The Asteroid Can Hit If It Means We No Longer Have To Listen To Bad Aerosmith Songs

Mark Kleiman:

When I saw that Rand Paul (R-Comedy Central) had voted against a bill outlawing the use of lasers to blind airline pilots on the grounds that “the states ought to take care of it,” I was reminded of this week’s best Onion story imagining an effort by Republicans to repeal a law providing for the destruction of an asteroid coming at the Earth.

The Onion story didn’t mention lawsuits seeking to have asteroid-destruction declared unconstitutional as a violation of the limited, delegated powers of the Federal government. But I’d be grateful if one of our libertarian-leaning readers could point me to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction. It’s not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t “in commerce” at all, so it can’t be covered by the Commerce Clause.

No doubt some socialists would assert that the reference to “the General Welfare” in the first sentence of Art. 1, Sec. 8, plus the Necessary and Proper clause at the end of that section, would cover asteroid destruction. And I might agree with them. But of course from the libertarian perspective that proves way, way too much.

So I offer this as a challenge: If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.

Footnote If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.

Pejman Yousefzadeh:

As a libertarian-conservative, I am glad to help resolve this question. Of course, it should be noted from the outset that the framing of these kinds of questions is a common Kleimanian tactic; he tosses out an appealing public policy approach, and then dares readers to conclude that the approach may not be constitutional. I certainly agree with Kleiman that asteroid defense cannot be covered by the Commerce Clause (thank goodness that there are some limits recognized by the Left on the reach and scope of the Clause), but I don’t see why he is so quick to dismiss asteroid destruction as a defense measure merely because the asteroid was not “deliberately launched at us by the Klingons.”Original public meaning jurisprudence assists us in showing how asteroid destruction can be justified by Art. I, Sec. 8 of the Constitution as being “for the common Defence.” I am indebted to Professor Larry Solum for his excellent and comprehensive definition of original public meaning jurisprudence, which is excerpted below:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Per Professor Solum’s definition, we have to ask how “the common Defence” would “have been understood by an ordinary adult citizen at the time it was adopted.” Specifically, we have to demonstrate that the notion of “Defence” against a threat does not depend upon that threat being initiated by a sentient being, or group of beings. This entails showing Kleiman that the non-presence of Klingons or any other sentient beings in a scenario which features an asteroid threatening life on Earth does not prevent the necessary countermeasures from being considered constitutional as acts of “Defence.”

In order to proceed along this line of inquiry, a definition of “defence” or “defense” (however one wishes to spell it) is needed. I can think of no better lexicographical authority than Samuel Johnson’s A Dictionary of the English Language. Consider especially the following bit of information: In his book Dr Johnson’s Dictionary: The Extraordinary Story of the Book that Defined the World, the writer Henry Hitchings quoted Joseph Emerson Worcester as saying that “[Johnson’s] Dictionary has also played its part in the law, especially in the United States. Legislators are much occuped with ascertaining ‘first meanings,’ with trying to secure the literal sense of their predecessors’ legislation . . . Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects . . . as long as the American Constitution remains intact, Johnson’s Dictionary will have a role to play in American law.”

So, Johnson’s Dictionary was/is quite useful when it comes to analyzing bodies of American law. Now, we have to ask what Johnson wrote about the definition of the word “defence.” Well, it just so happens that we can look. Feel free to examine the definitions of “defence,” “defenceless,” “to defend,” and “defendable.” One will find that none of the definitions in question make it necessary for a threat to have been launched by some form of sentient being, or group of beings, before one can be said to organize and implement some kind of “defense/defence” against that threat via preventive measures. Absent any competing definitions of similar or greater influence, one may reasonably conclude that “an ordinary adult citizen” would not have understood “defence” to mean a countermeasure against a threat set into motion by a sentient being, or group of beings–like Klingons, for example. A “defence” can therefore be mounted against a threat that appeared or emerged sua sponte, without any sentient beings or higher intelligence having brought that threat into being, and/or having directed that threat against us.

Indeed, if Kleiman wanted to get a libertarian legal analysis regarding this issue, he might have done well to ask Glenn Reynolds, whose blog is full of posts regarding the need for asteroid defense. I recognize that Kleiman loathes Reynolds, and has nothing but contempt for him, but it perhaps would not have been a bad idea for Kleiman to put his loathing aside and consider that Reynolds’s example might indicate that there are plenty of libertarians who (a) are concerned about defending the Earth against extinction-causing asteroids, and (b) might be able to justify it (as I have) constitutionally. As a general matter, it might be best for Kleiman to consult actual lawyers regarding constitutional or statutory interpretation, before trying to navigate legal thickets on his own. I mean, it’s his blog, and he can do what he wants, but it is worth noting that past Kleimanian efforts to play lawyer have ended quite poorly.

Jonathan Adler:

This post by Mark Kleiman is a good example, in that it puts forward a laughable caricature of libertarian and originalist constitutional thought that would have been discredited with but a moment’s investigation into the question (as I noted here, and Pejman Yousefzadeh discussed here).  To Prof. Kleiman’s credit, he backed off (a little) when other took the time to respond, but that a prominent, thoughtful academic would post something like this as an ostensibly thoughtful critique of right-leaning ideas says quite a bit about the state of much academic discourse.

Sasha Volokh:

I agree with Jonathan below that the Constitution (through the spending power) allows Congress to spend tax money to protect the Earth from an asteroid.

On the other hand — and at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.

Bryan Caplan once suggested the asteroid hypo to me as a reductio ad absurdum against my view. But a reductio ad absurdum doesn’t work against someone who’s willing to be absurd, and I may be willing to bite the bullet on this one.

On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.

This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion

Matthew Yglesias:

I think this is a mistake about how a reductio works. The mere fact that Volokh is willing to bite this bullet has no real bearing on the fact that the conclusion is clearly false, and so the argument is either logically invalid or else proceeds from false premises. I’d say “false premises.” The best liberal thinking—classical, modern, whatever—proceeds from broadly consequentialist ideas about making human beings better off.

Brad DeLong:

So not only does Sasha Volokh claim that it is immoral to tax people to blow up an asteroid (or install lightning rods, or mandate lightning rods, or pay for a tree-trimming crew on the public roads), but it is immoral to tell people of an approaching asteroid so they can scramble to safety because it will cause violations of rights through looting.

Wow.

Ilya Somin:

That said, I don’t think that Sasha’s view is necessarily ridiculous or “insane.” Any theory based on absolute respect for certain rights necessarily carries the risk that it will lead to catastrophe in some instances. Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.

Many such scenarios are improbable. But over the long sweep of human history, improbable events can and do happen. Had Kerensky suppressed the Bolsheviks in 1917 (as he easily could have that summer) or had the Weimar Republic done the same with the Nazis, the world would be a vastly better place, even though most political censorship (even of evil ideologies) causes far more harm than good. A civilization-destroying asteroid attack during the next few hundred years is also a low-probability event.

Thus, the potential flaw in Sasha’s view is one that it shares with all absolutist rights theories. Scenarios like the above are one of the main reasons why I’m not a rights-absolutist myself. But I don’t believe that all the great moral theorists who endorse such views from Kant to the present are either ridiculous or “insane.”

It’s also worth noting that Sasha’s approach would in fact justify asteroid defense in virtually any plausible real world scenario. As he puts it, “if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.” It’s highly unlikely that news of an impending asteroid impact whose onset was known to the government could be prevented from leaking to the general public. Even if it could, “all hell” would surely break loose after the asteroid impact, resulting in numerous violations of libertarian rights by looters, bandits, people stealing food out of desperation, and so on. Either way, Sasha’s analysis ends up justifying asteroid defense.

If I understand Sasha correctly, he’s only partially a rights absolutist. He doesn’t believe that you can ever sacrifice rights for utilitarian benefits, even truly enormous ones. But he does think that you can justify small rights violations as a way of forestalling bigger ones. Sasha is an absolutist when it comes to trading off libertarian rights for other considerations, but a maximizer when it comes to trading off rights for greater protection of those same rights in the future. Effective defense against a massive asteroid impact easily passes Sasha’s rights-maximizing test.

Obviously, I welcome correction from Sasha if I have misinterpreted his views.

Mark Kleiman:

I’m glad that Adler agrees with me – and disagrees with many Tea Party lunatics, including some recently elected to the Senate and the House – that there’s no actual Constitutional question about funding the Department of Education or National Public Radio. That, of course, was my point.

I’m also glad that Sasha is standing by his guns, thus demonstrating that my argument was not directed at a mere straw man, though his objection to spending is philosophical rather than Constitutional.

Sasha worries that his honest and forthright response might confirm me in my belief that “libertarians are loopy.” That’s certainly a reasonable concern. But I would have thought that a bigger concern would be that the conclusion is, in fact, obviously loopy, and – like any good reductio ad absurdum argument, ought to lead to a re-examination of the premises that would lead to such a loopy conclusion.

Ilya Somin is right to point out that any theory that puts an absolute constraint on action runs into problems when inaction has catastrophic consequences. But if he really can’t see the difference between torture and income taxation – can’t understand why absolute opposition to torture is not analogous to absolute opposition to public spending on public goods – then “loopy” is entirely too weak a word.

Eugene Volokh:

I leave it to others to debate the constitutional and moral merits of government spending on asteroid defense (my view is that such spending is both constitutionally permissible and morally proper, but I have nothing original to add on the subject). I just wanted to add that one side of the debate is an unusually near-literal application of the saying, “Let justice be done, though the heavens fall.”

Noah Millman at The American Scene:

An impending catastrophe – asteroid strike – threatens to kill everyone in the society. That doesn’t violate anyone’s “rights” because you don’t have a “right to life” but rather a right not to have your life taken away by somebody else against your will. Therefore, the government has no right to tax you to protect you – and everybody else – from the asteroid.

So how is the asteroid to be stopped?

Presumably, everyone in society would agree voluntarily to cooperate to stop the asteroid. That is to say: we could still have collective action, but it would have to be voluntary, not coerced.

But would everyone participate?

The government goes around, passing the hat for contributions to stop the asteroid. A certain percentage of people, though, don’t believe in asteroids. Another percentage believe that the asteroid will bring the Rapture and so must not be stopped. These people are crazy, though, and crazy people are not interesting to talk about. Let’s hope there aren’t too many and ignore them.

