Scalia: A Failed Democracy

Via D29, an argument from the late Antonin Scalia:

[W]e got to U.S. v. Windsor, the controversial 2013 case in which a 5-4 majority struck down the Defense of Marriage Act (DOMA).... Justice Scalia had written a blistering dissent in the case, taking the majority to task for agreeing to hear the matter in the first place. “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case,” he had written.

Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

It was a good question. The procedural history of the case was utterly bizarre. President Obama had instructed the Department of Justice not to defend DOMA from constitutional challenges because he believed that the statute was unconstitutional. Yet at the same time, the president had instructed other executive agencies, including the Internal Revenue Service, to continue enforcing DOMA’s provisions...

I asked Justice Scalia whether, notwithstanding Windsor’s limited precedential value, the threat to the separation of powers from “executive non-enforcement” had grown critical. In the wake of Windsor, had it become easier for the president not only to decline to defend laws that he found objectionable, but to decline to enforce laws that he found objectionable? ... Was there any basis, I asked, upon which the Supreme Court might rule on the constitutionality of executive non-enforcement?

It all depends on Congress, Justice Scalia responded—and “if Congress doesn’t do its job and challenge the president,” he said, “what we have is a failed democracy.” The blow landed. The room fell silent. The moderator called for a break.

There is some speculation, in the wake of his death, that the Supreme Court might "just disappear" as a Constitutional organ. Frankly, I think that would be for the best: its current role as a rolling committee of 9 with the power to amend the Constitution at will has not been good either for the stability of the Republic nor the liberty of the People. There is no reason to believe that the Court will amend its ways, especially not if it obtains a fifth liberal vote. In that case, we can expect to see the Constitution rapidly rewritten so that conservative views are firmly declared to be not only illegal but unconstitutional. It is a road we have already come down a long way.

A restrained Court could play its much more limited constitutional role wisely, but the wisdom resides in the limitations. The Court always runs the hazard of deciding questions one way for the whole of a very diverse nation. To the degree that it does so in "controversies," there is a kind of instability built into the use of the judicial power. The several states can agree to disagree. Citizens who care deeply about a controversy can move to a state that resolves it in a way they find agreeable. Every time the Court undertakes to solve a question once and for all, it damages our Republic's stability by forcing a minority -- sometimes a majority -- to accept that their views are illegitimate and may not be considered by any legislature.

There have been a small number of controversies in our history where such a radical approach was justified. Even in these cases, the use of the power is not guaranteed to result in a wise or just outcome. The Court decided to resolve one such question with Dred Scott.

Can Congress stand up for itself, and reassert its proper role? Would the Court, lacking Scalia, affirm their rights if it did? Or are we already past the gate described in these remarks?

What A Shock

The "Guns at the RNC" petition was started by... a Clinton supporter. I'll wait while you pick your mouth up off the floor.

The thing is, I wouldn't mind at all allowing permit holders to carry at the convention or most anywhere else. This was intended as a "satire" aimed at making us look like hypocrites, but really, there's no hypocrisy to be had on this issue.

That's how I knew this was a false-flag -- it's the kind of petition someone would write who fell for the "NRA bans guns" hoax. There are only two reasons guns aren't going to be at the RNC, and neither of them is amenable to a petition. The first one is the Secret Service, and the second one is the insurance concerns of the property owner.

Cruz / Fiorina?

I liked Fiorina more and more the more I saw of her. Her record isn't impressive, but the job of Vice President is just to spend one's full time training to become President. I could support a VP candidate who lacked the record that a Presidential candidate should have, especially when the Presidential candidate is as young and healthy as Cruz.

So far she says there's no deal, but perhaps there will be one.

National Border Patrol Council: Trump, Please

Effectively a union for Border Patrol agents, this endorsement is surprising. They normally do not endorse candidates, for one thing. For another, it's Donald Trump they're endorsing, not just a Republican but the official choice of Worst Republican To Be Hated Most this year. I find it amazing that a public-sector union would endorse a Republican at all, let alone one so thoroughly painted as a racist hatemonger.

Clearly they are tired of the status quo on the border.

NYT: How About Some Frank Talk, Obama?

