Tuesday, May 03, 2022

Concluding Unscientific Textual Analysis

As promised, I'm coming back to finish this.  I'll try to be succinct, but I have to start with this:

I can think of no one objection, that will possibly be raised against this proposal, unless it should be urged, that the number of people will be thereby much lessened in the kingdom. This I freely own, and was indeed one principal design in offering it to the world. I desire the reader will observe, that I calculate my remedy for this one individual Kingdom of Ireland, and for no other that ever was, is, or, I think, ever can be upon Earth. Therefore let no man talk to me of other expedients: Of taxing our absentees at five shillings a pound: Of using neither clothes, nor houshold furniture, except what is of our own growth and manufacture: Of utterly rejecting the materials and instruments that promote foreign luxury: Of curing the expensiveness of pride, vanity, idleness, and gaming in our women: Of introducing a vein of parsimony, prudence and temperance: Of learning to love our country, wherein we differ even from Laplanders, and the inhabitants of Topinamboo: Of quitting our animosities and factions, nor acting any longer like the Jews, who were murdering one another at the very moment their city was taken: Of being a little cautious not to sell our country and consciences for nothing: Of teaching landlords to have at least one degree of mercy towards their tenants. Lastly, of putting a spirit of honesty, industry, and skill into our shopkeepers, who, if a resolution could now be taken to buy only our native goods, would immediately unite to cheat and exact upon us in the price, the measure, and the goodness, nor could ever yet be brought to make one fair proposal of just dealing, though often and earnestly invited to it.

That's the rebuttal paragraph from "A Modest Proposal."  I taught that essay for years as an excellent example of classical rhetorical form, built on Aristotle's Rhetoric with some useful additions secured over the centuries, like the idea of a rebuttal as a necessary element for a sound argument.  The idea of the rebuttal is to handle any objections to the main argument, and dispose of them handily to prove they are of no consequence and can be disregarded.  Swift, of course, is not the narrator of the "Proposal," although he is it's author.  In this rebuttal paragraph you hear all the arguments the Rev. Dr. Swift was publicly associated with regarding the problem of poverty in Ireland.  His narrator states it in rebuttal, meaning to dismiss all these ideas as foolishness and cant.  Interestingly, it works pretty well for that purpose.

Let me digress on the strength of the argument in "Proposal" for a moment.  In the late 17th century Swift's narrator is analyzing the problem of poverty from what we would today call a "free market capitalism" position.  The problem as stated is that the poor have nothing to sell (it was hardly a service economy in Ireland at the time).  What could be sold was labor (service, or more properly, servitude), one's body (prostitution), or goods.  The poor have no goods to sell, and even Swift wouldn't satirize the public virtue of prostitution, so all that's left is finding something the poor have which can be sold.  And, according to the opening of the essay, what the poor have in abundance, and can't afford in economic terms, is children.  The argument proceeds to treat the children as livestock, a source of food just like sheep, cattle, and pigs.  It's an inhuman proposal, but at the same time perfectly sound reasoning from an economic point of view (I will point out that, at the time, economics was still considered a branch of ethics.  Having severed that root, it's even easier to see this as "market driven" economic analysis today.)  The rebuttal paragraph, then, is an offering of solution that don't involve cannibalism and slaughtering infants as if they were calfs harvested for veal.

You'll note the first solutions involve governmental (i.e., legal) solutions:   "Of taxing our absentees at five shillings a pound: Of using neither clothes, nor houshold furniture, except what is of our own growth and manufacture: Of utterly rejecting the materials and instruments that promote foreign luxury."  On that middle one, let me explain that England controlled Ireland, and wouldn't allow the manufacture of clothes or furniture in the Emerald Isle.  That had to be purchased from English makers and merchants, the better to keep the money in England.  The industrial revolution didn't cure that; the 19th century was the century of the potato blights (four in all, if memory serves) and the Irish diaspora that gave rise to the romantic "Irish rover" figure.  This compares to Mr. Hasen's solutions, which start with legal remedies.

He wants to improve accountability and audit capacity (as well as chain of custody) by requiring all ballots be on paper, which leaves a trail.  Makes sense to me; my ballot is paper now, because I vote by mail.  The simple solution is to require all voting be conducted by mail-in ballot.  This won't satisfy the people who do vote by mail (like Trump) but complain that the other guy's ballot has been interfered with; if they don't like the outcome, that is.  Really nothing you can do about that except not give it any credibility.  But that raises another issue, and raising that issue is getting ahead of ourselves; so leave it there a moment.

The next proposal:

Rules Limiting the Discretion of Those Who Certify the Votes, Including Congress. — Transparency and related rules minimize the risk of subversion by those who collect and tally the votes. A different set of actors is involved in certifying the vote totals. Depending on the state, this certifier may be a state or county election board or some other official.  When it comes to the presidential election, certification happens first on the state level and then Congress counts the certified votes.