Some people, though, notice that there are wealthier people than them in the society, and figure those other people should shoulder the burden of saving society. These are the “free-riders.”

Now, so long as this group is relatively small, no problem. Enough people will still put up enough money to stop the collective catastrophe. But so long as that is the case, free-riding is the economically rational thing to do. Indeed, in any large enough society, free-riding is always the rational thing to do: in a society with enough people putting up enough money voluntarily to stop the asteroid, free-riding is costless; in a society without enough such people, contributing is pointless.

The salvation of this ultra-libertarian society, then, depends upon the existence of a sufficient number of irrationally self-sacrificing people, people who ignore their rational self-interest in order to procure a social good for the group, without regard for the amount of “free riding” going on around them.

On the assumption – which I don’t think is pushing it at all – that there are a whole lot of communal problems that require collective action to address, libertarianism is only practical in highly communitarian societies.

I don’t know that that’s a knock-down argument against libertarianism. Wikipedia is a highly communitarian activity that grew up in a highly libertarian environment (the Internet), and most of the world is free-riding.

But it’s worth stressing nonetheless, because libertarians tend to talk as if rationality will lead to the necessary level of cooperation. But it won’t. In any case of communal threat where attempted free-riders cannot independently exposed to the threat, while contributors are protected, the rational thing to do is free-ride.

They Write Op-Eds, Too, Part III

Barack Obama in The Wall Street Journal:

For two centuries, America’s free market has not only been the source of dazzling ideas and path-breaking products, it has also been the greatest force for prosperity the world has ever known. That vibrant entrepreneurialism is the key to our continued global leadership and the success of our people.

But throughout our history, one of the reasons the free market has worked is that we have sought the proper balance. We have preserved freedom of commerce while applying those rules and regulations necessary to protect the public against threats to our health and safety and to safeguard people and businesses from abuse.

From child labor laws to the Clean Air Act to our most recent strictures against hidden fees and penalties by credit card companies, we have, from time to time, embraced common sense rules of the road that strengthen our country without unduly interfering with the pursuit of progress and the growth of our economy.

Sometimes, those rules have gotten out of balance, placing unreasonable burdens on business—burdens that have stifled innovation and have had a chilling effect on growth and jobs. At other times, we have failed to meet our basic responsibility to protect the public interest, leading to disastrous consequences. Such was the case in the run-up to the financial crisis from which we are still recovering. There, a lack of proper oversight and transparency nearly led to the collapse of the financial markets and a full-scale Depression.

Over the past two years, the goal of my administration has been to strike the right balance. And today, I am signing an executive order that makes clear that this is the operating principle of our government.

This order requires that federal agencies ensure that regulations protect our safety, health and environment while promoting economic growth. And it orders a government-wide review of the rules already on the books to remove outdated regulations that stifle job creation and make our economy less competitive. It’s a review that will help bring order to regulations that have become a patchwork of overlapping rules, the result of tinkering by administrations and legislators of both parties and the influence of special interests in Washington over decades.

The Executive Order

Chris Good at The Atlantic. More Good:

The business community is praising President Obama’s new regulatory initiative, while retaining a degree of skepticism that meaningful change will come.

Obama rolled out a plan this morning to minimize the burdens of regulation on businesses, introducing it in a Wall Street Journal op-ed. Obama said the administration will seek input from businesses, and he issued a memo and executive order requiring executive agencies to review existing regulations and make compliance info searchable online.

“We welcome President Obama’s intention to issue an executive order today restoring balance to government regulations,” said Thomas Donohue, president and CEO of the U.S. Chamber of Commerce, the nation’s most prominent business group.

“While a positive first step, a robust and globally competitive economy requires fundamental reform of our broken regulatory system.  Congress should reclaim some of the authority it has delegated to the agencies and implement effective checks and balances on agency power,” Donohue continued, in a statement issued by the group.

Health care and financial reform should be examined as well, Donohue said: “No major rule or regulation should be exempted from the review, including the recently enacted health care and financial reform laws.”

It remains to be seen what will come out of this new roll-out. Obama has held a tricky relationship with business as president: Business coalitions like the Chamber supported his stimulus plan at the outset of his presidency, but the pushes to reform energy, health care, and Wall Street didn’t thrill them as much.

Jonathan Adler:

It reaffirms the basic principles outlined in President Clinton’s Executive Order 12866, issued in September 1993, and continues to require agencies to conduct cost-benefit analyses of proposed rules.  As noted in the President’s op-ed, it also requires agencies to engage in  “retrospective analysis” of existing rules so as to accelerate the pace at which outdated regulations are revoked.  Specifically, it requires all agencies to develop a plan for such retrospective review within 120 days.  If the White House Office of Information and Regulatory Affairs ensures such reviews are meaningful, this could be a significant and positive step.

Michelle Malkin:

While the Sherlock Homes of 1600 Pennsylvania sleuths around in search of “the right balance” that they’ve skewed catastrophically over the last two years, the mother of all job creation-stifling regulations — Obamacare — awaits repeal.

“Balance” my you-know-what

Bruce McQuain at Q and O:

Of course on the other side of that are those saying “since when is it a function of government to decide what gas mileage a car must get?”  The entire premise that it is a function of government is built on belief in a “justified” level of intrusion far beyond that which any Constitutional scholar would or could objectively support (that’s assuming he is a scholar and an honest one).  In fact the example perfectly states the obvious difference between big government advocates and small government advocates.  BGA’s think it is government’s job to dictate such things – that it is a function of government to do so.  SGAs believe it is the market’s job to dictate such things and that government shouldn’t be involved in these sorts of things.

So in essence, while the Obama op/ed has all the proper buzz words to attempt to sell it as a pro-business, small government move, it is in fact simply a restatement of an old premise that essentially says “government belongs in the areas it is now, we just need to clean it up a little”.

This really isn’t about backing off, it’s about cleaning up.  It isn’t about letting the market work, it’s about hopefully making government work better.  And while Obama claims to want to inform us about our choices rather than restricting them, I’ll still be unable to buy a car that doesn’t meet government standards on gas mileage even if I want one.

Now that may not seem like something most of us would want – few if any of us want bad gas mileage and the cost it brings – but it does illustrate the point that government regulation really isn’t about providing choice at all, it is and always will be about limiting them.  And all the smooth talking in the world doesn’t change that.   It’s the nature of the beast.

Choire Sicha at The Awl:

The president’s last executive order was signed between Christmas and New Year’s. It codified the bias in hiring towards college graduates (and more and more in America, those without college degrees will never have access to decent work!), but at least demanded the creation of entry level positions in the government for recent college graduates and veterans. The Wall Street Journalextends a statement from the president today, promoting his new executive order, which we shall call Operation Untangling. The plan apparently means that every government agency must identify which of their regulations are stupidest, and make them go away, supposedly. For instance, Obama trumpets that they just changed the EPA regulations that ensured saccharine was treated as a toxic chemical. American, onward and upward, very, very slowly. Anyway there’s lots of dog whistle noises in here about business and regulation that are designed to appeal to particular people but judging from the reaction, it’s just another chance for everyone to complain from various opposing viewpoints about how America is broken.

Mike Konczal at Rortybomb:

It’s fine as far as it goes. Here’s where it would be helpful if Obama picked some fights and put out some reform markers, because I can’t tell if this is just cover to go after proxy access rules as a way of making peace with the business community.   It’s worth noting that, as far as I read it, we’d have the same exact financial crisis, the same criminal securitization chain, the same uncapitalized derivatives positions, the same shadow banking panic if we regulated the financial sector with these guidelines.

And the things that actually acted on these principals in the past two years – the CFPB which has consolidated regulatory burdens across agencies in order to make regulations more clear, interchange reform which created a market between credit cards and debit cards to de facto create a market rate of credit at the individual merchant level – were bitterly opposed by the industries in question.

More generally I don’t like the notion that regulation is conceptually some sort of brakes on markets, a dial that can be turned up or down until some sort of optimal space is hit. I think of regulation as a means of handling the consequences of a specific market, both by setting up the terms on which the market plays as well as the mechanisms for handling conflicts and the way things collapse.  How does a firm fail?  How do other firms compete, and under what terms is information disclosed to the market?  In some ways this is obvious: the nuclear energy market would not exist in its current form without the government.  I’d be more likely to support for crazy loans if our bankruptcy courts were designed to modify primary household debt and also if we reformed the bizarre way we deal with junior liens, a conflict people knew about at the beginning of the housing bubble.

Ann Althouse:

And here‘s the underlying Wall Street Journal op-ed by Barack Obama, which features an illustration of a man — not Obama… he looks a bit like Don Imus — in a gray business suit, running with scissors — running with scissors! — cutting his way through an abstract field of red tape. In the op-ed, Obama is all about carefully and thoughtfully weighing the value of particular regulations in relation to the burdens they impose, so the picture is amusingly inapt.

A Day Of Reckoning For Jenny McCarthy, And Not Just For “John Tucker Must Die”

Frankie Thomas at New York Magazine:

One of the most famous flawed studies ever conducted, Dr. Andrew Wakefield’s now-retracted 1998 paper that linked vaccines to autism has been found to be not a scientific error, but a deliberate lie. BMJ, a British medical journal, has just published its investigation of the matter and concluded that Dr. Wakefield purposely falsified his data. They report that he was contracted by lawyers determined to sue the vaccine manufacturers, regardless of scientific truth.

Jonathan Adler:

A report by journalist Brian Deer in the British Journal of Medicine, the first in a series, reveals that the Wakefield study relied upon “bogus data” that was “manufactured” by those who conducted the study.  Specifically, Deer found that the study’s authors misrepresented medical and other information about the children in the study, including the timing and appearance of relevant symptoms, creating a false impression of a vaccine-autism link that was not there.

An accompanying editorial in the BMJ pulls no punches.

The Office of Research Integrity in the United States defines fraud as fabrication, falsification, or plagiarism. Deer unearthed clear evidence of falsification. He found that not one of the 12 cases reported in the 1998 Lancet paper was free of misrepresentation or undisclosed alteration, and that in no single case could the medical records be fully reconciled with the descriptions, diagnoses, or histories published in the journal.

