-left, us-versus-them verbiage that rules everything from fundraising to punditry obsolete.
Some factions today do have ideological flavors like nationalism, populism or, relatedly, foreign policy non-interventionism. But what fuels — and funds — them is a cultivated radicalism and contrived hostility to an establishment that barely exists beyond the formal powers of leadership. If anyone in power amounts to “the establishment” then, sure, McCarthy and Sen. Mitch McConnell (R-Ky.), the Senate minority leader, are the establishment.
The question for Republican leaders is whether they will be able to forge a governing faction, particularly in a climate where Democrats have every incentive to let Republicans feast on each other, and the conservative base values opposition for its own sake. Thanks to the GOP’s tiny majority, last week’s rebels have learned the power of faction. Whether the majority can exert similar power remains to be seen.
@davirom I agree also. It has bothered me that they’ve been calling the chaos faction “conservative”.
I know not everyone is going to have access to the times but thought this op ed was worthwhile from a perspective of historian on the study of history in our climate - https://www.nytimes.com/2023/01/14/opinion/american-history-college-university-academia.html?action=click&module=Well&pgtype=Homepage§ion=Sunday Opinion
And pasting if there’s anyone interested
Account
OPINION
GUEST ESSAY
The Dangerous Decline of the Historical Profession
Jan. 14, 2023
An image shows a row of books, all in different colors, which say “History” on their spines. They decline in size as the image moves from left to right.
Credit…Soohee Cho
Give this article
By Daniel Bessner
Mr. Bessner is a historian.
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When I received my Ph.D. in history in 2013, I didn’t expect that within a decade fights over history — and historiography, even if few people use that word — would become front-page news. But over the last few years that is precisely what has happened: Just look at the recent debates over America’s legacy of slavery, what can be taught in public schools about the nation’s founders and even the definition of what constitutes fascism. The interpretation of the American past has not in recent memory been as public or as contentious as it is now.
Maybe it started with The New York Times Magazine’s 1619 Project, which sought to “reframe the country’s history by placing the consequences of slavery and the contributions of Black Americans at the very center of our national narrative” and which accompanied a national reckoning around race. That provoked, perhaps inevitably, a right-wing backlash in the form of “The 1776 Report,” a triumphalist, Donald Trump-directed effort. Then came a raft of laws in conservative-governed states across the country aiming to restrict and control how history is taught in public schools.
History, as the historian Matthew Karp has written, has become “a new kind of political priority” for people across the political spectrum, a means to fight over what it is to be an American: which values we should emphasize, which groups we should honor, which injustices we should redress.
The historical profession has likewise been roiled by controversy. Last August, James H. Sweet, the president of the American Historical Association, published an essay in which he argued that present-focused narratives of African slavery often represent “historical erasures and narrow politics.” The piece engendered a firestorm of reproach, with scholars variously accusing Dr. Sweet of attempting to delegitimize new research on topics including race and gender; some even accused Dr. Sweet of outright racism.
Yet as Americans fight over their history, the historical profession itself is in rapid — maybe even terminal — decline. Twelve days after Dr. Sweet published his column, the A.H.A. released a “Jobs Report” that makes for grim reading: The average number of available new “tenure track” university jobs, which are secure jobs that provide living wages, benefits and stability, between 2020 and 2022 was 16 percent lower than it was for the four years before the pandemic.
The report further notes that only 27 percent of those who received a Ph.D. in history in 2017 were employed as tenure track professors four years later. The work of historians has been “de-professionalized,” and people like myself, who have tenure track jobs, will be increasingly rare in coming years. This is true for all academic fields, not just history. As Adrianna Kezar, Tom DePaola and Daniel T. Scott note in their book “The Gig Academy,” about 70 percent of all college professors work off the tenure track. The majority of these professors make less than $3,500 per course, according to a 2020 report by the American Federation of Teachers. Jobs that used to allow professors to live middle-class lives now barely enable them to keep their heads above water.
What is to blame? In the past generation the American university has undergone a drastic transformation. To reduce costs, university administrators have dramatically reduced tenure. And as the protections of tenure have withered away, the size of nonteaching university staffs have exploded. Between 1976 and 2018, “full-time administrators and other professionals employed by those institutions increased by 164 percent and 452 percent, respectively,” according to a 2021 paper on the topic. Professors have been sacrificed on the altar of vice deans.
At the same time, in an effort to fund research that might redound to their financial benefit and to demonstrate their pragmatic value to politicians and to the public, universities have emphasized science, technology, engineering and math at the expense of the humanities. As the American Academy of Arts and Sciences reported, citing data from 2019, “spending for humanities research equaled 0.7 percent of the amount dedicated to STEM R.&D.”
The humanities, including history, are often considered more an object of ridicule than a legitimate lane of study. Look no further than statements from politicians: Rick Scott, the former governor of Florida, assembled a task force in 2012 that recommended that people who major in history and other humanities fields be charged higher tuition at state universities. In 2016, Gov. Matt Bevin of Kentucky said that “French literature majors” should not receive state funding for their degrees. Even more recently, in 2021, Gov. Ron DeSantis of Florida mocked people who go into debt to “end up with degrees in things like zombie studies.” And it’s not just Republicans: President Barack Obama remarked in 2014 that “folks can make a lot more, potentially, with skilled manufacturing or the trades than they might with an art history degree,” implying that if a degree didn’t make money it wasn’t worth it. (Mr. Obama later apologized to a University of Texas art historian for his remarks, clarifying that he did believe art history was a valuable subject.)
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These material and ideological assaults have engendered a steep decline in undergraduate humanities majors. In the 2018-19 academic year, only 23,923 graduating undergraduates received degrees in history and related fields, which, the A.H.A. notes, is “down more than a third from 2012 and the smallest number awarded since the late 1980s.”
Private groups, which traditionally provided significant financial support to budding humanities scholars, have taken the hint and increasingly stopped supporting the humanities and soft social sciences. The Social Science Research Council recently ended its International Dissertation Research Fellowship program, which in the last 25 years funded over 1,600 scholars exploring “non-U.S. cultures” and “U.S. Indigenous communities,” declaring that the program “accomplished many of the goals it had set for itself.” The Ford Foundation has similarly decided to conclude its long-running National Academies fellowship program for historically marginalized scholars in order, the foundation’s president declared, “to invest more deeply in movement-building work.”
It’s the end of history. And the consequences will be significant.
Entire areas of our shared history will never be known because no one will receive a living wage to uncover and study them. It’s implausible to expect scholars with insecure jobs to offer bold and innovative claims about history when they can easily be fired for doing so. Instead, history will be studied increasingly by the wealthy, which is to say those able to work without pay. It’s easy to see how this could lead American historical scholarship to adopt a pro-status-quo bias. In today’s world, if you don’t have access to elite networks, financial resources or both, it just doesn’t make sense to pursue a career in history. In the future, history won’t just be written by the victors; it’ll also be written by the well-to-do.
If Americans don’t seriously invest in history and other humanities disciplines, we encourage the ahistoric ignorance upon which reaction relies. Many Republican politicians support “divisive concepts” laws that try to regulate what college professors teach. Are they aiming at an easy target in the culture war? Perhaps. But it’s also true that a humanities education encourages thinking that often challenges xenophobic and racist dogma. Progress depends on studying and arguing about the past in an open and informed manner. This is especially true in a moment like our own, in which Americans use history to fight over which vision of the country will dominate politics. If there are no historians to reflect meaningfully and accurately on the past, then ignorance and hatred are sure to triumph.
Without professional historians, history education will be left more and more in the hands of social media influencers, partisan hacks and others unconcerned with achieving a complex, empirically informed understanding of the past. Take, for example, Bill O’Reilly’s 12-books-and-counting “Killing” series — the best-selling nonfiction series of all time, according to Mr. O’Reilly’s publishers — whose very framing sensationalizes the past by focusing on “the deaths and destruction of some of the most influential men and powerful nations in human history.” The same could be said about Rush Limbaugh’s “Rush Revere” series for young people, in which a time-traveling and tri-corner-hatted Mr. Limbaugh teaches “about some of the most exceptional Americans.” Or consider Twitter, where debates over history regularly erupt — and just as regularly devolve into name-calling. If professional historians become a thing of the past, there will be no one able to temper these types of arguments with coolheaded analysis and bring a seriousness of purpose, depth and thoughtful consideration to discussions of who Americans are and who we want to be as a nation.
Americans must do everything in their power to avert the end of history. If we don’t, exaggerations, half-truths and outright lies will dominate our historical imagination and make it impossible to understand, and learn from, the past.
Daniel Bessner is an associate professor of international studies in the Henry M. Jackson School of International Studies at the University of Washington and a co-host of the foreign affairs podcast “American Prestige.”
@canonizer This is yet another symptom of the dysfunctional nature of wages in today’s USA (and plenty of other places, too). Value to society != value to shareholders, and I’d argue society is more important than shareholders.
@canonizer woah…tl;dr
Zero Growth Economy:
As a normal American consumer, that concept struck me as, well, “unAmerican”.
However, there seem to be some thinkers who are considering the possibility, and it might just be the solution to many of the world’s problems.
There are books by the likes of Tim Jackson, which I haven’t read yet. But, for a starter, here’s a short article in the New Yorker.
