Tag Archives: Scott Lemieux

Choo Choo Canned Heat Collectivism

George Will in Newsweek:

So why is America’s “win the future” administration so fixated on railroads, a technology that was the future two centuries ago? Because progressivism’s aim is the modification of (other people’s) behavior.

Forever seeking Archimedean levers for prying the world in directions they prefer, progressives say they embrace high-speed rail for many reasons—to improve the climate, increase competitiveness, enhance national security, reduce congestion, and rationalize land use. The length of the list of reasons, and the flimsiness of each, points to this conclusion: the real reason for progressives’ passion for trains is their goal of diminishing Americans’ individualism in order to make them more amenable to collectivism.

To progressives, the best thing about railroads is that people riding them are not in automobiles, which are subversive of the deference on which progressivism depends. Automobiles go hither and yon, wherever and whenever the driver desires, without timetables. Automobiles encourage people to think they—unsupervised, untutored, and unscripted—are masters of their fates. The automobile encourages people in delusions of adequacy, which make them resistant to government by experts who know what choices people should make.

Time was, the progressive cry was “Workers of the world unite!” or “Power to the people!” Now it is less resonant: “All aboard!”

Jason Linkins at Huffington Post:

One way of looking at high-speed rail systems is that they are a means by which distant communities get connected, economic development and jobs are fostered, and workers with a diverse array of marketable skills can improve their mobility and thus their employment prospects. But another way of looking at high-speed rail is that it’s some nonsense that came to a bunch of hippies as they tripped balls at a Canned Heat concert. That’s my takeaway with George Will’s latest grapple-with-the-real-world session, in which he attempts to figure out “Why liberals love trains.” It’s “Matrix” deep, yo

Sarah Goodyear at Grist:

In case you’re wondering about the provenance of that “collectivism” word — well, collectivism was a favorite demon of Ayn Rand, right-wing philosopher and the Ur-mother of libertarianism in the United States. Here’s a typical usage, from The Objectivist Newsletter of May 1962 (via the Ayn Rand Lexicon):

The political philosophy of collectivism is based on a view of man as a congenital incompetent, a helpless, mindless creature who must be fooled and ruled by a special elite with some unspecified claim to superior wisdom and a lust for power.

“Collectivism” also recalls some of the very worst communist ideas, including the “collectivization” of farms in the Stalinist Soviet Union — among the great atrocities of the 20th century (a crowded category).

Which makes it a pretty strong term to be throwing around when it comes to funding different modes of transportation in 21st-century America. But Will persists with his formulation:

To progressives, the best thing about railroads is that people riding them are not in automobiles, which are subversive of the deference on which progressivism depends. Automobiles go hither and yon, wherever and whenever the driver desires, without timetables. Automobiles encourage people to think they — unsupervised, untutored, and unscripted — are masters of their fates. The automobile encourages people in delusions of adequacy, which make them resistant to government by experts who know what choices people should make.

A couple of things here. First off, automobiles are not the only vehicles capable of encouraging “delusions of adequacy.” Bicycles, one might argue, are a lot more capable of encouraging such delusions — fueled as they are entirely by the body of the “unscripted” individual. Which is perhaps why they seem to enrage people in cars, who have to worry about gasoline and the like, so very much.

Second, let’s talk about modern air travel. What mode of transport is more capable of sapping the human sense of possibility, more confining of the untrammeled human spirit? Perhaps before Will goes after high-speed rail, he should call for the defunding of the Federal Aviation Administration.

Paul Krugman:

As Sarah Goodyear at Grist says, trains are a lot more empowering and individualistic than planes — and planes, not cars, are the main alternative to high-speed rail.

And there’s the bit about rail as an antiquated technology; try saying that after riding the Shanghai Maglev.

But anyway, it’s amazing to see Will — who is not a stupid man — embracing the sinister progressives-hate-your-freedom line, more or less right out of Atlas Shrugged; with the extra irony, of course, that John Galt’s significant other ran, well, a railroad.

Matthew Yglesias:

But I do think this is a good look into the psychology of conservatives. Maybe high-speed rail is a waste of money and maybe it isn’t. I think it’s plausible to say we should just spend the cash on better regular mass transit or whatever. But I’ve long struggled to explain the right-wing’s affection for status quo American policies that amount to massive subsidization of the automobile. A small slice of that is spending on roads. A much larger amount is minimum lot size rules, parking mandates, the whole shebang. It’s a bit odd, and my instinct had been to say that this just goes to show that conservatism has nothing to do with free markets and everything to do with the identity politics of middle aged white suburban conformists. But Will offers another explanation here. Automobile use is not a sign of the free market, but an actual cause of it. Driving inculcates habits of freedom, and thus coercive pro-car regulations are, in a way, freedom-promoting.