Again, perfectly sound, and something quite capable of being implemented by law.  Here, in quick summary, are the other three proposals:

3. Rules Limiting the Overpoliticization of Election Administration, Especially by State Legislatures. — 

4. Rules Increasing the Criminal Penalties on Those Who Tamper with Federal Elections or Commit Violence or Intimidation of Voters, Elected Officials, or Electoral Candidates. — 

5. Rules Countering Disinformation About Elections, Particularly Disinformation About When, Where, and How People Vote.

That's just the topic sentences for each section.  I'm not that happy with no. 4; the carceral state is a terrible engine for enforcing social purposes, and besides, "intimidation of voters" is almost an American virtue.  No, it's not, I'm being sarcastic.  But increasing penalties is not really the problem.  Texas, for example, just increased penalties against election workers (or others) who interefere with "poll watchers" on Election Day.  We could just go back to regulating, even banning, poll watchers, and achieve the desired effect.  But that's quibbling.

It's after this that we reach the other part of Swift's narrators rebuttal.  Let me go back to that a moment so you know what I mean:

Of curing the expensiveness of pride, vanity, idleness, and gaming in our women: Of introducing a vein of parsimony, prudence and temperance: Of learning to love our country, wherein we differ even from Laplanders, and the inhabitants of Topinamboo: Of quitting our animosities and factions, nor acting any longer like the Jews, who were murdering one another at the very moment their city was taken: Of being a little cautious not to sell our country and consciences for nothing: Of teaching landlords to have at least one degree of mercy towards their tenants.

Yes, the anti-semitism there is offensive.  We can overlook it and keep the rest, arguendo anyway.  Noble, even worthy sentiments, for the most part, and certainly these would promote an improvement in society as a whole.  As a guy who advocates the vision of the holy mountain from Isaiah and the basilea tou theo of Jesus of Nazareth, I'm hardly one to criticize utopian visions.  But they don't really attack the mercantilism of the "modest proposal," which is written to attack itself (and does a far better job than these offerings do). I'm not sure they belong in an HLR article, either:

Law can only go so far in protecting American democracy against election subversion, and new laws must be enacted and not just proposed if they are going to counter the risk. Political organization is necessary to pass those laws and to reinforce norms respecting the rule of law and fair election processes.

True, all too true.  But:

Political organization can help advance the proposed legal changes advocated above. For example, aside from a paper-ballot requirement, no anti–election subversion provisions appeared in the original version of the For the People Act of 2021, the main Democratic Party–backed election reform measure being considered in the current Congress.

But the Democrats still prove the adage ascribed to Will Rogers: "I don't belong to an organized political party.  I'm a Democrat."  And the GOP is entirely the "party" of Trump.  Both parties largely exists as legal entities with guaranteed access to the ballot (they set the laws up that way in all 50 states), but don't exist at all as they did in the days of, say, LBJ (who, political and legislatve genius that he was, wouldn't know how to function in todays' Senate).  Political organizations, in short, are busy advancing the conspiratorial nonsense of Q-Anon, on one side.  Why they would advocate the legal changes proposed is a mystery, since it would be tantamount to advocating for access to the ballot by all eligible voters.  And the GOP is decidedly not in favor of that at the moment; nor would it support "leaders" who tried to take the party in that direction.

If you can't see that without further argument, I don't know what to say to you.

Political opposition must be mounted against those who embrace the false claim that the 2020 election was stolen from President Trump and who run for office or seek appointment to run elections. Spreading these false claims shows rejection of a commitment to the rule of law, and those who share the false claims deserve to have their positions on the 2020 election relentlessly challenged during their campaigns. If any of these persons attains office, then oversight from more fair-minded, responsible people will be urgently required. Getting such oversight may require new legislation, lawsuits, or even peaceful protests.

I think we now see evidence that is happening .  Whether it is actually robust enough to toss out the maniacs holding office in the GOP, however, is....doubtful.  And what, in fact, would trigger such a "populist" reaction?  I have to admit I have absolutely no idea.  I still remember when giving 18 year olds the vote was going to change politics in America forever, and usher in a sea-change because of the overwhelming number of new voters who would upset all the old electoral assumptions.

Yeah, that was a Constitutional amendment.  What really changed?

Indeed, the ultimate safeguard of American democracy during this period of democratic instability may be millions of people taking to the streets for peaceful protests to demand fair vote counting and adherence to the rule of law. In 2020, it was enough to avoid election subversion that some heroes stepped up to assure that elections ran smoothly, votes were fairly counted, and a peaceful transition of power took place. Next time, a few heroes in the right places may be inadequate. I fear that only concerted, peaceful collective action against an attempt to subvert election results stands between American democracy and nascent authoritarianism.

That could have been said (and has been said) at almost any time in the past 220-odd years.  Dese are de conditions dat prevail.  It's truly a wonder tall trees ain't layin' down. 


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The Legal “Traditions” Alito Would Turn Into False Idols

Columbia Journalism School professor Emily Bell cited an excerpt from the opinion in which Alito mentions 17th century judge Sir Matthew Hale as he sought to make the case that justices misinterpreted history in their Roe v Wade decision.

"Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a 'great crime' and a 'great misprision..." the decision states.

While many anti-abortion activists debate "personhood," most seem to agree that a woman shouldn't be forced to carry a dead fetus that could ultimately kill her. Miscarriages are exceedingly common, and happen in up to an estimated 30 percent of all pregnancies.

Hale also ensured women were executed for being witches.

