Balkinization  

Tuesday, August 12, 2014

Dana Milbank on the death of American optimism

Sandy Levinson

Dana Milbank has a column in the Washington Post about the death of American optimism about the future, based primarily on a Wall Street Journal/NBC poll of Americans.  "Thus, When asked if “life for our children’s generation will be better than it has been for us,” fully 76 percent said they do not have such confidence. Only 21 percent did. That was the worst ever recorded in the poll; in 2001, 49 percent were confident and 43 percent not.."   As one might expect given the percentages, pessimism cuts across class, racial, and ethnic lines, even if there are differences in the level of pessimism. " In other words, the gloom goes beyond wealth, gender, race, region, age and ideology. This fractious nation is united by one thing: lost faith in the United States."

What accounts for this?  There are, of course, many potential explanations, including the slow recovery from the Great Recession.  But Milbank writes at he shares the belief of Fred Yang, one of the pollsters, "that something deeper is also at work: Americans are reacting, in part, to the breakdown of the political system, which leaves people quite rationally worried about American decline and the nation’s diminishing ability to weather crises."  Needless to say, I agree, but, perhaps also needless to say, is that Milbank, like almost all of his fellow pundits, resolutely refuses to connect the dots between the "breakdown of the political system" and the constitutional order imposed on us by the 1787 Constitution, as insufficiently amended. So the question is how much longer can references to "the breakdown of the political system" avoid any mention of what in major ways constitutes the basics of that system, i.e., the Constitution? Or let me put it this way:  If I am correct that most readers of Balkinization (including lurkers) share the sense of pessimism--if they do not, that itself would be fascinating and worth independent study--how many of them believe that the Constitution will prove to be a net positive force in making things better over the next, say, two decades, as against a cause of further despair?  It is possible, of course, that one could rationally believe that the Constitution makes no difference at all, one way or the other, that Marx (or anyone else you might put in his place) was right in viewing constitutions as merely epiphenomenal  on what is really important, whether it's the economy, stupid; our falling away from religion; the sheer force of globalization and the ever greater competition for limited resources, or what have you.  But that view, at least, means that we can stop praising the irrelevant Constitution, which would be an improvement over venerating it, at least as far as I am concerned.


Comments:

Again, the political system is breaking down, not because of the 1787 constitution, but because the work-arounds intended to circumvent that Constitution have reached the point where we no longer enjoy the advantages it brought. But instead suffer under the side effects of those work-arounds.

We have a constitution written to provide limited government. We require all public officials to obey it. AND, we live under the Leviathan. This requires that we be governed by oath-breakers. It requires enforced, systematic dishonesty.

You can have honest government under the leviathan, with a leviathan constitution. It's not guaranteed, but it's possible. You can have honest government under a limited government, with a limited government constitution. Again, not guaranteed, but possible.

But if you have a leviathan government, and a limited government constitution, you're screwed. Such a government cannot be run by honest people, because it is not honest to run such a goverment under such a constitution.

You need people who are willing to read the interstate commerce clause, and regulate intra-state non-commerce.

You need people who are willing to read the 10th amendment, and then exercise undelegated powers.

You need people who are willing to read the double jeopardy clause, and retry people for offenses they've already been acquitted of.

You need people who are willing to read a limited government constitution, and run a leviathan. Those are the people we are governed by today, and whose dysfunction you blame on a constitution they hold in utter contempt.
 

I do not share Brett's libertarian views, but I agree with him that the failure to obey the Constitution is a greater problem than its structure. Congress has allowed the President to become a dictator, permitting him to declare war, to imprison people without due process, to torture people, to assassinate people with drones, and to wantonly spy on people in violation of the Fourth Amendment and the right to counsel. The Supreme Court has played a role too, by gutting the right to vote and the guarantee against cruel and unusual punishment, among other things.

Question for Brett: I am unaware of violations of the Double Jeopardy Clause; would you provide examples?
 

I noted on another thread at this Blog Curtis Wilkie's NYTimes article today "The South's Lesson for the Tea Party." Consider this paragraph:

"The [Tea Party] movement’s success, with its dangerous froth of anti-Washington posturing and barely concealed racial animus, raises an important question for Southern voters: Will they remember their history well enough to reject the siren song of nativism and populism that has won over the region so often before?"

Brett's veneration of the Constitution - as he understands it - is reflected by the demagoguery described by Wilkie, who, by the way, has ample Southern creds, a Constitution that was flawed by its provisions locking in slavery (without mentioning slavery or slaves). And the demagoguery continues to this day, contributing to any political dysfunction we have today. As has been pointed out on many, many occasions by Joe, Brett is most selective in his reading of the Constitution. Brett is a 2nd A absolutist AND a self-proclaimed anarcho-libertarian who thinks the Constitution via the 2nd A supports revolution by non-regulated, non-state militia. Perhaps he is "honestly" chafed that the central government will regulate his garden of heirloom tomatoes and bitter melon as well as his irrigation via the nearby creek. Alas, it is merely his chronic Wickburn flaring up once again. And a constitutional convention "controlled" by his "side of the aisle" will not provide a cure.
 

Seems to me that economic changes are more likely as explanation: disappearance of pensions, job security, falling incomes for most of the employed population, rise of short-term contract employment, etc. Structure of and obedience to the constitution seems unlikely to be an issue (or set of issues) for most people. Law faculty and lawyers are not the center of the country.
 

I question Henry's use of the President as a dictator. Perhaps in context he is referring to the office of the President and not just Obama. Regarding violations of "the right to counsel," I assume that Henry is aware that traditional GOP conservatives as well as the Tea Party have attacked the Warren Court on its decision in this regard. I'm not in disagreement with much of what Henry said, however. At least the Congress and the (Office of) President are elected whereas the Court is not but can be political. But dictator is too strong.
 

UNKNOWN makes an excellent point in his first sentence. And I enjoyed his/her second sentence's Copernicus/Galileo-type observation.

I semi-retired from the practice of law around Labor Day of 1998. To keep busy I started auditing courses at a nearby large university in its "senior" program. Up to 9/11/01, I thought the young students in the classes I audited had the world on a string. But this changed with tax cuts primarily for the wealthy, two wars that were unpaid for, and the Great Recession of 2007-8. When college grads can't get meaningful jobs, they may have difficulties paying off student loans, especially with their families also having economic/financial issues. Over several decades college costs have gotten out of hand, promoted by student loans that increased as a result. Some of the conclusions pointed out by Milbank became obvious to me in the mid 2000s as I continued my auditing and observing my young, innocent classmates most of whom were paying full freight, increasing their student loans in response to continuing increases in tuitions.

Back in the early 1950s I was "introduced" to Kurt Vonnegut's first novel, "Player Piano," which i have re-read several times over the years. The story was set in the future in America when the goods and services required by the populace could be provided by a few workers, the managers (MBAs) and engineers plus mucho automation. The large non-working populace were provided with their basic needs. They had comfortable living quarters, good food, electronic - and other - entertainment, etc. But they didn't have jobs to structure their lives. So the plot has a manager who came from a family of managers who was in an unhappy childless marriage revolt from the system. At the same time non-working populace were also revolting.

Are we in a Kurt Vonnegut dystopia what with the advances in technology over recent decades with increases in productivity such that many even well educated serve in meaningless jobs (if they are lucky)? Will costly higher education fostered by increasing student loans bring about a rebellion? These are gut questions. Some economists (including my favorite Paul Krugman) dispute this. I hope they are right.
 

Like Shag, I agree with Unknown that economic changes (particularly the widening gap between the rich and poor and the government's favoring, if not being controlled by, the rich) are the main causes of the death of American optimism. I didn't mention economics in my prior comment because this is a legal blog and Professor Levinson's post is about the Constitution's role in the problem.
 

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I have this idea that the blog gives Prof. Levinson a chance to vent and take his remarks in pieces like this in that fashion. We don't have an "irrelevant Constitution" even if its limitations in practice (we aren't demigods -- didn't slavery alone show this?) warrants less worshiping. We are going thru some struggles in recent years, but again, you have to provide perspective. When same sex couples, e.g., have to deal with modern economic struggles, they can do so in growing numbers in marriages with more rights and benefits than they ever had before. Thanks in part to the constitutional structure in place.

Congress has allowed the President to become a dictator, permitting him to declare war, to imprison people without due process, to torture people, to assassinate people with drones, and to wantonly spy on people in violation of the Fourth Amendment and the right to counsel. The Supreme Court has played a role too, by gutting the right to vote and the guarantee against cruel and unusual punishment, among other things.

As George Bush notes, being a dictator might be easier, but the President is a rather lame dictator given all the strings he has to deal with and the hoops and blockages to his freedom of action.

I do think -- as has happened over two hundred years -- events open the way for abuse. Congress "allowed" presidents for hundred years to mistreat Native Americans in various cases & gave them free range to fight them. When Madison, as I recall, wanted instructions on how to handle Barbary pirates, Congress gave him mostly free reign. In the past, Presidents had if anything MORE discretion given Congress not being in session much of the time, communication and transportation limitations and the like. This is just one thing from the list.

It would belabor things to go down it, but "gutting the right to vote" is not new. Anyway, I think the blame is woefully incomplete. WE THE PEOPLE ultimately let these things happen -- however we want to label them -- including via our state representatives. That is a big reason why the term "dictator" is so lame.

These things cannot realistically in this country be handled by one person. It is not. The complications might add to the cynicism -- how can we handle them? I'm perhaps somewhat naively optimistic -- various depressing things happened the last few decades. Some good things too though.

So, if Brett finds those who govern us contemptible, the true blame to me are the voters. They put them there. I don't hold them in as much contempt and don't agree with his analysis repeatedly, though find a lot to blame. But, "We the People" ultimately have both the power and responsibility.
 

I agree with Shag, and add the political dysfunction. During good times, that political dysfunction doesn't obviously hurt, so people don't care so much.