More Krugman:

A bit more on this subject — not serious, just a personal observation after a long hard day of reading student applications. (My suggestion that we reject all applicants claiming to be “passionate” about their plans was rejected, but with obvious reluctance.)

Anyway, my experience is that of the three modes of mechanized transport I use, trains are by far the most liberating. Planes are awful: waiting to clear security, then having to sit with your electronics turned off during takeoff and landing, no place to go if you want to get up in any case. Cars — well, even aside from traffic jams (tell me how much freedom you experience waiting for an hour in line at the entrance to the Lincoln Tunnel), the thing about cars is that you have to drive them, which kind of limits other stuff.

But on a train I can read, listen to music, use my aircard to surf the web, get up and walk to the cafe car for some Amfood; oh, and I’m not restricted by the War on Liquids. When I can, I prefer to take the train even if it takes a couple of hours more, say to get to Boston, because it’s much higher-quality time.

Yes, your choices are limited by the available trains; if I wanted to take a train from beautiful downtown Trenton to DC tomorrow, I’d be restricted to one of 21 trains, leaving roughly once an hour if not more often, whereas if I wanted to drive I could leave any time I wanted. Big deal.

And don’t get me started on how much more freedom of movement I feel in New York, with subways taking you almost everywhere, than in, say, LA, where you constantly have to worry about parking and traffic.

So if trains represent soulless collectivism, count me in.


As Krugman says, trains really are the best way to travel, at least for travel times that are roughly competitive with air travel. That fact doesn’t automatically mean that therefore we should spend huge amounts of public money on it, but, you know, it does mean that people like trains for more reasons than their insidious collectivist promotion.

Scott Lemieux at Lawyers, Guns and Money:

Manypeoplehave, for good reason, taken their knocks at syndicated columnist William F. George’s ludicrous column about trains, with particular emphasis on the substantial amount of government subsidies that facilitate “individualistic” car travel.    In addition, I’d note that the flying experience is a good example of Republican “freedom.”   For some distances flying is of course necessary and useful, although a good high-speed train network would reduce the number of routes that make flying more practical. For the ordinary person, however, flying is a miserable experience — more waiting in line than a Soviet supermarket during a recession, the potentially humiliating security theater, and incredibly cramped and uncomfortable travel.     But — and here’s the rub — people as affluent as Will can buy their way out of the worst aspects of flying, with separate security lines, private lounges, and first-class seating.   With trains, on the other hand, the experience for the ordinary person is infinitely superior but the affluent can obtain an only marginally better experience.   So you can see why Will hates it.   The fact that trains might represent more meaningful freedom for you isn’t his problem.

More Krugman:

Some of the comments on my various pro-train posts have been along the lines of “Oh yeah, try taking the train to Los Angeles.” But that, of course, misses the point.

I think about the trains/planes comparison something like this: planes go much faster, and will continue to go faster even if we get high-speed rail; but there are some costs associated with a plane trip that can be avoided or minimized on a rail trip, and those costs are the same whether it’s a transcontinental flight or a hop halfway up or down the Northeast Corridor. You have to get to the airport at one end, and get from it at the other, which is a bigger issue, usually, than getting to and from train stations that are already in the city center. You have to wait on security lines. You have to spend more time boarding. So if we look just at travel time, it looks like this:


Suppose that I put those fixed costs at 2 hours; suppose that planes fly at 500 miles an hour; and suppose that we got TGV-type trains that went 200 miles an hour. Then the crossover point would be at 667 miles. It would still be much faster to take planes across the continent — but not between Boston and DC, or between SF and LA. Add in my personal preference for train travel, and I might be willing to train it to Chicago, maybe, but not to Texas.

Now, if we got vacuum maglevs

More Yglesias:

I endorse Krugman’s analysis, but in some ways I think the fact that you can’t get to LA on a train actually is the point. You can’t take the train from New York to Los Angeles. You can’t drive from New York to Los Angeles. You need an airplane. But LaGuardia Airport has limited runway capacity and many daily flights to Boston. Clearly, though, you can take a train from New York to Boston. So money spent on improving the speed and passenger capacity of NYC-Boston train links is, among other things, a way to improve New York’s air links to the West Coast.