@FritzCat I’ve seen that idea kicking around for a few years now. The expected infinite growth of the economy is simply not sustainable if we want to have a planet to live on, so other solutions are welcome. I think most of them include done form of internalizing what are now external costs, like the millions of tonnes of microplastic now out in the ocean, in our food, and in the air that we breathe.
i’m so gd sick of the debt limit standoffs.
@canonizer I am as well, but this seems to be a function of big spending and tax cut bills being passed only when one party controls both legislatures, with no support from the other party. On one hand, I can understand (although don’t agree with it) Republicans trying to use any leverage they have since Democrats passed most of the recent spending bills without any Republican support. If Democrats had a similar mechanism to dispute tax cuts, I’m sure they’d try to use it as leverage as well.
At the same time, I don’t recall these same Republicans requiring spending cuts before passing the Trump tax cuts. The theory that tax cuts pay for themselves through increased growth rarely happens, and didn’t happen with the latest tax cuts. If these Republicans truly cared about fiscal responsibility, they would come to the table with a plan addressing both sides of the equation, not just spending cuts.
@canonizer @dirtdoctor
I like the approach of the executive claiming that the 14th amendment prohibits the country from defaulting on its debt and letting the Congress sue if they disagree. That’d end the stalemate.
I agree with pretty much everything else you said. I’d just add that the Republicans don’t really seem like they care about balancing the budget. Trickle down economics has been shown to not work. Tax cuts don’t pay for themselves. So let’s see what, if anything, the house majority can come up with on policy. I would like to see what a serious Republican fiscal policy would look like under this leadership.
@dirtdoctor @klezman agree with both of you. Both sides have contributed to the growing debt. The Republicans use as a leverage tool is horrible. The party doesn’t seem to understand that upsetting the dollar so reserve currency is bad.
https://www.science.org/content/article/want-avoid-heated-argument-trick-could-help
Interesting article discussing a recent study of how intellectual humility can facilitate debate rather than argument.
@klezman I’m struggling to find a political application of this in a world where argument, not debate, is a fundraising staple.
@davirom I think that’s kind of the point. But I agree the way that one induces additional intellectual humility would be hard to deploy at scale.
@klezman Yes, my use of “political application” was vague.
A very useful, imo, commentary on judicial decisionmaking.
Humanism Should Replace Formalism In The Courts
By Thomas Moukawsher ·
Contemporary American judges have more in common with medieval monks than just wearing robes.
Today’s courts are dominated by formalists. After reviewing decisions from the last several months — about guns, abortion and industrial pollution — they remind me of work by the 13th and 14th century scholastics, dominated by the monks who dictated thinking in Europe prior to the Renaissance.
Scholastics believed they could find truth using formal exercises handed down from Aristotle through men like St. Thomas Aquinas. They typically began their work by studying a book on the topic at hand by a renowned scholar.
Scholastics might then study documents related to that book. They would debate snippets of competing text. They would scrutinize minutely the meaning of individual words and then use formal logic to show that contradictions were merely mistakes of subjectivity by the reader.
This should sound familiar to readers of opinions by contemporary court formalists who prefer labels like “textualist” and “originalist.” Read U.S. Supreme Court Justice Clarence Thomas’ 2022 opinion holding that requiring license applicants to show the need for a handgun violated the Second Amendment in New York State Rifle & Pistol Association Inc. v. Bruen.[1]
Justice Thomas’ approach intentionally did not consider the relevant human condition — mass shootings, out-gunned police officers and the like — and a concurring opinion by Justice Samuel Alito said the dissent erred by considering them.
Instead, Justice Thomas focused on the structure and definition of the words in the Constitution and then invoked scholarship from the “founding era” and the 19th century while laboring over the precise relevance of English history, only to have this antique scholarship disputed and contradicted by the ancient manuscript studies invoked by former Justice Stephen Breyer in dissent.
Indeed, to Justice Thomas it was not appropriate to consider whether the ruling might lead to more shootings. Instead, he wondered whether the court should give more weight to thinking from 1791 when the Second Amendment was adopted or to 1868 when the Fourteenth Amendment that applied to the states was adopted.
Like the scholastics, Justice Thomas focused on this process of scholarship as a way to weed out the subjectivity from his decision and gave us a “true” answer. Justice Alito used a similar approach in his 2022 decision in Dobbs v. Jackson Women’s Health Organization where the court held that women had no constitutional right to an abortion.[2]
Justice Alito studied sources about women’s historical rights to abortion while noting that it was not appropriate to consider what the court’s ruling meant to specific women or the general public.
This other worldliness may dissatisfy many of us in the same way Renaissance humanists were dissatisfied with the pronouncements of church scholastics 700 years ago. It’s because, when we look closely, we can see that the writer’s preferences decided the issues more than logical compulsion.
In his Second Amendment decision, Justice Thomas continued the practice of giving no force to the words “well-regulated militia,” which are often labeled a merely “prefatory clause” to the actual rule — its “operative clause.”
He continued to discount the predominately military origins of what it meant to “bear arms.” Instead, he echoed earlier rulings giving decisive weight to “the right of the people to keep … arms” and to his selective history.
In Dobbs, Justice Alito chose to rely on the Supreme Court’s 1997 ruling in Washington v. Glucksberg that assisted suicide wasn’t protected under the Constitution because it wasn’t deeply rooted in American history and tradition.
By choosing this precedent over the forward-looking reasoning of cases like the Supreme Court’s 1954 Brown v. Board of Education where the court overturned school segregation, he guaranteed that he would find, as was historically the case, that a woman had no rights, including to an abortion.
It’s hard to credit claims of objectivity when we can see the decisive personal choices being made. It was no surprise that medieval scholastic monks usually sided with Catholic orthodoxy.
Was anyone surprised that Justice Thomas and Justice Alito voted against gun control and abortion rights? Wouldn’t the justices have been more convincing if they admitted they were using personal judgment and then justified that judgment against current realities?
This isn’t to criticize such conservatism in any century or to praise it either. It’s to say that judges are more credible when they are open about their judgments and defend them in terms we can understand.
In favor of gun rights, Justice Thomas might have argued that the right to self-defense today is as vital as it ever was in a country of vast spaces and limited law enforcement.
Justice Alito might have argued that granting women a constitutional right to abortion strikes the balance between two lives, or one real and one potential life, too strongly in favor of the one over the other. It’s the failure to place the real human issues at the center of the discussion that’s the problem, even for those who agree with Justices Thomas’ and Alito’s views.
Today, the formula in the formalist approach dominates most legal opinions, including in business litigation.
Consider Judge Michelle Friedland’s 2023 opinion about the Clean Water Act for the U.S. Court of Appeals for the Ninth Circuit in American Rivers v. American Petroleum Institute.[3]
There’s nothing sinister about it. It’s just typically inaccessible contemporary judicial reasoning. First, despite the ease of finding this information from the court’s online docket, readers must slog through eight pages of information about the numerous parties and their status in the case.
The staff-created summary takes up three pages, and then three pages are needed to list all the lawyers. Is it helpful to readers to take up 14 pages before we see what the court has to say?
Mercifully, Judge Friedland begins her opinion by summarizing the holding: Courts remanding to an agency a challenge to a regulation can’t vacate the regulation during the remand without finding the regulation unlawful. This is helpful, except we don’t know why they can’t, and why is what matters.
To know why, the court then takes us through the usual formula. The text of the law at issue and its background are described at needless length. While reading it we have no idea of why it’s important. It’s more of an incantation.
About 20 pages in, we get back to where the court started — can it vacate a regulation during a remand.
Like many opinions, but later than most opinions, the court then detours again to address challenges to the court’s jurisdiction — now needlessly common in most cases. This takes another four pages, and, 25 pages in, we still haven’t heard anything about the core matter — why the court can’t vacate a regulation while it’s remanded.
When the issue is finally joined, it’s back to the sacred manuscripts. Precedent says that the court’s equitable powers are limited by those of the English equity courts at the time of separation.
Thankfully, the court makes no deep dive in this subjective direction, but then it does something worse. It leans mostly on the fallacy that because a court hasn’t vacated a regulation on remand before, the court can’t do it. Why is that a bar? There is a first for everything.
Next, the opinion jumps to a scholastic favorite, the canon expressio unius est exclusio alterius — the law says we can set aside unlawful regulations, therefore we can’t set aside regulations not held unlawful.
Of the opinion’s 31 pages, only about five address the main issue. They are filled mostly by quotations from other courts. There are five or six sentences reflecting the court’s own thinking. They rely mostly on dogma.
The least attention is given to what matters to the people and businesses involved in the case. Remanding the case leaves a potentially unlawful regulation in place — probably for years.
Perhaps the court should have thought more seriously about ruling on the legality of the regulation rather than spending years litigating precisely how to avoid the question by sending it back to the agency.
The decision records that the challenged regulation was adopted by the Trump administration. The Biden administration wants the remand to potentially remove the regulation.
By the time it gets around to doing it, there may be another Trump administration, DeSantis administration, or what have you. Courts decide what is law. Avoiding the task, delaying the task, often makes the courts useless.
Likewise, vacating a regulation without finding anything wrong with it is as unfair to businesses relying on it as it is to assume a person is guilty until proven innocent. The court’s equitable powers certainly embrace finding at least this much common sense.