But we've seen over a decade where the elites both f*ck everybody over, and have sufficient power that even electoral defeats are mere speedbumps.
 

Shag, I don't venerate the Constitution. As constitutions go, it's fairly nice, but I would have no trouble compiling a list of problems with it, some original, some resulting from early 20th century amendments.

What I "venerate" is the rule of law. The written Constitution, the one the states ratified, IS that law. We either follow it, amend it, or reject the rule of law.

We have rejected the rule of law, we merely pretend to still have it. And so we have all the difficulties inherent in government by lie, and by liars.

Henry, double jeopardy violations are fairly common now, due to the 'dual soverign' exception. You can be prosecuted under state law, acquitted, and then prosecuted under federal law for the same offense.

Not something which could happen were the 10th amendment being followed, as state and federal governments cannot, under the 10th amendment, both have soveriegnty over the same matter.
 

I appreciate btw the h/t to a piece on an interesting ruling regarding civil juries in Puerto Rico.

Application of the BOR in such areas, the complications of the Constitution as a whole really (e.g., given their ability to vote for the President) is an interest.

I realize the person doesn't read comments, but thanks.
 

Sandy:

You are asking questions you do not want the answers to.

The Constitution and its amendments as they were originally written are largely no longer in effect and have not been fully in effect for nearly a century. Thus, the 1787 Constitution could not be causing the current failure of our political economy and the American people's near revolutionary lack of faith in their government.

We now have a common law progressive constitution stripping away most of the checks and balances against the exercise of government power written into the original Constitution and permitting an expanding executive dictatorship directing an increasing measure of the economy and our lives. And like all progressive and socialist nations around the world, the United States is now in a state of economic, population and fiscal implosion.

THIS is why our citizenry has lost faith in America.

As I replied to your last post, we have to identify the problems before we can attempt to remedy them constitutionally.

The problem is that our progressive and socialist political economy is unsustainable as well as undesirable. Even if you want to trade your freedom away for a progressive and socialist political economy, it is becoming increasingly clear that this political economy simply does not work. It is not working here or anywhere else in the world.

The remedy is to stop running toward the cliff and reverse most of our progressive and socialist political economy by returning to a constitutionally limited government. I strongly suspect that this is not what you have in mind when you discuss constitutional reform.
 

Shag: But dictator is too strong.

Not at all.

During the Roman republic, their senate appointed temporary dictators to deal with national crises with the powers to ignore the laws of the Senate and to issue new law by decree. Currently, we have an elected president and an unelected bureaucracy exercising the same exact powers.

The temporary Roman dictators eventually became the permanent caesars and the Roman republic become the empire.

Those who ignore history are doomed to repeat it.
 

I agree with unknown. Bad economic times create pessimism. That's well-established. I'd just add that the political dysfunction makes it more difficult to solve the economic problems. In particular, the Republican party has both blocked the very remedies necessary and done its best to make matters worse.

Our present Constitution could work if we had a legitimate Republican party. If their insanity doesn't burn out soon, of course we'll need to change the structure to restore the ability to govern.
 

Yes, a lot of Democrats argue that the system would work just fine, if only there were two Democratic parties, with one of them calling itself a "Republican" party. Or maybe just a Democratic party, and a opposition party that went out of it's way never to oppose.

It's the dream of a one party state that looks like competative elections.
 

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Brett: Yes, a lot of Democrats argue that the system would work just fine, if only there were two Democratic parties, with one of them calling itself a "Republican" party.. Or maybe just a Democratic party, and a opposition party that went out of it's way never to oppose.

More often than not, the "Republican" party establishment grants the Democrats their wish.

The Democrats mostly offer the GOP "obstructionism" argument to rationalize to themselves and attempt to convince others that their progressive and socialist policies really are not failing and that the cure for any problems we have is even more government direction to cure the train wrecks caused by previous government misdirection,
 

Many REPUBLICANS have expressed annoyance at the current state of their party. These people don't just want to be Democrats, nor do wish to let Dems run unopposed.

An example of how they further bad government is ACA. They did work with Dems regarding amendments. So, no, it isn't just the Democrats' bill.

But, as noted in the past, after the bill -- more conservative because of Republican opposition and the filibuster -- cleared the first time, sane government would involve letting the bill be cleaned up as much as possible. Not use the filibuster because the Dems have one less senator in their majority.

This doesn't require Republicans to be Democrats. It doesn't require them not to vote against the final bill. If we want things to change, myopic vision is not the way to do it.
 

Concerning the nonconstructive conduct of the Republican party, perhaps some political reforms that don't require Constitutional amendment would be sufficient. The Senate filibuster should be neutered. Discharge petitions should be easier and treated as politically normal. The debt limit should just not exist.
 

I'm sure that by now even our dynamic dyslexic duo, Brat & Bert, are aware that today's Republican Party is not the Party of Lincoln; that a switch took place after Brown v. Bd. of Educ. and the resulting civil rights movement and Civil Rights Acts of the 1960s, whereby Democrats in the former Confederate/slave states became what is now the base of the current Republican Party; that the Tea Party became part of the Republican Party because there was no viable independent political party it could go to and be effective; that they shared something in common with the Republican Party's southern base. All this is covered in Curtis Wilkie's NYTimes article. Brat & Bert can try to deny this but they are "Whistlin' Dixie," the same tune as the Republican base. So Brat & Bert identify with the historical demagogueries of the South spelled out by Wilkie.
 

Shag:

The GOP establishment is the party of McCain and Romney - progressive lites who go along to get along.

The Tea Party voter rebellion against the GOP establishment is a national movement which will be reelecting Tea Party state governments and electing new senators who are at least campaigning as libertarian conservatives across the country this fall.

Do you remember just a few years ago when the Midwest used to be blue?

http://www.realclearpolitics.com/epolls/latest_polls/governor/

When NPR ran a bipartisan poll of likely voters in a dozen states across the country with endangered Democrat senators, 68% of Republicans and 45% of the Indis self identified Tea Party.

https://thecitizenpamphleteer.wordpress.com/2014/06/21/its-looking-like-tea-time-again/

Trying to equate the Tea Party with the old Democrat KKK is so 2010. You folks need a better slander.

Meanwhile, we will see you at the polls in CO, MI, WI, IA, NH, MA, etc, etc.
 

Our CO gasbag's "originality":

"Those who ignore history are doomed to repeat it."

may be modified, in his case:

"Those who are ignorant of history are doomed to repeat ignorant history."

Those "Big Little Blue Books" on history are unreliable.


 

There are many problems with today's Republican party, but the one which most affects the Constitutional dysfunction we see is it's behavior as a parliamentary party instead of an American one. There are too many choke points in the system for the government to function if one party violates the spirit of the Constitution that way. The long-term consequence will likely be either a much more dictatorial system or a change in structure.

The policy flaws of the Republicans are a whole nother topic, but not really the issue here except that they contribute to the public sense of unease by blocking the steps which would improve the economy.
 

Bart, RE: “The remedy is to stop running toward the cliff and reverse most of our progressive and socialist political economy by returning to a constitutionally limited government.”
That’s a nice rant, but you don’t provide any context for your statement. Maybe you would like to define exactly what you mean by “progressive and socialist political economy”.
Do you mean the recent Supreme Court ruling Citizens United which is in the process of allowing newly minted “persons”, i.e. corporations to flood elections with endless sums of cash.
Or are you talking about the many state governments, run by Republicans (definitely not progressive or socialistic) that are passing laws to make it harder for African Americans to vote? In the guise of eliminating voter fraud that has not be actually documented? Not very progressive or socialistic.
Or maybe it’s the tax cuts passed under George W. Bush that sent most of the money to already wealthy. Not progressive or socialistic by any definition.
Or maybe it’s major corporations like Wal-Mart that pay poverty level wages, knowing full well that it’s employees qualify for food stamps and in some cases Medicaid. And a federal government that has no philosophical problem with that.
Maybe you are comparing the US with some European countries that are truly progressive and/or socialistic. The comparison is inaccurate and disingenuous in my opinion.
 

Surely by now our CO gasbag is aware that " the old Democrat KKK" is now the base of the current Republican Party. While both McCain and Romney have demonstrated that they can be base, without the base of the former Confederate/slave states as augmented by the Tea Party, McCain and Romney's "establishment "branch - actually more of a twig - would quickly disestablish into a third or fourth rank political party. Yes, McCain and Romney are lites, but not progressive.

By the Bybee [expletives deleted], over at TPM Ed Kilgore's The So-Called 'Libertarian Moment' Is Engineered By The Christian Right," a follow-up to Robert Draper's NYTimes Magazine article on the "Libertarian Moment" is a good read. Query: Will libertarians work within the system (aka the Republican Party) or by revolution? Tom-Tom Tancredo, our CO gasbag's mentor, might take the latter with his recent urging to stock up on ammo.
 

Mark:

The Republic managed to govern itself and grew from a colonial backwater to the preeminent economic power in the world in a little over a century with the checks and balances of a bicameral Congress and a president.

Has it ever occurred to you progressive Democrats that the voters no longer buy the "moderate" or "conservative" Democrat brands and have rejected your actual policies?

This is a crisis of the progressive and socialist political economy, not one of the Constitution's separation of powers.
 

Meanwhile, we will see you at the polls in CO, MI, WI, IA, NH, MA, etc, etc.
# posted by Blogger Bart DePalma : 2:13 PM


In MA? What are you talking about? The GOP has no chance to win any congressional seats in MA.
 

Shag: Surely by now our CO gasbag is aware that " the old Democrat KKK" is now the base of the current Republican Party.

Hardly.

The KKK at its height was never more than a small fraction of the electorate of the Democrat party. Today, what is left of these terrorists can't fill a convention hall.

TPM Ed Kilgore's The So-Called 'Libertarian Moment' Is Engineered By The Christian Right.