It's as if they don't trust him to just do whatever he wants without the approval of Congress or the American public.

When did that start?

In any case, here's a decent book on the subject. You'll recognize some of the authors.

Son Ain't Smart

But you don't have to be smart to be right.

Speaking of Tribalism...

Scottish Jews have their own tartan as of now. This has apparently been in the works for centuries.

The tartan, featuring distinctive tones of navy and burgundy, is a kosher non wool-linen mix which abides by shatnez - the Jewish law prohibiting the mixture of wool and linen in garments.

Religious experts and tartan authorities worked together to come up with a design that represent both Jewish values and Scottish history.... The tartan design features blue and white, the colours of both the Israeli and Scottish flags, with the central gold line representing the gold from the Ark in the Biblical Tabernacle.

The silver is to represent the silver that adorns the Scroll of the Law, while the red depicts the traditional Kiddush wine.

There are seven lines in the central motif and three in the flag representations - both numbers of great significance in Judaism.

So now you know.

In addition to family/tribal lines, Scotland has a number of universal tartans that Jews could have always worn (although I don't know if they abide by kosher laws about mixing wool and linen). There are also tartans for districts, including a number of American states. Georgia's is particularly meaningful given the early history of Scottish Highlanders in making the colony of Georgia a reality in the face of Spanish aggression.

"Double Standard"

There's a small problem with this analogy, in an article on the relationship between a particularly violent strand of hip-hop music and Chicago violence which came across my desk this morning though it was originally published in December of 2014. The murder rate in Chicago is at its all time high now, so the problem the author is discussing has only worsened.

In 1956, Johnny Cash released his classic song “Folsom Prison Blues” in which he stated, “I shot a man in Reno just to watch him die.” For those of you familiar with this song, ask yourself, “Have I ever felt like killing someone after listening to this?” The obvious answer, of course, is no. Yet, there seems to be a double standard when it comes to hip hop and its new found sub-genre, drill music.

The difference between the Cash song and the songs to which you refer is the absence of tribalism. Johnny Cash's song is about a loser who is all alone in the world, having rejected the mores of his family and his society. He is locked in a prison where there must be people all around him, but none of them are mentioned. The only other people in the song -- aside from his Mama and the man he killed in spite of her advice -- are people he can only imagine, doing things he longs to do in a space forever forbidden to him. He doesn't even really long for fellowship with them. He doesn't imagine himself in the dining car with them, 'drinking coffee and smoking big cigars.' He just wishes he could drive the train. He pictures himself there, in a role he knows he can never inhabit, moving the train away from lonely Folsom Prison.

That's not what's going on with this other music. This music is asking you to imagine yourself as a member of a tribe, a soldier of the tribe, standing up proudly against others. It's a very different logic. Killing in the one song is the Fall. Killing in the other is a source of power, pride, position. Read the lyrics the author quotes as exemplary for the proof of this.

A subsidiary argument blames the broader society for both the rise of the music and the actual violence associated with it:

If you were to take a look at a timeline of events in the Chicago, you’d see that drill music came to fruition as the city began its aggressive redevelopment of public housing. It was an initiative called The Plan for Transformation. In a nutshell, the “plan” was to completely demolish all of the project housings in Chicago and replace them with remodeled updated apartments. However, in doing so, tens of thousands of Chicago’s poor residents were displaced and forced to move into other nearby, crowded and impoverished neighborhoods. When this happened, rival gangs became closer to one another. Sub-gangs also began forming within existing gangs, creating infighting. For years, this problem continued to go unrecognized and unchecked.

In 2012, Chicago took the national stage due to its unprecedented level of gun violence. By the end of that year, Chicago officially became murder capital of the United States.

There's probably a causal factor to be found there, too. It is the property of guilt, however, that it can be divided without being lessened.

Crumbling

The Clinton campaign says there will be no more debates unless Sanders stops being so negative about her.

Sanders is negative about her? She's been in national politics for twenty years. He's the most courteous opponent she's ever had.

Meanwhile, a writer at the Huffington Post says that she should concede the contest.

Yes, federal prosecutors will interview Hillary Clinton, in addition to her close associates.