In short, the court would have done better to address the human values and consequences at stake then to spend most of its opinion on collateral matters only to resolve the case with a fallacy and a canon of construction.
Courts haven’t always acted this way. Justice Oliver Wendell Holmes and Justice Louis Brandeis were perfect opponents of scholasticism and formalism. Justice Holmes declared that the law was alive, not “a brooding omnipresence in the sky,” and that “the life of the law has not been logic but experience.”
Similarly, Justice Brandeis understood that human values and consequences matter most in arguing that: “If we desire respect for the law, we must first make the law respectable.” Where did we go wrong?
Perhaps it has just become easier for us to point to mechanical means of reaching a decision rather than dealing with the flesh, bones and blood of a living controversy. We say: “It’s just the law talking, not me.” But this should worry us. The triumph of formalism in American decision writing has coincided with an historic decline in respect for the courts.
To reverse this trend, courts should place humanism above scholasticism and formalism in decision making. Trial courts should say who wins and why under the basic legal principle at stake and the facts of the case before them — not the facts of some other case.
Appellate courts should develop understandable legal standards and justify them in human terms — how will they affect the fortunes of the parties in the case and the parties who come after them. Appellate courts should have the courage to speak in their own voices and not speak principally through disembodied quotations from decisions they have chosen to quote over other contrary decisions.
It’s not hard. Indeed, decisions are easier to write when a judge sees them for what they are — their opinions. Matters of judgment. By a human. About other humans — standing alone or gathered in a business. Whatever a judge’s perspective, we all have a stake in judges writing credible opinions for the sake of a credible judiciary and a more stable nation.
Judges should take this to heart. They should throw off formalism and speak to the parties in front of them and the nation at large as people trying earnestly to sort out the troubles of litigants using principles embodied in law and wisdom.
It’s fine for judges to wear robes, but we would all profit if they would throw off their cowls and look us in the eye.
I’m honestly curious what folks here think about justice Thomas’s lack of financial disclosures.
@klezman Don’t personally care, because ProPublica isn’t the most honest reporting outfit and even judges make mistakes, but James Taranto of the WSJ has a really long piece discussing the errors in their report:
https://www.wsj.com/articles/the-truth-about-clarence-thomas-disclosures-propublica-georgia-harlan-crow-ethics-court-91cd21df
"ProPublica troika made a sloppy reporting error, the effect of which is to cast Justice Thomas’s disclosures in a falsely unfavorable light—to make them look shambolic or perhaps even dishonest when in fact they followed the filing instructions without fail.
The reporters’ error involves a confusion about what Justice Thomas did disclose. “By the early 2000s,” ProPublica reports, “ he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as ‘rental property at ## 1, 2, & 3’ in Savannah.” It’s worth noting—ProPublica doesn’t—that the filing instructions (on page 32) prescribe disclosing rental properties in precisely this manner."
@KitMarlot I’m not a WSJ subscriber so I can’t read that.
But the bit you quoted doesn’t actually say he properly reported the largesse from a conservative activist. Nor was it complaining about the lack of discussion addresses.
@KitMarlot @klezman So, “ProPublica isn’t the most honest reporting outfit”, but the WSJ, owned by Rupert “Lying Is Good For Business” Murdoch, is?
@davirom Pretty sure the WSJ hasn’t published reporting from illegally obtained tax forms, but I could be mistaken.
Full text from the article I reference above
The Truth About Clarence Thomas’s Disclosures
By James Taranto
Clarence Thomas lost his beloved maternal grandparents barely a month apart in the spring of 1983. Myers Anderson, whom his grandson knew as “Daddy,” died of a stroke on March 30. Christine Anderson, known as “Aunt Tina,” suffered a stroke as well and died on May 1. “Perhaps, I thought, she’d lost the will to live,” Justice Thomas writes in his 2007 memoir, “My Grandfather’s Son.”
The Andersons, who were 75 and 70 respectively, are buried at Palmyra Baptist Church in Liberty County, Ga. When they died, Mr. Thomas was 34 and chairman of the Equal Employment Opportunity Commission. “Losing Aunt Tina a month after Daddy was more painful than I could ever have imagined,” he writes. “How could I have let myself grow away from her, or from the man who . . . was the only real father I’d ever had?”
Mr. Thomas inherited a one-third interest in a few modest houses Myers Anderson owned. Forty years later, ProPublica has taken a different kind of interest in those properties. ProPublica describes itself as “an independent, nonprofit newsroom that produces investigative journalism with moral force.” It promises “deepdive reporting” dedicated to “exposing corruption, informing the public about complex issues, and using the power of investigative journalism to spur reform.”
Give ProPublica credit for admitting its journalism has an agenda. So does mine, as the word “opinion” atop this page should make clear. But ProPublica’s acknowledgment that it’s in the opinion business doesn’t excuse it from the obligation to report facts accurately, carefully and thoroughly.
ProPublica has at least three reporters working the Clarence Thomas beat—Justin Elliott, Joshua Kaplan and Alex Mierjeski. Their story, published last Thursday, is titled “Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal.” The troika write that the lack of disclosure “appears to be a violation of the law, four ethics law experts told Pro-Publica.” That statement is equivocal because it’s a legal theory based on incomplete facts. Justice Thomas didn’t respond to ProPublica’s questions or to mine.
Some facts are known and undisputed. Mr. Crow, a Dallas developer and friend of the justice, confirmed in a written statement to ProPublica that Savannah Historic Development LLC, a company he established, bought “the childhood home of Justice Thomas,” which Mr. Crow plans to convert into a museum “telling the story of our nation’s second black Supreme Court Justice.” Public documents show that the company paid Anderson’s heirs a total of $133,363 for the Savannah house and two adjacent empty lots. According to Pro-Publica, Justice Thomas’s mother, 94year-old Leola Williams, lived in the house at least until 2020 and possibly still does.
Assuming Justice Thomas received one-third of the sale price (or any amount more than $1,000), the text of the federal financial-disclosure statute would require him to have reported the transaction in Part VII (“Investments and Trusts”) of his annual AO-10 form for 2014. He didn’t do so and may need to file an amended form.
But my review of Justice Thomas’s disclosures and other documents convinces me that any failure to disclose was an honest mistake. On all other matters involving his scanty real-estate inheritance, he followed the Filing Instructions for Judicial Officers and Employees, prepared by the Committee on Financial Disclosures of the Administrative Office of the U.S. Courts. Those instructions don’t make clear the statutory obligation to disclose the 2014 transaction.
Further, the ProPublica troika made a sloppy reporting error, the effect of which is to cast Justice Thomas’s disclosures in a falsely unfavorable light—to make them look shambolic or perhaps even dishonest when in fact they followed the filing instructions without fail.
The reporters’ error involves a confusion about what Justice Thomas did disclose. “By the early 2000s,” ProPublica reports, “ he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as ‘rental property at ## 1, 2, & 3’ in Savannah.” It’s worth noting—ProPublica doesn’t—that the filing instructions (on page 32) prescribe disclosing rental properties in precisely this manner.
The story continues: “Two of the houses were torn down around 2010, according to property records and a footnote in Thomas’ annual disclosure archived by Free Law Project.” That footnote in Justice Thomas’s 2010 disclosure states in full: “Part VII, Line 2 - Two of the Georgia rental properties have been torn down. The only remaining property is an old house in Liberty County.”
Liberty County is where our journey began, but the ProPublica troika somehow missed it on the map. Their story leads the reader to think that the “remaining property” was the Savannah house where Justice Thomas’s mother lived. A Friday letter from the Center for Responsibility and Ethics in Washington—co-signed by Virginia Canter, the first of Pro-Publica’s “four ethics experts”—expressly says so and accuses Justice Thomas of deceptively disclosing (rather than failing to disclose) the property’s disposition.
The footnote makes clear that this is wrong. There’s a fourth property. Justice Thomas’s 2009 disclosure listed three rental properties in “Sav., GA.” Beginning in 2010, he listed only one, in “Liberty Cty, GA.” Savannah is in Chatham County, not Liberty. But Liberty County is in the Savannah area, roughly a 45-minute drive from the city. For someone living hundreds of miles away, it would have been reasonable to describe the three rental properties collectively as being “in Savannah.”
That implies that Justice Thomas never disclosed his interest in the Savannah house where his mother lived. But he didn’t need to. “Information pertaining to a personal residence is exempted from reporting, unless the property generates rental income,” the filing instructions say on page 33. Nor was there any requirement to disclose the ownership of the other two Savannah properties after the houses were demolished. Who wants to rent an empty lot in Savannah?
When an asset isn’t sold but stops being reportable—in this case because it is no longer capable of generating rental income—page 50 of the filing instructions directs the filer to “insert ‘(Y)’ after the asset description in Column A and leave Columns
blank, or include an explanatory note in Part VIII.” Justice Thomas did exactly that for the Savannah rental properties in 2010, and for the Liberty County property in 2015. The latter footnote reads simply: “Line 1: The asset listed on line 1 does not receive any rental income for this property.” This is the disclosure Ms. Canter and her co-signers mistake for a deception.
When my mother died in 2019, I inherited a one-third interest in her house, which I sold to my brother. I understand the statute to mean that if I had been a federal judge, I would be obligated to disclose that transaction. But if I hadn’t been made aware of the statute, it wouldn’t have occurred to me to think of my inheritance as an “investment,” and I searched the filing instructions in vain for language that makes plain a judge’s duty to disclose this sort of transaction.