This is a variation on the Tea Party = KKK slander.

The Tea Party is a libertarian populist movement for limited government very much like the Jacksonian movement a couple centuries back.

Religious folks who share that goal are indeed part of our movement. Being libertarian and faithful are hardly mutually exclusive.

However, folks that self identify as evangelical are a substantially smaller percentage of the electorate in swing states than those who self identify Tea Party.

http://media.npr.org/documents/2014/NPR-RR-DC-Senate-Btlgnd-NPR-Only.pdf

Seriously Shag, are you progressives so intellectually bankrupt or ashamed of your own policies that you have to use these guilt by association slanders?
 

Teresa Wyeth: Maybe you would like to define exactly what you mean by “progressive and socialist political economy”.

Sure.

Socialism is the government affirmatively directing the economy to redistribute wealth.

Progressives share the same objections to free markets as socialists, but chose a different path. They employ a regulatory bureaucracy to negatively direct the economy. Where socialists tell you what to produce, progressives tell you what to may not do. Progressives also redistribute wealth through the tax system, welfare state and unions.

Most European nations, Japan and now the United States, employ a hybrid of the two ideologies. ALL of these nations are currently in population, economic and fiscal implosion.
 

Bart, " Progressives also redistribute wealth through the tax system, welfare state and unions."

But, tax redistribution most recently has been upward, toward the rich. Unions are have been in decline in this country for decades. No progressive trends there. If by welfare state you mean Medicare and Social Security, why don't conservatives simply refuse it on principal? Because they put money into it. It's not welfare. Do you mean the ACA when you talk about welfare? Maybe you can ask the millions who could not obtain health insurance (cost, pre-existing conditions) but can now if they think it's welfare. One man's welfare is another man's way to provide for his family and not be wiped out by health bills.

What exactly is a population implosion?
 

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Teresa:

No American tax system has ever redistributed wealth from the bottom to the top. Indeed, we have the most progressively punitive tax code going the other direction in US history. The top 1% pays a quarter and the top fifth of earners now pay over 3/4 of the general tax burden, while the bottom half pays almost nothing.

Why precisely should libertarians and conservatives refuse to recover some small part of the taxes taken from us to support the progressive corporate and individual welfare state?

This is a version of the reactionary America, love it or leave it argument. We in the Tea Party would prefer to take America back and reform her.

Population implosion is a reproduction rate of less than the average of 2.1 children per couple necessary to maintain the population and the labor force. When the boomers retire, the EU will see a labor force collapse unseen since the Black Death. We fell into population collapse for the first time during the Obama administration.
 

Our CO gasbag provides this definition:

"Population implosion is a reproduction rate of less than the average of 2.1 children per couple necessary to maintain the population and the labor force. When the boomers retire, the EU will see a labor force collapse unseen since the Black Death."

Then he goes on:

"We [America] fell into population collapse for the first time during the Obama administration."

Is our CO gasbag blaming Obama for his own un-reproductive situation? (What was he doing - or not doing - before 2008? Did he have a problem during the Bush/Cheney 8 years?) Is Obama to blame because of the contraception provision in Obamacare? Is Obama to blame for advising African-American males to take responsibility for children they sire? Or does this have to do with the changing demographics and the virility of those changing the demographics that both our CO gasbag and Brett fear? Based upon Sen. Lindsay Graham's (Cracker, SCar) frustration during the 2012 presidential campaign that there weren't enough angry white male voters, the latter are responsible for the "population implosion" in spades, since those changing the demographics are apparently quite virile. Perhaps a little self help - or Viagra - is needed for the angry group (with consent,of course) and they can get Viagra via Obamacare. (Perhaps that is their problem.) Maybe these hawkish angry guys need a bumper sticker campaign: "MAKE BABIES, NOT WAR."
 

Blankshot, I'm pretty sure your inability to produce little warmongering idiots is not Obama's fault.
 

Our CO gasbag's:

'We in the Tea Party would prefer to take America back and reform her."

doesn't make clear whether or not this reform might be accomplished by Tom-Tom Tancredo's recently suggested method. Query: Is Tom-Tom still our CO gasbag's mentor?
 

If this study is correct, then policy in America is made by the rich and by business interests. Tea Partiers and liberals are just the chumps who post on internet sites and show up to make largely meaningless votes.

Think the country is being ruined by socialist policies. Blame the rich and the business people who make policy. You're worried that the Constitution is being undermined? So what. Policy determines what gets done and it's being made by businesses and the rich. Go over in your corner with the other angry dweebs and argue about abortion and whether it's okay to own a rocket launcher.

"The analysts found that when controlling for the power of economic elites and organized interest groups, the influence of ordinary Americans registers at a "non-significant, near-zero level." The analysts further discovered that rich individuals and business-dominated interest groups dominate the policymaking process. The mass-based interest groups had minimal influence compared to the business-based interest groups."

Read more: http://thehill.com/blogs/pundits-blog/civil-rights/214857-who-rules-america TheHill on Facebook


http://thehill.com/blogs/pundits-blog/civil-rights/214857-who-rules-america
 

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Nick: If this study is correct, then policy in America is made by the rich and by business interests.

We libertarians subscribe to the dictum that power corrupts and absolute power corrupts absolutely. A powerful government is therefore corrupt by definition.

Big business LOVES progressive and socialist government because they can abuse the system to take other people's money and redistribute it to themselves, then use the regulatory bureaucracy to cripple their smaller competition.

BUT, if the Constitution limits government power, then the wealthy and politically connected cannot use that power against their rivals and the people in general.
 

You can take your dictum and go play with it in the corner along with the folks arguing about gay marriage and gun rights.

The point of the article is that it doesn't matter what you libertarians believe; policy is being made by the rich and connected regardless, and that's not going to change. That fight goes back to Hamilton (and even Plato) and it's been decided.

But it is interesting that big business and the rich have secured a socialist government (which by a definition above is a government that is "affirmatively directing the economy to redistribute wealth". Usually that claim is made that the wealth is being directed downward, but the study and the facts show that wealth is being directed upwards.

If I were a libertarian I'd support whichever party had policies that redirected wealth away from the wealthy, as an intermediate step to securing a government that was not run by the rich.
 

"We have a constitution written to provide limited government."

This is utterly, totally, completely false.

We had such a constitution, called the Articles of Confederation. It failed. We junked it in favor of a constitution written to allow for the expansion of the federal government.
 

"There are many problems with today's Republican party, but the one which most affects the Constitutional dysfunction we see is it's behavior as a parliamentary party instead of an American one."

I really don't like this formulation. The Republican Party, bad as it is, is not in any way acting un-American. America (especially the overrated James Madison) created dumb political institutions, that didn't take into account the fact that political parties are SUPPOSED to act in a parliamentary fashion. That's why we need a parliament. But since we had idiots writing our Constitution (and because of the Slave Power), we didn't get one.
 

Dilan, we junked a VERY limited government constitution, in favor of a slightly less limited government constitution, but still amazingly limited compared to the government we're getting under it.
 

Nick:

I hate to pop the bubble of your worldview, but here is the 411.

What makes you think that progressive and socialist governments play Robin Hood? Redistribution of wealth first goes to the government, then the politically connected, and if necessary progressive/socialist voters to buy elections. This is the case under every flavor of collectivism from communism to progressivism.

Why do you think that the Democrat rolodex of campaign donors are packed with millionaires and billionaires?

In a world where some pigs are definitely more equal than others, the only solution is to empty the pig trough.
 

Nick, thanks for the link. It's an interesting and depressing article. You should know by now people who believe the rich are somehow mistreated by the tax system are kidding themselves. The power of self-delusion is very strong. I prefer to think of it as willful ignorance in the support of self-interest.
 

"The Republic managed to govern itself and grew from a colonial backwater to the preeminent economic power in the world in a little over a century with the checks and balances of a bicameral Congress and a president."

It governed itself into a horrendous civil war within a century under this limited Constitution. You might find things to be bad, but at least brothers are not killing brothers en masse in the fields of our nation.

The limited Constitution you are paying homage to is one which limited government alright, it limited the federal government from addressing the worst stain undercutting our nation's founding principles, one which denied even the most basic liberties to those subject to it, which was being perpetuated with broad and healthy doses of state and local government power. I'm talking of course about slavery (and then Slavery-Lite under Jim Crow).
 

slightly less limited government constitution

The one that gives Congress alone over thirty powers? Or another one?

States have governments too, right?
 

Teresa:

Depressing, but not surprising. And it makes conversations about the the Constitution and its effect on Americans' optimism or on limited government irrelevant. Government policy, size and expenditures are going to be what big business and the rich say they are going to be. Full stop. Until that influence is addressed, everything else is twaddle.

And remind me, wasn't there a recent case that said corporations could donate unlimited amounts to political campaigns? Didn't that opinion proceed on party lines? And which party effectively sided with the corporations?


 

Bart said:

"What makes you think that progressive and socialist governments play Robin Hood?"

Mitt Romney (47%. Also, any number of other Republicans at various times, complaining about the liberal welfare state).
 



As the Civil War Amendments demonstrated, nothing in the Constitution barred the American people from outlawing slavery. Unfortunately, the American people had to throw down in a war to resolve the issue amongst themselves.

Government imposed Jim Crow in direct violation of the Constitution, so the judiciary of the time rewrote the Constitution in a harbinger of the progressive era about half a century later.
 

Let's check out our CO gasbag's recent lesson in "history":

"As the Civil War Amendments demonstrated, nothing in the Constitution barred the American people from outlawing slavery."

While these Amendments were accomplished via Article V of the Constitution, satisfying the numerical requirements required some limitations on the former Confederate states. As a practical matter, but for the Civil War, the Constitution had too many built in obstacles to keep slavery intact. Prior to the Civil War, there is no evidence worthy of that word that the slave states would have voted in sufficient numbers to outlaw slavery under Article V. Consider the 1857 Dred Scott decision. And keep in mind that Article V protected the Senate (unless a state were willing to surrender two seats).