Who perpetrated this fraud? There is no doubt that it was Wakefield. Is it possible that he was wrong, but not dishonest: that he was so incompetent that he was unable to fairly describe the project, or to report even one of the 12 children’s cases accurately? No. A great deal of thought and effort must have gone into drafting the paper to achieve the results he wanted: the discrepancies all led in one direction; misreporting was gross. Moreover, although the scale of the [General Medical Council’s] 217 day hearing precluded additional charges focused directly on the fraud, the panel found him guilty of dishonesty concerning the study’s admissions criteria, its funding by the Legal Aid Board, and his statements about it afterwards. . . .

Meanwhile the damage to public health continues, fuelled by unbalanced media reporting and an ineffective response from government, researchers, journals, and the medical profession. Although vaccination rates in the United Kingdom have recovered slightly from their 80% low in 2003–4, they are still below the 95% level recommended by the World Health Organization to ensure herd immunity. In 2008, for the first time in 14 years, measles was declared endemic in England and Wales. Hundreds of thousands of children in the UK are currently unprotected as a result of the scare, and the battle to restore parents’ trust in the vaccine is ongoing.

(citations omitted)

Perhaps now, finally, the vaccine-autism charade is over. I’ll await the reports on Oprah and MSNBC’s “Countdown.”

mistermix:

Wakefield was employed by a lawyer who wanted to sue vaccine makers and was paid a total of £435 643, plus expenses. He “discovered” the autism-MMR link after being put on the payroll, but before doing any research at all.

Nick Gillespie at Reason

Kevin Drum:

The punchline, of course, is that parents panicked over Wakefield’s results and lots of them decided not to get their kids vaccinated. As a result:

Measles has surged since Wakefield’s paper was published and there are sporadic outbreaks in Europe and the U.S. In 2008, measles was deemed endemic in England and Wales.

The vaccine-autism quackery that Jenny McCarthy and her ilk continue to promote isn’t just harmless fun and games. It’s damaged untold children and might well have killed a few. It’s long past time for it to stop.

Ann Althouse:

What psychological suffering this man caused in so many vulnerable parents of little children! For a scientist to subvert science — why don’t we have a much more intense feeling of horror about that? How dare those trained in science to misuse it and undermine the enterprise of science? Our shared interest in science is so strong – our need to rely on experts so great — that we should severely punish those who betray it. But we can’t, really, can we? If we tried, we might only exacerbate the pressures on scientists to toe the line and give us the answers we want, lest we target them for destruction.

Scott Lemieux at Lawyers, Guns and Money

Max Read at Gawker:

Unfortunately, it’s unlikely it’ll do much to convince the conspiracy-minded, who are positive the pharmaceutical industry is covering up the real evidence that autism is caused by vaccines; like birtherism and other nutty beliefs, fear of vaccination is about strong feelings and not really about evidence. Which is too bad. Babies are dying of vaccine-preventable diseases, and people like Andrew Wakefield need to be held responsible.

Shave And A Haircut, Two Bits And A Whole Lot Of Red Tape

Karl Smith:

For example, in most jurisdictions cutting hair at home can legally be done with a vacuum cleaner but cutting it for pay requires schooling, examination and a licensing fee.

Matthew Yglesias:

The way I’ve been getting my hair cut for the past six months or so is that I bought a pair of hair clippers and I do it myself. I normally trim about twice a week, and this lets me keep the hair short at an acceptable cost. Once I screwed it up, then my hair looked funny for like a day until I figured out how to fix it.Meanwhile, meet the District of Columbia Board of Barber and Cosmetology:

The DC Board of Barber and Cosmetology (Board) regulates the practice of barbering and cosmetology while working diligently to raise the standards of practice; ensure quality service; establish accepted codes of ethical behavior, and protects the health, safety and welfare of the citizens and visitors of the District of Columbia by upholding the city’s Barber and Cosmetology laws and regulations. The Barber and Cosmetology license law (pdf) is defined in the Barber and Cosmetology Municipal Regulations, which took effect on May 2001.

The Board consists of eleven members appointed by the Mayor. The Board consist of three (3) barbers, three (3) cosmetologists, threes (3) specialists, all license and practicing for at least three (3) years. There are two (2) members (non-license) representing consumers. Six members of the Board constitute a quorum.

Regulation of this sort seems totally unnecessary. People don’t die of bad haircuts, and since hairstyle is a quintessential matter of taste there’s absolutely no reason to think consumers can’t figure out for themselves who has a decent reputation as a cutter of hair. You can cut your own hair perfectly safely in your own house, and if you screw it up all that happens is you need to find a real professional to fix it. But what’s more, even if regulation were somehow a good idea, the composition of the board couldn’t possibly serve a legitimate consumer protection function. It’s overwhelmingly composed of people from the industry whose incentive is to limit competition and raise prices.

Don Suber:

Congratulations, Matthew Yglesias, you have just discovered what my economics professors used to call Barriers To Entry, in much the same way Charlton Heston discovered the secret ingredient for soylent green.

All those business lobbyists in Washington? They are not there to stop legislation. They are there to write legislation. Of course BP endorsed tougher regulations on oil drilling. It helps their side businesses in alternative energy and keeps wildcatters from drilling for oil.

Those tough regulations on Wall Street? Goldman Sachs wrote them. Hey, it paid Obama a million bucks for that seat at the table.

When I get time, I will explain why Bill Gates and other billionaire liberals create tax-free — er, non-profit — foundations. A hint: John D. Rockefeller V was born a millionaire.

James Joyner:

Matt Yglesias figures that, since he’s able to cut his own hair, it’s silly to license barbers.

His commenters point out to him, fairly rudely, that people who handle straight razors probably ought to have some training and prospect of inspection from the authorities for health reasons.  And that beauticians, who handle dyes and other chemicals, really need to be regulated.   Apparently, they’ve explained this to him once or twice before, and hence their irritation.

Mostly, I think the commenters are right.  While the free market would probably regulate simple barber shops — as opposed to beauty shops — with reasonable efficiency, we’d hate to have barbers routinely cutting people with infected implements.   Let’s just say that the signaling mechanisms for that sort of thing are too slow for comfort.

Further, in terms of arguing by analogy, if Matt is an unlicensed barber, I’m an unlicensed taxi driver and restaurateur.  The idea that because people can be trusted to do something for themselves, they should therefore be allowed to do the same things for the public on a professional basis is rather thin.

Kevin Drum:

You’ll be unsurprised to know that I don’t have a lot to add on this subject. But I did get into a conversation about this with my haircutter once, and she pointed out that there’s more to this business than you might think. It’s true that clipping hair — which is the only side of the business that Matt and I ever see — isn’t especially dangerous. But for more complicated jobs, hair professionals handle a lot of dangerous chemicals and they need to know how to use these properly to insure that they don’t do some serious damage to their customers. That, apparently, is part of what they teach you at cosmetology school.

That’s what she said, anyway. Alternatively, maybe it’s all just a big scam. After all, plenty of women give themselves home perms and seem to survive the experience. Hair professionals should feel free to school us in comments.

Alex Massie:

Matt’s critics say that anyone using sharp objects or chemicals such as peroxide needs to be regulated and inspected. This, my friends, is a reminder that the American mania for credentialism (cf journalism) frequently travels well into the realm of the absurd.

Happily, this sceptered isle is a freer place entirely. No surprise then that the British Hairdressing Council is not happy. From their FAQ:

But surely everyone must be qualified before being allowed to practise?

Alas, not so; in fact, quite the opposite. Here in Britain, anyone is free to practise as a hairdresser without registration, without qualification, even without proper training. In short, hairdressing is totally unregulated.So is there no yardstick by which to judge hairdressers?

Yes, there is. In 1964, Parliament passed the Hairdressers Registration Act to give status to hairdressers and assurance to consumers. Under the Act, the Hairdressing Council (HC) was created to establish and maintain a register of qualified hairdressers. Hence, every State Registered Hairdresser (SRH) is officially recognised as qualified to practise hairdressing on the public.

Are most hairdressers registered?

Sadly, they are not. The 1964 law left registration a voluntary option. Only about ten per cent of hairdressers have ever exercised their right to a place on the official register. At the same time, with the industry unregulated, many unregistered operators might not be eligible for inclusion on the register.

Where does this leave the consumer?

In a far from ideal position. Choosing a practitioner in any unregulated industry is tricky; in an industry where part of the human person is being treated, it truly can be a lottery. While many consumers no doubt chance upon good stylists, others stray into the hands of incompetent operators and have experiences ranging from overpriced and unsatisfactory services to damaged hair and even injured scalp and facial tissue.

Surely all hairdressers are accountable for their professional actions? Isn’t this the role of the Hairdressing Council?

Had registration been mandatory, the Hairdressing Council would indeed regulate hairdressing much as the Medical and Dental Councils, for instance, regulate their sectors. However, so long as the Act remains voluntary, the HC has jurisdiction over SRHs only – complaints against whom are very few and far between.

Something must be done! To be sure…

If it can, why won’t Parliament take action?

Action by government ministers, rather than back bench MPs, is what’s needed. For the record, ministers are requested, regularly, to amend the Act. This campaign for a tightening of the law, spearheaded by the Hairdressing Council, is supported by the industry trade bodies, consumer groups, much of the media and, not least, consumers. A great many individual MPs also support the regulation of hairdressing.

And where does government stand on the regulation of hairdressing?

To begin, a few facts: First, no government is going to commit parliamentary time to bringing in legislation it feels to be unnecessary*. Second, no government is going to introduce what it regards as unnecessary regulation. Third, regulation, of pretty well any sort, is increasingly viewed at best with suspicion and at worst with contempt by business interests, including many salon owners.
Fourth, governments tend to be wary of introducing laws viewed unfavourably by large or significant sections of the community. 
As to the stances adopted by recent governments on hairdressing regulation, when in power the Conservatives refused, consistently, to contemplate action. Their argument, repeated many times, was that “market forces are a sufficient regulator”. The current Labour government has listened to and acknowledged the merits of the case for regulation but has, at least so far, declined to act on the matter.

Have other measures been tried, through ordinary MPs in Parliament to bring in regulation?

Since the voluntary registration law was introduced in 1964, initiatives such as Early Day Motions, Ten Minute Rule Bills, Ministerial Questions and Private Members’ Bills have all been tried by helpful and supportive MPs. But lacking government support, none of these has succeeded. However, be sure efforts will continue.