In Justice Thomas’s circumstances, moreover, the instructions seem to say not to report the sale of the former rental properties. The above-quoted “insert ‘(Y)’ ” language on page 50 is followed immediately by this sentence: “In subsequent years, this asset should be deleted from Part VII.”
One may be tempted to think that of all people a judge should know what the law says. But that’s a nonsensical standard. A judge’s job isn’t to memorize statute books; it’s to discern laws’ meaning and their application to the facts in cases that litigants bring before him. Inasmuch as the law applies to the judge’s personal affairs and interests, he’s in the same boat with the rest of us—often dependent on lawyers or other specialists, such as the Committee on Financial Disclosures of the Administrative Office of the U.S. Courts, to make sense of his duties and rights.
The job of a journalist is similar in some ways to that of a judge. Both involve asking questions, testing arguments, and judiciously ascertaining facts and their significance. ProPublica failed to consider some obvious questions: Where is Liberty County? What is Justice Thomas’s connection to the place? If the remaining rental property was the house Mr. Crow’s company bought, what was it doing on Justice Thomas’s AO-10 for 2015, the year after the sale closed?
Journalists don’t memorize books either. I read “My Grandfather’s Son” when it came out in 2007, but as I researched this article I had to return to it and refresh my memory. “Daddy’s people worked on a three-thousand acre rice plantation in Liberty County,” Justice Thomas writes, “and after their manumission they stayed nearby. The maternal side of my mother’s family also came from Liberty County, and probably worked on the same plantation.”
Daddy grew up on a family plot known as “the farm,” which “ had been passed down undivided from generation to generation, as was often customary with land owned by southern blacks. Any family member was entitled to live there.” The fields were fallow by Christmas 1957, when Clarence was 9 and Daddy decided to build a house there. He enlisted the help of Clarence and his brother, Myers Thomas, and “by springtime we’d finished building a simple four-room house,” writes Justice Thomas, who spent his summers there until he left for college in 1967.
When Aunt Tina died in May 1983, “no sooner did Myers and I go home to the farm after the funeral than some of our relatives started fighting over the contents of the house, declaring that Aunt Tina would have wanted them to have this item or that,” Justice Thomas recounts. “Part of me was disgusted by their greed, but I couldn’t bring myself to care. Death had already stolen the only things in the house that mattered to me.”
Justice Thomas disclosed all this in a book that’s available on Kindle for $13.99. If you’re a journalist whose job is to investigate him, you probably ought to read it—especially if you aspire to produce work “with moral force.”
Mr. Taranto is the Journal’s editorial features editor.
@davirom @KitMarlot thanks for posting the whole thing.
I don’t think this article, regardless of the fact that it raises some good points, did anything to reduce the appearance of corruption by Thomas. Even if Crow hadn’t been the one to buy that property, the acceptance of hundreds of thousands of dollars in free travel and other perks by a conservative donor is precisely what ethics laws are supposed to prevent: the appearance of reality of corruption in public office. I submit that supreme court justices should be held to the highest ethical standards, not the lowest. Thomas fails that test in my opinion.
dominion, primaries, clarence thomas, ukraine, russia, china
discuss amongst yourselves.
Am back, nice to see all, but not interested in silly, off to the side things that really do not matter.
Who gives a damn, about most of this crap?
I don’t, and am only interested in our ability to raise our children, as we always have; government gtfo!
Have no need of any element, or interest, that seeks to prevent this.
Notions are one thing, there are plenty, but they are not law.
Time to stop these notions from being treated as such, and go about your business as Americans were guaranteed: without interference.
Think about a few things:
Why do businesses here struggle, and find better places to secure profit?
Because government has its big ass in there, feeding tax dollars (our money), to some over others. Does it meet the notion of the day, as they ‘think’ it should be?
Why has it become so damned hard, to differentiate male from female?
Once again, the government is pushing its big ass in, and trying to tell us what we already know.
Why are the Western nations suffering birth decline?
Well, it’s kind of hard when you can’t find a real woman, or man, anymore.
Geniuses, gtfo; no-one needs you.
@CroutonOllie I read your diatribe this morning and thought; “phobe much?”. Assuming you were just another redneck a-hole. Then, I watched our local morning news show, and the broadcaster used the pronoun “they” instead of he or she on several occasions. I see your point.
@CroutonOllie @FritzCat While I don’t myself understand the desire to be called “they”, I also see precisely zero reason to not respect people’s preferences here. Freedom requires basic respect of others, something lacking in the social crusading of today.
@CroutonOllie @FritzCat @klezman My daughter has a friend who prefers they/them/their pronouns. It is not my concern how they wish to identify, but I find it grammatically taxing. They are married, so when discussing their news it can be difficult to know whether they are referring to one or two people. For instance, “They can’t meet us this weekend”. Does that mean one or both people can’t meet?
I’m sure the grammar police are on the case (as it were).
@CroutonOllie @FritzCat @klezman
The reason I have is that I see no reason for someone else to try force me to deny what is patently and scientifically obvious.
@CroutonOllie @davirom @FritzCat Yeah, that’s my main issue with it also. It’s too bad (in some ways) society doesn’t agree with “it” as the singular non-gendered pronoun. But I get it…we’ve used that word for centuries to describe inanimate objects.
@Mark_L Science does not support that statement. Both biological sex and socially-constructed gender exist on a spectrum.
@FritzCat @klezman
A basic respect? Yes, but where is that respect on the inverse, for the majority?
Don’t screw up female sports, they worked hard enough to get an arena.
Kids that haven’t even reached puberty are being assailed with this crap? Just wrong, and no two ways about it, in my mind.
@Mark_L
Dependable voice of reason here, and nice to see you.
Common sense seems to be in short supply when people start scratching their asses and wondering about things, but you still have it, even when I lose track for a moment.
@davirom @FritzCat @klezman @Mark_L
Spectrum is a horseshit notion; just another attempt at seeming studious. Different people are different ways, but no need to elevate the rights of the few ABOVE the many.
@davirom @FritzCat @klezman @Mark_L
I remember way back, in school, some wondered about what does ‘man’ or ‘mankind’ mean.
It was explained that that statement stands for all of us, as humans.
No-one had an issue with that then, and I don’t see a reason for it to be one now.
@davirom
I’m inclined to think of an old Julia Child segment, where she was asked about what low fat dieters would think of her offerings for a dinner party.
She responded there was no problem, as they weren’t invited.
@CroutonOllie @FritzCat @klezman @Mark_L
Mark, I started in your camp but have swung pretty far in the other direction. It sounds like I’m in the minority because calling people by preferred pronouns doesn’t feel onerous or taxing to me.
There is nothing scientific about gender. We don’t refer to animals as boys or girls (pets aside) - gender is a layer built on top of cultural norms surrounding sex. VERY recently (ie one century) - that has meant blue for boys, pants for men and a host of other things.Before that in Western culture, pink was not for girls and robes and skirts were much more common. What we think of as women gender oriented accoutrement in the US appear on males throughout the world, both historically and presently (long hair, dresses/skirts, heels, etc).
Pinks, blues, skirts, pants, gardening, hunting - who wears/does a thing has always been fluid.
Crouton, your opinions are so transparently parrotings of infotainment that it’s really hard to respond. The real problems in America must be with bud light sponsorships! Businesses are having so much trouble here that they are…recording record profits. Families are small because you can’t even find another person willing to procreate, not because of the abundant reasons many people want fewer children! bs bs bs culture warrior garbage bs bs bs.
Thank god puddin’ fingers is here to fix things.
@canonizer
Infotainment?
You guys are the infotainment, as you can’t even figure the difference between male and female.
Record profits? Those are easy, when you don’t actually have to produce anything. I make tiles, not icons (cave drawings vs effort in the Louvre), I make candles (not things that produce but consume), or I make litigation (something that takes from those that produce, to those that consume.)
Which are you?
As for the procreation thing, some will fulfill each aspect of the circuit, without any precondition, but others are more responsible and want partners that will work, in the real sense, and be there as a responsible parent, to teach and guide. Maybe that is why so many are as they are, since they didn’t have that.
@CroutonOllie
lmao
Ok, this really isn’t hard. We refer to animals by sex (m/f) and people by gender (m/w) because gender does not equal sex.
Despite the importance of fingering children at elementary school athletic competitions to the casual fox news viewer, gender is not science, it is a cultural layering (which differs historically and geographically) onto sex.
It isn’t hard to understand, except for people who think the Carlson types have Valid Opinions ™.
Gee, maybe none of us are ‘allowed’ to be hu-mans anymore, we must be huits, and a part of a cult?
Edit, for jackassery clarification.
Was nice to see you all, but won’t be back again for awhile.
My best to all, in agreement, or not, as long as you support the Constitution of the United States, as a framework, and not an attack surface.
Stay well,
c
Felt it necessary to give something non-controversial to think about: everyone has a right to an opinion, but unlike people, all opinions are not equal.
Some are based on facts, others on nonsense, and some only determined by people qualified to do so.
Consider this, and set your course.
