"1) Polarization; 2) rancorous debates about who is, and who is not, to be included with the demos, sometimes called "identity politics""

These are 2 sides of the same coin. The periods when politics were not polarized were the periods in which white voters implicitly agreed to let blacks (and later other minorities) be oppressed.

I'd also suggest the "presidential overreach" is the natural consequence of obstruction in Congress. If the majority can't enact its policies, the pressure to do so will eventually result in presidents assuming the power of Congress.
 

Great post. But, as expressed in the post (but not really further elaborated):

"That was then, and now is now"

Speaking of Japaneses in concentrated camps, recall that it was confirmed by the Supreme court. Unbelievable today. But, it was then so. So, one must take to consideration, external vectors ( international) and shifting in public policy and new public perceptions.

For the US, was facing after the terrorist attack on the Twin towers the same situation (as in second world war). Yet, nobody, could even dare to think, that Muslims would have to be treated like Japaneses at the time of course. Muslims have suffered, but, no more than under cover operations (of the FBI, and alike).

And again Sandy:

You write about majority in both houses, as sort of solution for flawed democracy and regime. But, you ignore over and over, the absolute majority or alike, that the president has in the executive branch. He has total upper hand in this regard. Almost like a monarch. Parliamentarian regime, would necessitate coalition in government and governing. That is hell sometimes. For you can't carry out then, any coherent policy.

Thanks
 

Here to Kormatsu v. US:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep323/usrep323214/usrep323214.pdf

And compare it to:

Syed v. The city of NY:

http://www2.ca3.uscourts.gov/opinarch/141688p.pdf
 

I now have genuine respect for Kristol as a principled "never-Trumper" who has, like others of that breed, undoubtedly lost friends and access because of his principled stance.

I don't.

Kristol has a great deal to answer for - not least his aggressive promotion of Sarah Palin's career.

I will gain some respect for him when he admits to past error and offers some sort of apology. Until then, I will suspect that his anti-Trumpism is a matter of convenience rather than principle.
 

There are four threats to the health of our democracy (such as it is): 1) Polarization; 2) rancorous debates about who is, and who is not, to be included with the demos, sometimes called "identity politics"; 3) economic inequality; and 4) presidential overreach, especially in the modern era.

We are not and never have been a democracy. We are a republic where the people geographically elect a government of limited powers.

With that out of the way, the threats to our republic are better taken in reverse order.

(4) The authors are correct that the Constitution was expressly written to prevent the POTUS from becoming a monarch exercising absolute power (legislative, executive and judicial). Progressives erased and rewrote large swaths of the Constitution to import socialist and fascist totalitarianism granting absolute power to an unelected bureaucracy. The peaks (or more accurately depths) of this progressive movement of power to the absolute bureaucracy were during the Wilson, Roosevelt, Nixon and Obama administrations. The first two were partially reversed, but the power shift irreversibly increased beginning in the 1970s. Like Reagan, Trump halted, but did not reverse this expansion.

(3) So long as everyone shares in the growth of economic productivity (wealth creation),economic inequality per se is not a threat to our republic. For example, during the so called Guilded Age where industrial entrepreneurs ("robber barons") built enormous businesses, the American working class became the wealthiest in the world and attracted millions of immigrants from our economic rivals. However. the progressive strain of economic inequality does not feature shared benefits. Fiat money policies artificially inflate equity markets and the "wealth" of an investor class far in excess of economic growth. Meanwhile, progressive regulations and taxes destroyed small businesses until business births fell below deaths for the first time absent a recession during the Obama administration. Because small business hires most people and creates most economic productivity growth, economic productivity growth disappeared during the Obama administration and much of the working class fell behind their parents. The unconstitutional COVID shutdown decrees followed by the manufacture of even more fiat money to bail out the economy has made things worse. Trump had nothing at all to do with this progressive uncreative destruction.

(2) Identity politics as it exists today - ethnic majority elites attempting to maintain power by convincing ethnic minority working class people that the ethnic majority working class people are discriminating against them - is a modern progressive creation with no real precedent in American history. To the extent the authors are referring to that elite's importation of a foreign working class for cheap labor and votes, Trump does indeed oppose this.

(1) The above policies have polarized the nation along ideological and partisan lines to the point where we are currently in a generation long cold civl war which is rapidly warming. Trump is not the cause of this polarization, but rather a product.
 

"The reason, of course, is that the Constitution is inordinately difficult to amend in the best of times, let alone “in today’s polarized climate.”"