I’m sure they shall! Somehow, however, the country has survived an unregulated hairdressing and barber-shop industry all these years and may yet, with god’s providence, do so in the future.Mind you, Sweeney Todd was a Londoner…

*If only this were true…

More Yglesias:

A number of people, including many commenters here and even alleged conservative James Joyner think you should need a professional license to become a barber because you might hurt someone with a straight razor. Uh huh. At best this would be an argument for regulating people who do shaves with a straight razor, which would be considerably narrower than current comprehensive regulation of hair stylists.

Meanwhile, though “torts and the free market will take care of it” isn’t the answer to everything, it’s surely the answer to some things. Getting some kind of training before you shave a dude with a straight razor is obviously desirable in terms of strict self-interest. If you screw it up in a serious way, you’ll face serious personal consequences and the only way to make money doing it—and we’re talking about a very modest sum of money—is to do it properly. People also ought to try to think twice about whether their views are being driven by pure status quo bias. Barbers are totally unregulated in the United Kingdom, is there some social crisis resulting from this? Barber regulations differ from state to state, are the stricter states experiencing some kind of important public health gains?

Last you really do need to look at how these things play out in practice. If you just assume optimal implementation of regulation, then regulation always looks good. But as I noted in the initial post the way this works in practice is the boards are dominated by incumbent practitioners looking to limit supply. One result is that in Michigan (and perhaps elsewhere) it’s hard for ex-convicts to get barber licenses which harms the public interest not only by raising the cost of haircuts, but by preventing people from making a legitimate living. States generally don’t grant reciprocity to other states’ licensing boards, which limits supply even though no rational person worries about state-to-state variance in barber licensing when they move to a New Place. In New Jersey, you need to take the straight razor shaving test to cut women’s hair because they’re thinking up arbitrary ways to incrementally raise the barrier to entry.

Mike Konczal at Rortybomb:

It’s worth noting that Barack Obama, back when he was a state senator in Illinois, pushed against some of this when it came to jail sentences and prohibitions on getting regulatory licenses:

Town Hall Meetings: On August 15 and 16, 2003 the North Lawndale Employment Network sponsored the annual Town Hall meeting for Congressman Danny Davis at Malcolm X College in Chicago. Brenda Palms Barber was one of the distinguished speakers for the Congressman’s opening address. Ms. Barber and Anthony Burton participated on a panel with State Senator Barack Obama and State Representative Constance Howard to discuss the federally funded Going Home program and several new laws that were passed by the state lawmakers. The lawmakers introduced to the audience several bills that had been passed, including one that would change some of the expungement laws in the State of Illinois and one bill that would allow formerly incarcerated individuals to seek regulatory licenses in several fields including barbering, nail technicians, cosmetology and dead animal removal. Under this bill, the formerly incarcerated individual would have the opportunity to seek a license once they have served their time in prison and have been given a certificate of good standing by the State of Illinois. NLEN also set up a booth at the Town Hall meeting to highlight its program and accomplishments.

Back then if you had a jail record you couldn’t receive most regulatory licenses. So if you were trying to escape from a life of crime, or even if you were tagged with a minor crime during a wayward period in your life, you would automatically have a wide variety of occupations immediately shut off from you. You couldn’t be a barber for instance. (You also probably couldn’t be a licensed fortune teller.) Whatever the idea behind this, in practice it’s going to take people at the edges and shut off a number of crucial options to them. I don’t know if this exists in most states, but it’s an obvious way to begin to push back against the worst excesses of license overkill.

So beyond just being a hassle these licenses can be a major form of explicit job segregation and can have major distributional problems associated with them.

UPDATE: Doug J.

Jonathan Adler

UPDATE #2: More Yglesias

Conor Friedersdorf here and here

Kevin Drum

Adam Serwer at The American Prospect

UPDATE #3: Matt Steinglass at DiA at The Economist

“I’m Crazy For Trying And Crazy For Crying…”

David Klinghoffer at Los Angeles Times:

Once, the iconic figures on the political right were urbane visionaries and builders of institutions — like William F. Buckley Jr., Irving Kristol and Father Richard John Neuhaus, all dead now. Today, far more representative is potty-mouthed Internet entrepreneur Andrew Breitbart, whose news and opinion website, Breitbart.com, is read by millions. In his most recent triumph, Breitbart got a U.S. Department of Agriculture official pushed out of her job after he released a deceptively edited video clip of her supposedly endorsing racism against white people.

What has become of conservatism? We have reached a point at which nothing could be more important than to stop and recall what brought us here, to the right, in the first place.

Buckley’s National Review, where I was the literary editor through the 1990s, remains as vital and interesting as ever. But more characteristic of conservative leadership are figures on TV, radio and the Internet who make their money by stirring fears and resentments. With its descent to baiting blacks, Mexicans and Muslims, its accommodation of conspiracy theories and an increasing nastiness and vulgarity, the conservative movement has undergone a shift toward demagoguery and hucksterism. Once the talk was of “neocons” versus “paleocons.” Now we observe the rule of the crazy-cons.

Donald Douglas:

I can’t speak for Andrew Breitbart, and I actually reject a good bit of the “craziness” on the right, but as you finish Klinghoffer ask if American politics, realistically, will be returning to a more wistful, respectful era? (And also ask if being “crazy” is code for being “racist”?) Besides, National Review‘s not my top source for right wing news. I prefer Commentary and Weekly Standard, to say nothing of Ace of Spades HQ, Instapundit, and The Other McCain. And I read these sources, among others, because they provide me with the intellectual sustenance to “save civilization,” which is what Klinghoffer suggests is “what he signed up for” when he became a conservative.

And here’s the thing: A lot of us became conservative because we saw society’s moral foundations in tatters, and it was the Democratic-left holding the shears. You can always hold up your hands and scream “clowns to the left of me, jokers to the right,” but you still have to choose. We have no viable third party movement, and the GOP at present is the best place to form a conservative-libertarian coalition for political victory. And as a party out of power, the most strident voices at the base are going to get a lot of play, especially when new media is driving most of the key political memes. I choose conservatism. It’s a no-brainer. But notwithstanding the citations above, I’m not wedded to any particular talking point. I think for myself, thank you. For example, is it crazy to call President Obama a socialist? I think he is (but on an intellectual level, e.g., see Jonah Goldberg, “What Kind of Socialist Is Barack Obama?“). But that kind of talk gets one attacked as an extremist by the left-wing media machine. How about if you don’t submit? Breitbart’s attacked mercilessly as a “liar” and a “unprincipled” scoundrel because he gets results. Yet, almost daily I find some MSM outlets reporting not just factual errors, but outright lies, and then people like me are crazy for calling out this sh*t? I don’t think so. People are mad. And when people get mad they starting gravitating to more polarizing messages, and some of it can get heated. For me though, Klinghoffer and others like him (which no offense to him, would include idiots like Charles Johnson) simply prop up the left’s Media Industrial Complex, and in that sense they’re enabling the very anti-conservative forces Andrew Breitbart is finally beginning to take down.

Rick Moran:

Maybe it’s the heat. Perhaps it’s an al-Qaeda plot that has dumped LSD in public cisterns throughout the country. Or, it could be simple, old fashioned, bat guano crazy wishful thinking.

Whatever it is, the very silly season has arrived on the right and with it, diminishing chances that the American people will drink the same flavor of Kool Ade and join conservatives in giving the Democrats a well-deserved paddling at the polls.

A kind of irrational combination of fear and exuberance has infected the right in recent weeks as the number of vulnerable Democrats grows and the realization that at the very least, the House may fall into their laps takes hold. And if the hysteria was limited to the fringes, one might dismiss it as not worthy of discussion.

Instead, illogical ranting has gone mainstream with a call by former Rep. Tom Tancredo in the Washington Times for the president to be impeached, and now the belief that there may be another American Revolution on the way emanating from the pages of the staid, and usually rational Investors Business Daily.

The probable response of those two media organs would be that these are valid points of view and they are performing a public service by airing them. At least, that’s what the New York Times says when they publish off the wall looniness from liberals.

In truth, they are not valid. They are not rational. They are not sane. Tancredo especially, forces one to ask the question; what country is he talking about?

For the first time in American history, we have a man in the White House who consciously and brazenly disregards his oath of office to protect and defend the Constitution. That’s why I say the greatest threat to our Constitution, our safety and our liberties, is internal. Our president is an enemy of our Constitution, and, as such, he is a danger to our safety, our security and our personal freedoms.

Now, if you’re familiar with the conservative internet, this is not an uncommon idea. All that’s missing is the charge that President Obama is a Marxist.

Oh, wait…

Mr. Obama’s paramount goal, as he so memorably put it during his campaign in 2008, is to “fundamentally transform America.” He has not proposed improving America – he is intent on changing its most essential character. The words he has chosen to describe his goals are neither the words nor the motivation of just any liberal Democratic politician. This is the utopian, or rather dystopian, reverie of a dedicated Marxist – a dedicated Marxist who lives in the White House.

That’s right. Tom Tancredo believes the president of the United States is a Commie. He’s not even a pinko. He is a dead red, dyed in the wool, “dedicated Marxist.” Left unsaid, but easily inferred from Tacredo’s unbalanced rant, is that President Obama is deliberately out to destroy the country. This is a Rush Limbaugh talking point and many of his 17 million daily listeners fall for it. One would think a former congressman should know better, but evidently, such rationality requires adherence to a worldview that doesn’t see the political opposition as the reincarnation of the Devil.

Is President Obama intent on “changing [America’s] most essential character?” Unfortunately, yes he is trying. He is doing it not because he wants to destroy America but because he thinks he is improving her. This misguided, imprudent, and ultimately doomed attempt to alter the relationship between the people and the government can be opposed rationally (as defending it can be argued without resorting to hyperbole or name calling). Tancredo chooses to believe (or lets on that he believes) that in order to oppose the president, one must resort to hysterical exaggerations and deliberate misinterpretation of Obama’s motives. But doing it the logical way will not garner him headlines or make him a hero on the right.

Such is the level to which conservatism has sunk in some quarters.