At what point will establishment Democrats admit this fiasco is horrible for a general election?

When federal prosecutors are interviewing your candidate for president, even Donald Trump has a good chance at the White House.

Furthermore, former U.S. attorney general Michael Mukasey believes A Criminal Charge is Justified. Former Obama intelligence official Lt. Gen. Michael Flynn says that “If it were me, I would have been out the door and probably in jail.” Former NSA director Michael Hayden called Clinton’s email setup “stupid and dangerous.” Even Edward Snowden, the antithesis of America’s intelligence community in many ways, says it’s “ridiculous” to think Clinton’s emails were secure.

It’s time for Democrats to deal with reality, not just allegiance to a political icon, and rally around the only candidate not linked to an FBI investigation...

Also, nothing in the Rolling Stone piece endorsing Clinton mentions the ongoing FBI investigation. The Christian Science Monitor clearly states the nature of the FBI’s investigation, stating “The FBI is indeed conducting a criminal investigation into the possible mishandling of classified information on the private email server Clinton used for State Department communications.”

Yes, Hillary supporters, “The FBI is indeed conducting a criminal investigation.”

Another Dead End

Actual NYT Headline: "Who Will Become a Terrorist? Research Yields Few Clues."

Actual opening grafs:

The brothers who carried out suicide bombings in Brussels last week had long, violent criminal records and had been regarded internationally as potential terrorists. But in San Bernardino, Calif., last year, one of the attackers was a county health inspector who lived a life of apparent suburban normality.

And then there are the dozens of other young American men and women who have been arrested over the past year for trying to help the Islamic State. Their backgrounds are so diverse that they defy a single profile.

Actual Saturday Night Live skit from many years ago, when this line of argument was already a joke.

Governor Deal to Veto Religious Freedom

As expected, the governor has determined that liberty should be sold for profit.

“Our people work side by side without regard to the color of our skin, or the religion we adhere to,” he said. “We are working to make life better for our families and our communities. That is the character of Georgia. I intend to do my part to keep it that way,” he said. “For that reason, I will veto HB 757.”

That's a neat rhetorical trick. If it is the case that Georgians "work side by side without regard to... religion..." then the law would provoke no changes in behavior. The argument is that the law is not necessary because Georgians already freely do what it would free them not to do. This is framed as an act of tolerance and compassion. It is really an assertion that force may be used to compel Georgia's religious dissenters to comply with the opinion of the cultural elite.

What is really going on is that the law is going to require Georgians to work "without regard... to the religion they adhere to" by mandating them to do things that violate their faith. Religion will be forced out of the public space in these ways: if you want to make a living, you will violate your faith whenever you are required to do so by activists who hunt you down to make the point. The law will compel you.

Disney is happy today, and the Coca-Cola company. The governor has betrayed the basic mission of an American state, however. Protecting the liberties of the people is the whole reason this nation and its several states exist. Governor Deal's action is a disgrace to the United States of America and to the state of Georgia.

"Insufficient Attention"

From a story in the Washington Post:

From the earliest days, Clinton aides and senior officials focused intently on accommodating the secretary’s desire to use her private email account, documents and interviews show.

Throughout, they paid insufficient attention to laws and regulations governing the handling of classified material and the preservation of government records, interviews and documents show.

According to this frame, the only wrongdoing was paying "insufficient attention" to (ahem) "laws and regulations." Now, what do we usually call it when someone pays "insufficient attention" to a law?

I notice that the frame also maintains that "Clinton aides and senior officials" are the ones who are in the wrong. Clinton herself? She just has legitimate interests in being able to communicate efficiently that the aides are trying to accommodate.

Though a news story, it almost reads like an offer: take these "senior aides" as your sacrificial lambs, and leave the Great Woman Herself to float free.

The High Feast of Easter

Happy Easter to you all.

Tax All Foriegners Living Abroad

So went an old Monty Python gag.

The New York Times may have just as well used that instead of the their title for this piece: "In Donald Trump's Worldview, America Comes First, and Everybody Else Pays"

That headline is just going to do the opposite of what the Times intends.

A Bird for Bernie: Campaigns React

Nothing from the Cruz campaign, I notice.