Nonsense: like the statement that the 2020 election was rigged/stolen and 30+ percent of Americans still believe because an egomaniac refused to admit he lost and a news organization promoted knowing it was crap because they were afraid to lose viewers/revenue.
@dirtdoctor Right…so is an opinion valid if it rests on provably false assumptions?
@dirtdoctor @klezman “Valid opinion” is something of a logical oxymoron. An opinion is a form of argument, which is a connected series of statements (the “premises”) intended to prove a proposition (the “conclusion”). By definition, an opinion, in this context, is “a view or judgment formed about something, not necessarily based on fact or knowledge.” In order for an argument to be valid, each of the premises must both be true and related to the conclusion. The conclusion must also be true. Since there is no truth requirement for an opinion, it does not meet the minimum standards to be judged “valid”. An opinion could be valid, but only accidentally. An opinion may not be valid but might still be “good” or “strong”, but that is another kettle of fish.
Example of opinion: the judiciary seems to be relying more and more on the above definition for their “opinions”.
@davirom @dirtdoctor that’s kind of what I meant. If an argument or opinion rests on false premises then any conclusion must necessarily be false. (Or correct/valid only by luck. I guess in this case a valid opinion is analogous to a logically correct argument.)
Any opinions on the big CNN and Fox firings? I personally think they came far too late for both, but I prefer straight news versus opinion “news”. At the same time, it’s not like I watched either person for more than one or two minutes before changing channels.
@dirtdoctor Tucker Carlson is a cancer on American society and I hope he never gets another platform.
I have no opinion on Don Lemon. Never seem anything he said and I never watch CNN.
@dirtdoctor @klezman
The Lemon stuff gets weirder and weirder. Yesterday’s rumor was that CNN wanted a meeting and, assuming he was being fired, tweeted as much. So he fired himself.
If Tucker runs for president, I hope the only ad we see against him are his emails to Hunter Biden asking for help to get his daughter into college. He is sniveling piece of sh*t. I hope he enjoys getting to know his fans up close and personally, rather from the distance of a tv studio.
Posting this opinion article in its entirety. Fair analysis or total BS?
Turns Out Republicans Don’t Hate Big Government
April 21, 2023
By Jamelle Bouie
Opinion Columnist
In the conventional view, American politics is a contest between a party of “big” government and a party of “small” government.
You know the clichés. Democrats want a larger role for the state; Republicans want to “drag it into the bathroom and drown it in the bathtub.”
But a glance at the historical record shows that, at least in the postwar period, the size of government was never really the issue. A modern state needs a large, active government. The real political question revolves around the activity itself. It’s about both the scope of government — to whom and for what it should provide — and its reach. Will the state take a light touch, or will it intrude on and control the lives of its citizens?
With this in mind, consider one of the most common criticisms of the current Republican Party: that it stands for nothing other than chaos, dysfunction and a cultlike devotion to Donald Trump.
But that’s not right. With or without Trump in control, the Republican Party has a clear, well-articulated agenda. It just falls outside the usual categories. It’s not that today’s Republicans have a vision for “big” government or “small” government; it’s that Republicans have a vision for intrusive government, aimed at the most vulnerable people in our society.
In Iowa, for example, Republicans want to kick as many people as possible off the state’s Supplemental Nutrition Assistance Program, better known as SNAP, citing fraud and misuse. The Republican State Legislature, Kyle Swenson reported in The Washington Post, is “poised to approve some of the nation’s harshest restrictions on SNAP. They include asset tests and new eligibility guidelines.”
In the preceding fiscal year, according to a 2022 report from the Iowa Department of Inspections and Appeals, the state disqualified 195 SNAP recipients out of a total enrollment of 287,000 people, a fraud rate of 0.07 percent.
Nonetheless, Iowa will spend nearly $18 million in administrative costs over the next three years to snoop into the finances of every SNAP recipient in the state, all to make sure that a working parent or a struggling senior doesn’t get $1 more than deserved in food assistance.
Of course, the crown jewel of the Republican effort to build a more intrusive, domineering government is the set of laws passed to ban or sharply limit abortion, regulate gender expression and otherwise restrict bodily autonomy. These laws, by their very nature, create a web of state surveillance that brings the government into the most private reaches of an adult’s life, or a child’s.
In Idaho this month, Republicans passed a law explicitly restricting out-of-state travel for abortions if the patient is a minor. Anyone caught helping a pregnant minor leave the state for abortion can be punished with up to five years in prison. Helping here means not just giving a minor a ride; it’s also giving her money or connecting her with assistance or organizing the doctor’s visit.
In Kansas, Republicans overrode a veto from Gov. Laura Kelly, a Democrat, to pass a bill that bans transgender athletes from girls’ and women’s sports, from kindergarten through college. Although there’s no language in the bill to explain how schools would enforce the ban, its sponsor said that enforcement would occur through “sports physicals” or some other kind of bodily inspection by a doctor or nurse who would presumably be acting with the imprimatur of the state.
There are many more examples of intrusive government than just those two. To qualify for a rape or incest exception under a new six-week abortion ban that Gov. Ron DeSantis signed this week in Florida, victims must show proof that they’ve been victimized. In the absence of proper documentation, Florida says, there is no way to obtain care.
The State of Missouri has put itself between patients and doctors and effectively banned gender-affirming care for adults within its borders, and Kentucky has restricted its residents’ access to medication abortion.
You could say that there is limited government in those conservative states, as long as you live the way Republicans want you to live.
Not everyone is subject to the Republican vision of intrusive government. There are vanishingly few limits in most Republican-led states on the ability to buy, sell, own and carry firearms. And working on behalf of some employers and other business interests, Republicans in at least 11 states have taken steps to loosen limits on the ability of children to work in factories, meatpacking facilities and other such places.
When it comes to the demands of capital or the prerogatives of the “right” kind of Americans, Republicans believe, absolutely, in the light touch of a “small” government that stays out of the way. But when it comes to Americans deemed deviant for their poverty or their transgressions against a traditional code of patriarchal morality, Republicans believe, just as fervently, that the only answer is the heaviest and most meddlesome hand of the state.
This gets to one of the most important truths of political life. At times, the state will treat different groups in different ways. For those of us with more egalitarian sentiments, the goal is to make that treatment as fair and as equal as possible. For those whose sentiments run in the other direction, the task is to say who gets the worst and most degrading aspects of the state’s attention and who gets its concierge service.
@klezman Bouie is one of the only columnists I like at the times and (obviously to any here) I share his politics. He’s also a decent writer, which can’t be said for some of the others.
I think the R party consists mostly of culture warrior brainwashing. The idea that it is acceptable to challenge the 20 year old FDA approvals without any standing or merit other than hurt fees fees is only another bale of straw thrown on top of the dead camel’s back.
There is a handshake among the people who want the lowest possible taxes and the fewest number of abortions, damning the idea that we live in an interdependent society.
Anyone following the Durham special counsel investigation report released earlier?
@rjquillin Read the story (not particularly surprised). Will be interesting to see how much media attention is given to it (along with stories about whistleblowers on the Biden family corruption).
@rjquillin Scoreboard:
Durham investigation- 43 months, 3 indictments, 2 of which were found not guilty, 1 guilty plea which was based on information from an earlier investigation by the inspector general, rather than by Durham’s team, and resulted in probation.
Mueller investigation - 22 months, 34 indictments, 8 convictions and 1 guilty plea, some of whom got prison time and 5 of whom were pardoned by Trump. Mueller made clear at a news conference on May 29, 2019 that his team never considered indicting Trump because the Justice Department prohibits the prosecution of a sitting president.
@davirom @rjquillin not having read anything about it in depth yet, so far it seems like a nothing burger. I remain open to persuasion, of course.
Another one from Bouie
The Four Freedoms, According to Republicans
May 19, 2023
By Jamelle Bouie
Opinion Columnist
On Tuesday, Republicans in North Carolina overrode Gov. Roy Cooper’s veto to pass a strict limit on bodily autonomy in the form of a 12-week abortion ban.
In addition to this new limit on abortion, the law extends the waiting period for people seeking abortions to 72 hours and puts onerous new rules on clinics. As intended, the net effect is to limit access to abortion and other reproductive health services to everyone but those with the time and resources to seek care outside the state.
North Carolina Republicans are obviously not the only ones fighting to ban, limit or restrict the right to bodily autonomy, whether abortion or gender-affirming health care for transgender people. All across the country, Republicans have passed laws to do exactly that wherever they have the power to do so, regardless of public opinion in their states or anywhere else. The war on bodily autonomy is a critical project for nearly the entire G.O.P., pursued with dedication by Republicans from the lowliest state legislator to the party’s powerful functionaries on the Supreme Court.
You might even say that in the absence of a national leader with a coherent ideology and agenda, the actions of Republican-led states and legislatures provide the best guide to what the Republican Party wants to do and the best insight into the society it hopes to build.
I have already made note of the attack on bodily autonomy, part of a larger effort to restore traditional hierarchies of gender and sexuality. What else is on the Republican Party’s agenda, if we use those states as our guide to the party’s priorities?
There is the push to free business from the suffocating grasp of child labor laws. Republican lawmakers in Arkansas, Iowa, Missouri and Ohio have advanced legislation to make it easier for children as young as 14 to work more hours, work without a permit and be subjected to more dangerous working conditions. The reason to loosen child labor laws — as a group of Wisconsin Republicans explained in a memo in support of a bill that would allow minors to serve alcohol at restaurants — is to deal with a shortage of low-wage workers in those states.