Now a separate question is whether there’s any feasible way to actually do this in a country that doesn’t have a French (or Chinese) level of central political authority empowered to build straight tracks through people’s suburban backyards. The answer seems to be “no,” but the potential gains from greater rail capacity in the northeast are large and would (via airplanes) spill over into the rest of the country.

More Goodyear:

In the dark days immediately after 9/11, Will seems to have had a revelation about how a certain mode of transportation could help our nation be stronger and more secure. In an Oct. 1, 2001 column syndicated in the Jewish World Review, Will recommended three steps in response to the attack that the nation had just sustained. First, buy more B-2 bombers. Second, cut corporate taxes. And third? Let Will speak for himself (emphasis mine):

Third, build high-speed rail service.

Two months ago this columnist wrote: “A government study concludes that for trips of 500 miles or less — a majority of flights; 40 percent are of 300 miles or less — automotive travel is as fast or faster than air travel, door to door. Columnist Robert Kuttner sensibly says that fact strengthens the case for high-speed trains. If such trains replaced air shuttles in the Boston-New York-Washington corridor, Kuttner says that would free about 60 takeoff and landing slots per hour.”

Thinning air traffic in the Boston-New York-Washington air corridor has acquired new urgency. Read Malcolm Gladwell’s New Yorker essay on the deadly dialectic between the technological advances in making air travel safer and the adaptations to these advances by terrorists.

“Airport-security measures,” writes Gladwell, “have simply chased out the amateurs and left the clever and the audacious.” This is why, although the number of terrorist attacks has been falling for many years, fatalities from hijackings and bombings have increased. As an Israeli terrorism expert says, “the history of attacks on commercial aviation reveals that new terrorist methods of attack have virtually never been foreseen by security authorities.”

The lesson to be learned is not defeatism. Security improvements can steadily complicate terrorists’ tasks and increase the likelihood of defeating them on the ground. However, shifting more travelers away from the busiest airports to trains would reduce the number of flights that have to be protected and the number of sensitive judgments that have to be made, on the spot, quickly, about individual travelers. Congress should not adjourn without funding the nine-state Midwest Regional Rail Initiative.

Now that it’s a Democratic administration advocating for rail, Will sees it not as a sensible solution for moving people from one place to another, but instead as a tool to control an unsuspecting populace:

To progressives, the best thing about railroads is that people riding them are not in automobiles, which are subversive of the deference on which progressivism depends. Automobiles go hither and yon, wherever and whenever the driver desires, without timetables. Automobiles encourage people to think they — unsupervised, untutored, and unscripted — are masters of their fates. The automobile encourages people in delusions of adequacy, which make them resistant to government by experts who know what choices people should make.

In his recent screed against rail, Will explicitly dismissed arguments that it would be good for national security. He also didn’t mention air travel. Maybe that would have reminded him of what he himself wrote nearly 10 years ago.

David Weigel:

Good get, but if we’re going to be talking about stupid ideas people had right after 9/11, we’ll be here all day. Will’s rail fetish was a passing fancy, and since then he’s come around to the conservative consensus that rail can never, ever work as a replacement for air travel, so rail projects are essentially boondoggles.

This is an odd discussion to have as the Atlas Shrugged movie comes out. The book and the film absolutely fetishize rail; the film makes it clear that rail will become necessary once gas starts to really run out. And this is something liberal rail adherents point out, too. But I don’t see conservatives coming around to HSR, which needs a massive manpower and financial and land commitment to get going, outside of that sort of crisis thinking.

Jamelle Bouie at Tapped:

This isn’t to play “gotcha,” as much as it is to note a simple fact about our world: We’re all partisans, whether we admit it or not. Reason’s opposition to the individual mandate has almost nothing to do with the substance of what is truly a center-right policy and everything to do with current political circumstances. The mandate was implemented by a Democrat. Reason, as a right-libertarian institution, is part of the conservative opposition to the liberal president. Likewise, Will’s opposition to high-speed rail is purely a function of partisan politics.