"A 12 mo. sixpenny pamphlet published by the well known E. Curll 'at the Dial and Bible against St. Dunstan's Church in Fleet Street' was issued in 1712 under the title Witchcraft Farther Display'd, along with an account of Jane Wenham since her condemnation and also an account of the trials in 1661 at Cork of Florence Newton; this contains an abstract of the trial before Sir Matthew Hale in 1664 at Bury St. Edmonds, Suffolk, of Amy Duny and Rose Cullender, who were both convicted, March 10, and both were hanged, March 17, 1664, wholly unrepentant and denying the crime," recalled the Spring 1926 issue of the Journal of Criminal Law and Criminology.

The two women were convicted of "bewitching Elizabeth, Anne and William Durent, Jane Bocking, Susan Chandler, Elizabeth and Deborah Pacey (or Pacy)," the Journal recalled. A colic baby was left with Amy Duny one night crying desperately for relief and Duny let it suck on something. The Journal explained that in the early 1900s a mother would use "castor oil or its equivalent." She took the baby to a doctor known for curing "bewitched children." 

"That wise man advised her to hang the child's blanket all day in the chimney corner and at night wrap the child in it, and if she saw anything in it not to be afraid, but to throw it in the fire. She did as directed, a great toad fell out of the blanket and ran about the floor (toads seem to have run in those days)," said the century-old journal. "A young man (not named or produced as a witness) catch'd this Toad and held it in the Fire with a Pair of Tongs: immediately it made a great Noise, to which succeeded a Flash like Gunpowder, followed by a Report as great as that of a Pistol; and after this, the Toad was no more seen."

This "evidence" was used to not only convict one woman but hang her for witchcraft. "It obtained credence from men of the deservedly high standing of Hale..."

There was then an accusation that Duny and Rose Cullender appeared as a vision to two children who suddenly couldn't open their mouths. The children proclaimed "There stands Amy Duny," "There stands Rose Cullender!"

"The Fits were not alike," described the accusations. "Sometimes they were lame on the Right Side, sometimes on the Left: sometimes so sore that they could not bear to be touch'd; sometimes perfectly well in other Respects but they could not hear; at other times they could not see; sometimes they lost their speech for one, two and once eight days together."

This was used to justify that Cullender was a witch and she too was hanged.

"Convicted on Thursday, March 13, 1665, they were executed on Monday, March 17, Sir Matthew Hale being so satisfied with the verdict, that he refused to grant a reprieve," the Journal recalled.

Hale also has a history of supporting marital rape in his cases. The American Bar Association Journal dated September 1980 addressed the issue of spousal rape throughout the history of jurisprudence. Hale devised the "consent theory" in the 17th century stating that a husband can't be guilty of a rape.

"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to this kind unto her husband which she cannot retract," wrote Hale.

Hale's justification for spousal rape was used as recently as 1986, when in R v. Roberts, the Court of Appeal held that "consent had, on the facts, been terminated where there was a formal deed of separation, even though this lacked both a non-cohabitation clause and a non-molestation clause."

Maybe this is why the draft opinion was leaked? Because the conservatives on the bench especially liked this history lesson?

A reminder that the roots of the common law are “legislating from the bench.”  “Originalism” ain’t all that original.

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Tuesday Morning Quarterbacking

We're going to bookend part of this discussion with Joe Scarbrough. It's a bit of a mess becasue some of this came in late last night, and more is coming this morning. And Scarbrough's response is interesting, to say the least:

"Well, I mean, for the Supreme Court, in a word, illegitimacy," Scarborough said. "You know, the court has always been guided by the law, but it's also been keenly aware that it is the only unelected branch of American government. They needed to not appear to be openly contemptuous of public opinion. That would be especially true today, given the GOP's might-makes-right approach to the sacking of Merrick Garland's nomination or the elevation of Donald Trump's final pick."

Scarborough pointed out that four of the five justices voting with the majority had been appointed by presidents who had lost the popular vote, including one who was nominated by Trump after then-Senate majority leader Mitch McConnell refused to hold hearings for Barack Obama's last choice for nearly a year.
 
"Look at this picture from Madeleine Albright's funeral," Scarborough said, showing a photo of President Joe Biden sitting alongside Barack Obama, Bill Clinton, Hillary Clinton and Al Gore. "The five Democratic politicians on the front row won the most votes in the presidential elections of 1992, 1996, 2000, 2008, 2012, 2016 and 2020. Yet, a half century of constitutional rights supported by over 70 percent of Americans -- let me underline that again. People lying to you on other channels will never say this, over 70 percent of Americans support that constitutional right. It'll be swept away by the presidents not in this picture and the presidents who were outvoted in each one of those elections over the last three decades."

"Now Americans will rightly conclude that their voices and their votes no longer matter," he added. "So what are the implications for the court, for the law and for American democracy?"

One of the implications, as Jeff Greenfield noted on CNN, is that the leaked draft opinion opens the door to a Federal law allowing abortions.  But there are at least two discussions happening after this leak:  one on the consequences of overturning Roe; and one on what the future looks like. The third should not be the story of the leak, but rather the argument presented in this draft opinion.

Alito is right in that draft: the word “abortion” doesn’t appear in the Constitution. Neither does “privacy.” Yet the Court does recognize a privacy interest in the 4th amendment which prevents governments (federal or state, via the 14th Amendment) from listening to your phone calls without a warrant. The word “telephone” doesn’t appear in the 4th amendment, but there you are. There also isn’t anything in legal history about the privacy of phone calls.  But maybe since those cases are more than 50 years old, they’re sacrosanct. I guess.

