The Wrong Skills at the Wrong Time

Kathleen Parker is getting pilloried on social media for this column on John Fetterman's relaxed Senate dress codes, and particularly for this passage:

As little as I have loved Republicans the past few years, coinciding with the rise of our own little autocrat, at least Donald Trump knows how to dress. I can’t imagine that even he would demean his office or his country by dressing down, as is now the “code” for senators.

"Democracy dies in darkness" indeed. 

I do have a twinge -- just a twinge -- of sympathy for Parker, however.  Sometime recently (I can't find it), I wrote a post about the misfortune when a given person's particular skills or virtues are not suited to the historical era they live through. At some times we might need the bold charge-ahead fearlessness of a martial warrior; at others, the crafty prudence of a backroom negotiator. It's unfortunate for the person who has all the virtues necessary for the former situation is living in an epoch where the latter is called upon, and vice versa. It's a cosmic unfairness, but not an actual one: history does not owe it to us to bend itself to our talents. But that doesn't mean we can't sympathize with the people caught on the wrong side of history's weave.

With respect to Parker, the heat she's taking -- and rightfully so -- is about the profound silliness and tone-deafness to focus on this now. The juxtaposition of a failure to maintain a certain sartorial standard against "our own little autocrat" underscores its own ridiculousness.

The thing is, perhaps there was a time when this sort of commentary would be appropriate and make sense. I don't agree with Parker on the merits anyway, but maybe if it were the 1990s there would be valid space for this sort of fashion-commentary to be a part of our political discourse. Or perhaps not. I was pretty contemptuous of the journalists salivating over taking a piece out of "earth-tone" Al Gore, and Jonathan Chait ten years ago delivered the fatal knockout punch to Sally Quinn's dewy reminiscence about the days of Georgetown Dinner Parties solving our all political crises. Maybe politics is always too serious for this sort of commentary to be anything but a juvenile distraction.

But if things aren't always too serious, well, they're too serious now. And that means that, sadly for Parker, the skills she brings to the table are just not suited for the moment we're living in. It's unfortunate for her, and again, I do feel for her a little bit. But history is not going to bend to accommodate her on this.

ACS Oversights and the Unconstrained Court

In the Atlantic, Caroline Frederickson, until recently head of the American Constitution Society, proffers a "mea culpa" for the ACS generally not during her tenure focusing on economic issues. Over at PrawfsBlawg, Paul Horwitz ventures several guesses as to what caused this longstanding oversight in the ACS' prioritization.

Without challenging any of Horwitz's explanations, all of which are plausible, I'll offer one more: the ACS, like most liberal legal institutions of its era, focused on issue areas where the judiciary would intervene to stop bad actions by other branches of government. On gay marriage, for example, the liberal focus was on judges striking down legislative prohibitions on same-sex marriage. On policing the goal was for judges to hold accountable instances of officer brutality and abuse. On gerrymandering the idea was for judges to invalidate imbalanced or unfair maps. In all of these cases, courts are in an antagonistic posture to other facets of the government and intervene to in some thwart or ameliorate some policy or practice implemented by another branch.

From this vantage, "economic issues" would not have been seen as a natural fit for an organization like ACS. From a template of judicial intervention against other branches, liberals still labor under the ghost of Lochner which holds that judicial overrides of democratic decision-making in the economic realm, in particular, is the sine qua non of illegitimate judicial activism.

Of course, in many cases the liberal desire out of judges in these economic realms (like competition policy and anti-trust) is for judges to stay out of the way and let the democratic or administrative branches do their thing. But here a different bias or blindspot of groups like the ACS emerges: the assumption that liberals don't need to urge the courts towards judicial restraint. Even as the conservative takeover of the judiciary marched along, liberals tended to react to it with dismay that courts might not intervene in areas where liberals believed they should. They wouldn't strike down gay marriage laws, they wouldn't curb abuses of post-9/11 surveillance, they wouldn't combat partisan gerrymandering. Some of these concerns proved prescient, others didn't pan out. But the framing was still in terms of seeking judicial intervention. Restraint was taken for granted.

