I don't think the 17A completely ended the federalism argument. I think the 17A is generally exaggerated in various respects.

The term might have a certain negative connotation that bothers people. "Affirmative action" means various things. If you just take it's basic meaning, taking affirmative action to address something, it is on some level rather mundane.

There are various functions to affirmative action and that too factors in here. There is a remedial function. A diversity function. etc. Allotment of the seats at West Point, e.g., to my understanding back to its origin in part done in a way to bring together the nation as whole, including as a form of diversity.

I think the usage here is acceptable without trying to engage with all that is said. Also, I think working within the system, giving D.C. two senators could be defended in expanding representation of not just D.C. but the general type of people who reside there that are underrepresented in the current Senate.
 

The Senate is equal representation of each sovereign state within a union like the UN General Assembly or NATO.

"Affirmative action" is a spin term for discriminating between applicants based on race and/or gender where the criteria is supposed to be merit.

"Affirmative action"within a system based on equal representation of each sovereign state within a union would look like the UN Security Council, where a sub-group of states is granted special status. It would not look like the Senate.
 

The Senate is equal representation of each sovereign state *even though they have vastly disproportionate numbers of people* (the normal and logical democratic criteria).

Affirmative action par excellence.
 

American policy has favored affirmative action for white people since the very beginning: slavery; Jim Crow; voter suppression; Homestead Act; Social Security; redlining; etc. The Senate is no different.
 

The Senate is equal representation of each sovereign state within a union like the UN General Assembly or NATO.

Since the history "sovereign states" contains little sovereignty, and there is not remotely as much difference among the states as among the countries making up these organizations the analogy is silly.

It's also silly because those organizations have quite limited power. NATO can't impose taxes, or establish economic or environmental regulations, or establish a criminal code and arrest violators.

It's also silly because so what. In some circumstances such a system may be useful, or necessary to keep the organization together, as was the case when the Senate was established. That doesn't make it a good idea for all purposes, or a good idea at all.
 

It's also silly because if that was how it worked, how come there is a House?

It's pretty obvious that the Constitution was a compromise between notions of a compact of sovereign states (Bart's UN example) and notions a united and semi-democratic federal government.

This is one of the reasons the Constitution is an amoral charter. But given the Senate structure is permanent, we kind of have to live with it.
 

Dilan said...It's also silly because if that was how it worked, how come there is a House?

By design. So long as you remember that the purpose of the Constitution was to limit government power to maximize liberty, it all makes sense.

Selection by both population and sovereign states, along with a POTUS selected by a hybrid of both, requires an effective supermajority consensus before the federal government can exercise power over us.
 

As Bart says, the idea here is that the House makes it necessary to achieve majority population support for any legislation, while the Senate makes it necessary that this support be widely distributed, not local. So legislation only passes if it has popular support, widely distributed.

So, the "Coastal States Pay No Federal Taxes" act of 2020 easily passes the House, due to the concentration of population there, but fails to pass the Senate. While the "Small States Pay No Federal Taxes" act of 2020 fails to pass the House, even though it's a winner in the Senate. But the "Yeah, Everybody Likes This Idea" act of 2020 gets past both, because it doesn't just have popular support, that support is widely distributed.

The left mocks this as the Senate representing land, not people. But, land, where people live, matters, or else the US would be entitled to annex Canada even over its own population's objections. Or else every populous country would be entitled to take over its smaller neighbors. How can you make sense of such takeovers being wrong, if WHERE people live doesn't matter?

Oh, and, "Is it the fact that the beneficiaries tend to be opponents of the more "standard" examples of "affirmative action," such as putting a thumb on the scale with regard to racial or ethnic minorities who have been the victims of significant discrimination in the past?"

This is a typical description of affirmative action, but omits a key characteristic which is responsible for the right opposing it: It isn't people who have been the victims of significant discrimination in the past who benefit, it isn't people who have committed significant discrimination in the past who pay the price.

Rather, it is people who look like some of the past victims of discrimination who benefit, while those who pay the price may have an equal claim to such status, or merely look like some of past perpetrators.

And so we have the spectacle of black immigrants from Europe, say, receiving preference over the grandchildren of the Japanese internment. Because this sort of affirmative action doesn't care about actual life histories, it doesn't even impose on children the sins of their fathers. It just cares what people look like.

It isn't the cure for racial discrimination, it IS racial discrimination.
 

Talking about annexing smaller sovereign nations is a red herring, we're talking about how to run things within a given political system.

The way affirmative action works is that it is used to give some people preferential treatment over others. It usually operates as a 'plus factor' where, for example, if you have two applicants, one who gets a 95 on an exam and the other a 92, you give the second person 5 points because they are from some preferred or protected group. Now, ironically, geographic affirmative action is quite common, where a state will want to have more balance for its in state student college body for example they will give plus points to people from certain areas. The Senate, when it gives sparsely populated Wyoming the same number of Senators as California is engaging in a plus factor scheme that would blow any current state racial affirmative action out of the water (a Wyoming voter gets a plus factor of 70 to 1).

It's interesting when Bircher Brett makes the argument 'but you have to have a check that requires all groups (states) to be happy with something before it can pass because without it the more numerous groups could oppress the smaller ones, something like the Senate allows the smaller groups to at least have a veto power over that.' This is EXACTLY what Lani Guinier argued.


 

Another problem with the Senate is this: conservatives, especially ostensible libertarians, often say people should be able to 'vote with their feet' to live in places where their preferred policies will be in place. But if people vote with their feet by leaving sparsely populated rural states and go to the more populated coastal states, they then will find themselves stymied in federal power by the very areas they chose to leave. Thus 'failing' states still can dictate policy for everyone.
 

"Because this sort of affirmative action doesn't care about actual life histories, it doesn't even impose on children the sins of their fathers. It just cares what people look like."

Actually, this is a common misconception about how affirmative action works in the real world. AA tries to achieve *better representation* from *underrepresented groups.* Blacks and/or Hispanics or Appalachians aren't given preferential treatment because they are from groups discriminated against in the past or because they look like such groups, they are given preferential treatment *because their groups are underrepresented.* Now, they're likely underrepresented *because* of the lingering effects of past discrimination against people that looked like them, but it's the underepresentation that drives the preferential treatment.