Alito’s argument is “privacy I like: good! Privacy I don’t like: bad!”

Which is not really much of a legal argument.

I have no idea what the political landscape to the mid-terms looks like. But I agree with Axelrod: The people who caught the car got a lotta ‘splainin’ to do.  Scarbrough asserts that 70% of the American people support abortion access.  This will probably be put to the test in November:
That brings us back to Scarbrough, later in his own show:

"This takes us right now to the top of the show, where Jon Meacham, presidential historian Jon Meacham, talked about the real problems with the way the Supreme Court has been handled by the Republican majority over the past five, six, seven years," Scarborough said. "It is a might-makes-right approach. You actually had Republicans making up a Senate rule, a Senate custom so they wouldn't have to even give Merrick Garland a hearing. You then had, a couple years later -- that was at the end of Obama's term, so they could stop his selection. Then at the end of Trump's term, they threw that aside, further illegitimizing the process. Now they won't give Joe Biden's nominee a hearing."

Scarborough said GOP actions had left Democrats with no other choice than to expand the Supreme Court, which he said had plenty of historical precedent.

"This is my concern, because I love the institution of the Supreme Court and what it's meant to Madisonian democracy through the years," he said. "It has been very disappointing, very deeply troubling because Republicans have so politicized this process that I fully expect Democrats, when they have the opportunity, to do what Washington did and what Adams did and what Jefferson did and what Andrew Jackson did and what Abraham Lincoln did and what Republicans did after Lincoln died, and change the size of the court. I mean, again, if precedent doesn't matter constitutionally, political precedent won't matter. They'll do what founding fathers, Abraham Lincoln, Andrew Jackson and Republicans after Lincoln's death did -- they'll just expand the size of the court."
 
Republicans would have no standing to object, Scarborough said, because they had politicized the court and undermined its legitimacy.

"You see, that's where they've led us," he said. "Then at that point -- and this is something John Roberts knows, I pray to god that it's something that Brett Kavanaugh understands. At that point, when the Supreme Court loses its legitimacy, I mean, my God, Madisonian democracy is undermined, and I say this regardless of my views on this particular issue. What the Republicans have done over the past five, six, seven years regarding the Supreme Court has led us to this point."

"We've seen a draft which we hear ... is most likely going to end up being the net result where the United States Supreme Court is going to overturn a constitutional right that has been in place for 50 years, supported by over 70 percent of the American people," Scarborough added. "That's not conservative, that is radical, it is dangerous. It undermines what I believe is the institution that separates this constitutional republic and this Madisonian democracy, this form of government we have, from every other government on the globe. These are troubling times."
"Madisonian democracy" has been through worse (Dred Scott, Plessy, Lochner, to name just three; aside from the civil war, Reconstruction, Jim Crow, the battle over civil rights).  And I don't fear expanding the Court because I'm not married to the idea that the "Founding Fathers" (a fatuous phrase) or "We've always done it this way!" are grounds for resisting change when change is needed.  But this analysis is almost on all fours with my own.  Republicans led the effort to make this happen, and frankly, I'm ready to make them reap the whirlwind.

We'll see if that happens.

Interestingly, some people still want to make this be about the leak.  There is the predictable "Look, over there!  Leaker!  Leaker" distraction defense:

"This unprecedented leak is concerning, outrageous and a blatant attempt to manipulate the sacred procedures of the U.S. Supreme Court. Those responsible should be held accountable. My prayer is that Roe v. Wade is overturned and that life prevails," said Alabama Gov. Kay Ivey, a Republican.
Unsurprisingly, Democratic governors are determined to protect abortions in their state, Republican governors are cheering for the return of states rights.  Steve Vladeck this morning thinks this leak will change the final opinion of the court:
But I'm not sure that's a foregone conclusion; not with the obvious relish with which Alito wrote this first draft. Alito doesn't want to just overrule Roe; he wants to dust off and nuke it from orbit. His disdain for the 1973 ruling is palpable. On the other hand, this kind of unprecedented leak could indicate the Court majority itself realizes its on shaky ground.  The Alito draft is long on invective and short on legal reasoning (thought long, again, on legal bluster).  It's a foregone conclusion in search of jusification.  It tugs at a thread that will unravel court decisions going back to Brown (in history if not in connected legal reasoning), and there really isn't any reason for it not to.  But even the fanatics (Barrett, Thomas, Gorsuch) on the Court seem to realize that's a bridge too far, that they can't do this in the full light of day.  Reports are that Roberts wants to uphold the Mississippi law in question without overruling Roe.  Like Holder, in other words, he wants to gut the statute but still leaven enough for the taxidermists.  Following that metaphor, Alito's opinion doesn't even want to leave the bones.  He wants to sow the ground with salt so nothing will ever grow there again; if he can help it. That may be the opinion of Thomas and Barrett and Gorsuch, too; but do they dare state it in broad daylight?  Do they dare stand and pronounce it proudly?  I don't think so.  And I think that's because they know that, while they are convinced their hearts are pure and their motives noble, they also know the limits of their power.  They want this to be so; but they also don't want the responsibility for making it so.  Because they know it is a decision that will not be universally applauded, and in fact may be rejected, and result in consequences like expanding the Court, or even calling into question the Court's use (and abuse) of it's role as arbiter of the Constitution.  They are aware, in other words, that they won't be hailed as saviors.  Which may be another reason Alito's draft opinion is so belligerent.  He's daring the body politic to disagree with him.  But he also knows he has the last word; and, as Hamlet said, "Aye, there's the rub."