It took a long time for liberals to fully grok the threat of judicial conservatism not manifesting as too much restraint, but of a complete lack of restraint -- a counter-activism. There were plenty of warning signs that liberals should be worried. But old habits die hard. For example, surely one of the most important liberal legal victories of the past two decades was the Supreme Court upholding Obamacare. Yet Frederickson did not say, and I think most legal liberals still would not say, that one of ACS' priorities either is or should have been "health care". In terms of judicial intervention, health care is seen as an inappropriate, Lochner-esque subject. And in terms of judicial restraint, well, liberals took judicial restraint for granted.

Now, finally, this ingrained presumption is cracking. We are in an era where the conservative judiciary's primary sin is not at all taking restraint too far, but its indulgence in wild interventionist non-constraint. In this epoch, where Chevron and the entire administrative state are under siege, where First Amendment Lochner-ism is roaring back to life, it becomes absolutely essential for liberals to reassert boundaries on judicial arrogance. And so now there is a lot of room for a group like ACS to make economic policy a priority. Today, efforts to shore up the vitality of administrative bodies seeking to police the economic realm isn't a redundancy, but a dire necessity.

When I first started teaching constitutional law, I spent a lot of time trying to pour some cold water on my liberal students' Warren Court idealism and have them consider the risks of judicial activism and the virtues of democratic deference. This was not so much because I was especially inclined towards judicial restraint or minimalism, but rather because the entire concept that courts shouldn't be vanguards of social change was effectively alien to the average student such that the only way I could give them anything new was by trying to at least partially counterbalance the narrative. In 2023, it has become less necessary for me to explain the perils of unconstrained judicial intervention and the dangers of an activist court; now, to some extent, the counterintuitive pitch I have to make sometimes is to explain why and how courts can still be useful forces for good in the world.* But the point is that the conventional wisdom amongst liberals is finally stopped viewing restraint and democratic deference as something they are entitled to on demand. In a world of rampant conservative judicial activism, there is a lot more space for legal liberals to pay attention to the economic realm. 

* Though I will say that I'm surprised, in a world where Brett Kavanaugh is the median SCOTUS vote, just how resilient my students' faith in judicial interventionism remains.

Shana Tova, Jewish Traitors!

As part of his holiday greetings, Donald Trump wishes a happy new year to, and I quote, the "liberal Jews who voted to destroy America & Israel".

Again, that is a direct quote:

Former U.S. president Donald Trump launched his latest broadside against liberal Jews — while wishing them a happy Rosh Hashanah.

“Just a quick reminder for liberal Jews who voted to destroy America & Israel because you believed false narratives!” read the text of the image Trump posted Sunday night, near the end of the holiday marking the Jewish new year. “Let’s hope you learned from your mistakes and make better choices moving forward! Happy New Year!”

This man is an antisemitic menace. 

Image above taken from this Times of Israel article, captioned "‘No way’ six-point star in Trump tweet was sheriff’s badge, white supremacist says."

Things People Blame the Jews For, Volume LXVIII: Thunderstorms in Tunisia

 

Today's entry will not be the first in the "Jews control the weather" subseries. It is only the latest. Tunisia's president, Kais Saied, has blamed the damage caused by a recent storm on a Zionist conspiracy. The proof? Well, "Daniel" is such a Jew-y name:

Tunisia's president on Tuesday blamed the destruction wreaked by the deadly storm which devastated North Africa in early September on Zionist infiltration and "attack on the mind and thought” as evidenced, he claimed, by the fact that it was named after the “Hebrew prophet” Daniel.

The president, in a sort of a "greatest hits" compilation, also has played an adaptation of the "migrant caravans"/"great replacement" charge,

Saied also made statements reminiscent of the antisemitic conspiracy “great replacement theory.” Speaking to his National Security Council on February 21, Saied claimed that “there is a criminal arrangement that has been prepared since the beginning of this century to change the demographic composition of Tunisia … There are parties that received huge sums of money after 2011 in order to settle irregular migrants from sub-Saharan Africa in Tunisia.”