And that plays into our current conversation. For whatever reason less populous states are 'underrepresented' or would be under normal democratic principles: for whatever reason less people choose to live in them. The idea behind the Senate is not to say 'well, these states should do a better job, get more people to move there, and then they'd be better represented.' Instead it's to give these states a plus factor in representation *because* otherwise they'd be underrepresented politically.
 

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Mista Whiskas said...Another problem with the Senate is this: conservatives, especially ostensible libertarians, often say people should be able to 'vote with their feet' to live in places where their preferred policies will be in place. But if people vote with their feet by leaving sparsely populated rural states and go to the more populated coastal states, they then will find themselves stymied in federal power by the very areas they chose to leave. Thus 'failing' states still can dictate policy for everyone.

Not if you apply the rest of the Constitution as written, which expressly limits national power to a grocery list of power and grants everything else to the sovereign states and the people.
 

Just to supplement MW's excellent comments, Brett's theory isn't a form of republican government at all nor even, really, of a nation. By Brett's logic, "local" (for his definition of "local"; there are lots of other definitions) interests should have a veto over national interests for no reason other than that Brett wants it that way. It's not because such a veto is good for the country as a whole -- the majority, by definition, thinks it is not -- nor that there's an objective value in "Brett likes this" as there is in the theory of republican government (the people, taken as a whole, decide).
 

Mark Field said...Just to supplement MW's excellent comments, Brett's theory isn't a form of republican government at all nor even, really, of a nation.

The Constitution transformed the USA from a confederation into a federation of sovereign states. This was by design. None of the framers intended the USA to become a centralized nation like the France of that time and certainly nothing in the same galaxy of the modern progressive state.
 

"Not if you apply the rest of the Constitution as written, which expressly limits national power to a grocery list of power and grants everything else to the sovereign states and the people."

1. Always remember Bircher Bart has no interest in the Constitution 'as written,' the touchstone of his constitutional theory is to read into all of its provisions an a-textual presumption of liberty into the vaguest part of the Constitution (the 9th Amendment). This would make 'penumbras' 'living constitutionalists' blush.

2. The power to stymie a seen as needed use of federal power is harmful in and of itself.

3. The 'grocery list' of federal powers can be quite broadly used.

2.
 

"None of the framers intended the USA to become a centralized nation like the France of that time and certainly nothing in the same galaxy of the modern progressive state."

None of the framers foresaw industrialization and what it would be like. Every nation that is industrialized has adopted a version of what Bircher Bart calls 'the modern progressive state.'
 

"Talking about annexing smaller sovereign nations is a red herring, we're talking about how to run things within a given political system."

It's not a red herring when the political system is a federation, rather than a unitary state.

Look, you can say, "Canada is a sovereign nation, and the principle of majority rules does not apply across sovereign borders.", but then you confront that the US IS a federation, with sovereignty shared between state and federal governments, and the Senate was, explicitly, part of the bargain under which the states agreed to cede some of their sovereignty to the federal government. So the basis for the states not being subject to majority rule across borders outside the areas of federal supremacy in the Constitution, and without the safeguards the Constitution incorporates, is the same as the basis for Canada not being subject to it.

Or you can say, "To hell with this sovereign states crap, majorities rule, period, and that overrides historical borders and interests.", in which case you can't explain why the US isn't entitled to rule over Canada.

The bottom line here is pretty simple: You want to be able to rule the entire country from areas you locally dominate. But the Constitution was specifically designed to prevent this from happening. You want to change that, the US is dissolved, and I doubt the states you don't dominate would choose to join a unitary state you'd control.
 

The states are not 'sovereign,' they are part of a 'more perfect union.'

A Canadian citizen is not a US citizen so yes a majority of Americans cannot rightly establish rules for him, but a Wyomingian and a Californian are both US citizens, they should have an equal say in establishing rules over each other. And the Senate gives the Wyomingian 70 times more representation.
 

the Senate makes it necessary that this support be widely distributed, not local. So legislation only passes if it has popular support, widely distributed.

This is absurd on many fronts. First, the party identification of the Senators from a given state does not reflect the unanimous opinion of the state's residents. Clinton got 43% of the vote in Texas. Does the fact that Cronyn and Cruz both oppose some proposed legislation mean that it has no support in Texas? Of course not, and the same argument applies to almost every state. There were seven states, totalling less than 5 million votes, where Clinton got less than 30%. Do Democrats in those states not matter for your "widely distributed" support? Trump got 31.6% - about 4.5 million votes - in California. Only in Texas and Florida did he get more actual votes. But, according to you, his policies aren't supported there.

And why is wide geographic support important, anyway, and not wide ethnic or religious support? Should we guarantee Muslim seats in the Senate? There are lots of dimensions of diversity in the US, and the state diversity of home state lives in is not really an important one.

Consider this. Seven of the Confederate states, AL, MS, GA, AR, TN, LA, SC, have a combined population about 4% less than that of CA. Together they have 14 Senators to California's two, 51 Representatives to California's 53, and 65 electoral votes to CA's 53. On what basis does this make the slightest bit of sense? There are not a lot of differences among these places.With the exception of part of of LA they have similar histories, cultures, ethnic makeup, etc. To view them as being distinctly different is insane.

Another flaw in your argument is the assumption that legislation is bad, that the status quo is always to be preferred, and that any obstacle to change is good, even if that change is supported by a majority of the public. I don't agree.

But you like the implied supermajority requirement. So why not then simply advocate for explicit supermajority requirements. Let it take 60% to pass a bill. That would be plain, and vastly more rational and equitable than the current system, which, in the Senate, assigns power randomly to various groups.
 

I've never heard of a 70 times plus factor in racial affirmative action, btw. The Senate is a far, far more 'egregious' (if that's how you view these things) example of 'preferential' political treatment.

If you want to argue that it was what was agreed to, sure, that's right. But the question is, was what was agreed to right (sensible and moral)? The answer to that is that for democratic criteria it is not, or, at the least, it's no more defensible than Guiner's explicit political affirmative action scheme.
 