Doug Mataconis:

Indeed, and as I’ve said to many of my friends on the right upset by the latest news from Washington, it was the failures of George W. Bush and the Republicans that made Barack Obama’s election not only possible, but likely. Obama’s mistake, it would appear, is assuming that his election constituted an endorsement of his agenda rather than a rejection of the other guy.

Moran is concerned that rhetoric like this will hurt the GOP at the polls in November. While I don’t know that ranting by a guy like Tom Tancredo or an op-ed at Investors Business Daily are going to have that much of an influence on the electorate. However, as the examples of Sharron Angle and Rand Paul show us, one of the most viable Democratic strategies over the next 90 days may be the argument that “Yea we’re bad, but look at them. They’re crazy.”

Will it work ? Maybe not in 2010, but if the right continues down this road then it will be handing Barack Obama back the White House on a silver platter.

Steve Bainbridge:

These days it’s getting increasingly embarrassing to publicly identify oneself as a conservative. It was bad enough when George Bush 43, the K Street Gang, and the neo-cons were running up spending, fighting an unnecessary war of choice in Iraq, incurring massive deficits, expanding entitlements, and all the rest of the nonsense I cataloged over the years in posts like Bush 43 has been a disaster for conservatives.

These days, however, the most prominent so-called conservatives are increasingly fit only to be cast for the next Dumb and Dumber sequel. They’re dumb and crazy.

[…]

Let’s tick off ten things that make this conservative embarrassed by the modern conservative movement:

1. A poorly educated ex-sportwriter who served half of one term of an minor state governorship is prominently featured as a — if not the — leading prospect for the GOP’s 2012 Presidential nomination.
2. Tom Tancredo calling President Obama “the greatest threat to the United States today” and arguing that he be impeached. Bad public policy is not a high crime nor a misdemeanor, and the casual assertion that pursuing liberal policies–however misguided–is an impeachable offense is just nuts.
3. Similar nonsense from former Ford-Reagan treasury department officials Ernest Christian and Gary Robbins, who IBD column was, as Doug Marconis observed, “a wildly exaggerated attack on President Obama’s record in office.” Actually, it’s more foaming at the mouth.
4. As Doug also observed, “The GOP controlled Congress from 1994 to 2006: Combine neocon warfare spending with entitlements, farm subsidies, education, water projects and you end up with a GOP welfare/warfare state driving the federal spending machine.” Indeed, “when the GOP took control of Congress in 1994, and the White House in 2000, the desire to use the levers of power to create “compassionate conservatism” won our over any semblance of fiscal conservatism. Instead of tax cuts and spending cuts, we got tax cuts along with a trillion dollar entitlement program, a massive expansion of the Federal Government’s role in education, and two wars. That’s not fiscal conservatism it is, as others have said, fiscal insanity.” Yet, today’s GOP still has not articulated a message of real fiscal conservatism.
5. Thanks to the Tea Party, the Nevada GOP has probably pissed away a historic chance to out=st Harry Reid. See also Charlie Crist in Florida, Rand Paul in Kentucky, and so on. Whatever happened to not letting perfection be the enemy of the good?
6. The anti-science and anti-intellectualism that pervade the movement.
7. Trying to pretend Afghanistan is Obama’s war.
8. Birthers.
9. Nativists.
10. The substitution of mouth-foaming, spittle-blasting, rabble-rousing talk radio for reasoned debate. Michael Savage, Glenn Beck, Hugh Hewitt, and even Rush Limbaugh are not exactly putting on Firing Line. Whatever happened to smart, well-read, articulate leaders like Buckley, Neuhaus, Kirk, Jack Kent, Goldwater, and, yes, even Ronald Reagan?

Jonathan Adler:

Professor Bainbridge lists “ten things that make this conservative embarrassed by the modern conservative movement.”  I’m not as enamored with David Klinghoffer’s lament (see also here), nor would I equate Hugh Hewitt with Michael Savage, but I largely agree.

Mike Rappaport:

Bainbridge seems to be missing something here.  Yes, the Republicans of 2000-2006 were excessively big government.  Now, why does the Tea Party want to see Marco Rubio instead of Charlie Crist, and the others?  Because the Tea Partiers believe, quite rightly, that Charlie Crist supported Obama’s stimulus and would behave much like the Republicans of 2000-2006.  I would take my chances with Rubio and the possibility of real constraint.Bainbridge can’t really have it both ways.  You can’t criticize the Tea Partiers for wanting better conservatives and also criticize the old Republicans who were elected based on the idea of “not letting perfection be the enemy of the good.”

Patterico:

You can count Professor Bainbridge among the folks who love David Klinghoffer’s L.A. Times piece (criticized here earlier today). Via Jonathan Adler at Volokh, Bainbridge offers a remarkably unconvincing set of ten reasons that he claims are reasons that “It’s getting to be embarrassing to be a conservative.” Upon closer inspection, however, the “reasons” turn out mostly to be reasons that conservatives should not support the Republican party — a quite different proposition entirely. Added in there, for good measure, is a heaping helping of overly broad generalizations about Tea Partiers.

Bainbridge’s complaints include: a lament that Palin is being considered a leading contender for the 2012 GOP nomination; complaints that the GOP is running candidates that are too extreme to take seats that should be ripe for the picking; complaints that certain Republicans have (in Bainbridge’s view) criticized Obama unfairly and too harshly; and criticism of birthers, “nativists,” and the “anti-science and anti-intellectualism that pervade the movement.”

Heavens! T. Coddington Van Voorhees VII would most certainly agree!

Bainbridge also moans about “mouth-foaming, spittle-blasting, rabble-rousing talk radio” including . . . Hugh Hewitt (?!). (Really? When is the last time Bainbridge was on Hewitt’s show?)

In addition to the above nonsense, which has nothing to do with conservatism and everything to do with the shortcomings of the GOP, Bainbridge also has a perfectly legitimate complaint regarding the GOP’s lack of fiscal restraint during the Bush years. But, again, why should that GOP failure to act in line with true conservative principles make anyone ashamed to be a conservative??

Jonah Goldberg at Los Angeles Times:

Conservatives, being conservatives, have a soft spot for the good old days, but this is getting ridiculous. It seems every day another colleague on the right wants to click his ruby red slippers — or Topsiders — and proclaim, “There’s no place like home” — “home” being the days when conservatism was top-heavy with generals but short on troops.

The latest example comes from my old National Review colleague David Klinghoffer in this paper. “Once, the iconic figures on the political right were urbane visionaries and builders of institutions — like William F. Buckley Jr., Irving Kristol and Father Richard John Neuhaus, all dead now,” Klinghoffer lamented. “Today, far more representative is potty-mouthed Internet entrepreneur Andrew Breitbart.”

As someone who knew Buckley and Kristol (and was a brief acquaintance of Neuhaus), I think David’s got it wrong. For starters, no one confuses Breitbart for Buckley — first and foremost, Breitbart himself — and the only people making that comparison are those wishing to indict contemporary conservatism for one reason or another.

Let’s start with the left, which certainly has different motives than Klinghoffer’s. The urge to lament how far today’s conservatives have fallen from the “golden age” of Buckley & Co. is a now-familiar gambit. You see, this is what critics on the left always say: “If only today’s conservatives were as decent or intellectual or patriotic as those of yesteryear.”

The best conservatives are always dead; the worst are always alive and influential. When Buckley and Kristol, not to mention Barry Goldwater and Ronald Reagan, were alive, they were hated and vilified by the same sorts of people who now claim to miss the old gang. The gold standard of the dead is always a cudgel, used to beat back the living.

As for the right, there are many competing agendas among those lamenting the populist enthusiasms of the right today. Some seem to want to displace and replace today’s leaders; others are simply beautiful losers in forgotten struggles eager to tear down the winners.

But what undergirds a lot of this is simply nostalgia. A conservative populism is sweeping the land, and although I think it is for the most part justified and beneficial, you cannot expect millions of people to get very angry — deservedly angry — and expect everyone to behave as if it’s an Oxford seminar.

James Poulos at Ricochet:

Jonah’s reminder that the right’s intellectual lions actually deigned to have a practical political project is more than helpful: it’s needful. Yet there’s a danger that he and Klinghoffer — and, more broadly, the loose camps they each represent — will wind up talking past each other. To be sure, yesterday’s deep thought and institution-building created the preconditions for today’s popular political activity. And we all know that popular political activity, even (or especially) in America, makes plenty of room for demagogues, hucksters, opportunists, and careerists. The question is whether a fresh crop of erudite heroes, very unlike the technocratic eggheads who set the agenda for the left, would be of any help in pressing what Jonah calls “the battle” that’s been joined.

Few on the right would respond in the negative. But for a number of those like Klinghoffer who answer yes, a suspicion is growing that new intellectual heavyweights are not only helpful to partisan conservatism today but essential. The trouble is simple: these mental mandarins are nowhere to be found on the right. Or the left. Or somewhere in the middle, or off in some unclassifiable corner of our political map. No wonder their influence is nil. Jonah would likely insist that this is nothing, necessarily, for anyone to be ashamed of. True; it’s entirely possible that one or two or two dozen will burst or creep onto the scene over the next, say, ten years. Really, there are too many names to watch to name. The issue, now, isn’t nostalgia versus populism. The kind of public theorists who dominated the American right in its contemporary infancy aren’t available to lead conservative politics. Why waste any time crying out for them, or crying over their absence? Ask, rather, what kinds of smart people are most needful today. Some of them, I imagine, will be better suited to calling and running plays on the ground. Others will remain pretty high up in pretty narrow towers. And a third kind of genius will do the most good explaining precisely what kind of intellectual leadership conservatives require most today.

Where Would We Be At Around The Sphere Without Cut And Paste?

Erik Hayden at The Atlantic with the round-up

Trip Gabriel at NYT:

At Rhode Island College, a freshman copied and pasted from a Web site’s frequently asked questions page about homelessness — and did not think he needed to credit a source in his assignment because the page did not include author information.

At DePaul University, the tip-off to one student’s copying was the purple shade of several paragraphs he had lifted from the Web; when confronted by a writing tutor his professor had sent him to, he was not defensive — he just wanted to know how to change purple text to black.

And at the University of Maryland, a student reprimanded for copying from Wikipedia in a paper on the Great Depression said he thought its entries — unsigned and collectively written — did not need to be credited since they counted, essentially, as common knowledge.