This isn’t a bad thing. Yes, partisanship can be taken too far and veer into ideological blindness, but, in general, it is a useful way of organizing our thoughts on policies and politics. Indeed, it’s how most voters process political information. Political commentary would be much more bearable if pundits were willing to accept the partisan origins of their biases and skepticism, instead of playing a game where we pretend to be open-minded observers.  Most are anything but.

Gulliver at The Economist:

Mr Bouie might be overstating the influence of partisanship a bit, and it’s hard for people to know exactly what is driving others’ opinions—or even one’s own. Still, partisanship is certainly a useful frame through which to view both the most ardent opponents and the most passionate defenders of HSR. There is political science research that shows that a president weighing in on one side of a given debate (as Barack Obama has with high-speed rail) dramatically increases political polarization on that issue. Of course, if Mr Bouie’s theory is correct, we should be able to point to some lefty supporters of HSR whose support seems to be driven primarily by partisanship—or even a few who, like Mr Will, have switched positions on the issue. Anyone have a nomination? Let us know in the comments.


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Filed under Infrastructure, Mainstream, New Media

By The Way, This May Be The First Time The Phrase “Getting Up In The Grill” Was Used At The Supreme Court

Robert Barnes at WaPo:

A nearly unanimous Supreme Court ruled Wednesday that the First Amendment protects even hurtful speech about public issues and upheld the right of a fringe church to protest near military funerals.

Chief Justice John G. Roberts Jr. wrote that the Topeka, Kan.-based Westboro Baptist Church’s picketing “is certainly hurtful and its contribution to public discourse may be negligible.” But he said government “cannot react to that pain by punishing the speaker.”

“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.

Justice Samuel A. Alito Jr. was the lone dissenter.

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.

Ilya Shapiro at Cato:

Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment.  A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.

As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.

Tom Goldstein at SCOTUSBlog:

The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding.  “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief.  But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.”  The Court continued:  “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. …    Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court left undecided two important issues that it concluded were not squarely presented.  First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held.  The Court did not decide the constitutionality of that statute or other similar federal and state laws.  The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website.  But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing.  The Court was therefore able to limit its decision strictly to the context of funeral protests.

Dan Miller at PJ Tatler:

Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawnIn his concurrence, Justice Breyer expanded on this cautionary note:

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity.  The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).

Justice Alito expanded on the points raised in Justice Breyer’s concurrence at some length in his dissent at pages 23 – 36, particularly the analogy to a physical assault by A on B in order to gain an otherwise unlikely media audience for his views.  Both Justices Breyer and Alito seem to think that A’s  statement of views in the media presence would not shield him from liability for the assault, physical or verbal.

In raising the matter, Justice Alito seems  to rely on matters noted by Justice Breyer not to have been before the Supreme Court.  The majority opinion observes, in a footnote:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral.” (emphasis added)). . . .

It is up to the petitioner for certiorari to do what Mr. Snyder evidently did not do. Unfair, perhaps, but here it serves to emphasize and give some flesh to the statements in the majority opinion as well as in the concurrence that the majority opinion is narrowly limited to the facts before the Supreme Court.


This is a tough decision (and one which I grudgingly concede until I can read the actual decision) which is only tempered if you believe that there is a special place in hell for the Phelps family.

Also, please remember that these protests are stunts in order to evoke a visceral reaction from normal Americans in order to sue them in court and receive funds which keeps bread on the Phelps family table. Do not engage these horrible disgusting animals as that is exactly what they want.

Scott Lemieux at Lawyers, Guns and Money:

It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

Andy Barr at Politico:

Sarah Palin voiced disappointment with a Supreme Court decision Wednesday protecting the First Amendment rights of anti-gay protesters at military funerals.

“Common sense & decency absent as wacko ‘church’ allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square,” Palin tweeted .

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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.”


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.

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“There’s Nothing In The Constitution About That.”

Calvin Massey interviewing Justice Scalia for California Lawyer:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Max Fisher at The Atlantic with the round-up

Amanda Terkel at Huffington Post:

For the record, the 14th Amendment’s equal protection clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Greenberger added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.

Ann Althouse:

HuffPo headlines: “Women Don’t Have Constitutional Protection Against Discrimination.” The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: “That would seem to include protection against exactly the kind of discrimination to which Scalia referred.” Thanks for the analysis, Amanda.

Terkel also called up Marcia Greenberger, founder and co-president of the National Women’s Law Center, who professed to find Scalia’s opinion “shocking” — even though he’s been saying it for at least 15 years.