There are other ways to solve this problem — you could raise wages, for one — but in addition to making life easier for the midsize-capitalist class that is the material backbone of Republican politics, freeing businesses to hire underage workers for otherwise adult jobs would undermine organized labor and public education, two bêtes noires of the conservative movement.
Elsewhere in the country, Republican-led legislatures are placing harsh limits on what teachers and other educators can say in the classroom about American history or the existence of L.G.B.T.Q. people. This week in Florida, Gov. Ron DeSantis signed a bill that bans discussion in general education courses at public institutions of “theories that systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States and were created to maintain social, political and economic inequities.” He also signed a bill that prohibits state colleges and universities from spending on diversity, equity and inclusion programs beyond what is necessary to retain accreditation as educational institutions.
Nationwide, Republicans in at least 18 states have passed laws or imposed bans designed to keep discussion of racial discrimination, structural inequality and other divisive concepts out of classrooms and far away from students.
Last but certainly not least is the Republican effort to make civil society a shooting gallery. Since 2003, Republicans in 25 states have introduced and passed so-called constitutional carry laws, which allow residents to have concealed weapons in public without a permit. In most of those states, according to the Giffords Law Center to Prevent Gun Violence, it is also legal to openly carry a firearm in public without a permit.
Republicans have also moved aggressively to expand the scope of “stand your ground” laws, which erode the longstanding duty to retreat in favor of a right to use deadly force in the face of perceived danger. These laws, which have been cited to defend shooters in countless cases, such as George Zimmerman in 2013, are associated with a moderate increase in firearm homicide rates, according to a 2022 study published in JAMA Network Open. Republicans, however, say they are necessary.
“If someone tries to kill you, you should have the right to return fire and preserve your life,” said Representative Matt Gaetz, who introduced a national “stand your ground” bill this month. “It’s time to reaffirm in law what exists in our Constitution and in the hearts of our fellow Americans,” he added. “We must abolish the legal duty of retreat everywhere.”
It should be said as well that some Republicans want to protect gun manufacturers and dealers from lawsuits. Gov. Bill Lee of Tennessee did just that this month — after a shooting in Nashville killed six people, including three children, in March — signing a bill that gives additional protections to the gun industry.
What should we make of all this? In his 1941 State of the Union address, Franklin Roosevelt said there was “nothing mysterious about the foundations of a healthy and strong democracy” and that he, along with the nation, looked forward to “a world founded upon four essential human freedoms.” Famously, those freedoms were the “freedom of speech and expression,” the “freedom of every person to worship God in his own way,” the “freedom from want” and the “freedom from fear.” Those freedoms were the guiding lights of his New Deal, and they remained the guiding lights of his administration through the trials of World War II.
There are, I think, four freedoms we can glean from the Republican program.
There is the freedom to control — to restrict the bodily autonomy of women and repress the existence of anyone who does not conform to traditional gender roles.
There is the freedom to exploit — to allow the owners of business and capital to weaken labor and take advantage of workers as they see fit.
There is the freedom to censor — to suppress ideas that challenge and threaten the ideologies of the ruling class.
And there is the freedom to menace — to carry weapons wherever you please, to brandish them in public, to turn the right of self-defense into a right to threaten other people.
Roosevelt’s four freedoms were the building blocks of a humane society — a social democratic aspiration for egalitarians then and now. These Republican freedoms are also building blocks not of a humane society but of a rigid and hierarchical one, in which you can either dominate or be dominated.
That was incredibly well-written, and it infuriates me!
Debtors ceilings
This one is a bit incendiary:
Opinion
Guest Essay
The First Name of a Supreme Court Justice Is Not Justice
June 2, 2023
By Josh Chafetz
Josh Chafetz (@joshchafetz) is a law professor at Georgetown and the author of “Congress’s Constitution.” This essay is adapted from a forthcoming article in The St. Louis University Law Journal.
Although the Supreme Court has been deciding cases at a glacial pace this term — and that with an almost comically small docket of only 59 merits cases — the justices have found other ways to keep busy. They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).
In the cases it has decided, the Supreme Court has gutted an important provision of the Clean Water Act and made it easier for private litigants to mount constitutional challenges to an administrative agency’s structure or existence. Opinions still to come threaten to strike down everything from affirmative action in education to student debt relief to the Indian Child Welfare Act.
Court observers might be tempted to describe all this as a relatively recent development, a function of the court’s 6-to-3 Republican-appointed supermajority. The University of Michigan law professor Leah Litman has called this the “YOLO court” (for “you only live once”), because of the majority’s apparent sense of liberation in pursuing long-held conservative goals. Mark Lemley of Stanford placed the beginning of the “imperial Supreme Court” in 2020.
Mr. Lemley is right to decry the self-aggrandizing nature of the court. But his dating is somewhat off. Judicial self-aggrandizement has been in the works for a lot longer: It has been a hallmark of the John Roberts years.
Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.
The result has been a judicial power grab.
Judges have long portrayed themselves as neutral, apolitical conduits of the law, in contrast to the sordid political branches. This portrayal serves to obscure the institution of the judiciary and to foreground the abstract, disembodied concept of the law. In turn, it serves to empower judges, who present themselves not as one type of political actor but rather as the voice of the majestic principles of the law.
But Mr. Roberts’s judiciary has increasingly taken subtext and made it text. Here are three thematic examples out of many.
Campaign Finance Law
Starting with Citizens United in 2010, the Republican-appointed majority on the court has consistently struck down provisions limiting the influence of money in politics, including provisions that it previously upheld. In a 2014 case, Mr. Roberts wrote that campaign finance regulations that pursue objectives other than eradicating quid pro quo corruption or its appearance “impermissibly inject the government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”
In this brief passage, Mr. Roberts implicitly distances his own institution from “the government” of which it is obviously a part, implies that the court stands outside the processes of governance, and suggests that there is something self-dealing and borderline corrupt about campaign finance laws passed by elected legislatures.
In these same cases, the justices have described nonjudicial political speech in terms that make it sound kind of … icky. It involves “sound bites, talking points and scripted messages that dominate the 24-hour news cycle,” in Justice Anthony Kennedy’s words. This sort of speech deserves protection for the same reasons that “flag burning, funeral protests and Nazi parades” do, in Mr. Roberts’s.
Yet there has been one glaring exception to the majority’s hostility to campaign finance regulations: In the context of state judicial elections, they have upheld restrictions that they would be highly unlikely to tolerate in the context of nonjudicial elections. Tellingly, these cases describe judges in a manner that starkly contrasts with how they have described nonjudicial officeholders.
As Mr. Kennedy put it in a 2009 case about when campaign spending required a state judge to recuse himself, “Precedent and stare decisis and the text and purpose of the law and the Constitution, logic and scholarship and experience and common sense, and fairness and disinterest and neutrality are among the factors at work” when judges consider cases — a far cry from the “sound bites, talking points and scripted messages” of nonjudicial political speech.
And in a 2015 case upholding a Florida law that forbade candidates for judicial office from personally soliciting campaign contributions, Mr. Roberts, anachronistically appealing to the authority of Magna Carta, wrote that judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity” and concluded that “judges are not politicians, even when they come to the bench by way of the ballot.”
Mr. Roberts’s protestations to the contrary notwithstanding, judges are political actors, and striking down federal election laws is an aggressive act of governance by the judiciary. And the justices’ language in these cases, holding up judges as noble instruments of the law and denigrating other officeholders as power-grubbing and superficial, serves to reinforce and justify the notion that they are uniquely qualified to govern us.
Congressional Oversight
On one day in 2020, the court decided two cases dealing with very similar subpoenas for information about President Donald Trump’s financial and business dealings. One set of subpoenas came from congressional committees; the other came from a New York State grand jury.
Mr. Roberts wrote both opinions. In the case dealing with congressional subpoenas, he worried that Congress may aim to “harass the president or render him ‘complaisan[t] to the humors of the legislature.’” Accordingly, the subpoenas must be superintended by the courts, lest the legislature “‘exert an imperious controul’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” (The internal quotations there are from the Federalist Papers to provide a patina of antiquity.) He thus announced a multipart balancing test that applies only when Congress seeks the personal papers of the president.
While that decision made the president a supercitizen vis-à-vis congressional subpoenas, the other opinion emphasized that he is just a regular citizen when it comes to judicial subpoenas. Unlike Congress, apparently, a grand jury requires “all information that might possibly bear on its investigation.” Whereas Mr. Roberts worried about Congress harassing the president, “we generally ‘assume[] that state courts and prosecutors will observe constitutional limitations.’”
Not only do these opinions stymie congressional oversight — the papers were not handed over to the committees until nearly two years into the Biden administration — they also do so using language that elevates judicial institutions while denigrating legislative ones.
Federal Regulation
Congress is not alone; administrative agencies also bear the brunt of the justices’ disdain. In a series of recent cases that, for example, struck down the E.P.A.’s clean power plan for addressing climate change, the Republican-appointed justices have invented the so-called major questions doctrine. If they consider an issue major — and they have not told us what makes a question major beyond “vast economic and political significance” or “earnest and profound debate across the country” — then they will not allow an agency to regulate in that manner unless Congress has clearly stated that it may.