Professors used to deal with plagiarism by admonishing students to give credit to others and to follow the style guide for citations, and pretty much left it at that.

But these cases — typical ones, according to writing tutors and officials responsible for discipline at the three schools who described the plagiarism — suggest that many students simply do not grasp that using words they did not write is a serious misdeed.

It is a disconnect that is growing in the Internet age as concepts of intellectual property, copyright and originality are under assault in the unbridled exchange of online information, say educators who study plagiarism.

Digital technology makes copying and pasting easy, of course. But that is the least of it. The Internet may also be redefining how students — who came of age with music file-sharing, Wikipedia and Web-linking — understand the concept of authorship and the singularity of any text or image.

“Now we have a whole generation of students who’ve grown up with information that just seems to be hanging out there in cyberspace and doesn’t seem to have an author,” said Teresa Fishman, director of the Center for Academic Integrity at Clemson University. “It’s possible to believe this information is just out there for anyone to take.”

Jonathan Adler:

The mash-up culture is not a culture of plagiarism.  Those who copy music, lift riffs, or appropriate images don’t usually claim authorship of the original source material or claim it as their own.  They use this material in works of their own, while freely acknowledging its provenance.  The creativity and originality comes from finding the right source material and putting it to good use, not from denying the original source.  Whether such copying and appropriation should be legal, it’s not the same as plagiarism, as it’s sourced.  Web links often serve as source attributions, and even Wikipedia pages demand footnotes.  Even in the Internet Age, we recognize the difference between incorporating the work of another and passing it off as one’s own.

Another possible explanation for the apparent rise in plagiarism is that many college students are simply unprepared for the type of academic work that is expected of them and engage in plagiarism even though they know it’s wrong.

At the University of California, Davis, of the 196 plagiarism cases referred to the disciplinary office last year, a majority did not involve students ignorant of the need to credit the writing of others.

Many times, said Donald J. Dudley, who oversees the discipline office on the campus of 32,000, it was students who intentionally copied — knowing it was wrong — who were “unwilling to engage the writing process.”

“Writing is difficult, and doing it well takes time and practice,” he said.

I find this explanation more persuasive.  I also think the apparent rise in plagiarism is of a piece with the apparent rise in cheating by students generally.  The problem is not that academic standards are too strict for the Internet Age.  Rather, it’s that students are not taught that such standards really matter.

Matthew Yglesias:

This all strikes me as extremely dubious. For one thing, they don’t appear to have any real data to indicate that cheating is on the rise. For another thing, any analysis of this subject has to account for the fact that the Internet has made plagiarism radically easier to detect. Finding some old book or article and copying a section of it was always fairly easy for any student with access to a good university library. It’s true that computers make this somewhat easier, but the difference is marginal. By contrast, digital search makes it dramatically easier for a suspicious teacher to check and see if a dubious passage is copied from somewhere, and the ongoing process of digitizing humanity’s store of knowledge will make this easier and easier in the future.

What’s more, the idea that the Internet is eroding the concept of authorship seems extremely dubious. This here blog is on the Internet. But it’s author is clearly identified. I link to a lot of things other people write, and I identify those people. Music is just the same. I’ve been listening to NPR’s stream of the new Arcade Fire album. Thanks to the Internet you can, if you’re so inclined, download a copy of this album without paying for it. But in order to find it you have to know that it’s the new Arcade Fire album, and the same is generally true of all music downloads. Whether you’re talking about acquiring digital music legally through Emusic or the iTunes store or whether you’re talking about BitTorrenting it the only way to find things is by correctly applying the concept of authorship.

I suppose it’s true that Wikipedia puts up a lot of non-copyrighted content whose authorship is somewhat hard to discern. When I use images from their “Wikimedia Commons” (like for this post!), I link back to where I found the image but don’t normally do an author credit. But Wikipedia seems to me to be very exceptional in this regard.

Norman Geras:

Since plagiarism is cheating it should be penalized (once the practice of honest writing has been properly explained) – penalized just like that and no quarter. In the above quote, as well as other things written in the article, two points are run together. One is the sense some students apparently now have that there is material out there that ‘doesn’t seem to have an author’; or, to put it otherwise, doesn’t seem to belong to anyone. The second point, however, is distinct and is the core of what is wrong with plagiarism. This is that, if you simply claim whole chunks of writing, unattributed, as if you are the author of it yourself, you’re presenting as a product of your own mind, your own reasoning, your own analytical or rhetorical or whatever capacities, something that… isn’t. It’s a form of intellectual fraud and alien to the educational process.

To underscore the distinctness of this second point from the first one – in which you’re ripping off someone else – simply imagine a case where that isn’t so. Edward presents Melanie’s words as his own, after Melanie has given him full permission to do this. He gives in, as being his, an essay written by her. It’s cheating even though it isn’t theft.

Allah Pundit:

Isn’t this one of those stories that everyone secretly wants to believe is true because it “proves” that things were better in our day, that society’s going to hell in a handbasket, etc etc etc? It’s five minutes of generational ego trip. Toss in some philosophical navel-gazing about how the wild and woolly Internet is Changing Us and you’ve got tasty red meat cooked medium rare.

Kevin Drum:

Seriously? College kids are redefining authorship? Old style physical books seem more like they’re really written by someone else? Students no longer think of term papers as ways of expressing their unique and authentic identity? High schools suck?

Maybe so. God knows I can’t prove any of these theories are wrong. But I’d sure guess that if you make something about a hundred times easier than it used to be, that’s a pretty good guess about why that something is on the rise.

Of course, I cheated when I came to this conclusion. The author of the piece, Trip Gabriel, insists that modern kids barely even consider copying from the internet to be wrong. But at the very, tippy end of the article, we get this: “At the University of California, Davis, of the 196 plagiarism cases referred to the disciplinary office last year, a majority did not involve students ignorant of the need to credit the writing of others.”

In other words, they know perfectly well that it’s wrong. They do it because they’re lazy and don’t feel like trying to craft sentences of their own. Just like every plagiarist in history. But it would have ruined the story to put that near the top.

Hamilton Nolan at Gawker:

According to the New York Times, college kids can’t even walk five paces in a straight line and repeat their own name, metaphorically, when it comes to putting citations on their dumb college papers. Do I need to cite the internet? Am I required to admit that all of my term papers are essentially very lightly rewritten expansions of Wikipedia entries? Print out the following Guide to Plagiarism and put it in your Trapper Keeper, and pass it on to your children one day, if “colleges” still exist, in the future.

1. DID YOU WRITE IT? [Yes/ No]

2. DID YOU CITE IT? [Yes/ No]

ANSWER KEY

If you answered Yes, No, you are an honest student.
If you answered No, Yes, you are an honest student.
If you answered No, No, you are a plagiarist.
If you answered Yes, Yes, that doesn’t even make sense.

ACADEMIC INTEGRITY: “Cool,” since before the internet was even a thing.

Read My Lips! This Is A Tax, Not A Mandate!

Robert Pear at NYT:

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

Under the legislation signed by President Obama in March, most Americans will have to maintain “minimum essential coverage” starting in 2014. Many people will be eligible for federal subsidies to help them pay premiums.

In a brief defending the law, the Justice Department says the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes.

Legal Insurrection:

There were two important developments recently in the continued unraveling of the Obamacare public relations BS.

First, the Obama administration cemented its legal position that the health care mandate is a tax, which means that Obama is raising taxes on people making less than $250,000 a year contrary to his campaign promise.

Second, the promise that you could keep your doctor is evaporating as health insurers, in a desperate attempt to keep down premiums under the burden of Obamacare requirements, are reformulating their plans by limiting choice of physicians.

Read Obama’s Tax Lips

Read Obama’s lips: I will not raise taxes on anyone making less than $250,000 per year.

Read Obama’s lips: The health care mandate is not a tax, so even though people making less than $250,000 per year have to pay it, I have kept my promise.

Moe Lane at Redstate:

The individual mandate is a tax.  It has always been a tax, denials of the administration to the contrary.  And, as the article makes clear, the administration is now going to enthusiastically call it a tax in order to keep it from being thrown out as blatantly unconstitutional.  You see, the Commerce Clause argument falls down when you put too much pressure on it

Ed Morrissey:

That is exactly what the mandates do — regulate individual behavior in an area where the federal government has no jurisdiction and punish those who don’t exhibit favored choices, in this case buying comprehensive health insurance regardless of whether it makes sense for anyone.  This court will almost certainly take a dim view of the same attempt that the 1922 court struck down as a gross overreach by the government.

Doug Mataconis:

It’s worth noting in this regard that the provisions regarding the health insurance mandate and related penalties are now parts of the Internal Revenue Code, which in and of itself could be a powerful argument to the Court in favor of the mandate being a tax. Most importantly, though, if the Courts do accept the government’s argument that the mandate is actually a tax the legal challenges to health care reform are doomed, because the Courts have given Congress very broad authority under the General Welfare Clause.

Of course, President Obama has potentially opened himself up to a political problem by advancing this argument:

While Congress was working on the health care legislation, Mr. Obama refused to accept the argument that a mandate to buy insurance, enforced by financial penalties, was equivalent to a tax.

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

Defending a proposed bill politically is different from defending it in Court, but, as Bruce McQuain notes, there’s potentially some hypocrisy here:

One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.

Well, yea, but that’s sort of the definition of litigating. You put forward as many viable arguments as you can because you never know which one is going to persuade the Court to rule in your favor. Is the President really going to pay a political price for what the Dept. of Justice argues in a legal brief ? Personally, I don’t see it happening.

Personally, I find the idea of stretching the General Welfare Clause this far to be absurd and I think the Supreme Court has been far too deferential to Congressional assertions of power like this one. However, the fact of the matter is that Supreme Court precedent stretching back to the New Deal Era clearly justifies it. Unless the Court is willing to overrule about a century worth of precedent, the tax argument is a very strong one for the government.

Of course, even if the tax argument fails, there’s always the Commerce Clause, and a five year old opinion from Justice Scalia that seems to put a nail in any effort to challenge the law under that provision:

Reporting from Washington – Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.

At issue in that case — just like in the upcoming challenges to the healthcare overhaul — was the reach of the federal government’s power.

Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.

They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.”

Even “noneconomic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.