Our CO gasbag continues:

"Unfortunately, the American people had to throw down in a war to resolve the issue amongst themselves."

Did the Constitution have a specific provision for a civil war as a means of triggering Article V? "unfortunately" is a tad mild for the deaths of over 600,000. The Civil War was started by the seceding slave states. Lincoln responded to preserve the Union. Eliminating slavery would make it a more perfect Union. This started with Lincoln's Emancipation and after his assassination Congress attended to the Civil War Amendments.

Let's continue our CO gasbag's "history"::

"Government imposed Jim Crow in direct violation of the Constitution, so the judiciary of the time rewrote the Constitution in a harbinger of the progressive era about half a century later."

It was state governments, the former Confederate and slave states that imposed Jim Crow laws, not the central government, except for the Court.

Our CO gasbag's use of "harbinger" demonstrates that he was not an English major. He elides "The Gilded Age," America's best years according to him, which came before the progressive era got its foot in the door.

But our CO gasbag's history stops. So let me take you to 1954's Brown v. Bd. of Educ. which led to the civil rights movement and the Civil Rights Acts of the 1960s that addressed Jim Crow. And the reactions culminating with Nixon's Southern Strategy in 1968 continued by Lee Atwater in spades as the mouthpiece for George H.W. Bush in 1988. And it continues to today, again (on a 5-4 basis) with the help of the current Court. And of course the GOP controlled House and to a lesser extent the GOP Senate minority continue to thwart America's first African-American President at every turn.

Read Curtis Wilkie's NYTimes article for the demagogueries of the South over its history, now the base of the Republican Party, no longer the "Party of Lincoln," and augmented by the Tea Party.

Earlier in this thread, our CO gasbag said:

"The KKK at its height was never more than a small fraction of the electorate of the Democrat party. Today, what is left of these terrorists can't fill a convention hall."

But they doff their sheets and openly carry into automatic weapons into retail establishments. Perhaps in both our CO gasbag and Brett's views, the KKK wouldn't have had to rely upon rope if the 2nd A back then had the new force granted by the Court (5-4) in Heller and McDonald. This is a specie of libertarianism that may seek to impose limited government under the guise of the 2nd A.

By the Bybee [expletives deleted], does our CO gasbag as an avowed libertarian "STAND WITH RAND"? or "WHINE WITH AYN."?




 

Here's a link to Wiktionary:

http://en.wiktionary.org/wiki/throw_enough_mud_at_the_wall,_some_of_it_will_stick

that describes the technique of our CO gasbag at this Blog.
 

Shag:

If you are arguing that we need to reduce the threshold to amend the Constitution, we are in agreement.

The fact that state rather that the federal government imposed Jim Crow is a meaningless distinction. The Civil War Amendments enforced the Bill of Rights against the states and the Supreme Court abused its power to gut that enforcement.

There is nothing libertarian about Democrat KKK terrorism, Libertarians generally follow John Stuart Mill's harm principle - government may properly enact laws to prevent people from harming one another, but not those to enforce the government's concept of economic or social morality.

Ayn Rand was a utopian philosopher and, like most utopian philosophers, she was better at identifying problems with society than at offering workable solutions. Even so, reality in today's progressive and socialist nations is getting far to close for comfort to Rand's novels like Atlas Shrugs - corrupt government misdirection of the economy followed by a capital strike.
 

In response to our CO gasbag:

1. No, we are not in agreement on reducing the Article V threshold.

2. Incorporation of the Bill of Rights (1 through 8?) via the 14th A to this day has not been completed by the Court. Obviously the post-Reconstruction Court, including "The Gilded Age," the Progressive Era, the Roaring Twenties, the New Deal, even the Warren Court did not have the benefit of Gerard's book in this regard. But then again, not all constitutional scholars and historians buy into Gerard's book's concepts. Failures of the Court to end Jim Crow laws prior to Brown v. Bd. of Educ. in 1954, do not absolve the responsibilities of the former Confederate and slave states in their enactment and enforcement of Jim Crow laws (with blind eyes to the KKK). Consider the reactions in these states to Brown, the following civil rights movement and Civil Rights Acts of the 1960s that included mucho violence.

3. John Stuart mill is so 19th Century. How about Rawls on morality and justice in this day and age. Libertarians are of so many stripes that requires a scorecard to identify a specific type. And there are plenty of FAUX libertarians who would be lost without the benefits of government. Declaring oneself to be a liberation doesn't tell us much and the 19th Century in Mill's England no longer cuts it in the 21st Century. As to libertarians not being " ... about Democrat KKK terrorism ... " consider Ilya's recent post at the VC on the situation in Missouri and the reactions of libertarians as Ilya sees it. Based on past performance, I don't think Brett and our CO gasbag, each proclaiming to be libertarians but perhaps of differing stripes would agree with Ilya's observation.

4. Describing Ayn Rand as a utopian philosopher in this day and age is comical. "Atlas Shrugged" is "half-Atlas," as is our CO gasbag's description. She was, in her own mind, a sexpot, but more like Ann Coulter politically.
 

"consider <a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/14/libertarians-have-been-anything-but-silent-about-police-misconduct-in-ferguson-missouri/>Ilya's recent post at the VC</a> on the situation in Missouri and the reactions of libertarians as Ilya sees it. Based on past performance, I don't think Brett and our CO gasbag, each proclaiming to be libertarians but perhaps of differing stripes would agree with Ilya's observation.
"

More like, based on current delusions.
 

Rawls unsuccessfully attempted to reconcile freedom and socialism. He has very little to say to those of us who believe we all have a natural right to liberty from government direction so long as we do not harm another.
 

Regarding incorporation, the recent post on a ruling out of Puerto Rico was interesting, as well as this article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2000435

The overall merits of the question to me amounts to there being more "privileges or immunities" than those listed in 1-8 of the BOR as well as various others in the Constitution (e.g., to be President), so in effect the 9A is incorporated too.

I think on that front Justice Goldberg (with an assist of law clerk Stephen Breyer) was correct in his Griswold concurrence.

As to Mill, his views were somewhat mixed, including supporting various regulatory and government safety net matters. His views on let's say Indians (of Asia) also suggests Shag is correct that he is somewhat out of date.

Still, interesting reading including his comments on women's rights (influenced by his second wife, who he gave a large amount of credit to).
 

Edit: Harriet Taylor Mill was the one married before.

On that interesting woman, see, e.g., Jacobs, Jo Ellen, "The Voice of Harriet Taylor Mill."
 

Our CO gasbag's:

"He [Rawls] has very little to say to those of us who believe we all have a natural right to liberty from government direction so long as we do not harm another."

Apparently morality and justice are matters our CO gasbag and his ilk do not wish to listen to. Without morality and justice, harm may result from exercise of a claimed liberty by a libertarian who lacks a sense of morality and justice. Rawls still has the ear of current scholars on his writings. Rawls' goal was to reconcile freedom and equality. Our CO gasbag attempts to disguise this by substituting socialism for equality. The concept of equality is anathema to his stripe of libertarianism, seemingly believing that it is solely within the province of the libertarian to determine whether he/she has caused harm. What might Hobbes and Locke have to say about that?

As to Brett, he actually is delusional.
 

Morality and justice are matters we very much care about. Which is why we reject Rawls.
 

Shag:

Rawls Theory of Justice assumes that society can and should direct the distribution of wealth. Socialism by any other name.

Redistribution of wealth from those who earn it to those the government prefers is simply a sanitized spin term for theft. Theft is malum in se. You cannot morally justify it.


 

"Government imposed Jim Crow in direct violation of the Constitution, so the judiciary of the time rewrote the Constitution in a harbinger of the progressive era about half a century later."

Well, now we have you recognizing that even in the Gilded Age we had judicial rewriting of the Constitution, it's not a Progressive innovation. I'm not sure they rewrote it either, or that it was obviously so at the least, they just read the federal government's powers as quite narrow and deferred to state practices, something the Tea Party seems to champion usually.

"Redistribution of wealth from those who earn it to those the government prefers is simply a sanitized spin term for theft. Theft is malum in se. You cannot morally justify it."

Redistribution is theft? I can see how one can argue that any involuntary taxation is theft (I don't buy it though, the intents are quite different), but I can't see how what the government does with that money could redeem it (redistribution v. law enforcement or contract enforcement, or other libertarian-allowed uses).

What Rawls argues is that it's not redistribution that cannot be justified, but the current distribution of wealth itself which is not fair, or just, in any defensible way. Why some kid who happens to be born to a poor single mother should have access to so much less than a kid who happens to be born to, say, Paris Hilton, is not just or fair at all.
 

"any involuntary taxation"

I see this term at times and don't think it holds in the way some use it. "We the People" choose the people who pass the taxation. Such was the whole value of the House of Commons centuries before 1776.

We consent to the actions of our agents here. We also have taxation with representation, if somewhat imperfectly (see, e.g., D.C.). It is for legal purposes "voluntary."

This leads to some confusion. The historian Jill Leopore, e.g., wrote a short book on misuse of history.


 

So based upon our CO gasbag's views of philosopher Rawls as malum in se, would he view the philosophy of Jesus also as malum in se ? Consider Pope Francis' views on the poor. Libertarians don't like to share.

Getting back to political dysfunction and the role of the Constitution therewith, I recently read Ellen D. Katz' paper for the Symposium held last year at BU Law School titled "Election Law's Lochnerian Turn." I was in attendance during the panel she served on and was quite impressed. Her paper is more impressive. Here's her opening:

"This panel has been asked to consider whether 'the Constitution [is] responsible for electoral dysfunction.' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves."

She goes on to review and discuss the Roberts Court's recent decisions in Citizens United, Arizona Free Enterprise Club's Freedom Club PAC and Shelby County and the impact of these decisions on the electoral process. (The paper is a short 13 pages.)