Still, Vladeck thinks the leak, which is unprecedented in Supreme Court history, is important:
Still: no. No, that’s the opinion.The opinion is "the" story.  It’s the precipitant of everything else.

On the subject of "leaks," Vladeck notes this bit of judicial history: But that's hardly equivalent to releasing a full copy of a draft opinion. And there is this, too: But can the Court release one, without acknowledging the legitimacy of the leaked document? (NPR is at pains this morning to aver they cannot verify the legitimacy of the leaked draft.) I mean, is the Court likely to go from stately silence to suddenly issuing press releases about "fake news"?

Last night we had this, which points to the kind of shitshow the Court is not going to happily wade into:
Yeah, lotta experts in Twitter; with no expertise at all. Exactly. The leak is troubling, the opinion is monstrous. That puts last night in perspective. This just puts Greenfield in perspective: And this puts the leak in perspective: Meanwhile, what we need is another history lesson, one about electoral politics, not Supreme Court leaks: And speaking of consequences: "Particularly among poor women in the South and Midwest” is precisely my concern. And may be precisely where abortion becomes the issue of the mid-term elections.
Exactly.

Closing remarks:
Satire; and seriousness.
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“Appears “?

Is it a violation of journalistic ethics to state plainly in the chyron what everyone can hear?
"We've endorsed Dr. Oz. We've endorsed JP, right? JD Mandel, and he's doing great. They're all doing good," Trump said.
To be fair, Salon reported it the same way. Apparently naming someone who is not running/may not exist cannot be reported as what it really is: a really stupid error by a guy who just got through (baselessly) bragging about how smart he is because (he says) he passed a dementia test.

Maybe he needs to take the test again.


Well, except for this guy, who doesn't say "it appears" that MTG put these words into a Facebook post, or that it "appears" these words are anti-semitic:
“This is your post under your name,” the reporter said, “and you’re talking about the Rothschild family, which has been at the center of anti-Sematic conspiracies since the 19th century.”

“I did not know that,” Greene interjected. “I have no idea. I’m telling you.”

The congresswoman said that in 2018, she was just “a regular American. Never been in politics. I couldn’t have told you some people back in politics or families names, don’t know their backgrounds.”

 
“But now that you do know,” the reporter pressed, as Greene became visibly frustrated. “Now that you’ve been told… anti-Semitism is on the rise at an alarming rate.”

“I’m fully against anti-Semitism,” Greene said. “You’re mixing two things together. You’re accusing me of something I did not do, and then you’re trying to blame me for anti-Semitism.”

So which does it appear to be?  MTG is dumber than a box of rocks?  Or she knew (how could she not?) the Rothschilds have been a source of conspiracy theories for 400 years, and are Jewish?  Or is she "fully against anti-semitism" but also fully against the Rothschild's using "space lasers" to start fires in California?

Or does it just appear that she's a liar? And trades freely in anti-semitic conspiracy theories?
One never quite realizes how deep the rabbit-hole goes, until the floor opens up beneath your feet. Hedges' argument here is that you can be a little bit anti-semitic (or racist), without really being anti-semitic (or racist). How racism is different from pregnancy is not explained. Most of us agree it's pretty much an all-or-nothing condition. Hayes seems to be relying on the old: "I've got nothin' against 'em, I just don't want my daughter to marry one!" exception. Not really a good look; at all. Nor a good argument. Yeah, that's pretty much where it winds up. Right next to "MTG appears to be anti-semitic." Which really isn't a thing anybody says, ever; about anybody. We've all come to agreement that you are either not anti-semitic, or you are. We're still struggling to apply that to racism. Consider carefully why that is.
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Deeper Down The Rabbit Hole

That's how the story of this now infamous couple was reported on Raw Story. That's how it wound up in the cross-hairs of Popehat, where most of the replies agreed the story was about the pernicious influence of Elon Musk. But not, oddly, about the pernicious influence of Donald Trump (who, after all, has been at it far longer, and with a much bigger bully pulpit for many years). Which would be a surprise to the two people thrown off the plane:

At the end of the video, the woman ascribed political motivations to the decision to remove them from the flight.

"We're going to get [kicked] off the plane because we're Trump supporters!" she shouted. "Seriously, I really think that's what it is!"
Surely we can all agree it's just because they were assholes.  But how curious the narrative becomes, depending on how it is framed.
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No, Literally: You And What Army?

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Light Creates Moths!

Next thing, he'll be claiming the intertoobs don't create assholes.  When everybody knows it's done with algorithms.

Twitter is such a rich source of information.
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Everybody On Twitter Is Extremely Well-Informed

Well, in May of 2020:



Granted, that wasn't the same request as directed to Espey (and Joint Chiefs Chairman Gen. Mark Milley), but it wasn't like this was new information about an otherwise publicly placid and calm POTUS named Trump.