The decision throws up a significant hurdle for the lawsuit filed last week in federal court by 13 state attorneys — all but one a Republican.

Here’s the relevant section from Scalia’s concurrence in Raich:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

The analysis is longer than this, obviously, but the principle that Scalia states still stands and, if that principle is applied in the challenges to the health care law, the Attorneys General and are Plaintiffs are going to be in a very tight spot to say the least, because its not hard at all to see what the arguments on the other side will be:

In the healthcare legislation, signed by the president Tuesday, Congress required virtually all Americans to have health insurance beginning in 2014. Those who fail to do so could be assessed a tax penalty of up to $750 per year.

Legislators argued that the “individual mandate” was necessary because it would undercut the insurance market if individuals could just opt out of having health insurance. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage for their “preexisting condition.”

The court’s ruling in the 2005 case, Gonzales vs. Raich, “is an enormous problem” for those who contend that the healthcare mandate is unconstitutional, said Simon Lazarus, a lawyer for the Washington, D.C.-based National Senior Citizens Law Center.

“It clearly says Congress has vast regulatory authority over interstate commerce,” he said.

Indeed, and they have a conservative Justice to thank for it.

Jonathan Adler:

UPDATE: Speaking of the legal challenges to health care reform, law professor Brad Joondeph of Santa Clara has launched the new ACA Litigation Blog: “A place to find news updates, legal analysis, and all official documents related to the states’ constitutional challenges to the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010).”

Harry Reid Gathers His Guns

Erick Erickson at Redstate:

Multiple sources tell me the National Rifle Association is planning to endorse liberal Harry Reid against pro-gun champion Sharron Angle.

Two weeks ago, I told you about the carveout the NRA received in exchange for their support for the DISCLOSE ACT deal.

Then this week, RedState broke the story of the “gag order” the NRA issued to members of its Board on the Kagan nomination.

Now, I’m getting credible reports that the NRA is leaning toward endorsing Harry Reid, even though the NRA is finally saying it will score a vote on Kagan — something that was not a sure thing.

Why would they do this? Why would they go out of their way to protect a Senator who has demonstrated a repeated hostility to the Second Amendment in his votes and his leadership?

Well, I thought perhaps the NRA carveout in the DISCLOSE Act might be the answer. But, there is more. It turns out, Reid secured a $61 million earmark for a gun range in Clark County, Nevada.

NRA members were recently treated to a three-page spread in the American Rifleman about a visit to Nevada by Wayne LaPierre and Chris Cox to “thank” Reid for the earmark. The article even includes a cliché picture of Reid cutting a ribbon with a gigantic pair of scissors. (Every good porker has his own giant pair of gold earmark scissors.) More here.

Here is a video of the event from Reid’s youtube site.

At 3:25, you can hear LaPierre touting Reid’s record on guns saying, “I also want to thank you, Senator, for your support every day for the Second Amendment and for the rights of American gun owners. “

The American Rifleman article also commends Reid’s Second Amendment record noting, “His dedication to this project is just one of the ways Sen. Reid has demonstrated his support for gun owners and the Second Amendment.”

Well, that’s all very nice. What politician representing a pro-gun red state wouldn’t want Wayne LaPierre to come out for a personal photo op at their earmark ribbon cutting.

John McCormack at The Weekly Standard:

The NRA’s chief lobbyist, Chris Cox, told THE WEEKLY STANDARD this evening that the pro-gun rights group has not decided on an endorsement in the Nevada Senate race.

“Any discussion on endorsements at this stage are premature, and simply a distraction,” said Cox. But he wouldn’t rule out an NRA endorsement for Harry Reid–even though Reid will almost certainly vote in favor of confirming Supreme Court nominee Elena Kagan. The NRA released a letter today explaining why it opposes Kagan and would score how senators vote on her confirmation. But Cox said that “we look at the entirety of someone’s record” before making an endorsement.

The NRA is frightened by the possibility that Harry Reid would be replaced by an anti-gun Democrat as majority leader. “Truthfully, the two individuals vying for majority leader should Harry Reid lose are the two most rabidly anti-gun, anti-Second Amendment senators in Washington, Chuck Schumer and Dick Durbin,” Cox said. “Does that give concern to NRA members and gun owners all over America? Absolutely, it does.”

But wouldn’t the House be able to stop legislation the NRA opposes? “That’s all hypothetical,” Cox replied, adding that Durbin and Schumer have a “long history of supporting rabid anti-gun groups and their extreme gun control agendas. Anyone who discounts the role of a Senate majority leader … would do so at their own peril.”

Allah Pundit:

I’d add that it might be especially important to them to have Reid there right now in the wake of the Supreme Court’s latest decision on gun rights. I fully expect crime will drop as gun bans in major cities like Chicago are relaxed (a bit), but there are a lot of variables that go into that and the NRA surely knows that an aggressively anti-gun majority leader will look to capitalize if violence ticks upward anywhere initially. Reid, because he has to worry about votes in rural Nevada, is a better bet than Schumer or Durbin not to bring anything too dicey to the Senate floor. Then again, it’s a mortal lock that the GOP will have more seats next year than they do now. Given the terror felt by moderates like Olympia Snowe after Bob Bennett was ousted by tea partiers in Utah, how would any sort of anti-gun bill avoid a filibuster? Reid struggled for weeks to get to 60 on financial reform despite having 59 seats; how’s he going to get to 60 on a new assault-weapons ban when he has only 53 or 54?

What’s worrisome about this rumor, actually, is that it may show how little confidence the NRA has in an Angle victory. She’s up seven at last check, but the kookier elements of her resume have been trickling out from lefty media. Wait until late summer when Reid turns on the advertising hose full force. Maybe LaPierre and co. figure there’s no sense in antagonizing a guy whom they think is bound to win. It’ll be interesting to see if they end up simply avoiding this race altogether and endorsing no one.

Jonathan Adler at The Corner:

I can understand why the NRA sometimes endorses Democratic candidates despite the party’s general hostility to gun rights; having friends in both parties can be politically advantageous. But Senate Majority Leader Harry Reid? When his challenger fully supports gun rights? That one would be hard to believe, but it might happen.

Jim Geraghty at NRO:

Believe me, I’ve had this sort of discussion many times. An argument put to me is that the Second Amendment would be better protected with a Senate that had, say, 52 Democrats led by pro-gun Harry Reid than 51 Democrats led by the most likely alternatives, Chuck Schumer or Dick Durbin. Since the chances ofSenate majority leader Mitch McConnell are not great, it is in the best interest of the NRA and its members to have the most pro-gun DemocraticSenate majority leader they can get.

That’s an argument. Ultimately, I don’t agree with it, because I’m not a single-issue voter. I cringe (or worse) when I see bad, ineffective liberal Democrats garnering the NRA endorsement (COUGHtedstricklandCOUGH), but the NRA has its policy and criteria, and they stick to them consistently, even if it means irritating some conservative Nevada gun owners.

Don Suber:

The NRA has joined Peggy Noonan and the AARP on the list of sellouts.

UPDATE: Alex Pareene at Salon

Day 2: So Far, So Thurgood

Dana Milbank at WaPo:

Oppo researchers digging into Elena Kagan‘s past didn’t get the goods on the Supreme Court nominee — but they did get the Thurgood.

As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.

“Justice Marshall’s judicial philosophy,” said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, “is not what I would consider to be mainstream.” Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall “might be the epitome of a results-oriented judge,” he said.

It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint — literally. Marshall this spring was added to the Episcopal Church’s list of “Holy Women and Holy Men,” which the Episcopal Diocese of New York says “is akin to being granted sainthood.”

With Kagan’s confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.

Charles Johnson at Little Green Footballs:

The GOP in Texas pushed hard to get Thurgood Marshall removed from social studies textbooks, and today I watched in absolute disgust as the GOP in Washington actually smeared Thurgood Marshall during Kagan’s nomination hearing.

Steve Benen:

I often find Republican ideology to be rather twisted, but it simply never occurred to me that GOP senators would spend the first day of the confirmation hearings condemning one of the most venerated Supreme Court justices in American history.

But condemn they did. Sen. John Cornyn (R-Tex.) declared Marshall “a judicial activist.” So did Sen. Jeff Sessions (R-Ala.). Sen. Chuck Grassley (R-Iowa) said Marshall’s approach to the law “does not comport with the proper role of a judge or judicial method.”

Better yet, this was a coordinated attack — Republican aides circulated materials to reporters during the hearing detailing all of the things the GOP doesn’t like about Thurgood Marshall.

Christina Bellantoni put together an interesting count — while President Obama’s name came up 14 times yesterday, Thurgood Marshall’s name came up 35 times.

It’s quite a strategy Republicans have put together here, isn’t it? Unable to come up with a coherent line of attack to undermine this nominee, the GOP has decided to turn its guns on an iconic civil rights attorney and one of the more celebrated American heroes of the 20th century.

And the Republican Party’s outreach to minority communities suffers yet another setback.

Jules Crittenden:

Various mystified parties are denouncing GOP attacks on Thurgood Marshall’s expansive judicial activism … on the bizarre grounds that his status as the nation’s first black Supreme Court justice has literally made him a saint and makes his positions unassailable* … and are wondering what any of that has to do with his former law clerk in the current Judiciary Committee confirmation hearings. Though when you consider her own position — a sort of looking-glass support for discrimination vs. discrimination at Harvard — it gets to the heart of the matter. Does she in fact think some forms of discrimination are constitutional, and some political positions are not only above the law, but above the interests of national security in wartime, and as Harvard apparently thinks given its willingness to accept federal money and ROTC tuitions despite its active opposition to the military over the federal government’s congressionally passed, Clinton-signed DADT policy, that principles are principles and money is money, and one shouldn’t get in the way of the other?

* Milbank has a point, though. Hagiophobia will get the GOP nowhere in this case.

John McCormack at The Weekly Standard:

During questioning by Judiciary chairman Patrick Leahy this morning, Elena Kagan defended the policy she upheld at Harvard of keeping military recruiters out of the office of career services.

“I’m confident that the military had access to our students and our students had access to the military throughout my entire deanship,” Kagan said. She defended the anti-military policy:

“This was a balance for the law school because on the one hand we wanted to make abo sure that our students did have access to the military at all times, but we did have a very longstanding, going back to the 1970s, anti-discrimination policy, which said that no employer could use the office of career services if that employer would not sign a non-discrimination pledge, that applied to many categories–race, and gender and sexual orientation, and actually veteran status as well. And the military could not sign that pledge … because of the Don’t Ask/Don’t Tell policy.”