BD: "None of the framers intended the USA to become a centralized nation like the France of that time and certainly nothing in the same galaxy of the modern progressive state."

Mr. W: None of the framers foresaw industrialization and what it would be like. Every nation that is industrialized has adopted a version of what Bircher Bart calls 'the modern progressive state.

Although the Founders did not foresee the industrial revolution, the limited power federation they designed was the most successful nation by far during before and during that period. People run their own economies better than governments.

Despite that successful liberal model, the Industrial Revolution produced a mandarin class to run the new big businesses, which offered an alternative totalitarian state in which they ran the economy and society under the guise of science.

Liberalism versus totalitarianism is the great conflict of our age and you are unfortunately correct that totalitarianism is winning.
 

"which, in the Senate, assigns power randomly to various groups."

What it does is assign outsized power to states based on or at least despite the fact that voters voting with their feet don't go to or leave those states. Their political climate can become more and more unpopular and yet never lose any political power at the federal level.
 

Again, Bircher Bart cannot dispute that the correlation between industrialization and the adoption of what he calls a modern progressive state is about as close to a perfect positive correlation that exists in the world. The kind of state we have is the kind of state industrialized nations have. Wishing for something else is unempirical fantasy, much like the communists do. It's industrialization that Birchers hate.
 

a federation, rather than a unitary state.

We are a unitary state. The Constitution, and people at the time were upset at this, doesn't say "We the States." It says "We the People."

This was a significant change from the Articles of "Confederation." That document started with a list of states. It said it was a "confederacy." It said (cf. 10A) this: "Article II. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

Brett has voiced opposition to the significant changes of the Constitution, but that is the document governing our nation. The nature of this nation was clearer after the results of the Civil War. It was ever more clear we were not simply a "federation."

Or you can say, "To hell with this sovereign states crap, majorities rule, period, and that overrides historical borders and interests.", in which case you can't explain why the US isn't entitled to rule over Canada.

Majorities don't simply rule and they wouldn't simply rule if we followed the wishes of James Madison and others & the Senate was apportioned by population (like the House, there still would probably be some unbalance if each state was guaranteed at least a single senator).

There are a range of interests in this country, by religion, race, gender, political sentiments, wealth, occupational etc. Apportioning the Senate so Florida and Texas is more equitably represented by population will not change that the net result will result in a range of variety nation-wide. The states won't disappear. They will still have significant power and ability to do things to address the diverse needs of their populations. The resulting political coalitions will be different but will -- as it ever was -- have to cover the needs and desires of a range of peoples. The Constitution provides a range of liberties as well that will further this.

You want to be able to rule the entire country from areas you locally dominate. But the Constitution was specifically designed to prevent this from happening.

The Constitution was designed to give significant power to a new national government but yes within its contours (less so in time ... end of slavery, security of national equality and rights of all citizens, etc.) there is room for a lot of diversity.

It is still unclear how the greater end is promoted here by giving Wyoming two senators on par with Texas and Florida. Both states have a range of diverse interests. Why shouldn't they be better protected via a more equitable Senate?

If localism is your concern, the Senate is a somewhat dubious approach.
 

There are arguments for federalism, some of which are good. But the Senate enacts a pretty bad, perverted version of it.
 

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Brett: a federation, rather than a unitary state.

Joe said...We are a unitary state. The Constitution, and people at the time were upset at this, doesn't say "We the States." It says "We the People."

You are relying on introductory rhetoric and ignoring the express design of the government itself from Article I to the Bill of Rights.

The Constitution transformed a confederation into a federation, not a unitary state. Most powers are reserved to the states and the people.

 

I don't think "we the people", which is empty rhetoric coming from a bunch of genocidal racist slaveholders, is talismanic either.

The Constitution is a COMPROMISE- less state sovereignty than a confederation, more than a unitary state.
 

This is a typical description of affirmative action, but omits a key characteristic which is responsible for the right opposing it: It isn't people who have been the victims of significant discrimination in the past who benefit, it isn't people who have committed significant discrimination in the past who pay the price.

Rather, it is people who look like some of the past victims of discrimination who benefit, while those who pay the price may have an equal claim to such status, or merely look like some of past perpetrators.

Affirmative Action is in place for a variety of reasons, as noted, but this is off on its own. People still are victims of discrimination in this country and affirmative action continues to address and help prevent that issue. Some people still benefit from this discrimination and yes to some limited degree they "pay the price" though net the programs are in place to benefit everyone too.

If the police, let's say, discriminate against blacks, the fact that the person at issue is a recent immigrant or even well off (various vignettes have been shared here) doesn't stop them repeatedly. Also, even people fairly well off still pay a sort of "tax" for discrimination, including being more pressed to deal with existing discrimination such as from less well off family members.
 

You want to be able to rule the entire country from areas you locally dominate.

This is insulting phraseology. It is not a question of "dominating" in the sense of being in power against the will of the people. Urban areas are not Democratic-held forts, from which Democrats rule because those forts are so strong.

Democratic policies are popular some places. Get that through your head. For some reason the fact that they are popular in densely populated areas makes their popularity, in your mind, illegitimate.

It is not me who wants to privilege voters in some areas. I want them treated equally. It is you and Bart who make up silly excuse after silly excuse for giving excess power to rural voters, or to voters you agree with.
 

I don't think "we the people", which is empty rhetoric coming from a bunch of genocidal racist slaveholders, is talismanic either.

It wasn't empty rhetoric since the Constitution, which was also voted on by opponents of slavery, as a whole set up a new government that moved from the Articles of Confederation approach.

Likewise, each time it was amended, included after a war that led to the end of slavery, it was a reaffirmation of the existing Constitution in place.

At some point, the "talismanic" comments about how genocidal racist the Founders are, by someone in a country still rather racist and far from ideally humanistic, is also empty rhetoric too.
 

"then you confront that the US IS a federation, with sovereignty shared between state and federal governments, and the Senate was, explicitly, part of the bargain under which the states agreed to cede some of their sovereignty to the federal government."

This is laughable coming from a purported "originalist":

The DoI: "whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government". Governments aren't sovereign, people are.