To use an analogy: If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to “eat any dessert it chooses.” It must legislate that the agency can “eat any dessert it chooses, including ice cream cones.” But Congress has no way of knowing whether eating an ice cream cone is major until it sees what a majority of justices have to say about it.
In justifying this doctrine, the justices have raised the specter of out-of-control bureaucrats intruding on the liberty of citizens, undermining legal stability, serving only special interests and invading the domain of the states.
You might think that this doctrine is meant to protect congressional power, except that it dictates to Congress how it must legislate, despite the fact that Congress has no way of knowing in advance what issues will be considered major. Moreover, as the legal scholar Beau Baumann has noted, Justice Neil Gorsuch and his colleagues have justified the doctrine on the grounds that Congress is too eager to delegate to agencies in order to avoid political responsibility, so the courts must keep Congress in line. In other words, the justices are paternalistically claiming to protect Congress from itself.
In all of these areas and in plenty more, the justices have seized for themselves an active role in governance. But perhaps even more consequentially, in doing so, they have repeatedly described other political institutions in overwhelmingly derogatory terms while either describing the judiciary in flattering terms or not describing it at all — denying its status as an institution and positioning it as simply a conduit of disembodied law.
This is the ideological foundation for the Roberts-era judicial power grab.
It is also worth noting that this ideological project is bipartisan. Republican-appointed justices dominate the court and have for many decades, but their Democratic-appointed colleagues — while dissenting in many individual opinions — evince no desire to contest the underlying disdain for other institutions or elevation of their own. When Mr. Roberts recently refused to testify before the Senate Judiciary Committee, nothing stopped Justices Sonia Sotomayor, Elena Kagan or Ketanji Brown Jackson from volunteering to testify, but they did not. Nothing is stopping them from publicly calling for a binding ethics code or from questioning not just the correctness but also the legitimacy of their institution’s assertiveness, but they have not.
Recognizing the justices’ ideological project also points to the beginning of the solution. We ought to begin talking about the justices the way we talk about other political actors — recognizing that their first name is not Justice and that they, like other politicians, should be identified by their party.
We should stop talking about another branch’s potential defiance of a judicial opinion as an attack on “the rule of law” and instead understand it as an attack on rule by judges, one that may (or may not) be a justified response to some act of judicial governance. And those other branches should be more willing — as they have at other moments in American history — to use the tools at their disposal, including cutting the judiciary’s funding, to put the courts in their place.
In recent years, the judiciary has shown little but contempt for other governing institutions. It has earned a little contempt in return.
Yay, a victory for our republic.
@canonizer glad a no brainer decision applies for once! Looking forward to reading the details when my work fire calms down.
So…anybody read the latest Trump indictment? I’m about halfway through. It’s pretty damning stuff. Speaking indictment, indeed.
1000 times yes.
https://www.nytimes.com/2023/09/03/opinion/colleges-civics-core-curriculum-culture-wars.html
tl;dr - we need to better educate all students on civics
By Abandoning Civics, Colleges Helped Create the Culture Wars
Sept. 3, 2023
By Debra Satz and Dan Edelstein
Professor Satz is the dean of Stanford’s School of Humanities and Sciences, where Professor Edelstein is the faculty director of the civic, liberal and global education program.
Free speech is once again a flashpoint on college campuses. This year has seen at least 20 instances in which students or faculty members attempted to rescind invitations or to silence speakers. In March, law school students at our own institution made national news when they shouted down a conservative federal judge, Kyle Duncan. And by signing legislation that undermines academic freedom in Florida, Gov. Ron DeSantis is carrying out what is effectively a broad assault against higher education.
We believe that this intolerance of ideas is not just a consequence of an increasingly polarized society. We think it also results from the failure of higher education to provide students with the kind of shared intellectual framework that we call civic education. It is our responsibility as educators to equip students to live in a democratic society whose members will inevitably disagree on many things. To strengthen free speech on campuses, we need to return civic education to the heart of our curriculum.
Throughout the 20th century, many colleges and universities had a required first-year course that honed these skills. Typically, this course was known as Western Civ (short for “civilization”). Such courses became standard during the interwar period, as immigration transformed the student body and liberal democracy itself was under threat around the world.
Western Civ also served another, often unintentional, purpose: It provided a mutually intelligible set of references that situated students’ disagreements on common ground.
Generations of students grappled with Socrates’ argument that the rule of law cannot survive if people simply ignore laws they don’t support. By debating plausible answers, students learned to see disagreement as a necessary ingredient of both learning and of life. They also confronted hard questions about civil disobedience and social change. And the common references that students picked up in their first year provided a foundation for future conversations and courses.
The limitations of Western Civ are evident from its title. It exposed students to Western ideas only, implicitly (or sometimes explicitly) suggesting that these ideas were superior to those from other cultures.
Eventually, these limitations proved intractable. In 1987, activists at Stanford denounced the European-Western and male bias of the university’s first-year requirement, then called Western Culture. The course was replaced with a program that had no Western focus.
From 1964 to 2010, almost all selective schools (Columbia being an exception) abandoned first-year requirements featuring a common humanities curriculum. Instead, they opted for a buffet model, in which students could choose from various curricular tracks. Between 1995 and 2012, Stanford students could pick from around a dozen first-year humanities classes, from a course on gender roles in Chinese families to Technological Visions of Utopia. While many of these courses were excellent, they had no common core of readings nor any transparent rationale for why they were required.
Many colleges said the change was a pragmatic one, given the disagreements about which texts should be mandatory. We believe there was another reason universities turned toward an à la carte curriculum: They had come under the spell, like much of society at that time, of a free-market ideology. In this vision, individual choice and individual advancement take center stage. Requirements are recast as paternalistic; freedom is understood as doing as one pleases.
Freedom of choice is an important value. But without common foundations, it can lead to people shouting one another down. An educational model that leaves no room for a core curriculum shaped by the demands of 21st-century democracies leaves students woefully ill equipped for dealing with disagreements. In a world where individual choice is supreme, how do we learn to accept that there are alternative perspectives to our own that may also be valid? If my goals are the only ones that matter, those who do not share them can too easily be viewed as obstacles that need to be swept away. In the educational context, the invisible hand can turn into an iron fist.
The widespread adoption of a free-market approach to the college curriculum has had other noxious effects, as well: It has fueled a rampant vocationalism among students, leading them to desert humanities classes in favor of preprofessional tracks aimed at lucrative careers. When universities do not signal the intrinsic value of certain topics or texts by requiring them, many students simply follow market cues.
Civic education, by contrast, is a public good. Left to the market, it will always be undersupplied. It is rarely a priority for employers or for job seekers to promote the skills of active listening, mutual reasoning, respecting differences and open-mindedness. We need to reinvest in it.
In the absence of civic education, it is not surprising that universities are at the epicenter of debates over free speech and its proper exercise. Free speech is hard work. The basic assumptions and attitudes necessary for cultivating free speech do not come to us naturally. Listening to people with whom you disagree can be unpleasant. But universities have a moral and civic duty to teach students how to consider and weigh contrary viewpoints, and how to accept differences of opinion as a healthy feature of a diverse society. Disagreement is in the nature of democracies.
Universities and colleges must do a better job of explaining to our students the rationale for free speech, as well as cultivating in them the skills and mind-set necessary for its practice. The free-market curriculum model is simply not equipped for this task. We cannot leave this imperative up to student choice.
At Stanford, since 2021, we once again have a single, common undergraduate requirement. By structuring its curriculum around important topics rather than canonical texts, and by focusing on the cultivation of democratic skills such as listening, reasonableness and humility, we have sought to steer clear of the cultural issues that doomed Western Civ. The new requirement was approved by our faculty senate in May 2020 without a single dissenting vote.
Called Civic, Liberal and Global Education, it includes a course on citizenship in the 21st century. Delivered in a small discussion-seminar format, this course provides students with the skills, training and perspectives for engaging in meaningful ways with others, especially when they disagree. All students read the same texts, some canonical and others contemporary. Just as important, all students work on developing the same skills. Preliminary assessments and feedback suggest that our new program is meeting its goals.
To be clear, our civic education does not aim at achieving consensus among students, nor at producing moderation. Our students, like all of us, will continue to disagree on many things. Nor are our students the only ones in need of such civic skills — numerous members of Congress and governors could no doubt use this curriculum, as well. (We’d be happy to share it.)
But it is our belief that by restoring a common curricular foundation centered on the democratic skills our students need to live in a diverse society, they will turn to more constructive ways to engage with those with whom they disagree than censorship or cancellation.
@klezman agreed. and more broadly, having any single class that all undergraduates take, regardless of major, helps to build that collegiate “bond”. I was able to complain about Psych 101 to anyone in my circle of friends, and we all knew about it. I would have liked to have a Civics/Government/Philosophy class that was the same.
@klezman thanks for posting the full text, klez. That’s a fantastic article and I couldn’t agree more with everything written.
I spent a few moments trying to decide whether to post this link here or in the pub. I decided here because climate change has become a political, rather than a scientific or existential, issue.
A glass of wine with your climate crisis?
@davirom What climate crisis?
Leading Scientists from Around the World Declare There is No Climate Emergency
@Mark_L Fact check: Did 1,200 climate experts sign ‘declaration’ denying climate emergency?