As many people have pointed out, the military’s policy on gays in the military is based on a law passed by Congress and signed into law by President Bill Clinton, for whom Kagan worked. Why were other federal government officials not similarly discriminated against by Harvard?

Jonathan Adler:

I’ve contributed some initial reactions to the Washington Post’s online “Topic A” feature on the Kagan nomination hearings.  The general thrust of my remarks is that the Kagan hearings, thus far, are much like what we’ve come to expect in that she’s dutifully avoided revealing much about her personal legal views, despite her 1995 essay urging greater candor by nominees and more searching interrogation by Senators.  I also note that Kagan, much like Sotomayor, has refused to defend a “progressive” constitutional vision, whether that articulated by the President or her onetime-mentor Justice Thurgood Marshall.

One of the other contributors to the feature, Walter Dellinger, has a contrary view. I suspect part of our difference comes from the fact that Kagan has not offered the stilted, almost scripted, responses to questions about judicial philosophy that made her sound like a John Roberts wannabe (and demoralized some liberal legal thinkers).  Kagan has spoken more broadly about the judicial role, but without saying much that could be used to pin her down on her views of constitutional interpretation, let alone specific issues or cases.  She’s also proclaimed that “we are all originalists” and that empathy should not play much of a role in judicial decision-making because “it’s law all the way down.”

The most interesting parts of the hearings to me thus far — and it’s still early — have been the exchanges discussing Citizens United and other cases she’s handled as Solicitor General.  Here Kagan sought to discuss her decisions in these cases without revealing too much about how she might view similar cases that might come before the Court.  I’ve found these exchanges more interesting than those on, say, her handling of the military at Harvard or her various White House memos.

The Kids Are Alright

Erin Miller at SCOTUSBlog:

The Court issued four opinions today, including two in the long-awaited cases about juvenile imprisonment without parole, Graham and Sullivan v. Florida.  The rulings are:

In United States v. Comstock (08-1224), in an opinion by Justice Breyer, the Court reverses and remands the lower court’s decision.  The vote is 7-2, with Justice Thomas dissenting, joined by Justice Scalia.  Justice Kennedy concurs in the judgment only, joined by Justice Alito.

• Holding: The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.

[…]

In Graham v. Florida (08-7412), the Court reverses and remands, in an opinion again by Justice Kennedy.  The vote is 6-3, with Justice Thomas dissenting, joined by Justice Scalia and in part by Justice Alito.  Justice Alito files a separate dissenting opinion for himself.   Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurs, even though all three join the majority opinion, and the Chief Justice concurs in the result alone.

Holding:  It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

Jonathan Adler:

This morning the Supreme Court handed down its opinion in United States v. Comstock, a challenge to the federal government’s authority to civilly commit a “sexually dangerous”  federal prisoner beyond the time of his sentence.  The U.S. Court of Appeals for the Fourth Circuit held that the federal government lacked such authority within its enumerated powers.  The Supreme Court disagreed, voting 7–2 to uphold the federal government’s commitment power under the Necessary & Proper Clause.  Justice Breyer wrote for the majority.  Justices Kennedy & Alito concurred in the judgment, and Justice Thomas dissented, joined by Justice Scalia.  The opinions are here.  Some earlier VC posts on the case are here and here.  I haven’t had a chance to read the opinions yet, but given that Justice Breyer wrote the majority — and that he is such an avowed advocate of broad federal power — I suspect this decision is a major setback for those seeking to limit the federal government to its constitutionally enumerated powers.

Jacob Sullum at Reason:

The Court, which in 1997 rejected a challenge to a similar Kansas law based on the Double Jeopardy, Due Process, and Ex Post Facto Clauses, did not deal with the usual constitutional objections in this case. Instead it addressed the question of whether the federal government, as opposed to the states, is authorized to detain people based on sex crimes they might commit in the future. The seven-justice majority concluded that it is, finding that civil commitment of “sexually dangerous” prisoners is a “necessary and proper” means of “carrying into execution” the federal government’s enumerated powers. Yet the majority opinion by Justice Stephen Breyer never identifies the powers that provide the authority for this law. The omission is telling, especially since all nine justices agree that the Necessary and Proper Clause does not give Congress any independent powers.

Instead of citing specific powers, Breyer says the civil commitment law is justified by whatever enumerated powers underlie the federal criminal statutes that sexually dangerous prisoners are convicted of violating. Three of the five prisoners in this case, for example, were convicted of possessing child pornography, which Congress banned based on its authority to “regulate commerce…among the several states.” Other cases might involve people whose crimes were treated as federal offenses because of a case-specific connection to interstate commerce, such as a bias-motivated assault committed with a baseball bat manufactured in another state. (I kid you not.) As Breyer notes, “the Constitution…nowhere speaks explicitly about the creation of federal crimes beyond those related to ‘counterfeiting,’ ‘treason,’ or ‘Piracies and Felonies committed on the high Seas’ or ‘against the Law of Nations.'” But that has not stopped Congress from criminalizing a wide range of offenses (including many already addressed by state laws), based on thin or nonexistent constitutional pretexts.

Rod Dreher:

Dissenters were Justices Scalia and Thomas, who said that yes, sexual violence is a terrible thing, but there is simply nothing in the Constitution giving Congress the right to infringe an individual’s liberty to this degree. As Justice Thomas wrote in his dissent, “[T]he Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” Justice Thomas noted the potential for abuse in expanding the state’s police powers over individuals. He also said that what’s at issue is not what powers the Constitution should have granted to Congress, but what powers the Constitution actually has granted to Congress.

It’s a principled stand, to be sure, but I find myself pleased that the Court ruled as it did, given the dangers that certain sex criminals (e.g., child molesters) pose to society. Solicitor General Elena Kagan, in successfully arguing the government’s case before the Court, said this is analogous to the government’s right to hold prisoners who have a deadly and highly contagious disease after they finish their sentences, for the common good. That makes sense to me, but Justice Thomas’s dissent makes me worried that I’m too willing to yield on a key principle because I like the result of this judgement.

Scott Lemieux at Lawyers Guns and Money:

Deciding an appalling case in which a 17-year old was given life without parole for a violating parole, the Supreme Court held today that life-without-parole sentences for juvenile offenders violate the Eight Amendment to the Constitution. And while I had feared a “minimalist” opinion that would create a balancing test that state courts would always resolve in favor of the state, in the majority opinion (see Part III C) Justice Kennedy argues convincingly that a categorical rule is necessary in this case. Chief Justice Roberts — in what I’m guessing was an attempt, if not to get a minimalist majority opinion, at least to prevent 5 votes for a categorical rule — wrote a concurring opinion arguing that the sentence should be ruled unconstitutional based on a case-by-case balancing test, but didn’t find any takers.

Clarence Thomas’s dissent — joined entirely by Scalia and in its most important aspects by reasonable, moderate, thinking person’s conservative Sam Alito — does make one convincing point: Kennedy’s argument that there’s an “emerging consensus” against life-without-parole for juveniles is unconvincing. The Court’s majority opinion does indeed reflect an “independent judgment” that the Eighth Amendment bans such sentences. Where I disagree with Thomas is that there’s something wrong with this. Exercising independent judgment is what courts do when exercising judicial review. And, of course, when policy outcomes they cherish are at stake Thomas and Scalia are perfectly happy to exercise their “independent judgment” that decisions made by electorally accountable officials are unconstitutional even in the absence of an emerging consensus or a compelling argument that as originally understood the Constitution forbade those practices. And sentencing is one area where where the normative unattractiveness of originalism is particularly stark. Reminding me again while I’ll miss him, Stevens sums it up devastatingly in his brief concurrence:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

And you know who agrees with this in his more candid moments? Antonin Scalia, who has expressly said that he would not uphold a sentence for flogging even though it would seem to be permitted under an originalist understanding of the Eight Amendment was right. Not only is that Scalia right, but it’s impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified.

Don Suber:

The justices should realize that it is the age of reason, not adulthood, that applies here. I will grant that legislatures can void locking someone up for life for a crime that was not murder and committed two days before his 18th birthday. But it is a legislative, not a judicial, determination.

The only way to recognize “evolving standards of decency” is by constitutional amendment.

That is not the case here. This decision is a fraud.

Justice Kennedy and the 4 liberal justices voted to ignore the Constitution once again. Cruel and unusual? At the time the Constitution was written, we hung horse thieves even if they were not 18. There was no cruelty then and this is not cruel now. And it must be both cruel AND unusual to be unconstitutional.

So today, twice the court overstepped its bounds.

The first in allowing people to remain in jail for longer than the statue calls, and in letting people go free early. There is no rhyme or reason or reconciliation of these two decisions.

Too much power and too little resistance by our Supreme Court.

Dodd:

It is difficult indeed to reconcile these two simultaneous rulings. Legislatures are now permitted to hold already convicted criminals past the end of their sentences, but they may not make the subjective determination that near-adults convicted of heinous crimes may be permanently removed from civil society.

In most cases, I prefer bright-line rules to “balancing tests.” But I don’t make a fetish of it. Thus, even leaving aside the jarring contrast between these rulings, it is inexplicable to me how the Court could have thrown out its longstanding rule that balancing competing societal interests in making sentencing decisions is the proper province of legislatures to reach the result in Comstock. But substituting one bright line for another, more clement one at least has the small advantage of erring on the side of prudence where lifetime sentences are concerned. That only serves to highlight the immense wrongness of the Graham ruling.

For decades we have seen sex offender punishments spiral out of control. Until today, the Constitutional excesses have mainly been in the form of ever-increasing post hoc sentencing enhancements related to how long someone convicted of peeing in public years ago will continue being treated the same as a a newly convicted child rapist. Today’s ruling will pour gasoline on the conflagration. Juxtaposed against the stripping away of the legislature’s longstanding power to send child rapists away for life if they happened to commit the crime the day before their 18th birthday, this farcical, results-based judicial activism (which will only allow them to be held permanently by extra-constitutionally extending whatever sentences they can now be given) is beyond comprehension.