The goal of the project, he said, after changing the demographic structure of Tunisia, was to continue on, infiltrating Europe and making it Black.

How nice to see that particular trope crossing international borders. (Cut to Mort Klein sweating furiously as he tries to decide whether Saied is an antisemite or his new best friend). 

What Good is "[Anti-]Zionism"?

For the Third Narrative blog, I was asked to answer the question "is anti-Zionism antisemitic?" But, not having a death wish, I kind of traversed the issue. The better question, I think, is "what good does the word '[Anti-]Zionism' do in most contemporary practical debates about Israel?" And the answer, I think, is "not much".

From the conclusion:

For the “Zionists,” framing contemporary controversy as questions of Zionism vs. anti-Zionism dramatically raises the stakes of basic political disputes, making anything and everything a matter of existential survival. For the “anti-Zionists,” the ambiguity behind the term “Zionism” is regularly exploited as a mechanism of exclusion; they smuggle in broad-based attacks on the Jewish community as a whole while pretending to target only a narrower band of reactionary conservatism. Neither maneuver has lent itself to salutary debate over justice in Israel and Palestine. So perhaps it’s best we find a way to move past it.

The Right Not To Keep and Bear Arms

Earlier this month, a district court judge upheld a West Virginia statute which required private property owners to allow guns to be locked in employee or customer cars while in a parking lot (h/t: Volokh). The court rejected general property-rights and expressive association challenges to the statute. One argument it did not consider, however, is that West Virginia's law might violate the Second Amendment as interpreted by Bruen.

At first blush, this may seem to be a strange argument (which is probably why it wasn't made): this is a law expanding gun rights protections; and Bruen concerns attempts to restrict gun rights. But on closer inspection, I think it is quite likely (contingent on the historical record) that laws like West Virginia's violate the Second Amendment as that provision was interpreted in Bruen.

Start with first principles. Bruen, along with the other members of the "Roberts Trilogy" on guns, was emphatic that the Second Amendment is not a "second-class" constitutional right. And a critical component of other constitutional rights is that they all contain a robust negative component. The right to free speech includes the right not to speak (this is the locus of the "compelled speech" doctrine). The right to free association includes the right not to associate. The right to freedom of religion includes the right not to profess religious belief. And so, by extension, it seems evident that the right to keep and bear and arms includes a right not to keep or bear arms on one's own property.

Once that observation is made, then West Virginia's law plainly implicates property owners' Second Amendment right not to "keep" arms on their property. At that point, Bruen insists, the only question courts are permitted to ask is whether or not the law in question has historical analogues dating from the enactment of the Second and/or Fourteenth Amendment. I won't claim to have canvassed the history exhaustively, but my sense is that there aren't such laws (there certainly were plenty of laws protecting an individual's right to keep arms on his or her own property, but it doesn't seem like there were many laws which expressly forbade property owners from prohibiting arms on their own property). This is especially noteworthy because this is not a "novel" Second Amendment situation -- the issue of allowing property owners to forbid guns on their property was perfectly cognizable at the time of the framing, it is not an issue that only later sprang into existence based on some social or technological development. So if the historical record doesn't turn up a pattern of state laws akin to West Virginia's, then West Virginia's law must be struck down.

To be sure, West Virginia could argue that its law strikes a reasonable balance between the interest of gun owners being able to keep and carry their own arms for self-defense, and the desire of property owners to keep guns out. After all, the gun owner who wishes traveling in the public with his weapon will be significantly deterred from doing so if they're not even permitted to keep their gun locked in their car the moment they enter the parking lot of the "wrong" business or enterprise. In practice, a world in which gun owners can't enter even a parking lot with their guns locked in their car is one where they are significantly limited in their ability to travel anywhere with guns. 