Good Friday

Good Friday is a day about which I feel unqualified to write. I hope you may choose today to take counsel with a better authority. I only mention it to wish you well in a difficult hour.

For those with Jewish friends, today is also Shushan Purim, a holiday I had not known of until this morning. Purim I knew of, martial holiday that it is, but it turns out that there is a special variation of the date of Purim that really appeals to me:

Purim is celebrated on the Adar 14 because the Jews in unwalled cities fought their enemies on Adar 13 and rested the following day. However, in Shushan, the capital city of the Persian Empire, the Jews were involved in defeating their enemies on Adar 13–14 and rested on the 15th (Esther 9:20–22). In commemoration of this, it was decided that while the victory would be celebrated universally on Adar 14, for Jews living in Shushan, the holiday would be held on Adar 15. Later, in deference to Jerusalem, the Sages determined that Purim would be celebrated on Adar 15 in all cities which had been enclosed by a wall at the time of Joshua's conquest of the Land of Israel.

Allahpundit Has It Backwards

It's Trump who has to challenge Cruz to a duel. Otherwise, the charge of cowardice stands.

This is why dueling is useful, of course. Lots of men have big mouths. Not all of them have big... hands.

Salute to a Communist

Senator John McCain remembers a member of the Abraham Lincoln Brigade.

Namaste, Heathens

Kennesaw, Georgia is a trip.

A group of parents at a Cobb County elementary are upset over the school’s use of yoga and other mindfulness practices for students because they believe it endorses a non-Christian belief system.

School leaders at Bullard Elementary held a meeting recently with parents to address the “many misconceptions” over the issue...

As a result, the school is making changes. When yoga moves are used in classrooms, students will not say the word “namaste” nor put their hands by their hearts, according to the email. The term and gesture are often used as a greeting derived from Hindu custom.

When coloring during classroom teaching breaks, students will not be allowed to color mandalas, spiritual symbols in Hinduism and Buddhism.

I would wager heavily that the school's teachers don't understand the real Hindu customs or theology well enough to teach it if they had wanted to teach it. If they did, they'd understand that the suggestion that yoga has something to do with Hinduism isn't just some silly 'misconception.'



UPDATE: I win my bet. From the program founder's bio:

I consider Dr. Seuss one of my master teachers...

She really doesn't know what she's teaching. I looked up those yoga credentials, by the way. The Yoga Alliance, which seems to be the source for them, points out that they are not certifications -- they're just acknowledgements that she's in their registry, and they've tracked that she's taught 500 hours, or has registered as a teacher of children, or whatever.

The good news is that you can stop worrying about her rubbing any Hinduism off on your kids. The bad news, I trust, is obvious.

You Could Be A Rock Star In America, Too

Headline: "US Attorney Becomes Rock Star In Turkey For Arresting Erdogan’s Partner."

Exulting in Zarrab’s arrest, Turkish social media users had a field day mocking him and hailing the attorney.

Preet Bharara, US Attorney for the Southern District of New York, had only 8,010 followers before the Justice Department announced on Monday the arrest of Zarrab, a Turkish-Iranian businessman accused of evading US sanctions on Iran. The number of attorney’s followers on Twitter was skyrocketed to whopping 230,000 and it is rapidly increasing. His latest two tweets were shared nearly 60,000 times and liked by 85,000 people....

Bharara was lionized in Turkey largely because corruption suspects are deemed so “untouchable” that any prosecutor or police who go after them may lose their jobs or jailed and any journalist covering them may face prosecution or get fired.

I assure you that I stand ready to be as celebratory for the US attorney who brings Hillary Clinton to justice. Can we prove at home what we have proven abroad, that the law can apply even to the powerful? Or is that only for those who aren't powerful here?

UPDATE: McClatchy says that, like the FiveThirtyEight people who have to go on 'quests' to understand Trump voters, the People just don't understand the elite.

The people who spend two bucks for chili at the Courtesy Diner at Laclede Station Road can’t fathom why anyone would pay Hillary Clinton $225,000 to make a speech.

That's not true. Everybody knows why she was paid $225,000 for the speech. They're just too polite to say it out loud.