2nd article:
Scientific journal retracts article that claimed no evidence of climate crisis
@davirom wineries have been adjusting to climate change and making long term decisions based on it for a decade now. See the rise of Lake county.
While politicians like to invent wedge issues to try to get more votes, those whose livelihoods are affected by climate change have long been acting in accordance with the science. Whether that’s planting different crops or trying to muddy the scientific waters the way the oil industry has approached it. (Seriously, read the complaint for the Multnomah County suit against the oil industry. Regardless of the legal theories, the documentary evidence in the complaint is shocking and appalling.)
@davirom As in many issues, some sides get stifled by the “powers that be”. Here is one side.
@davirom @Mark_L I’m confused - why does pointing to the same discredited “statement” prove your point?
Glad we can thank the Republican caucus for being the guiding light of responsibility.
@canonizer I am morbidly curious of who they will put up as the next speaker. What kind of chaos agent will it be?
McCarthy only had to agree to be responsible and the Democrats would have saved him. Major tactical error on his part.
@canonizer @klezman One would have to be both an idiot and a masochist to want to be speaker so long as 1 member can call for your ouster. Unfortunately, there are several candidates.
It’s nice to hear Biden call a spade a spade: Hamas terrorists.
I hope this latest terrorist assault on Israel can help push this conflict to a permanent resolution.
@klezman doubtful
@canonizer yeah, I know. But still. This Jewish guy wants a permanent solution.
@klezman what do you think would be a resolution that both sides would agree to?
@losthighwayz What extent of resolution do you mean? Do you mean getting the hostages back that the terrorists kidnapped? Do you mean eradicating the terrorists? Do you mean full resolution of the Israel-Palenstinian conflict?
I’ve got quite different ideas about each of those.
But in sum, the terrorists should pay the ultimate price. They lost any right to their lives when they deliberately murdered children.
The broader conflict can only be solved with a demilitarized Palestinian state that repudiates all forms of terrorism living alongside Israel.
This headline enrages me. Not because it’s wrong, but because people somehow weren’t paying enough attention to see this for the past two decades:
On Israel, progressive Jews feel abandoned by their left-wing allies
Jewish leaders and voter said they were taken aback to discover that many of their ideological allies saw them as oppressors who deserved blame following the Israel attacks.
https://www.nytimes.com/2023/10/20/us/politics/progressive-jews-united-states.html
I mean, really. Have progressive Jews not been paying any fucking attention?!?!
@klezman And NYT has not been your friend for decades.
@rjquillin nope, not about Israel. But they publish Tom Friedman’s articles and he’s about as knowledgeable as anybody about the region. Even if I don’t always agree with him. (Which is the point.)
@klezman I’ve been mostly silent about what’s happening in Israel. It’s an event of compounding sadness. A friend just told me that the only way through was a one state solution and she called me “the most zionist person I know” when I look at her like she was bananas.
I firmly believe antimsemitism is alive and well AND that Israel’s response is going to have negative repercussions for the country. Normalizing relations with more arab states might have improved things but it is a damn volatile space.
With all of that said, I don’t believe the prognostications for world war. No one is really incentivized (in my own, non professional calculation) to enter in a meaningful way.
@canonizer I’m largely in agreement with everything you write there. A one-state solution is no solution at all - it’s the end of self-determination for the most consistently oppressed and hated group of the last 2000 years.
I don’t think the presence of antisemitism is a matter of opinion at this point. It’s alive and well, full stop.
The Missed Chance for Peace
Oct. 12, 2023
By David Brooks
Opinion Columnist
Throughout this horrible week, my mind has repeatedly flashed back to Dec. 23, 2000. That was the day the Palestinians were offered a path to having their own nation on roughly 95 percent of the land in the West Bank and 100 percent of the land in the Gaza Strip. Under that outline, Israel would also swap some of its own land to compensate the Palestinians in exchange for maintaining 80 percent of its settler presence in the West Bank.
The Palestinians would control, in President Bill Clinton’s formulation, “Arab areas” of East Jerusalem. And on the most sensitive religious sites, there would have been divided sovereignty or jurisdiction, with Palestinians controlling the Haram al-Sharif (including the Aqsa and Dome of the Rock mosques) and Israel controlling the Western Wall and the holy space of which it is a part. There would also be a return of many refugees into the new Palestinian state (without the right of return to Israel itself).
There were a million complexities — and many errors made by the Israeli, Palestinian and American sides along the way. But this offer pointed the way to the sort of fair solution negotiators had been struggling their way toward for years. It is hard to see this kind of option ever being on the table again. And the Palestinians let it slip away.
This memory comes hauntingly back because the misery that Palestinians and Israelis are now enduring did not have to happen. They could have reached some kind of moderately effective arrangement, which would have given the two nations a chance to pursue their own destinies.
Another reason I think back on this history is the way a simplistic oppressor/oppressed, colonizer/colonized, “apartheid Israel” narrative has been imposed on this conflict.
The real history is much more complicated. It is the story of the Palestinians who were offered a state in 1947 that the Arab states opposed. More recently, it is the story of flawed human beings on both the Israeli and Palestinian sides, who were confronted with a devilishly complicated situation. They worked doggedly to secure peace and made real, if stumbling, progress toward that end. It is the story of how radicals on both sides undermined their efforts, leading to the bloodshed we see today. This is what happens when the center does not hold.
The drive toward that 2000 peace offering began at the Madrid peace conference of 1991. Throughout that decade, there were a series of major peace efforts: the Oslo process, the Cairo Agreement, Oslo II, the Hebron Protocol, the Wye River Plantation meeting.
Along the way, the momentum was nearly derailed. An Israeli settler assassinated Prime Minister Yitzhak Rabin as he strode toward peace. There were cascades of bombings authored by Hamas and other terrorist groups.
But Israelis continued to support a two-state solution. On May 17, 1999, the Labor Party leader, Ehud Barak, running on an aggressive peace platform, defeated Benjamin Netanyahu in the race for prime minister.
Bill Clinton hosted an Israeli-Palestinian summit at Camp David in July 2000. In many ways that summit was premature. But as the chief U.S. negotiator at the time, Dennis Ross, told me this week, Barak led “the most forthcoming government in Israel’s history,” and Clinton seized the opportunity.
The summit failed to yield an agreement, and the enemies of peace struck back. Ariel Sharon took a stroll on the Temple Mount — where Haram al-Sharif stands and non-Muslim entry is restricted — that provoked Palestinian rage. The Palestinian leadership launched the second intifada, bringing a reign of terror to Israeli streets.
Still, Clinton and negotiators persisted with meetings at Sharm al-Sheik. By the end of the year, Clinton brought the two sides to the White House. At the pivotal meeting in December, he slowly read aloud the peace plan that would come to be known as the Clinton Parameters. It called for uncomfortable sacrifices from both parties but gave each side what the U.S. negotiators believed they needed.
A few days later, the Israeli cabinet voted to accept the plan. Yasir Arafat did what he generally did. He never said no, but he never said yes. The Saudi and Egyptian ambassadors in Washington strongly pressured him to agree to a deal, but perhaps feeling pressure from back home or sensing where Palestinian public opinion was or feeling that the provisions for the refugees were insufficient, Arafat dallied. Momentum was frittered away. Just before Clinton left office, he had one of his final conversations with Arafat. Arafat told him he was a great man. According to his memoir, Clinton replied: “I am not a great man. I am a failure, and you have made me one.”
Arafat’s nondecision further discredited the peace camp in Israel, suggesting that if he wouldn’t go for this, he would never go for any negotiated settlement. Sharon soared to victory in the next election. In “The Missing Peace,” Ross’s definitive 872-page history of this period, Ross concluded that Arafat never transformed himself from a guerrilla outsider to the kind of leader capable of forming and governing a nation. The Palestinians “surely were betrayed in the past, and they surely have suffered,” Ross wrote. “But they have also helped to ensure their status as victims. Never seizing opportunities when they presented themselves. Blaming others for their predicament. Declaring unmistakable defeats as victories.”
In the ensuing decades, Israel and its settlers have expanded their occupation of the Palestinian territories, Israeli politics have shifted sharply rightward, and the Hamas fundamentalist death cult has grown stronger and more satanically daring.
As I went back and revisited all these events, I was struck by how negotiators on both sides were immersed in resolving practical issues. Now politics is mostly theater and psychodrama. Hamas and its followers cultivate the fantasy that Israel, a permanent Middle Eastern nation, will magically cease to exist. Its terrorists seek to avenge the wounds of injustice and humiliation with mass murder, without anything remotely resembling a firm plan to improve the quality of Palestinian lives.
And in the United States, some students and activists create rally posters with paragliders to celebrate the murderers who descended on the Israeli music festival. It’s all vicious posturing, to make people feel avant-garde and self-righteous, no matter how many decades of real human suffering lie ahead.
ugh
@canonizer which of the many possible things are you referring to?
@klezman the sharing of OBL’s letter was the most recent exhaustion
@canonizer Yuck.
This strikes me as largely a good read of the situation: https://www.theguardian.com/commentisfree/2023/nov/17/hamas-benjamin-netanyahu-ceasefire
@canonizer @klezman This is the best analysis I have read. I even supported The Guardian!