 

Frank Pasquale's 8/14/14 post "The Historical Resonance of Ferguson" provides an interesting link to National Review Online article:

"It’s Time for Conservatives to Stop Defending Police
There is nothing conservative about government violating the rights of citizens."
By A. J. Delgado

Query: Is this principled or aimed at getting GOP votes? The same with Ilya's post at VC. The militarization of the police has surfaced as an issue, raised earlier by the libertarian Cato Institute. To what extent does the 2nd A as construed by the Court (5-4) in Heller and McDonald play in this militarization perhaps originally geared to 9/11/01 and the War on Terror. The proliferation of guns, some by bad guys, may indeed contribute to this.
 

"To what extent does the 2nd A as construed by the Court (5-4) in Heller and McDonald play in this militarization perhaps originally geared to 9/11/01 and the War on Terror."

I think it does somewhat contribute. The federal government is constructing a police state. A police state requires the government to have military superiority over it's own population. Since disarming said population got blocked, the government is setting out to have a bigger army to use against it's own population.

They won't be able to build a big enough army, but they'll try.
 

Brett once again plays Humpty-Dumpty with the chicken-egg aspects of his response to my 2nd A comment on police militarization. According to Brett, it is the police militarization that requires 2nd A absolutists like him - he's also a self-proclaimed anarcho-libertarian - to stock up their arsenals. He points this out with his prognostication:

"They won't be able to build a big enough army, but they'll try."

But the "they" he refers to is not the Ferguson Police Dept. Rather, it is the federal government establishing, in his view, a police state that 2nd A absolutists have to be prepared to answered to because:

" ... the government is setting out to have a bigger army to use against it's own population."

This is delusional. Th situation in Ferguson involves a municipal police force. It arose from the killing of an unarmed black man by a white police officer. Ferguson's large African-American community responded, not with guns, but with their 1st A rights. The Ferguson Police Dept. overreacted.

Today's NYTimes features on its front page "Images of Unrest Evoke Civil Rights Era," with photos. This is the underlying issue. Race is an issue with local policing in situations involving African-Americans. Policing comes about from federalism under the Constitution. But because of civil rights statutes, the federal government can take a role via the President and the Justice Dept.

Perhaps Brett can provide examples of similar local police actions involving a white victim of the police. But they are few compared to the number of people of color. Keep in mind that part of the Southern Strategy of Nixon begun in the 1968 presidential campaign included "law and order," racial code words that continue to be used. Conservatives, especially the GOP converted former Southern Democrats that constitute the current base of the Republican Party, jumped on - and still do - the "law and order" bandwagon especially as demographics change.

So I question whether some conservatives now questioning the tactics of the Ferguson Police Dept. are doing so as a matter of principle, in recognition that people of color have been mistreated by police for quite some time.

But Brett tries to take this to a national level of a federal police state. The job of local police is difficult enough. They have to be prepared to address situations involving people with guns, as it may not be that easy identifying only the "bad guys" with guns; and we cannot rely upon so-called "good guys" with guns carrying openly and concealed to do the job of the police. There is a gun culture in America that goes beyond hunting and even beyond Heller and McDonald's self-defense in the home. Police have to address potential problems with the proliferation of guns. To repeat, Brett tells us that this proliferation is necessary as:

"They [federal government] won't be able to build a big enough army, but they'll try ."

What's that got to do with the situation in Ferguson with the death of Michael Brown, an unarmed young black man? Perhaps Brett would prefer that the protestors in Ferguson would assert 2nd A rights in an absolutist fashion rather than their 1st A rights.

(The names struck me as part of the history of civil rights over the years, Ferguson being the name of the defendant in the case brought by Homer Plessy against the State of Louisiana, and Brown being the name of the plaintiff in the 1954 case against Bd. of Educ. No, America is not yet post-racial.)

When local police do their jobs properly, under the social contract they are to be applauded. But when local police abuse rights of the people they have to be brought to account.
 

Does our dynamic dyslexic libertarian duo, Brat and Bert, "Stand With Rand" Paul, an avowed libertarian of national rank (whose dad Ron was the Libertarian Party presidential candidate a few years back) on his expressed views on the situation in Ferguson?
 

Mr. W/Joe:

Redistribution of wealth is the government taking money or property from those who earned it to thoss the government prefers.

Because no tax enjoys universal support, all taxes are to some extent involuntary. This does not make them redistributions of wealth.

Democracy is no bar to redistribution of wealth. Indeed, democracies die when a majority of government dependents discover they can vote themselves the money and property of a minority.

We can and should amend the Constitution to eliminate this moral hazard.

First, restrict Congress to taxing only income and spending above that needed for basic living expenses set at a percentage of per capita GDP and require a single tax rate without credits, deductions and penalties.

Then, prohibit making the reception of any government benefit contingent on income.

Everyone but the impoverished pay in and everyone shares in public goods. No more free riders and government theft.
 

Shag:"Does our dynamic dyslexic libertarian duo, Brat and Bert, "Stand With Rand" Paul, an avowed libertarian of national rank (whose dad Ron was the Libertarian Party presidential candidate a few years back) on his expressed views on the situation in Ferguson?"

Libertarians are not lemmings following leaders like progressives. I make up my own mind about issues based on actual evidence without consulting Mr. Paul.

We have seen Ferguson many times before.

A police officer or a white civilian kills a young black man.

Before the evidence is known, the community is demonstrating based on rumors and innuendo.

Progressives, socialists and race hustlers come into town to exploit the tragedy and inflame the demonstrations.

Other young black men exploit the tragedy by looting local businesses.

An outnumbered and scared police department overreacts and harms or arrests innocent people.

After all the mayhem and violence is over, we then find out what really happened. Sometimes folks like Zimmerman were defending themselves, sometimes the officer committed stone cold murder.

Sorry, I do not have an opinion about Ferguson until I see the actual evidence.
 

Democracy is no bar to redistribution of wealth. Indeed, democracies die when a majority of government dependents discover they can vote themselves the money and property of a minority.

# posted by Blogger Bart DePalma : 8:43 AM


I'd be very interested to see a list of the democracies that have "died" that way.
 

This comment has been removed by the author.
 

Regarding Shag's latest article, which can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419510

The article is somewhat limited in scope but I have noted that my sentiment is that the Constitution does affect our current situation, in various ways making things more difficult. Still, I think a lot of reform can be done w/i its terms. If the will was there. Also, I wouldn't just focus on the Supreme Court.

One thing I agree with regarding the article is the need (as we saw when Prof. Bernstein brought it up at Volokh Conspiracy etc.) to know what specifically was wrong with the Lochner Era.

It isn't the concern for fundamental rights (and as a whole, it was pretty lackluster protecting them) but the confusion regarding economic regulations. The debate over "corruption" in the 1A context -- see, e.g., writings of Zephyr Teachout, is something of the same caliber.
 

bb:

Every single democracy- including ours - currently practicing mass redistribution of wealth from a minority to a majority suffers from flatlined economic growth, a shrinking workforce, mass public debt and often a capital strike or flight. This is how failed states are created.
 

Every single democracy- including ours - currently practicing mass redistribution of wealth from a minority to a majority suffers from flatlined economic growth, a shrinking workforce, mass public debt and often a capital strike or flight. This is how failed states are created.
# posted by Blogger Bart DePalma : 9:37 AM


I'm not asking how you think failed states are created, I'm asking for some examples of the thing you appear to fear more than angry black people. Name some democracies that "died" as a result of poor people voting themselves the money and property of the minority.
 

Joe: Regarding Shag's latest article...

As an antidote to this latest example of employing the epithet "Lochnerism" to denigrate court enforcement of the Constitution against yet another progressive infringement on basic liberty, I would suggest David Bernstein's Rehabilitating Lochner.

http://www.amazon.com/Rehabilitating-Lochner-Defending-Individual-Progressive/dp/0226043533
 

Apparently there are no democracies that have "died" as a result of poor people voting themselves the money and property of the minority. Odd that Baghdad lives in terror of something that has never happened...
 

BB:

The combination of progressivism/socialism and democracy is a relatively new phenomenon.

To date, Weimar German's socialist democracy collapsed and pre-Thatcher socialist England was one step away.

Two things temporarily delayed the mass collapse of progressivism and socialism in the western democracies and Japan:

1) A demographic dividend of an increased workforce paying taxes into the welfare state from the 1970s-1990s

http://www.investopedia.com/terms/d/demographic-dividend.asp

2) The temporary Reagan/Thatcher liberalization of the world economy during the same time period.

Since then, all of the progressive and socialist democracies have gone from a demographic dividend to a demographic collapse and abandoned the liberalizations of their economies.

Thus my prior observation that every single democracy- including ours - currently practicing mass redistribution of wealth from a minority to a majority suffers from flatlined economic growth, a shrinking workforce, mass public debt and often a capital strike or flight.

We are seeing the death throes of progressivism and socialism play out in our country and across the world. No matter what sophistry and misdirection you offer, this system is simply unsustainable and a heavy majority of Americans can sense (if not always explain) the increasing failure.
 

This comment has been removed by the author.
 

Blankshot, I'm still waiting for that list.

 

No matter what sophistry and misdirection you offer

This made me LOL. Looking forward to that list.
 

The rate for the top tax bracket in the 1950s was 90%. Does that mean we are retroactively doomed?
 

I read Prof. Bernstein's chapter on Lochner in "Constitutional Law Stories," and I know his p.o.v. overall. It's somewhat skewered. But, the book (if it reflects the chapter) is probably worthwhile.

Another view, by someone who he has appeared with and supported when Republicans blocked her appointment to the appeals court:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2109659

It answers critics from another angle. Her book on the Skinner case is also recommended.
 