Madison, Report of 1800: "In the United States, the case is altogether different [from Britain]. The people, not the government, possess the absolute sovereignty."

James Wilson: "“There necessarily exists in every government a power from which there is no appeal; and which, for that reason, may be termed supreme, absolute, and uncontrollable [meaning “sovereignty”]. ... The truth is that in our governments the supreme, absolute, and uncontrollable power [sovereignty] remains in the People. As our constitutions are superior to our legislatures, so the people are superior to our constitutions…. The consequence is that the people may change the constitutions whenever and however they please.”

John Adams, writing in his 1787 book, Defence of the Constitutions of Government of the United States: “Our people are undoubtedly sovereign….”

Charles Cotesworth Pinckney, a wealthy planter and lawyer from South Carolina, served as a Revolutionary War veteran, a delegate to the Constitutional Convention, and Minister to France under Washington. Speaking at the South Carolina ratification convention on May 14, 1788:

“In every government there necessarily exists a power from which there is no appeal, and which for that reason may be termed absolute and uncontrollable.

The person or assembly in whom this power resides is called the sovereign or supreme power of the state. With us, the Sovereignty of the union is in the People.”

Madison speaking on the floor of the House of Representatives on March 8, 1796: “On some points there could be no difference of opinion, and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people...”

The Anti-Federalists agreed. An anonymous anti-Federalist writing as “Cato” on October 10, 1787: “In democratic republics the people collectively are considered as the sovereign – all legislative, judicial, and executive power is inherent in and derived from them.”

In all these cases we have to treat "people" as meaning "white men of age and property", but that's inherent in Brett's claim to be an originalist (sic).

 

If the police, let's say, discriminate against blacks, the fact that the person at issue is a recent immigrant or even well off (various vignettes have been shared here) doesn't stop them repeatedly. Also, even people fairly well off still pay a sort of "tax" for discrimination, including being more pressed to deal with existing discrimination such as from less well off family members.

The problem with this argument is affirmative action is not a great proxy for actual disadvantage.

It is true that it is possible to be a well off black person and get harassed by the police. It happens. But: (1) it happens far, far less often than it happens to poor blacks living in inner cities; (2) well off blacks have access to all sorts of societal mechanisms, from lawyers to the media, to respond to it that poor blacks do not have access to; (3) because of (2), such interactions rarely end with a fabricated charge and jail time, whereas they do for poorer blacks; and (4) the privileges of having wealth and power and connections are actually a lot more relevant to the theory of affirmative action- i.e., affirmative action is supposed to compensate for the fact that the American elite was traditionally exclusionary, not for police beatings.

And in that regard, affirmative action is also particularly bad in terms of targeting its benefits. None other than Barack Obama recognized this, mentioning that his kids should not be the beneficiary of affirmative action programs. (Of course, there is a different form of affirmative action that ensures the children of Presidents get into the best schools no matter their level of talent.) The basic problem is that as long as there is no class-based affirmative action- and elite institutions are hell-bent against that, as it would force them to associate with "those" people, and because it would hurt their donations racket- what affirmative action tends to do is let the sons and daughters of black doctors and lawyers and politicians into elite schools, whereas if you grow up in Watts, you still don't stand a chance.

Now, as I hinted in that last paragraph, the problem isn't with the notion of affirmative action. It's that it's not well targeted. Affirmative action targeted at poor people would be an extremely good thing- it will also happen over the dead bodies of many of the people who run these programs. They want credit for being "woke" without having to do things that might actually be painful for them. Heck, affirmative action targeted at poor MINORITIES would be a huge improvement (although I would still contend that whites who are coded as "white trash" or "rednecks" also face a ton of exclusion from elite institutions).

The problem with affirmative action, as the OP says, is exactly who it is targeted to. Right now we have a bunch of affirmative action programs for privileged people, from the children of famous people to the children of big donors to athletes in rich people's sports, alongside a few programs that benefit mostly middle and upper class minorities. The elites in this country certainly favor an on-the-surface diversity, where you have people of different genders and colors in the room; they do not favor actually opening the door to the people they look down upon.
 

It wasn't empty rhetoric since the Constitution, which was also voted on by opponents of slavery, as a whole set up a new government that moved from the Articles of Confederation approach.


There were VERY few opponents of slavery in that room, Joe. Something like 85 percent of the signatories of the major founding documents were not only supports, but owners, of slaves.

At any rate, just because it set up a new government (it did) which was better than the Articles (it was) doesn't mean that it had anything to do with "we the people". It was a few people in a room. That was it.

Most white people had no say.

No black people had any say.

No Indians had any say.

No women had any say.

As Malcolm X said, they didn't land on Plymouth Rock. Plymouth Rock landed on them.

"We the people" is a disgusting piece of propaganda.

At some point, the "talismanic" comments about how genocidal racist the Founders are, by someone in a country still rather racist and far from ideally humanistic, is also empty rhetoric too.

Tell that to the 4 million Americans who were still enslaved 80 years after this country's founding. It was certainly empty for every one of them.

You can only dismiss their lives through your White Privilege, Joe.
 

It's worth noting that quotes from the framers don't prove anything about the actual nature of the government created in 1787.

The framers were, not to put a fine point on it, habitual propagandists. Of course you don't say "We the White People intend to form a government that perpetuates the subjugation of Blacks, Women, and Indians, for our own benefit". Nobody joins that revolution. So they uttered a bunch of BS instead.

What is sad is that even now, there are so many marks who buy into the con. (Marks?)
 

"None of the framers foresaw industrialization and what it would be like. Every nation that is industrialized has adopted a version of what Bircher Bart calls 'the modern progressive state.'"

Yeah, and it's not a good thing. Sometimes really bad ideas get widely adopted, because they're not really bad for the people in a position to impose them, only for the people they're imposed on.

But, if you really want to convert our federal system with enumerated powers, and everything else reserved to the states, into a modern unitary state, I direct your attention to Article V. If you don't feel bound by it, don't be shocked if the states you want to rule don't feel bound by you.
 

Mark:

The DOI established that the purpose of government is to protect our liberties and the People could alter or abolish governments which fail to do so.