Scott Lemieux at Tapped:

Scalia has never been consistent about applying the principles expressed above. Nobody who voted for the 5th or 14th Amendments thought that they were prohibiting affirmative action, and yet Scalia has found that both amendments prohibit affirmative action in virtually all circumstances. Scalia also believes that Brown v. Board was correct, although very few of the persons who voted in favor of the proposal or ratification of the 14th Amendment believed that it prohibited racial segregation. When the originalist principles outlined above clash with (rather than reinforce) his political preferences, Scalia has no problem ignoring them.

Scalia’s answer when it comes to gender? That while the framers and ratifiers of the 14th Amendment did not think they were outlawing affirmative action or school segregation, they did think they were outlawing racial discrimination; they didn’t specifically discuss gender discrimination. The problem with this response is that Scalia’s choice to stop at this particular point on the ladder of abstraction is completely arbitrary. Scalia has already made clear in other cases that he doesn’t think that the concrete expectations of framers or ratifiers are binding. And the 15th Amendment demonstrates that the framers of the 14th could have limited the equal protection clause to racial discrimination, but they did not. So what basis does Scalia have for being certain that the 14th Amendment permits gender discrimination?

He doesn’t. Scalia’s belief that the 14th Amendment does not prohibit gender discrimination is a political choice in no way compelled by the text of the Constitution.

Jack Balkin:

Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.

Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution’s framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964’s ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia’s arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today’s world. That is to say, he doesn’t really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

Second, if Scalia had really wanted to be faithful to the expectations and assumptions of the the adopters of the Fourteenth Amendment, he had no business joining the opinion in Bush v. Gore, because the Amendment was not intended to change state rules concerning the right to vote.

During the interview Justice Scalia says that he doesn’t even need to read the briefs to know what originalism permits, requires or forbids; but I would respectfully suggest he needs to read a bit more history.

Legal Insurrection:

Gee, Scalia must hate women.

Except that the headline is a good example of a half-truth.  Scalia’s point is the fairly standard originalist view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex.  Either sex.  It does not protect men against discrimination on the basis of sex, either.  The Supreme Court decision in Reed v. Reed, 404 U.S. 71 (1971) is read by some as offering broad protection on the basis of sex, but that is an overreading of a fairly limited opinion in which the Court found no rational basis for a state law giving preference to males in the appointment of estate administrators.  Other cases after Reed have applied a more strict scrutiny approach.  I assume Scalia disagrees with the Reed decision, not because he doesn’t like the result, but because of the approach;  this difference in approach does not make Scalia wrong, or hostile to women as the HuffPo headline suggested.

Scalia’s view is neither novel nor new.  That the Constitution does not address discrimination on the basis of sex as such was evidenced by the ultimately failed attempt to amend the Constitution to add an Equal Rights Amendment which would have added this provision:  “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The Blog Of Legal Times

Cat White at Scholars and Rogues:

So how important is the Constitution for protecting people’s rights? Apparently not very. Scalia goes on to say, “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”

Unless you happen to be a corporation. Scalia et al continued the practice of defining corporations as persons with equal protection under the 14th Amendment (there is an article here on the history and meaning of the practice here–in short, define which “persons” are “citizens” and then grant protection to “citizens.”) Corporations are, of course, “legal persons” endowed by their creators with perpetual life and by the courts with inalienable rights by the 14th Amendment (as opposed to us “natural persons” who have limited life and apparently limited protection against discrimination by the 14th Amendment).

Apparently, “natural persons,” or at least female “natural persons” only need the protection of the laws, as Scalia said about the limits of the Constitution, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

So who else does not need the additional protections of equality? Perhaps workers over 40, African-Americans, gays and lesbians?

Did corporations really need to be given the rights to control our elections through donations? What’s next, the corporate right to vote? Oh, right–they’d only get one vote that way, much better to control the whole process through funding.


Filed under Feminism, The Constitution

Talking About The Clause… No, Not That Claus

Andrew Sullivan rounds up some of this.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Julian Sanchez on Marshall:

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Megan McArdle on Sanchez:

Obviously, I agree with Julian.  I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer.  Personally, I kind of doubt that, but this is completely beside the point.  On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck.  And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system.  If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers.  I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Radley Balko:

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Jonathan Chait at TNR:

The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”

This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.

But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.

Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.

Conor Freidersdorf at The American Scene on Chait:

It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?