Re: Lochner, check this:

“'WRONG THE DAY IT WAS DECIDED':
LOCHNER AND CONSTITUTIONAL HISTORICISM"
By JACK M. BALKIN 85 Boston Univ. L.R. 677 (2005)

 

Did our CO gasbag use this same "standard":

"Sorry, I do not have an opinion about Ferguson until I see the actual evidence."

when he opined on Bundy or any of the House GOP investigations of the Obama Administration? As Freud is alleged to have said: "Sometimes a cigar is just a cigar."
 

I had earlier referenced Rawls as I was in the midst of reading Gerald Gaus' "Public Reason Liberalism." The author uses Hobbes and Locke as springboards for the more recent philosophy of John Rawls. Our CO gasbag provided "wicky-quicky" comments on Rawls demonstrating how he does his "research. The article runs 22 pages. As I was near the end, it seems that political dysfunction is being addressed without using that term. John Rawls' "failure" in his latter years was being able to incorporate the political into "public reason." Those pursuing his work seem to recognize the problem. The author closes with this:

"My discussion has only skimmed the surface of the o

f the complexities and possibilities. Yet this much is clear: the future of public reason liberalism is not to develop a controversial ideological position that seeks to exclude large parts of our society as 'unreasonable,' but to press the bounds of inclusiveness as far as possible - and in [so] doing, showing that the deep strength of liberalism is its unique ability to not only accommodate, but draw upon, our deep diversity."

He earlier points out:

"To be sure, there is a great deal of posturing in our philosophical discussions that one would veto all constitutions [read: "laws"] that do not conformto one's favored philosophical account, but the real question is whether one would really choose a sort of normative anarchy of social life in preference to it. That we all - even moral and political philosophers - teach our children the basic moral rules of our society rather suggests not."
 

Joe, David Bernstein has attempted to "credit" the Lochner Court for being a harbinger of subsequent progressive decisions by the Court, presumably the Warren Court. As to your wanting " ... to know what specifically was wrong with the Lochner Era" perhaps Jack Balkin's article may provide some answers. (It should be noted that Jack supplied a blurb to Bernstein's book which seemed tongue in cheek to me.)
 

Shag:

Once it is disclosed, the Ferguson matter will only have a fraction of the evidence available to the public concerning the Benghazi, IRS, Fast and Furious, and Obamacare scandals - hours of sworn testimony and thousands of document, with thousands more destroyed in an attempted coverup.

You really do not want to go there.


 

Yes, Shag, I and others here are aware -- particularly given his promotion of his book at Volokh Conspiracy -- of DB's game.

I was probably a bit generous as to the book, if his blog comments are suggestive. Here's what Prof. Amar said in a guest spot there:

http://www.volokh.com/2012/09/12/de-habilitating-lochner-a-response-to-david-bernstein/

"Lochner" is used an overused trope and DB overcompensates. His support for Nourse was appreciated though.
 

You really do not want to go there.

# posted by Blogger Bart DePalma : 3:37 PM


Considering the dismal failure of the laughable attempts by rightwingnuts to create Obama scandals, I think we probably do want to go there.
 

BB:

There is a reason why Lerner immediately lawyered up, the IRS and HHS destroyed thousands of documents in hard drive crashes, the government is massively redacting everything remaining not under court order, and Justice is stonewalling on their own "ongoing investigation" and refusing to appoint a special prosecutor.

The indictments would be several hundred pages long. Before you get to all the obstruction of justice and perjury counts, there would be a wire fraud count for denial of honest services and accompanying conspiracy count for each entity and person the IRS targeted against each perpetrator involved.

The Chicago way.
 

Yeah, really looking forward to all those "indictments".

How is #BENGHAZI coming along? I heard the GOP finally announced that they determined that there was no wrongdoing. Would you know anything about that?
 

Yes, I want to go there. Our CO gasbag had said of the Ferguson matter:

"Sorry, I do not have an opinion about Ferguson until I see the actual evidence."

And how much of the actual evidence did our CO gasbag actually see that is:

"available to the public concerning the Benghazi, IRS, Fast and Furious, and Obamacare scandals - hours of sworn testimony and thousands of document, with thousands more destroyed in an attempted coverup."

How many of the thousands of documents did he actually, see, read, in these matters? And our CO makes accusation of a crime with the closing portion of the quoted comment. It is serious for a lawyer to make a charge of the commission of a crime. Does our CO gasbag have evidence that he has seen, to establish this alleged crime?

Once agains throws crap against the wall hoping some of it will stick. Maybe the various House committees should invite our CO gasbag to testify under oath regarding his accusation of a crime.

Once agains our CO gasbag demonstrates that his "standard" for making a comment is merely pulled out of his derriere.

With his full time legal practice as the ace of DUI attorneys in his mountaintop community, one wonders where our CO gasbag gets the time to read thousands of documents on these investigations and absorb the many hours of testimony. Obviously his pants are on fire.



 

Our CO gasbag is rather awkwardly non-lawyerly with this:

"There is a reason why Lerner immediately lawyered up ... ."

His actual and prospective clients might be well served knowing about this non-lawyerly comment by the ace DUI attorney in his mountaintop community. Perhaps Lerner had a lawyerly lawyer providing her with advice. Even a novice attorney would know that there are valid reasons for a client to lawyer up whether innocent or guilty. And the novice attorney would know that lawyering up is not legal evidence of guilt - or innocence. Lawyering up, a novice attorney would know, is a practice of long standing in the tradition of legal practice in America. Perhaps our CO gasbag would want to eliminate a person's right to counsel. If so, his current and prospective clients would be better served if they knew.
 

TomDispatch features an article by Matthew Harwood on the militarization of the police at:

http://www.tomdispatch.com/post/175881/tomgram%3A_matthew_harwood%2C_one_nation_under_swat/#more

that is very sobering.

My concern is that the efforts of the Justice Department to protect the civil rights of all of us are being weakened by the role of other federal agencies (Defense, Homeland) in accommodating such militarization. The violence resulting from America's gun culture is circular, with innocents caught in the crossfire. Might the late Walt Kekky's Pogo's observation on pollution - "We have met the enemy and he is us" - apply to police militarization?
 

Correction: That's the late Walt "Kelly's" Pogo. Sorry. Kelly is missed by many of us who grew up with him even as adults.
 

Sobering or ala Stephen Colbert, a reason to drink. YMMV.

The situation warrants a complete picture look - federal/state roles, civil rights, guns, 1A issues, etc.

It seems telling to me that Art. 1, sec. 10 bars states from having "troops" except by special permission. The militarization is a concern.

The "2A remedy" relevant to me is not primarily to arm the protesters (though I think people do have an individual right to keep arms by a variety of routes). It is the proper use of force and organization of it.

For instance, an organized militia with public servants in control positions could be a useful device in controlling a situation of this sort, including locals from the community.

Shag's concern for militarization also is part of the conversation. Both state and federal "government" is part of the problem there. Police is supposed to be "militia" in nature, not "military."

Anyway, there are a lot of parts involved here.

 

I should have added to my comment on police militarization the contribution of the military-industrial complex that Ike warned of in his 1961 farewell address. Despite this warning - or in spite of it - America has been engaged in quite a few wars since. America supplies arms to nations all over the world, some of which end up being used against our troops and some (surplus?) being provided to police her in America. A couple of weeks ago Jon Stewart had a sgment on the dollar amounts of arms America has provided to Middle Eastern nations, both large and small. Much of the world sees the US as its policeman. Perhaps this international gun culture contributes to what is more than a trickle down of militarization here in America to police departments.. Consider the presidents post Ike and the wars we got into directly, indirectly and silently. This should not be a partisan issue.

Joe's comment hits the mark.

Perhaps we may hear from Mary Dudziak.
 

Shag:

Go review the honest services provision of the wire fraud statute.

http://www.law.cornell.edu/uscode/text/18/1346

It is broad enough so you could almost literally indict a ham sandwich. The federal courts have somewhat narrowed the doctrine in prosecutions of private parties, but it is still very broad in public corruption cases.

The public disclosures to date of targeting and harassment of groups would be more than sufficient to indict the entire chain of command from the grunts in Ohio through Lerner to the DC chief counsel each with a count of wire fraud and conspiracy for each targeted group or individual.

The prosecutor does not need to prove these groups were denied services for political reasons, just that they were denied services. This eliminates the Democrat political spin that one or two leftist organizations were denied tax free status as a legal defense.

Of course, a honest and competent Attorney General would not settle for emails and the evasions provided to Congress and would have already interviewed and rolled the IRS grunts to testify against Lerner and her superiors. This is also how you develop the almost certain perjury charges for lying to Congress and the FBI.

We also have multiple letters from Democrat Congress critters demanding that IRS engage in precisely this kind of harassment. An honest and competent AG would be running these down to see if the conspiracy reaches Congress. Were these simply illegal requests by Democrat Congress critters or was there actual planning between IRS and the Democrats.

Next, we have a target rich environment for criminal charges for destroying evidence. All you need to get to trial on these charges is proof that they defendant knew or should have known that they were legally required to maintain the documents and the fact that they perpetrator destroyed them. For crying out loud, Lerner is in an email advising her colleagues to avoid discussing IRS business on paper because it can be discovered by Congress. Any honest and competent AG would have already conducted a forensic examination of the IRS computers to recover as many destroyed documents as possible and to track who attempted or successfully destroyed documents.

The evidence that we have to date in the IRS scandal makes Watergate look like the third rate burglary it was. We are not even getting to Benghazi and HHS.

http://taxprof.typepad.com/taxprof_blog/2014/08/strong-1.html

I am absolutely sure that you were outraged over Watergate. What precisely does it say about your legal and personal ethics that you are unconcerned about this far larger and more invasive conspiracy?
 

Re: Joe's comments on history:

Over at the Legal History Blog, the 5th bullet of its "Weekly Roundup" feature includes links to articles, some with videos, by historians with interesting titles which aroused my curiosity. That's my reading for this afternoon.