The Constitution was ratified to force the government to do so by limiting its powers and guaranteeing various liberties from the exercise of government power.

The ideas that sovereignty and powers reside with the People means we are sovereign and have power over our own lives. Another way of describing liberty.

The idea that the government answers to the people does not mean a majority of the people may abuse government power to deny their neighbors life. liberty or property.
 

Mr, W: "None of the framers foresaw industrialization and what it would be like. Every nation that is industrialized has adopted a version of what Bircher Bart calls 'the modern progressive state.'"

Various forms of tyranny have been the default political economy for most of human history. Totalitarianism is the latest.
 

The people Dilan preaches about as victims of our racist Framers repeatedly appealed to the principles of the Declaration of Independence etc., which as Mark has noted people knew was an ideal not being put in place in a variety of ways, including in antebellum years. John Calhoun types sneered at their alleged fictions too.

My comment about "We the People" is not negated by the fact that we were rather undemocratic in 1787 though a lot more so as compared to other nations. It still better represented the governing people of the time. Yes, a subset of white men, though in a place like Pennsylvania a wide subset. And, multiple states already ended or were on the road to abolishing (NY wasn't going to simply abolish slavery in a moment) slavery.

Also, this part was skipped over, I noted that amendments to the Constitution reaffirmed its terms, and these expanded the reach of "We the People." Including after people fought and died in the Civil War in part to end slavery.

None of this ignores the wrongs of this nation. Again, today, while Dilan preaches about the law, we live an inequitable country and many today who are victims of this are quite cynical by law preachers. This part was skipped over too for the same old preaching of how horrible people were in 1787. Duly noted.

The First Amendment is suddenly not worth the paper its printed on. The Constitution is still not a document that sets up a confederation.
 

"No women had any say."

The Constitution set in place gave women a "say" in a variety of ways and this was seen by the variety of ways women practice "republican motherhood" (as some histories frame it), worked in a variety of activist ways and so forth.

When women were arrested, they were protected by due process. White women were counted equally in the census. They were protected by freedom of religion etc.

Also, to reaffirm the "We the People" thing, after the people in the room where it happened voted, the document was submitted to the people, not state legislatures. People had some ability to vote for the delegates in ratifying conventions.
 

But, if you really want to convert our federal system with enumerated powers, and everything else reserved to the states, into a modern unitary state.

The "modern progressive state" has a range of personal liberties, in some cases, more so than we have. State legislatures are apportioned by population and so can the national legislature. Federalism would not disappear. James Madison et. al. supported both.
 

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"the document was submitted to the people, not state legislatures."

Exactly. And the reason for that was that state governments, per se, were not "sovereign" and the new government was not a "league". Ratification occurred in conventions because the people (see note above) were sovereign.
 

Joe:

Like all other totalitarian governments, the modern American progressive state considers any liberty it does not favor to be a revokable privilege.
 

"I've never heard of a 70 times plus factor in racial affirmative action, btw."

As I recall from the California AA litigation, it does get that extreme for certain ranges of SAT score, where your chances of being admitted approach 100% if black, and 0% if Asian-American.
 

"You are relying on introductory rhetoric and ignoring the express design of the government itself from Article I to the Bill of Rights."

Lol! "You're relying on the express words of the Constitution as written when you should look at what's not express but implied by it's design!"
 

"What is sad is that even now, there are so many marks who buy into the con. (Marks?)"

Some people, not blinded by some petty internet vendetta, realize Mark is arguing *with* originalists, so quoting the Framers makes plenty sense there.
 

As Malcolm X said, they didn't land on Plymouth Rock. Plymouth Rock landed on them.

Well, sort of. Mr. Porter would like a word.

Watch the whole thing.
 

"Sometimes really bad ideas get widely adopted,"

This isn't that. *Every* nation that industrializes adopts this. This strongly implies that these two things are inextricable. It's modernity you're railing against.

"But, if you really want to convert our federal system with enumerated powers, and everything else reserved to the states, into a modern unitary state, I direct your attention to Article V."

This is essentially a concession: 'I don't have any good philosophical argument for why things are this way, it's just what happened, change it you think you can.'

I agree our system makes it virtually impossible to get rid of the indefensible structure of the Senate. Of course, it made it virtually impossible to get rid of slavery too...

 

"The "modern progressive state" has a range of personal liberties"

Almost every person is more free under our current system than were in Bircher Golden Ages. These are people that think having to get a permit to develop some land > slavery, Jim Crow, the disenfranchisement of women, imprisonment of LGBT, obscenity laws that barred stuff like James Joyce, etc.,

These are partisan incoherents.
 

"As I recall from the California AA litigation, it does get that extreme for certain ranges of SAT score, where your chances of being admitted approach 100% if black, and 0% if Asian-American."

Of course, were this true Bircher Brett would of course see it as unfair. Not so much with the Senate which does the same.
 

Mr. W:

The USA did not fully adopt the "progressive" importation of socialism and fascism until the "New Deal," almost a century after the first industrial revolution before the Civil War. As a result of that refusal, we became the wealthiest and most productive economy in the world.

The advance of equal treatment under the law during the last generation meant everyone enjoyed the same limits on their liberty imposed by the "progressive" state.
 

In 1900 40 percent of Americans lived on farms and 60 percent in rural areas. Those numbers have plummeted to around 1 and 20. As we industrialized the modern progressive state grew. This is true for every nation.

"the same limits on their liberty imposed by the "progressive" state."

Which are minuscule compared to what existed before that. Before that James Joyce books and anything racier (which is about 90% of today's entertainment) were barred regularly under obscenity laws. Women were barred from basic professions, as were minorities. People were thrown into jail for the sexual positions they engaged in in their own homes, for 'co-habitation', adultery, etc.,. Divorce was nigh impossible to get. Even in economics things like government granted monopolies were common. To use the terminology of the kids today, it sucked.
 

Yes, we got passed slavery. Not completely mind you. But, even when the vote was in place for a subset of white males, we got passed it. It took a war, but we got passed it in many states even without a war. Thousands of slaves in New York alone were freed.

I just read a good book about Edie Windsor's life. How imaginable was her legal marriage to Thea Spyer [they personally married in the 1960s] not THAT long ago?