If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.

Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.

What I’ve yet to see answered to my satisfaction is Radley Balko’s question

Chait responds to Friedersdorf:

Let me try to reiterate my point.

The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.

But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

Freidersdorf responds to American Scene:

Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)

Chait writes:

Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.

Noah Millman also responded to my earlier post.

He writes:

…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?

First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.

Tim Lee:

I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.

There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

Joshua Holland on Balko:

The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)

Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’

That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.

Scott Lemieux on Balko:

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

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Filed under The Constitution

The Blogosphere Wrestles With The Confederacy Again

Katharine Q. Seelye at NYT:

The Civil War, the most wrenching and bloody episode in American history, may not seem like much of a cause for celebration, especially in the South.

And yet, as the 150th anniversary of the four-year conflict gets under way, some groups in the old Confederacy are planning at least a certain amount of hoopla, chiefly around the glory days of secession, when 11 states declared their sovereignty under a banner of states’ rights and broke from the union.

The events include a “secession ball” in the former slave port of Charleston (“a joyous night of music, dancing, food and drink,” says the invitation), which will be replicated on a smaller scale in other cities. A parade is being planned in Montgomery, Ala., along with a mock swearing-in of Jefferson Davis as president of the Confederacy.

In addition, the Sons of Confederate Veterans and some of its local chapters are preparing various television commercials that they hope to show next year. “All we wanted was to be left alone to govern ourselves,” says one ad from the group’s Georgia Division.

That some — even now — are honoring secession, with barely a nod to the role of slavery, underscores how divisive a topic the war remains, with Americans continuing to debate its causes, its meaning and its legacy.

“We in the South, who have been kicked around for an awfully long time and are accused of being racist, we would just like the truth to be known,” said Michael Givens, commander-in-chief of the Sons, explaining the reason for the television ads. While there were many causes of the war, he said, “our people were only fighting to protect themselves from an invasion and for their independence.”

Not everyone is on board with this program, of course. The N.A.A.C.P., for one, plans to protest some of these events, saying that celebrating secession is tantamount to celebrating slavery.

“I can only imagine what kind of celebration they would have if they had won,” said Lonnie Randolph, president of the South Carolina N.A.A.C.P.

He said he was dumbfounded by “all of this glamorization and sanitization of what really happened.” When Southerners refer to states’ rights, he said, “they are really talking about their idea of one right — to buy and sell human beings.”

Oliver Willis:

God, these people are absolute morons. The Confederacy was an act of war against America, no better than Al Qaeda – probably worse because these people were American citizens. There are those who wish for the history books to expunge their vile legacy, for future generations to lose the collective memory of the people who ripped America apart. They want the future to be ignorant of the confederacy’s love of free labor on the backs of enslaved blacks.

We can’t let that happen.

Jamelle Bouie at Tapped:

In Montgomery, Alabama — at one time, a hotbed of violence in defense of apartheid — neo-Confederate sympathizers are celebrating the anniversary with a parade, as well as a “mock swearing-in” of Jefferson Davis, the sole president of the Confederacy. Incidentally, this is what Davis — senator from Mississippi — had to say about the prospect of secession, in the final months of 1860, shortly before his state left the Union in rebellion:

“The recent declaration of the candidate and leaders of the Black Republican Party must suffice to convince many who have formerly doubted the purpose to attack the institution of slavery in the states. The undying opposition to slavery in the United States means war upon it, where it is, not where it is not.”

A few weeks later, on January 9, 1861, Mississippi issued its ordinance of secession:

Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.

Ta-Nehisi Coates:

t really annoys me the that Times used someone who they felt they had to ID as a “liberal sociologist” to counter Antley. Far better to simply quote from the founding documents which those 170 people authored. In that way we can get some sense of precisely what they were risking their lives for, and the exact nature of the fortune they were protecting:

We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof. The Constitution of the United States, in its fourth Article, provides as follows: “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.”
This stipulation was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia, which now composes the States north of the Ohio River.
The same article of the Constitution stipulates also for rendition by the several States of fugitives from justice from the other States. The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution.
The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution.
The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.

The ends for which the Constitution was framed are declared by itself to be “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions.

The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burthening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor. We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States.
Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.
For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself.
A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.
This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety. On the 4th day of March next, this party will take possession of the Government. It has announced that the South shall be excluded from the common territory, that the judicial tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States.
I think we need to be absolutely clear that 150 years after the defeat of one of the Confederacy, there are still creationists who seek to celebrate the treasonous attempt to raise an entire country based on the ownership of people.