But while this argument might have considerable purchase under traditional "balancing" review, Bruen expressly forecloses that sort of inquiry. As the Court emphasized, the Second Amendment's historical test is "the very product of an interest balancing by the people." History is what sets the "balance"; any additional weighing of policy considerations is impermissible. Ultimately, West Virginia's concerns that private limitations on gun possession may spillover to lessen the prevalence of guns is no different than New York's worries that striking down its gun control measures will result in too many guns on the streets. At root, West Virginia seeks to intrude on the Second Amendment in order to effectuate its policy judgment favoring more guns. A state like New York seeks to intrude on the Second Amendment to have fewer guns. Either state may or may not be correct as a matter of policy; but under Bruen both states' arguments must fall on deaf ears.

Nor can West Virginia's statute be defended as a means of securing the Second Amendment from infringement. Just as the First Amendment does not create an interest in forcing a newspaper to publish your op-ed, the Second Amendment protects against government infringements, not acts of private individuals. The only germane Second Amendment interest here -- the only actor threatened by government impingements -- is the negative interest of property owners who wish not to keep and bear arms on their property. Admittedly, cases like PruneYard do suggest that in the First Amendment context some government regulations protecting speakers on private property may be permissible, notwithstanding the property owners' own interest in declining to speak. But leaving aside whether that extension should carry to a law like this (West Virginia's attorney general made this argument; the court did not end up addressing it) under First Amendment balancing tests, it does not carry any weight under the Bruen regime, which again boils the question down solely to an inquiry into history. If West Virginia's law has proper historical analogues, it survives. If it doesn't, it doesn't, no matter how strong the policy argument in its favor may be.

Of course, we've already seen courts bend the "no policy" principle of Bruen when policy arguments seem to favor increased gun access, and it's entirely possible we'd see a similar move here as well. This is especially so since the "negative Second Amendment" idea the argument hangs on -- while I think one that has to be correct as a matter of constitutional interpretation -- is a bit novel and certainly cuts against the grain of what we expect the Second Amendment to do in cases like this. Nonetheless, in theory Bruen both gives and taketh away -- there will be times when Bruen strikes down even well-warranted laws and times when it upholds repellent ones. West Virginia's law strikes me as a good example of an enactment that is absolutely defensible as a matter of policy, but which probably cannot withstand Bruen's harsh review. The only question, as always, is whether Bruen's goose will ever apply to its gander.

One other thought: If you're looking for a viable progressive "bounty" program to counter the shenanigans anti-abortion activists are pulling in Texas, this seems like it could set one up.

1. Write an ordinance that says guns are forbidden on private property unless consent is granted by the owner (an "opt-in" rule). These laws are being challenged, but I genuinely think they should survive constitutional scrutiny because all they do is establish a default rule, and for the reasons stated above the Second Amendment doesn't protect the right to bear arms on others' property.
2. Create a civil cause of action for violating the ordinance.
3. Add in all the abusive nonsense that Texas pioneered (no governmental enforcer, anyone can sue anyone, imbalanced attorneys fees, and so on).
4. Lie in wait for anyone who pulls into a Wal-Mart parking lot with a gun in their trunk, and have at them.

To be clear: I think a law like this would be terrible and destructive, notwithstanding my own views on guns. These "bounty" laws are recipes for chaos. But to the extent that the only way we'll see them curbed is by showing that they'll exact costs on both political camps, I offer it as a way of establishing deterrence: mutually assured destruction.

To Infinity and Beyond

Well, I bought an Xbox. And Starfield. Basically, I've decided to write off the rest of the month of September (at least). Wish me luck!

[Very early thoughts: It's definitely overwhelming to begin. I'm a semi-Bethesda veteran -- yes to Skyrim, Oblivion, and Morrowind, but no Fallout -- and I'm not sure if that experience is truly helping me. There's little question the game overwhelms with menus and options. Already, the ship-based portions of the game are far more involved than I anticipated (contrast a game like Mass Effect, where your ship is basically a glorified fast travel nexus). Planetside traveling is extremely difficult to navigate because the local area maps are truly terrible. But the scope of the game already feels breath-taking, and it does feel like the sort of game where once you get past a somewhat-stiff learning curve, it will be worth your while. I'm excited!]