So, I don't think the Senate as currently in place is locked forever.

There are a range of possibilities. (1) States might agree to a change in return for something (2) The nature of the Senate itself might change so we would have an inequitable system but its effects will be much less notable (3) An amendment by normal order can remove the special provision in place in Article V and then a second amendment can set up a new system (4) Like the Articles of Confederation, a new constitutional convention can be in place to change the document writ large (5) A variety of other possibilities like at large senators, agreed upon divisions of states to make things more equitable or other things yet to be imagined.

This virus has led to things that were hard to imagine -- MLB was shut down for a week after 9/11. The Supreme Court last suspended oral arguments a century ago. etc. The Senate being set in stone is not locked in stone. Even though our flawed society makes wrongs harder to address in a variety of ways.

 

"as long as there is no class-based affirmative action"

There is class based affirmative action. It was of long standing.

Sandy Levinson in his writings (e.g., "Wrestling with Diversity") spoke of the value of an expansive view of affirmative action. Which is fine. Bakke, e.g., spoke of race as but a factor along with others.

Race is still a significant factor, thus the person who must not be named emphasizing it above and beyond class. The continual debate on the ERA alone underlines race isn't the only concern. This is obvious. It's sometimes easier to preach as if people don't see obvious things though.
 

The "class not race" bullshit spouted by pseudo-leftists is just a perfectionist, perfomative attitude, not a serious policy. The practical effect is to prevent any amelioration of the conservative system.
 

"I noted that amendments to the Constitution reaffirmed its terms, and these expanded the reach of "We the People." Including after people fought and died in the Civil War in part to end slavery."

It's pretty weird that advocating a principle common to Abraham Lincoln and Saul Alinsky is somehow seen as making Joe evil.
 

You are more evil. Don't you forget it.
 

I'm the head of the Evil League of Evil.
 

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Mr. W:

The various forms of totalitarianism (socialism, fascism, communism, corporatism, etc) arose with the advent of the Industrial Revolution, long before a majority of populations worked in industry. Progressives in this nation very quickly attempted to import them in the United States. With the exception of a short flirtation with "war socialism" during the Wilson administration, progressives did not succeed in actually imposing ongoing totalitarian policies until Hoover/Roosevelt.
 

What arose with the Industrial Revolution was a more active government. It arose in every country that has ever industrialized, strongly implying the two are inextricable.

Active government =/= 'totalitarianism' in the pejorative sense that Bircher Bart is trying to cash in on. In fact, a more active government can fit with a wonderfully more free and humane society. To see this indisputably, note that the biggest significant growth of federal activity pre-Industrial Revolution in the US was...the Freedman's Bureau and other related Reconstruction programs. What a horrible 'totalitarianism' that was!
 

The argument about class vs. race based affirmative action misses, I think, the point about how affirmative action operates in most institutions today. It's not about amelioration of past wrongs, it's about current representation. The police practice affirmative action because an all white police force in a black neighborhood will be at a disadvantage to force with more representation from the neighborhood policed. Colleges practice affirmative action because their job is to prepare students for a racially diverse world, therefore they will ideally have a racially diverse campus. This is the affirmative action rationale Bakke, and later precedents allows, not amelioration. It's why many conservatives in Fisher who were upset about Texas giving preferences to middle class blacks from Houston were missing the point. A college with little or no middle class blacks is not preparing their students for the real world where there are middle class blacks.
 

"progressives did not succeed in actually imposing ongoing totalitarian policies until Hoover/Roosevelt."

Who wants to bet that if I went into the archives I could find examples of Bircher Bart decrying TR and Wilson's measures as 'progressivism' and totalitarianism (Pure Food and Drug Act, ICC, etc.,)? Any historian can tell you the progressive movement became a force around 1900, which not coincidentally, was when the % who lived on farms and rural areas saw significant, consistent decline. The time of Hoover/Roosevelt was, not coincidentally, when it started to fall more precipitously.

Again, this pattern has followed in *every industrial country.* More federal intervention, bureaucracy, social welfare programs, all are essentially perfectly positively correlated with industrialization.

Birchers like Bart aren't just shaking their fist at clouds, they're shaking it at modernity and all its blessings.
 

The various forms of totalitarianism (socialism, fascism, communism, corporatism, etc) arose with the advent of the Industrial Revolution, long before a majority of populations worked in industry.

So in your opinion today's industrial social democracies - western Europe, Japan, etc. - are more totalitarian than the various monarchies and empires that preceded them. The French, for example, are less free today than they were before the revolution. Is that correct?
 

byomtov, -- of course the people then were more free! If by "people" you mean the elites, who enjoyed unprecedented freedom to treat the lower classes as chattels... (Which was, coincidentally, the same "freedom" enjoyed by the white upper classes in those days he hearkens back to.)

I don't know about anybody else, but I get a strong whiff of "let them eat cake" syndrome (and, yes, I know that's a canard) coming off ol' Bart's denigration of "cowards" who he sneers at, presumably for their being afraid of infecting their aunties and grannies with a disease that may very well kill them.

 

Mr. W: Active government =/= 'totalitarianism' in the pejorative sense that Bircher Bart is trying to cash in on. In fact, a more active government can fit with a wonderfully more free and humane society.

Totalitarians definitely believe in "active government."

Progressives were not original. Every one of their policies was copied and imported from a socialist and/or fascist government.

Living your life as you see fit is free and humane. Nearly all of those imported socialist and/or fascist policies reduced our freedom and, thus, made us a less humane society.
 

Non-responsive. Partisan incoherent.

An active government can fit well with expanding liberty as my example shows. And an inactive government can be terrible (Somalia).


 

BD: "progressives did not succeed in actually imposing ongoing totalitarian policies until Hoover/Roosevelt."

Mr, W: Who wants to bet that if I went into the archives I could find examples of Bircher Bart decrying TR and Wilson's measures as 'progressivism' and totalitarianism (Pure Food and Drug Act, ICC, etc.,)?

I will take your wager. You have taken the time to offer straw men and heaps of rotten red herring in the past.

As for your present servings...