Also, I received in the mail yesterday the Summer 2014 issue of Constitutional Commentary devoted primarily to articles on Charles Beard and his historiography, to wit, his "An Economic Interpretation of the Constitution of the United States" published a 100 years ago. This issue is well over 400 pages with print size that requires me to emulate Sherlock Holmes. But I'll try to get through a couple of the articles, including Mark' Graber's "Beard & Uber-Beard." I enjoy Graber's sense of humor. Also, I'll try to read historian Saul Cornell's "Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard." There is also an article "Rethinking the Second Amendment... " by Michael Caires that I'll try to get to.

There is much controversy over Bear'ds views today as newly "discovered" history surfaces, perhaps in a similar manner to such "discoveries" by Beard. Does "history" evolve?
 

Another sometime blogger here also commented on the 7A case over at Concurring Opinions, including its history and use of history to understand it. My comment did not show up after two attempts, but the matter was addressed previously:

http://www.concurringopinions.com/archives/2014/01/originalism-and-the-seventh-amendment.html
 

Our CO gasbag is even more delusional than Brett by claiming that:

" The evidence that we have to date in the IRS scandal makes Watergate look like the third rate burglary it was. "

Our CO gasbag ignores the cover up, the Nixon tapes in the oval office, the roles of Nixon's staff and even some Cabinet members, the Senate hearings, the start of impeachment, Nixon's resignation. While the burglary in isolation may have been "third rate," the rest of it was not, and much more serious than the IRS alleged scandal presently being pushed in the House by Republicans.

I followed this while conducting a busy law practice. There was no Internet back then whereby trolls like our CO gasbag castigate Obama on no or flimsy evidence.

My outrage on Watergate (the whole magilla) came about over time as evidence was produced that put Nixon and his ilk in the endeavor in a corner. And consider the roles of key Republicans in the Senate and House in their investigations, not just the Democrats.

Our CO gasbag's assertion:

"What precisely does it say about your legal and personal ethics that you are unconcerned about this far larger and more invasive conspiracy?"

is not only delusional with " ... this far larger and move invasive conspiracy" claim but I am waiting, as I did with Watergate for real evidence. Our CO gasbag, when it come to Obama (as well as Democrats, liberals, progressives) engages automatically in "Res Ipsa Loquaciousness," before the evidence is in.

Frankly, any unconcern I have before the evidence is in says not a thing about my legal and personal ethics. Our CO gasbag always leaves an Internet trail of his "Res Ipsa Loquaciouness,." including his obvious failure to address my comments on his "charge" that:

"There is a reason why Lerner immediately lawyered up ... ."

with the innuendo cast with his entire comment of a sense of illegality, guilt, conspiracy, etc. Our CO gasbag informs us that he is a criminal lawyer. I think his current and prospective civil and especially criminal clients should be aware of this.

Our CO gasbag should be aware that when he throws crap against the wall, he may be made to eat it (metaphorically, of course).

Note: There may have been attorneys back in the days of Watergate who were unconcerned for any number of reasons. Should their legal and personal ethics be challenged? And there may be attorneys now unconcerned with the alleged IRS scandal for any number of reasons, like too busy with a practice, with life. But as I await convincing evidence, as an attorney in a practice significantly involving tax law over the years, I became concerned with the laxity of 501(c)(4) non-profit status rules for engaging significantly in political matters despite the specific language of 501(c)(4). Of course there was the humorous aspect that Stephen Colbert lectured on the subject with the assistance of his tax attorney after Citizens United. So, I was concerned with the non-disclosure of contributors permitted by 501(c)(4), as enforced, despite the specific language of that section of the Internal Revenue. But I understand the IRS is reviewing its regulations in this regard and I await publication of a draft to submit comments.
 

Shag:

The Obama IRS targeted and acted against several dozen conservative and religious groups.

How many again did the Nixon IRS actually act against?

The fact that it was fewer than the Obama IRS does not excuse the Nixon IRS. So far as I am concerned, they should have all been prosecuted.
 

Our CO gasbag continues to avoid his statement, with innuendos, about:

""There is a reason why Lerner immediately lawyered up ... ."

He ducks this in his automatic RIL* with a diversionary forced "comparison" of Obama's IRS with Nixon's IRS. Put Nixon's IRS episodes aside and look to the rest of Watergate, a mountain compared to the molehill of the alleged IRS scandal being pursued by the House controlled Republicans. (Perhaps this deserves a a Google search, but not now., at least by me.) More Nixon tapes have been released for review by some historians who have been on TV a lot lately, as if any more evidence is necessary that Nixon and Watergate were malim in se. But consider Nixon's anti-semitism and racial rants on tape, a taping system he had installed. Nixon knew that release of the tapes would destroy him, expose him as a liar. So when the Court opined that the tapes had to be released by Nixon, resignation was inevitable. Many books have been written on Watergate and on Nixon demonstrating they were malum in se. And don't forget what happened to his original VP. But Nixon, on the plus side, gave us the EPA and a connection with China. (Of course, if a Democratic president had made "peace " with China, Nixon probably would have been the most critical Republican.)

*Res Ipsa Loquaciousness
 

This link:

http://www.taxhistory.org/thp/readings.nsf/cf7c9c870b600b9585256df80075b9dd/f8723e3606cd79ec85256ff6006f82c3?OpenDocument

addresses Nixon't 1969-1972 tax returns.

And here's a link to Sarah Jones' 6/1/13 article President Obama is Nothing Like Nixon, and Here's Why":

http://www.politicususa.com/2013/06/01/nixon-are-tax-returns-lot-gold-thar-hills.html
 

It's just getting better. Check this link:

http://www.washingtonpost.com/national/randolph-w-thrower-defiant-irs-chief-under-nixon-dies-at-100/2014/03/19/069e414e-af96-11e3-9627-c65021d6d572_story.html

a WaPo 3/19/14 obit by Matt Schudel titled:

"Randolph W. Thrower, defiant IRS chief under Nixon, dies at 100"

Thrower's testimony before a Watergate Senate Committee describing Nixon's efforts to influence appointments that back then Thrower would have to approve; one was Gordon Liddy.

Jere's an interesting paragraph:

"Documents later provided to congressional committees indicated that the White House asked Mr. Thrower to direct the IRS to audit the tax returns of Nixon’s opponents, including journalists, Democratic congressmen and leaders of the antiwar and civil rights movements."
 

"The fact that it was fewer than the Obama IRS does not excuse the Nixon IRS."

Fewer, as in they turned on Nixon, and audited him. It's not the Nixon IRS that needs excusing, it's Nixon himself.

Rather different than the present case, where evidence of political targeting by the IRS itself is abundant, and any possible links to the administration go through shredded hard drives and deleted backups.
 

Brett's concept of "abundant evidence" may reflect his personal views as a self-proclaimed anarcho-libertarian. But there is also evidence that IRS targeted 501(c)(4) filings from the left. But how many on either side of the political "aisle" were actually denied? Perhaps Brett is not aware of the specific language of 501(c)(4) on "primary" purpose and the history of how this was broadened by IRS regulations promulgated thereunder. But there was a context that faced the IRS with the flood of applications following Citizens United. And there's also the context of defunding IRS by Republicans in Congress, affecting the efficiency of the auditing and other processes as well as IRS outdated technology. But both Brett and ourt CO gasbag can try to make a mountain out of a mole hill. So be it. But they may not be able to climb it.

Brett contrasts Nixon's attempts with Nixon's IRS (which then IRS Comm. Thrower thwarted) with Obama's IRS doing the targeting. There is virtually no credible evidence that Obama directed his IRS to do such targeting. Regarding Brett's:

" ... and any possible links to the administration go through shredded hard drives and deleted backups."

the IRS has provided abundant evidence of its problematic outdated technologyequipment and the circumstances of losing information, much if not most of which of which pre-dated this alleged IRS scandal. Perhaps Brett and his soulless mate might encourage Republicans in Congress to provide the IRS with sufficient funding to update its equipment AND its ability to audit more taxpayers (as many taxpayers with their tax returns ride the current low audit risks not only because of defunding but by specific laws prohibiting audits by certain means, such lifestyle, e.g., of some wealthy taxpayers who pay little in taxes based upon their life styles). Brett's "possible links" do not constitute "abundant [or any] evidence" as to Obama.

All the evidence may not be in as yet. Some of us can wait, as we did with Nixon, who was unravelled by members of both parties with so many smoking guns along the way even before the tapes, and eventually Nixon's resignation. It is worth pointing out that the GOP House approval of suing Obama is not based upon the alleged IRS scandal, which perhaps the GOP House recognized as too week despite - or in spite of - Congressman Issa.
 

"There is virtually no credible evidence that Obama directed his IRS to do such targeting."

That IS kind of the point of destroying evidence, isn't it? All we've got is an absurdly large number of hard drives conveniently "crashing" right after the investigation began, and a data retention policy which seems to have been deliberately designed to NOT retain data.

All so that people like you don't have to admit what was going on.
 

Destroying something that doesn't work after many efforts to retrieve data is not destroying evidence. The destruction was part of a policy on such equipment. Perhaps Brett as an engineer can come forward with credible evidence that the data could have been retrieved to strongly contradict the experts used by the IRS ; and it was reported that there was a policy/procedure for crashed hard drives. As to the number of hard drives that crashed, there was testimony of records indicating the contrary. As to a data retention policy, there was one in place that was followed. Brett's characterization of "deliberately" is loaded with innuendo; but what evidence does Brett have? No, Brett like his soulless mate out CO gasbag pulls crap out of his derriere.

Be patient, Brett, and wait for the smoking gun, which I hope is not yours.
 

Shag, destroying evidence relevant to a discovery order doesn't cease to be spoliation just because you do it pursuant to a "policy". You're not legally allowed to execute policies which destroy evidence subject to discovery orders. Which is why Judge Emmet Sullivan is currently so pissed.