Scott Lemieux at Lawyers, Guns and Money:

On one level, however, the people who say that the war was about “states’ rights” are correct, if we use revealed preferences to define “states’ rights” as “federal enforcement of the rights of racial minorities is illegitimate, while federal powers that might serve or protect the interests of wealthy southern whites should be interpreted as expansively as possible.” I think Ulysses S. Grant’s acid response to the idea that Southern opposition to Reconstruction reflected a principled resistance to the use of federal military authority characterizes actually existing doctrines of “states’ rights” nicely:

During my two terms of office the whole Democratic press, and the morbidly honest and “reformatory” portion of the Republican press, thought it horrible to keep U.S. troops stationed in the Southern States, and when they were called upon to protect the lives of negroes — as much citizens under the Constitution as if their skins were white — the country was scarcely large enough to hold the sound of indignation belched forth by them for some years. Now, however, there is no hesitation about exhausting the whole power of the government to suppress a strike on the slightest intimation that danger threatens.


I think what gets to me is the Orwellian nature of it all; that it’s a power play. If Confederate-worshippers can make it seem aggressively impolite to insist on straightforwardly, obviously true historical facts, then we can’t rely on facts to establish anything, which is exactly how politics has been feeling lately. Not, of course, that stamping out Civil War revisionism solves anything, but it’d make me feel better.

Steven L. Taylor:

I can’t imagine that most people, in the south or not, will be commemorating secession.  I will, however, state that many of these sentiments are held in at least a vague way by a lot of people in the Deep South.  To wit:   the notion that the war was about “states rights” and self-defense.  I, for one, think that that is a lie that many Americans tell themselves* about the war because they don’t want to fully face up to the notion that the most fundamental right in question was the right for one set of human beings to hold another set of human beings as property.   There is a great deal of pressure to want to find some mental gymnastics to allow for pride about one’s heritage, and it is far easier to cleave to the notion that one’s forbearers were principled about the rights of their states than it is to admit that they were defending a specific political economy that required slave labor.  If anyone has doubts that slavery was central to secession, I would point the reader to a post I wrote on this topic earlier this year:  Confederate Heritage and History Month.  It really is impossible to argue from the facts that the main reason for secession was anything other than slavery.

I will further say this:  there is far too little shame associated with the CSA than there ought to be.  The continued popularity of the Confederate Battle Flag as an adornment on automobiles and clothing attest to that fact.  Or, for that matter, the notion that many politicians still extol things like Confederate Heritage Month and the aforementioned battle flag.**  Certainly I know plenty of people, including students and people I know in various walks of life, who adhere to the notion that there is a “real history of the South” that is not properly taught.

One of the weirder aspects of all of this discussion to me is that the South is also the part of the country that considers itself the most patriotic vis-à-vis the United States of America and which venerates the US flag and the Constitution as near sacred items.  As such, one would think that such deep belief in exceptional nature of the USA would translate into some reevaluation of the meaning of secession and the Civil War.***  Indeed, one would think that any given Southern patriot would look back on the history of 150 years ago and have a profound sense of relief that the entire CSA experiment failed.  And, further, that the notion of dividing the United States was a horrible idea.  And yet, I don’t think much thought goes into it.

Alex Eichler at The Atlantic with more.

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“Burning Out His Fuse Up Here Alone”

A.J. Perez at Fanhouse:

Roger Clemens‘ precipitous descent from one of the game’s top power pitchers to landing under a multi-count federal indictment “was completely self-inflicted,” former Congressman Tom Davis told FanHouse on Thursday.

“He got caught in a speed trap like a lot of other ballplayers found in the Mitchell Report,” said Davis, former ranking member of the House Committee on Oversight and Government Reform where Clemens testified in February 2008. “Most of the others offered up an apology and many of them did just fine. He didn’t want to do that. He wanted to clear his name and we offered him a forum.”

This forum, however, came with a caveat: the seven-time Cy Young Award winner had to go under oath with no promise of immunity. That public relations move fully backfired Thursday as United States Attorney Ronald C. Machen Jr. and Shawn Henry, assistant director in charge of the FBI’s Washington field office, announced that Clemens would face one count of obstruction of Congress, three counts of making false statements and two counts of perjury.