Yeah, it would have been nice if people had been setting their hair on fire.  It just wouldn't have made a difference.  The "Entertainment Tonight" tapes didn't.


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Monday, May 02, 2022

Not The Headline, Continued

I'm not going to keep updating the original. Let's continue. One problem with Amash's analysis is that the justices themselves are acting like legislators, and not in the sense usually used to criticize Supreme Court decisions: That's not the detached observation from an Olympian height. That's the language of a partisan. Suitable perhaps for a concurring (or better, dissenting) opinion; but not at all suitable for the opinion of the Court. Which is one reason to expect it to be blunted seriously if Alito finally publishes the Court's opinion. But the value of Alito leaking this in order to make the final official opinion more palatable is lost on me. People paying attention to the language will come it for the "bones" of this leaked document. The rest won't care: taking away a constitutional right will be the equivalent of gutting the Voting Rights Act; except this will affect middle-class and upper-class whites, and create two Americas: one run by Republicans, and one run by Democrats. And that's going to be a seriously ugly place to be.* It's really not too early. This will clear the board. The only issue that will matter is abortion, and that will probably break down by states: New York will allow abortions, Texas won't, and on and on. Polarization? Buddy, you ain't seen polarization yet! Which makes Alito's argument about the "deepend division" of Roe sound like what it is: a fool's argument because he doesn't have another one. He wants to overrule Roe because that's his raison d'etre. Now he can die in peace and sanctimony. Interestingly, that problem doesn't disturb Alito's sanctimony and concerns for the state of the nation, at all. The view from Olympus is always from too far above to see what's really going on. Yup. Which may be true, but a peek into the raw id of Alito is not something one can unsee. I don't care about the article (I've posted already). I just wanted the picture of Alito. After this leak, it's the way he deserves to be remembered.

This one may get updated tonight.  The first one is closed.

Jamie Raskin points out the Court is returning to status quo after the aberration of the Warren and, to some extent, Burger courts:

"If it does go forward with it, I believe that the court will have returned to its historic baseline, of being a reactionary conservative institution to the far-right of everything else at the federal level in the government," Raskin continued. "You know, it's still got this lingering fake halo around it from the rulings Brown vs. Board, and Roe v. Wade, Miranda vs. Arizona. But for most of our history —take it all the way up to the Civil War — the Supreme Court never did anything for enslaved Americans, other than to cement constitutionally the system of slavery in the Dred Scott decision, and declare that African Americans have no rights at [sic] the white man is bound to respect, and to declare that the constitution is indeed a white man's compacts."

He went on to say that the most important thing in 2022 will be that people come out and vote in such significant numbers that the House and Senate majorities hold so that Democrats can pass laws reaffirming the right for all Americans to have medical privacy.
I can't help but think:  "Wish in one hand, piss in the other; see which fills up faster.
This is not an argument, it's a statement of preference. The "clear answer" is the one Alito prefers, and has already decided on.  Ironically, the same reasoning that led to Lochner (per the published opinion) is guiding Alito in this case.  I don't know where in the 14th Amendment the word "Contract" appears, but the Lochner court held that Amendment guaranteed the individual right to freedom of contract.

Maybe he wants to re-write that section. With all due respect to lawyer Conway, that ship sailed out of harbor sometime during the 14th amendment cases (like Lochner) in the 19th and early 20th centuries. A reminder that the Chief Justice is like the Majority Leader of the Senate: in charge in title only. Will Roberts emulated Burger? If he does, will the other justices care? Most of them didn't think Trump would be POTUS, either. Life is full of unpleasant consequences. Again, because it's late and I'm tired and I'll stop soon: not really the most important issue; tonight, or tomorrow, or the day after that. Hadn't heard that one; but now that it's said, you know it must be out there. It's too true to be good.
Sort of like this one had to be out there, too: Oddly, this conclusion doesn't bother me at all (in the quote, not in the tweet frame): The reasons for that should be obvious by now.

Popehat is right; the leak is not the main issue here.  I want to thank Rich Lowry for providing an object lesson in how to elevate rules above people.  Let's all go to church on Sunday and hear about Jesus and the Pharisees:

Damn you, Pharisees! You pay tithes on mint and rue and every herb, but neglect justice and the love of God. You should have attended to the last without neglecting the first.

Damn you legal experts, too! You load people down with crushing burdens, but you yourselves don't life a finger to help carry them. Damn you! You erect monuments to the prophets whom your ancestors murdered. You are therefore witnesses to and approve of the deeds of your ancestors; they killed [the prophets] and you erect monuments to them

You legal experts, damn you! You have taken away the key of knowledge. You yourselves haven't entered, and you have locked the way of those trying to enter."

Luke 11:42, 46-48, 52 (SV)

Don't know why I suddenly thought of that.  Yessir, no idea at all.

*Yes, the death of the VRA has already created that; but voting is not the major event in most peoples' lives it should be, and most voting suppression laws are not aimed at whites.  My experience, brief as it is, with abortion clinics is that most of the people there are too poor to be noticed, too.  But abortion is a much more "hot button" issue, even among people who will never have one; and once you unravel Roe, you already call into question the validity of Griswold (Roe's legal basis rests largely on Griswold) and then somebody starts getting itchy to ban contraceptives.  And why not overturn Lawrence and Obergefell, huh?  States rights!, right?  This is gonna ripple out fast, and it's not just going to affect poor white women trying to get the abortion so they can go back to their minimum wage job.