Vivek Ramaswamy: I Didn't Know My Host Was Antisemitic Until After I Made My Own Antisemitic Statements

Upstart GOP presidential candidate Vivek Ramaswamy has come under scrutiny after appearing on an antisemitic podcast (the host has said, for example, that Jews "own almost everything" and that we pay Black celebrities to attack White people).

Ramaswamy's campaign has defended him by saying he didn't know the host's views on Jews prior to coming on the show.

Problem #1 is that, given Ramaswamy's campaign is built primarily around "anti-woke" hysteria that's shot through with antisemitism, it's inevitable that the waters he swims in will regularly include antisemites. This was not bad luck. Scratch an anti-woke extremist, and it's a very good bet you're going to find an antisemite.

But larger problem #2 is that Ramaswamy decided to give his own antisemitic riff on the podcast. Responding to the fact that he was a recipient of a Soros Fellowship (sidenote: LOLOL), Ramaswamy took pains to distinguish Paul Soros (the funder of the fellowship) from his brother George Soros. What's the difference, you might ask? Answer: George Soros is, according to Ramaswamy, “the bogey man pulling the strings.”

Subtle! And to think Ramaswamy belted out that dogwhistle foghorn without even knowing his host was an antisemite too! It's so nice when things work out.

Media Alt-Centrists in Disarray

 

When I first saw this Tweet (Xeet?), my eye was drawn to "Dems should pursue working-class voters of all races." It's a great example of something that is simultaneously (a) alt-center conventional wisdom and (b) utterly inane. What are the sorts of policies Dems should pursue to working-class voters of all races? Answer: the ones they're already supporting! 

The difference between talking and delivering. pic.twitter.com/mb6bp65eKV

— Joe Biden (@JoeBiden) August 31, 2023

Price negotiations for prescription drugs is a great, obvious example of a policy that's geared to the interest of working-class voters of all races. Standing with the incipient wave of labor mobilization is another. The infrastructure bill was yet another. All of these are centerpiece items of the Democratic Party's economic agenda. But the alt-center punditry acts as if they don't exist. The "advice" on offer is "do what you're already doing, but make me pay attention to it." And one cannot help but think that the price the pundits have put on "make me pay attention to it" is "stop distracting me by also supporting policies that are distinctively to the benefit of specific historically marginalized communities."

At the same time, there is a separate vapidity in the "advice" that Biden shouldn't run for reelection. Again, as advice this is just terrible: Biden has a proven electoral track record and has already beaten Trump once. There's no universe where a chaotic primary free-for-all would actually be healthy for the Democratic Party or the broader prospect of ensuring that Trump or any of his lackeys stay out of the White House. The desire for "a real primary" is just thinly-disguised thirst for the good old days of "Dems in disarray" and the chaotic intraparty knife fights that aren't happening on the GOP side because virtually all of Trump's "challengers" can't help but cozy up to him (with a not-so-subtle wink to the various factions within the Democratic Party whose definition of a "real primary" excludes any primary where their preferred candidate doesn't march to victory).

Finally, "faculty lounge" politics is also a meaningless phrase. If it's meant to refer to the notion that Democratic party politics take their cues from whatever petition is currently being passed around the Wesleyan anthropology department email list, it's delusional. If it's meant to be a general referent to so-called "culture war" politics, then it's horribly outdated -- we are long past the days where the main "culture" wedge issues favored Republicans over Democrats. Republicans are getting absolutely blitzed on reproductive rights as their radical campaigns to imprison, maim, and murder women are predictably reviled. And their anti-LGBTQ agenda doesn't fare much better. Democrats have a lot of room to punish Republicans for their extremism here, and absolutely should.

Biden should run for reelection, and in the process will no doubt trounce token primary opposition. He should promote his policies which will improve the lives of working class voters of all races, and he should absolutely torch Republicans for their unabashed extremism in desiring to take American "culture" back to the 19th century.