Clemens, whose appearance in front of the committee was completely voluntary since he was not subpoenaed, faces a combined maximum sentence of 30 years in prison and a $1.5 million fine, although he would likely only serve 15-21 months if convicted on all six counts under current sentencing guidelines.

Barry Petchesky at Deadspin:

The Rocket, responding to his indictment on perjury charges: “I never took HGH or Steroids. And I did not lie to Congress. I look forward to challenging the Governments accusations, and hope people will keep an open mind until trial.”

‘Duk at Yahoo Sports:

Today’s news is bound to produce a bevy of reactions that will all sound something like “why is the government wasting resources and taxpayer money pursuing this case?” In fact, I would guess there’s a good chance you’re saying something similar right now.

But I’ve never liked that line of thinking much because we have rules about lying under oath for a reason. And those rules become absolutely worthless if we summarily pardon anyone who is suspected of doing so.

Now, if you want to argue that Clemens shouldn’t have been summoned to a position where he could be accused of lying, that’s a different debate altogether. With much bigger battles out there to fight, the insistence of politicians on becoming involved with sports and PEDs is probably more misguided than any of our shrugs over this Clemens charge.

But because it may have happened, it’s important that prosecutors hold Clemens accountable for his actions — so long as they’ve built a case they actually have a chance of bringing home. Federal perjury charges were first brought against Barry Bonds in November 2007 and the prosecutors still aren’t any closer to being able to convict him. (Bonds’ perpetually delayed trial, by the way, is now set for March 2011.)

In other words, if the prosecutors are going to start this controversial job, they better have a pretty good idea of how they’re going to finish it in a timely and efficient manner.

And if they don’t?

Well, that’s where our real issue with this action should lie.

Shaun Powell at ESPN:

Wouldn’t a simple “my bad” have spared him a fidgety appearance at a 2008 congressional hearing that was both sad and hilarious, where he used awkward words (“misremembered” being my favorite) and a variety of silly replies to charges made by Brian McNamee, his former trainer? Wouldn’t Clemens have been better served by taking the road followed by Andy Pettitte, his close friend and training partner, who ‘fessed up and still enjoys hero status in the Bronx? Would Clemens be facing the same disgraceful fate as Marion Jones, the Olympic sprint queen, who was locked up for nearly six months?

Yes, it was arrogance that doomed Clemens, nothing more or less, and exposed him as a fraud. You can understand why. For years, that attitude served him well. It allowed him to intimidate hitters with those strike zone-seeking missiles he threw with amazing consistency for 24 years and two tours of duty with the Yankees. It encouraged him to famously fire some high heat at Mike Piazza‘s head and then grab a broken bat and hurl it at Piazza’s feet. It made him do whatever possible, even if it were illegal, to strike back at then-Red Sox general manager Dan Duquette, who dismissed “The Rocket” as being finished when Clemens left Boston.

And arrogance told Clemens he was a better man and would cut a more believable figure at that hearing than McNamee, who in the big picture was a complete nobody. At least the Republicans on the panel thought so, anyway.

Don Suber:

Let me make this clear: I dislike Roger Clemens — Rajah — a guy whose achievements on the field do not match his outsized ego, and considering he won 354 games, that is saying a lot.

So why in the hell are federal prosecutors dogging the man?

Why are they indicting him?

Because he used steroids? Hell, they all did in the 1990s, including A-Rod. If the difference between making $1 million and making $10 million was taking a banned drug, I would take them.

But the feds cannot get him for that because of the statute of limitations.

So he will be indicted for lying to Congress.

That’s like breaking wind in a stockyard.

Jonathan Tobin at Commentary

Joshua Tucker:

Relieved to hear he was indicted, but I was still kind of hoping they were finally going to get him on assault and battery for this:


For those of you not permanently traumatized by the 2000 World Series, yes, that is Roger Clemens about to throw a bat at Mike Piazza’s head. And no, not only was he not arrested, he wasn’t even thrown out of the game. Go figure.

Scott Lemieux:

My official reaction to the indictment of Roger Clemens is that I don’t like perjury charges that are an outgrowth from “OMG baseball players use different kinds of PEDs than the good, clean ballplayers of my youth did” witch hunts. On the other hand, something bad has happened to Roger Clemens, so you can see my dilemma here. Maybe the feds can get him to name Jeter so we never have to hear about steroids again…

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