Getting to a pre-Lochner state may not be that far away, given the opinions written in this leaked document.
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Yeah, That's Not The Headline Here

I'm gonna call bullshit on the first sentence of that tweet. It's a completely unsupportable statement and a gross exaggeration. Roe is almost 50 years old. How it undermined the rule of law is beyond me. The second sentence, however, even though derived from the first, is sounder. Especially if the published opinion retains almost any of the language reportedly in this draft. 

And the first indication of how much this decision to overturn Roe undermines the rule of law, is that this draft opinion has been leaked.  That wasn't done because Alito has become the second coming of Benjamin Cardozo or Learned Hand.  He's not even O.W. Holmes here,  This reads more like a love note to Clarence Thomas. Oh, and mid-term predictions like this: Just evaporated. Never make mid-term predictions 6 months out. You never know what will happen; like someone leaking a Supreme Court draft opinion on Roe. Believe me, this one is gonna be bad: I have to pause to point out Rehnquist didn't think much of "rights" in general, because it was not "deeply rooted in (legal) history" (which is what Alito means; or he should).  Rehnquist prefered the fixity of property rights in English common law, because in the origins of common law property was what mattered.  Those with property had "rights," those without, didn't (and so only landowners could vote under the "Founder's version" of the Constitution.)  People had no rights in common law because they were subjects of the Crown.  Tort law is where rights for individuals began, but that hardly equates to our modern concept of civil rights.  It's a mug's argument, in other words.  Alito doesn't like it, and he gets to decide, you don't.  Which is not how the Court is supposed to function, but why bother with legal fictions when the majority rules, right?  Even if it's a minority of 5 ruling over a majority of American citizens.

And it isn't really the outcome that bothers me; it's the naked aggression of raw power.  This is not legal reasoning, it's "Fuck all y'all!  What're ya gonna do about it?"  Roe was deliberated over for months; Warren worked the Court on Brown until he could get a unanimous opinion (it took a long time).  Alito is raising his middle finger to everybody who ever disagreed with him.

"Generations" is obviously an ill defined term.  Roe has been the law of the land for nearly 3 generations, Griswold for almost four.  Not long enough, because?  Because Alito doesn't like it, that's why.  If it's not old enough, it's not good enough.

I suppose it's a good thing the 13th Amendment and 14th Amendments are in the Constitution.  The Roberts Court has already all but repealed the 15th.

What's going to be interesting now is how much this draft opinion is rewritten between now and publication. I would bet good money that it will be. But it also sounds like this is the opinion Alito has been waiting his whole life to write. And that is not a good thing. Because the excerpts make it sound more like the first draft of a very angry law review article than like the Olympian reserve one usually associates with Supreme Court opinions; especially ones that upend this much fundamental law (if Roe falls, what protects Griswold? Or practically anything handed down by the Warren court? There are lines in this draft that sounds like Alito and Co. are taking a blow-torch to precedent because "WE'RE THE SUPREME COURT, BITCHES!!" You really have to understand that, or you don't understand this situation at all. I think that argument can be made. I don't think it's going to play out in the public reception of the published opinion, though; even if Alito's inflammatory language is greatly toned down. It won't fool the opponents of this decision, won't please the supporters (who will think the Court went "soft"), and what most people will know is: the entire country is now Texas. And you don't even get Tex-Mex and BBQ as consolation prizes.

The damage this does to the institution of the Court may well be massive.  "Generations" is a very thin screen to hide behind.
  Yeah, that's not gonna happen. Much more likely. I would lose my money. I don't think anybody's gonna give a shit what Elon Musk tweets about for a while.
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But, Muh Freedumb of Speak!

And it's a good thing we aren't celebrating BLM anymore! Armed Forces Day. Memorial Day. Veteran's Day. Fourth of July (which has become a celebration of all things military, on PBS, anyway. Damned liberal public TeeVee!) At least we have MLK Day ("He has a dream!") and Juneteenth (anybody remember what that's for?), right?

Although maybe MLB is playing all of its games under battlefield conditions that day?
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P(ublic) S(ervice) A(nalysis)

It really is a short and, for a well-reasoned Supreme Court opinion, fairly easy to follow opinion. There is disagreement on what analysis the conclusion should rest on, but the opinion is unanimous.  Here's the factual precis:

Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others. In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.” The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He there- fore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it. Shurtleff and Camp Constitution (petitioners) sued, claiming that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause.

A brief reminder to non-lawyers:  legal analysis is predicated on the facts presented.  Change the facts, change the outcome.  What the Court did, in a very concise opinion, is apply the law to these facts.  This is how the Court proceeded:

The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regu- late private expression. The Court’s cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the govern- ment has actively shaped or controlled the expression. 

I'm leaving out the citations to case law and analysis of same.  Again, you really want to know: read the opinion.  The Court's review of the facts finds there is merit to arguments on both sides (no, this is not Charlottesville). Flags do convey messages; the Court isn't stupid.  The question is:  whether allowing private concerns to raise flags on City Hall Plaza conveys a government message. "The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent."

The facts matter, you see.