(1) Safety inspections fall comfortably within the portfolio of a limited liberal government - keeping people from harming one another. This is not totalitarianism.

(2) I am unsure whether I have posted about TR here. TR talked a good totalitarian game, but his only real contribution to the genre was "trust busting," the government breaking up successfully companies and requiring permission for the merger of companies, generally at the lobbying of their competitors. In reality, anti-trust laws were an almost complete failure and were rarely enforced.

(3) You will most definitely find my comments calling out the racist totalitarian Wilson, arguably the worst POTUS in American history. I did so again in this thread. Thankfully, we had a "return to normalcy" and a reversal or non-enforcement of progressive policy after this evil man's administration ended. The result was the Roaring 20s.

Once again, progressive totalitarianism did not become an ongoing fixture of our political economy until Hoover/Roosevelt.


 

Mr. W: An active government can fit well with expanding liberty as my example shows. And an inactive government can be terrible (Somalia).

False choices are another of your favorite logical fallacies.

The choice is not between totalitarianism and anarchy, but rather totalitarianism and a liberal government limited to keeping people from harming one another.
 

I offered no false choices, only two empirical examples-one where a huge jump in federal activity coincided with an expansion of liberty and another where a dearth of federal activity led to a loss of liberty. This destroys Bicher Bart's simplistic general statement about the two.

Interestingly, he then offers up a classic false dilemma (trying to argue the only two positions are the one he wants and something awful).
 

"Who wants to bet that if I went into the archives I could find examples of Bircher Bart decrying TR and Wilson's measures as 'progressivism' and totalitarianism"

"I will take your wager. "

"You will most definitely find my comments calling out the racist totalitarian Wilson"

This fool doesn't realize he proved he lost.

This is not a serious man. This is a partisan incoherent.
 

BTW-Trump and Mnuchin are proposing many measures to combat Covid 19 that the 'totalitarian Wilson' would almost certainly have vetoed as unconstitutional use of federal powers.

This is not a serious man. This is a partisan incoherent.
 

Mr. W: I offered no false choices, only two empirical examples-one where a huge jump in federal activity coincided with an expansion of liberty and another where a dearth of federal activity led to a loss of liberty.

How, pray tell, did imposing a library of laws and regulations directing our lives "expand liberty?"

Trump and Mnuchin are proposing many measures to combat Covid 19 that the 'totalitarian Wilson' would almost certainly have vetoed as unconstitutional use of federal powers

Read some history.

Using WWI as a pretext, Wilson and his progressives eagerly misdirected and nationalized large swaths of the economy and intended to maintain that control past the war. If this merry band of "war socialists" considered the 1918 flu a similar pretext rather than a simple fact of life, they would have used it.
 

Trump and Mnuchin are proposing many measures to combat Covid 19

Republicans discover their inner Keynesians.
 

"How, pray tell, did imposing a library of laws and regulations directing our lives "expand liberty?""

Does he not understand the example I've given several times already or not get that it's an example of it? You be the judge, remembering this is the guy who guaranteed a Romney victory, said Iraq had WMDs long after W, Rice, Powell et al, conceded otherwise, argued there was 'zero evidence' Trump asked Ukraine's leader to investigate the Bidens (and after the release of the WH quasi-transcript), argued that a Trump appointed DA who donated time and money to the Trump campaign and transition team was prosecuting M. Cohen and L Parnas as part of a political hit on Trump, etc., etc., . This is not a serious man, this is a partisan incoherent. So either answer could be true (and don't discount rank dishonesty as well), there's an established history here.
 

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BD: "How, pray tell, did imposing a library of laws and regulations directing our lives "expand liberty?""

Mr. W: Does he not understand the example I've given several times already...

In short, you got nothing. Once you get beyond laws keeping people from harming one another. more government always equals less liberty.
 

"Using WWI as a pretext, Wilson and his progressives eagerly misdirected and nationalized large swaths of the economy and intended to maintain that control past the war. "

Lol, one thing Bircher Bart is known for here is his consistent, devoted dedication to resisting expansion of federal power during war time (not only did he support and cheer lead for the Iraq debacle long after other GOPers soured on it, he cheerleaded for the Patriot Act, increased warrantless surveillance [boy that one came back to bite many conservatives in a sweetly karmic fashion], torture, rendition, indefinite and virtually unchecked detainment [even of citizens], etc.).
 

"In short, you got nothing. Once you get beyond laws keeping people from harming one another. more government always equals less liberty."

He really doesn't get it. Too funny.
 

"Republicans discover their inner Keynesians."

There are no RBC theorists in pandemics.
 

byomtov said...Republicans discover their inner Keynesians.

Election year response by the governing party against effective panic mongering by an exceedingly disloyal opposition.

When the choice is between principles and retaining power, most politicos will choose power.
 

Election year response by the governing party against effective panic mongering by an exceedingly disloyal opposition.

Disloyal to who? Trump? You seem to be accusing virtually the entire public health and medical establishments of politically-motivated panic-mongering. I guess you know better than they do, though we've previously had an unimpressive example of your expertise in epidemiology.


When the choice is between principles and retaining power, most politicos will choose power.

I agree with you. The Republicans have abandoned their principles for political gain. This, however is one of the cases where the principke deserved to be abandoned. They have accidentally stumbled into doing the right thing, assuming they follow through
 

byomtov:

Disloyal to the country.

There is zero doubt the Democrats and their media are panic mongering in the hope the resulting carnage in people's lives will cause them to finally turn against Trump after all the previous Democrat slander campaigns have failed. At minimum, the Democrats are applying their prime directive of "never allow a crisis to go to waste" to exploit the panic they have manufactured to dramatically expand the welfare state in another trillion dollar "stimulus plan."

My use of the term "disloyal" was inaccurate and only meant to make a classical allusion. The terms "reprehensible" and "evil" would be more accurate.
 

"There is zero doubt the Democrats and their media are panic mongering in the hope the resulting carnage in people's lives"

Corvid is being constantly covered on Faux News. Sorry Charlie!

It's better said that Birchers like Bart would rather see carnage in people's lives than a justified panic about the same that would hurt their favored fascist.