I agree that, unless the IRS' email servers were configured in a manner which would involve criminal liability in the private sector, shredding the hard drives didn't destroy evidence. Deleting the backups destroyed it.

The whole point of backups, as everyone who has anything to do with them knows, is to make sure that hard drives failing doesn't cause you to lose anything. The point is to make sure that "my hard drive crashed" doesn't mean anything.

You could NUKE the plant I work at, and retrieve my emails tomorrow. That's how things are done in the private sector, and if they really weren't done that way at the IRS, it's because the IRS was deliberately destroying evidence as a matter of routine.

Which makes them more guilty, not less.
 

Joe, I decided to read Saul Cornell's article on Beard in Constitutional Commentary first. It is a great read and I think you would enjoy it. I hope you can access it. It reads very well and is fairly short at 26 pages. Normally I would put up some teasers but do not wish to spoil the joy without the need of a teaser, except to say that one section (pages 395-401) of the article has this heading:

"Marx, Beard, and Heller: Originalism as Constitutional Farce"

and the reference ins't to Karl. There is humor throughout the article.
 

Private companies and individuals may have what are referred to as records retention policies, which lawyers often refer to as records destruction policies when in a process of discovery are told that certain records had been destroyed pursuant to such a policy prior to a discovery order. Such policies set forth varying time periods based upon the types of records involved, some requiring short retention and other long retention. As I recall testimony before one of the House Committees by the current head of IRS, such information on retention, including backup for Emails, was provided, with references to long established policies; that backup of Emails is for a relatively short period, whereas returns and certain other matters are retained for longer periods of time.

As to Brett's invitation (which I cordially decline):

"You could NUKE the plant I work at, and retrieve my emails tomorrow."

Does the plant have a records retention policy? If so, does it call for Emails to be backed up in perpetuity? Perhaps Brett can check with his plant. There are expenses both in the private and government sectors in record keeping.

I'm not aware of a federal statute that addresses the matter of records retention that would make a records retention policy of a federal agency improper or illegal Perhaps I'll leave that "Googling task to Brett for the time being. But Brett's use of "deliberately" has innuendos of criminality, for which he does not provide evidence that any . Jusge destruction of backup Emails took place after a valid discovery order. Judge Emmett Williams may be pissed, but that Depends ... when and how the IRS responds what conclusions Judge Wiliams comes to. Depends. The evidence is not clear about deliberate destruction in violation of a lawful discovery order. See:

http://thehill.com/policy/finance/214895-irs-officials-no-data-recovered-from-lerner-hard-drive

Brett can't wait for the legal proceedings to follow and jumps to conclusions:


"Which makes them [IRS] more guilty, not less."

I'm not aware of pending criminal charges before a court of law relative to this matter. There has been no smoking gun especially as it relates to Pres. Obama's role in the alleged IRS scandal.

By the way, Judicial Watch itself needs sunshine regarding its role.


 

Can't find the Cornell article after a quick look and but did read his book on the 2A. His view on originalism might be suggested by this article:

http://www.dissentmagazine.org/online_articles/new-originalism-a-constitutional-scam

Just read a memoir by the New Yorker cartoon editor: "How About Never -- Is Never Good For You?: My Life in Cartoons."

This golden oldie seems to apply:

http://www.condenaststore.com/-sp/It-s-broccoli-dear-I-say-it-s-spinach-and-I-say-the-hell-with-it-New-Yorker-Cartoon-Prints_i8562908_.htm

For those wishing for some optimism, see e.g., the recent post on this blog, one of several, which is doubtful of Gov. Perry's indictment w/o being a big fan (I assume) of the man.

Perspective is a good thing.
 

“Do you think that records retention is a problem exclusive to the IRS?” asked Rep. Michelle Lujan (D-N.M)

Ferriero answered no.

Transparency advocates have also said this is typical


Read more: http://www.politico.com/story/2014/06/irs-lost-emails-archivist-108242.html#ixzz3AhQ9VOg5

I welcome the Republicans evenhanded efforts here, as they did during the Bush Administration, for transparency and their support of the funds needed to bring things up to date.
 

Yes, I do know how to Google, my Barney Fife friend, I just didn't do it on records retention laws as I was busy making gazpacho for tomorrow's lunch (obtaining several recipes by Googling, including a couple with, inter alia, fresh sweet corn). Your link referencing the Federal Records Act led to a Google of the name of the Act plus something appropriate which led to this link:

http://www.archives.gov/records-mgmt/toolkit/pdf/ID317.pdf

Titled{ E-Mail Management Department of Homeland Security Records Management

The provides quite a bit of detail that Brett and others may find interesting. I assume IRS has something similar to this but I'll soon be starting my 85th year and its bed time.



 

Shag, what you've linked to isn't the law, it's one agency's policy.

There's not much question that the IRS was, as a matter of policy, violating federal records retention law. They're not the only agency doing it. Systematic destruction of records required by law to be retained is endemic in our bureaucracy.

Not just destruction of records. Use of private and fake name email addresses to evade FOIA and official inquiries. Refusal to cooperate with Inspectors General.

It didn't start with this administration, but it's gotten worse during it. The bureaucracy refuses to abide by the law or submit to oversight.

Unless somebody decides to come clean, we will probably never know if the IRS abuses were directed from above, and that is the point of destroying evidence. So that people like YOU never have to admit what is going on.
 

The link I provided presumably follows the Federal Records Act and regulations promulgated thereunder Perhaps many if not all federal agencies come up with similar guides for its employees. As I noted, I haven't seen IRS guidlines. I would like to but will not have the time for several days to dig into this. I provided this link not because it favors IRS testimony but because it provides details as to E-Mails, guides prepared before the IRS alleged scandal. Employees need guidelines.

If I were actively practicing law, I would have downloaded the Federal Records Act, Regulations and other relevant information to understand the applicable law to what the IRS did and did not do. But I don't have the time to do this. Let the process go forward. Let's see the evicence, all ot it. Surely there is more than a tad of politics involved in this.

Here's a link for EPA employees:

http://www.epa.gov/records/tools/disposing.htm

Compliance with the Act can be complicated not only for emplyees of a federal agency but also for attorneys, as well as the the general public.
 

"it's gotten worse during it"

Facts not in evidence.

The implication here has been some specific case of wrongdoing with partisan/ideological implications.

Over time, it has been shown that a specific office not only had some grounds to determine certain groups are more likely to not merit specific tax breaks (to me, it looked like a possible disparate impact case) but that (as Shag notes) both left and right leaning groups were affected.

The latest here is the implication that there was a specific policy by the IRS to destroy for nefarious purposes.

But, as noted, and resources is a clear part of it (again, I welcome Republican support of funds), there is nothing unique to the IRS here. And, given the scope of government records, that isn't exactly surprising. Nor, did it start with this administration.

Now, the idea is that the problem is worse. It is a sort of game of whack-a-mole, one thing slammed down, another thing up. Not thinking past administrations somehow was so sure to safeguard their records.

Also, as with transparency, thinking paper trails were a concern as the years, technology and means of oversight (including the Internet) grew, but a neutral useful way of looking at it wouldn't be to single out this Administration.

I actually found looking up my last link some reference to the Obama Administration working on a policy to reform handling emails. I welcome actual evenhanded reform and transparency there (e.g., Melanie Sloan, putting aside some question of a recent position).

That's the big picture. I don't think Shag should live or die on the point of some transparency law violation here. In context, it is a much more venial sin than some framing suggests. His overall in depth discussion provides an on the whole more useful analysis of the situation.
 

"The latest here is the implication that there was a specific policy by the IRS to destroy for nefarious purposes.

But, as noted, and resources is a clear part of it (again, I welcome Republican support of funds), there is nothing unique to the IRS here."

Yes, and that's the problem: Destruction of public records isn't unique to the IRS. Neither are use of private email accounts, or political targeting. The whole bureaucracy has been weaponized and rendered it's internal processes opaque to avoid oversight.
 

How much more loony tunes can Brett get? Consider his:

"The whole bureaucracy has been weaponized and rendered it's internal processes opaque to avoid oversight."

Weaponized? Under the 2nd A? No, it's being "weaponized" with computers that can crash, including deliberately, and that permit for deleting Emails; and add to this "weaponized" via indictments.

Based upon Brett's past comments as a 2nd A absolutist AND as aself-professed anarcho-libertarian, this "weaponized" bureaucracy requires a response by non-state unregulated militias.

Perhaps the authorities should check out Brett's Emails at the plant he works at.
 

Yes, and that's the problem: Destruction of public records isn't unique to the IRS. Neither are use of private email accounts, or political targeting. The whole bureaucracy has been weaponized and rendered it's internal processes opaque to avoid oversight.

I continue to find Brett's use of tense (long practices seem to him somehow to have arisen recently) dubious given the historical use of governmental bureaucracy. But, if we want to neutrally evenhandedly be concerned about such things, including given modern day communication technologies etc., that's fine enough.

Not quite seeing that in the investigation etc. here. As to "political targeting," again, both right and left groups were affected. And, as Shag alludes to, this was based on the nature of the tax break involved. Partisan activity might not be included, especially (as it is not) if the barrier was as broad as the text seems to suggest.

To the degree, again, that government (and NON-GOVERNMENT) action results in non-evenhanded treatment or favoritism, it has and continues to be a concern.
 

Those interested might check out "The Irs Under Siege" by Tanins Rostam and Milton C. Regan, available at:

http://ssrn.com/abstract=2470003

It is 24 pages in length, Chapter1 of "Confidence Games, Lawyers, Accountants, and the Tax Shelter Industry" (MIT Press, 2014).

Unfortunately, Endnotes are not included. You don't need to be a tax whiz to get the gist but it helps to know about the "tax lottery" game on being audited.
 

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