Boston’s come-one-come-all practice— except, that is, for petitioners’ flag—is much closer to the Patent and Trademark Office’s policy of registering all manner of trademarks in Matal, see 582 U. S., at ___, ___. All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech. Pp. 6–12.

Or, as Frank Zappa memorably put it:  the crux of the biscuit is the apostrophe.

Seriously, that's where the opinion hinges.  The "lack of meaningful involvent in the selection of flags" means third-party flags are private, not government, speech.  Which is actually a pretty fair outcome.  Boston let anybody who applied raise a flag; then when one group applied, Boston balked.  Why?

Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.”

And yeah, this sounds terribly clever:

...but the opinion means a "Satanic flag" could be flown, too, if a group applied for permission to fly it.  This is not an issue of allowing "religious speech."  It's a question of allowing private speech on public grounds.

Frankly, I don't know what the hell a "Christian flag" is, anyway.  I remember seeing some in churches in my youth (I don't think any flags belong in a Christian worship space, but I'm weird that way, too).  Couldn't tell you know what they looked like.  I guess it had a cross on it, but then again the Red Cross logo is actually a red plus sign to me, so....

ADDING:  Of course, most of Twitter is going to go this way:
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Staying Tuned

He's the Secretary of DHS. He should have called in a drone strike on FoxNews studios instead.

It's the only way to be sure.  And it would sure delegitimize FoxNews.
Is re-tweeting this re-tweet legitimizing the original tweet? Explain your answer in at least five paragraphs. Neatness counts. "Paranoia strikes deep..." "Into your lives it will creep..." "It starts when you're always afraid..." For no particular reason, I want to lay this from April 29, alongside this, from the next day: Meanwhile, back among the pundits: So I guess the "West" "legitimized" Lavrov by not shooting him in the face or isolating Russia decades earlier? Because refusal to acknowledge the leadership of a country worked so well for the U.S. against Cuba? And unlike Cuba, Russia sits on the UN Security Council? And while we're legitimizing: And Herbster is gonna go house to house in Nebraska makin' sure the wimmen folk is sexually edumacated! In all seriousness, I'm having trouble distinquishing between Russian state media and FoxNews. Are they going to pat themselves on the back? Or are they going to listen to what the guy from South Africa (the non-white, non-richest-man-in-the-world guy, I mean)? We'll see....
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The More Things Change

Or hilariously, desperately familiar:
Full disclosure: I haven't been in a convenience store in about half-a-century. Literally. Well, I tell a lie. I often go in them when they are attached to gas pumps and I am far, far out of town and in the middle of nowhere. Or it's a Buc-ee's. Buc-ee's is a social experience. Their bathrooms are a religious experience. I'm very serious. It's the oasis on the freeway desert. It's a Texas version of a bodega.

Now you know my dirty little secret.

But unless I'm out on the vast expanse of the freeway, I never go near a convenience store.  They just aren't...convenient.
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"The Wild Ones" But, You Know, Rich

I'm pretty sure this is where I came in.

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Sunday, May 01, 2022

JD Which?

To be fair, which J.D. (or J.P.?) he endorsed  was one of the last questions on the test: Like the other hard ones: “Where are you?” “What day is it?” One wonders if he could answer those now. This is the leader of the Republican Party. Even as journalists acknowledge this, they ignore it.
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Because It's Sunday

The license plate sounds out rather unfortunately, too. Which really makes me wonder if this is a typo.
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What He Said

I think I'm going to use this for all answers to all questions from now on. Especially when I'm asked "What happened to Noam Chomsky?"
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Does That Make Elon Musk A Journalist?

The event featured a who’s who of Vos’ conservative critics who have maintained he has not done enough to review Joe Biden’s victory over Donald Trump in Wisconsin. (Vos' many critics on the left say just the opposite — that he has spent too much time and money on studying an election that recounts and courts have found was properly conducted)," the newspaper explained. "Also speaking were Rep. Tim Ramthun, a Campbellsport Republican running for governor who has squabbled with Vos; Jefferson Davis, a former Menomonee Falls village president and frequent Vos critic; and Rep. Janel Brandtjen, the Menomonee Falls Republican who leads the Assembly Elections Committee."
According to Elon Musk, this is the definition of “politically neutral.” See?

Yeah, it’s stupid when journalists say it, too.
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Elmo Know Medicine! (Mayday! Mayday!)

No shit. I’m pretty sure it was a typo, but I endorse publicly referring to Elon as “Elmo.” Elmo knows medicine! Wonder what his position on injecting bleach is? As I’ve said, just because you’re rich doesn’t mean you have anything to contribute to the conversation. Dear MTG, a/k/a, "The Queen of the Know-Nothings." No, I'm not. And there is a wide gap between defending those people, or anyone, and not attacking them. My Christianity doesn't give me grounds, or authority, to attack anyone. Apparently yours does. On this we differ, as well. That was a bridge, to this: ...that won’t carry him very far past the primaries.

Also, those “rallies” have very shallow “grassroots.”
Some Trump supporters have been traveling from rally to rally, touring the country in a manner similar to that made famous by devotees of the Grateful Dead.
Which is another reason you don’t hear about these rallies in the mainstream media. Never heard much about Dead concerts, either. Come to think of it, I never knew a Deadhead.

But I know lots of Republicans.

And finally, just because: Yeah, I don't see the connection either....
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