This is a man on record here saying he would support Trump if he literally murdered someone. This is an intellectually and morally deranged partisan incoherent. Not a serious man. What nut would trust what he says here?
 

He also literally still can't or won't get it...As his favored fascist says: sad.
 

I'm a bit at a loss here. What does Bart imagine that "Democrats" (I wonder which Democrats -- there are a whole lot of them) are supposed to do? Pretend that the worst-case scenario here is that a few old people kick, and that the hospitals will handle the problem just fine?

I ask, because that appears to be an incredibly stupid idea, given what we've seen in Italy and other places.

 

BD: There is zero doubt the Democrats and their media are panic mongering in the hope the resulting carnage in people's lives will cause them to finally turn against Trump after all the previous Democrat slander campaigns have failed.

Mr. W: Corvid is being constantly covered on Faux News. Sorry Charlie! It's better said that Birchers like Bart would rather see carnage in people's lives than a justified panic about the same that would hurt their favored fascist.

News coverage is not as panic mongering.

At least, you admitted to the Democrat media panic mongering and intent to harm Trump before shoveling your usual pile of red herring.
 

C2H5OH: I'm a bit at a loss here. What does Bart imagine that "Democrats" (I wonder which Democrats -- there are a whole lot of them) are supposed to do?

Offer the same nonchalance they did when H1N1 came through during the Obama administration with exponentially higher infections and deaths, while Obama did nothing until the infection rate was over a million, both of which were the correct responses BTW.


 

Bart, you should read some history. H1N1 was actually handled reasonably well (not perfectly -- but expecting perfect handling of anything by a government is insane, as any real libertarian would understand).

Were the hospitals overwhelmed? No?

And as for "exponentially" -- you have no clue what that word means, so you shouldn't use it. In addition to which, this is not over yet. When it has blown over with little problem, you can criticize those who went overboard warning people what might happen -- after all, hindsight is always more accurate...

Meanwhile, the sane people are paying attention to what happened other places and warning that things might be very bad.

By the way, speaking of panic: just who in the financial markets are panicing? It's not the people who have no money. It would seem that a whole lot of people with a lot of money are running scared here. Tell them to just sit and watch their holdings drain away and stop whining about Democrats, why don't you?

 

C2H5OH: And as for "exponentially" -- you have no clue what that word means, so you shouldn't use it.

CDC re: H1N1: "From April 12, 2009 to April 10, 2010, CDC estimated there were 60.8 million cases (range: 43.3-89.3 million), 274,304 hospitalizations (range: 195,086-402,719), and 12,469 deaths (range: 8868-18,306) in the United States due to the (H1N1)pdm09 virus."

CDC re: Covid 19: "Total cases: 7,038 Total deaths: 97 Jurisdictions reporting cases: 54 (50 states, District of Columbia, Puerto Rico, Guam, and US Virgin Islands) * Data include both confirmed and presumptive positive cases of COVID-19 reported to CDC or tested at CDC since January 21, 2020"

When comparing the H1N1 data to the COVID 19 data, the former can be considered to be "characterized by or being an extremely rapid increase" when compared to the latter. Exponential.

Meanwhile, the sane people are paying attention to what happened other places and warning that things might be very bad.

WORLD COVID 19 stats are not remotely in the same category as the US H1N1 stats I noted above.

By the way, speaking of panic: just who in the financial markets are panicing?

Investors are panicking because government decrees in gross overreaction to COVID 19 are progressively shutting down larger and larger swaths of the OECD economies. Investors have no idea how bad this will get.
 

You keep ignoring the forest to focus on trees. WERE THE HOSPITALS OVERWHELMED in the H1N1 pandemic? No? Then stop comparing them. It's meaningless.

Nobody knows how many COVID-19 cases there will be in two weeks, let alone two months, so your data is, again, meaningless. You are predicting that the number of COVID cases will fall far short of H1N1, are you? That's stupid, at this point. But then, since you don't have a real clue about what "exponential" means, I suppose that fits.

Furthermore, people understand the flu. This disease is, to people, new.

Your statement about why investors are panicking is asinine. The market is driven, as everyone knows, by fear and greed. Investors saw the fear early on and are bailing. People were starting to behave in fundamentally different ways before the government started issuing "lockdown" decrees. Stores (other than grocery, pharmacy, and liquor) were emptying last week.

Apparently you believe that people should simply go out and mingle as usual, go to restaurants, sports bars, arenas? There's stupid, and there's that, which is an insult to the merely stupid.

 

C2H5OH said...You keep ignoring the forest to focus on trees. WERE THE HOSPITALS OVERWHELMED in the H1N1 pandemic? No? Then stop comparing them. It's meaningless.

Hospitals are not remotely overwhelmed now. The fear is coming from worst case projections which, to date, have no basis in reality.

You are predicting that the number of COVID cases will fall far short of H1N1, are you?

If I had to take that wager, I would say yes,

I am assuming the actual COVID 19 spread to date is up to ten times larger than what we have confirmed because of a lack of testing availability. That is still minuscule compared with H1N1.

Your statement about why investors are panicking is asinine. The market is driven, as everyone knows, by fear and greed. Investors saw the fear early on and are bailing. People were starting to behave in fundamentally different ways before the government started issuing "lockdown" decrees.

I stopped reading your post after this utter nonsense. The markets started heading south when China started shutting down US supply chains. It got really bad when our governments started shutting down our economy.
 

So you believe that China should have just kept everyone in the factories, working away, elbow-to-elbow, so the markets' supply chains would be kept on and the American stock market wouldn't have a dip?

Dream on!

Even so, the American stock market did not drop dramatically until it became obvious that the virus had been found in the USA. And then the drops were dramatic and only temporarily halted and reversed by government actions. The market dropped each time the number of cases dramatically increased, and went back up with each dramatic action by the Fed and, most recently, by belated action on the part of the Trump administration to get real. That contradicts your theory -- not that I expect you to notice, given your proclivity for coming to a conclusion first and then ignoring all countervailing evidence...

What wagers you think you would take make no difference. The populace does not make collective decisions based on wishful thinking. Fear, which is highly contagious, causes rapid changes in behavior. Over-reacting is far safer than ignoring danger.