It's not that the difficulty of amending it has changed, in the sense of ratification.

Rather, Congress has reasons to not originate amendments anymore.

First, because we now have a systematic divergence between the views of federal politicians, and the general population. States tend to be more responsive to the general population than the federal government, due to this.

So the amendments Congress would like to originate have little chance of ratification, and the amendments that would be readily ratified are not ones Congress wants to originate.

The other factor is that 'living constitutionalism' in the judiciary has given Congress a better route to dealing with aspects of the Constitution they want changed than amendment. If you can persuade 5 justices that a change is a good idea, you get it, without any requirement of supermajority votes, and without the states ever having the chance to reject the amendment.

I think the time is approaching when enough states will become fed up with the situation, and call for a convention in terms clear enough that Congress can't justify not acting. At that point either Congress will refuse to act on the call, sparking a real constitutional crisis, or a convention will happen, and clear the pent up demand for amendments.

I suspect that, if that happens, you won't much like the resulting amendments, though.
 

Brett: I think the time is approaching when enough states will become fed up with the situation, and call for a convention in terms clear enough that Congress can't justify not acting. At that point either Congress will refuse to act on the call, sparking a real constitutional crisis, or a convention will happen, and clear the pent up demand for amendments.

At the end of July, David Super noted here that former WI governor Scott Walker is advocating a federal suit seeking a writ of mandamus compelling Congress to call an Article V convention of the states based on state applications piling up over the past decades. Super's proposed defenses against such a mandamus were unconvincing.

(1) When a sufficient number of states file applications for a convention, Article V commands Congress to call a convention. Congress's power here is ministerial, not legislative or political. Congress has no power to refuse.

(2) Congress need not enact a statute to enforce the requirements of Article V. The judiciary has the power to do so through a mandamus.

(3) While a couple courts have entered questionable opinions allowing Congress to set time limits for state ratification of Congress's own proposed amendments. Article V provides no expiration date for state convention applications.

(4) Super is correct to observe Article V nowhere allows state applications to limit the kind or number of amendments proposed by a convention. Such a convention could replace the old Constitution in its entirety with a new basic law as did the prior 1787convention.

The professor is worried "special interests" (i.e. the People) could ride a runaway convention and reverse over a century of progressive rewrites and erasures of the old Constitution. He is right to be concerned.
 

First, because we now have a systematic divergence between the views of federal politicians, and the general population.

If there is such a divergence, the general population is probably somewhat to the left of federal politicians, because representation in the federal government is skewed to favor conservatives.

Of course the key to what would come out of a convention is how delegates are selected. If you really want "the People" to rule, then delegates should be chosen proportionately to population. But you don't want that. You'll be along soon with an essay on the critical differences between North and South Dakota, and how it's the city-dwellers own damn fault they live in densely populated places, and so on. The usual nonsense.
 

"Congress's power here is ministerial, not legislative or political. Congress has no power to refuse."

The key distinction here is between "authority" and "power": Congress has no authority to refuse. They absolutely have the power, and the odds of the Supreme court declaring the matter nonjudiciable approach 100%.


"The judiciary has the power to do so through a mandamus."

But, will they?
 

An Article V convention is a convention of states, as is any ratification of proposed amendments. Each state has an equal say.
 

Personally, I find the assertion (offered without a speck of evidence, as if it is "received knowledge") that states are more closely aligned with the wishes of their populations. If that were true, how do so many states have legislatures dominated by Republicans, when the voters are, by a large majority, voting for Democrats?

Obviously, if "states" are the voters, the current undemocratic situation will persist under whatever new constitution is created.

Think about how messed-up things are today, and then let your mind boggle at the situation that will be required in order to implement real change.

 

"If there is such a divergence, the general population is probably somewhat to the left of federal politicians, because representation in the federal government is skewed to favor conservatives."

No "probably" about it. Given that the Dems have out-polled the Rs in 6 of the last 7 presidential elections, Brett's comment reflects a deep and abiding epistemic closure.
 

An Article V convention is a convention of states, as is any ratification of proposed amendments. Each state has an equal say.

1. Nothing in Article V says anything like that.

2. Apparently it is you who worried about what "the People" might do in a convention that properly represented their views, else you wouldn't favor such an idiotic idea.
 

Rather, Congress has reasons to not originate amendments anymore.

Amendments generally came at certain moments though this "anymore" yet again suggests there was some different time & at some point things changed. There was not. After the 12A, the next amendment came over sixty years later. After the 15A, the next amendment came over forty years later. There multiple cases of long lag times.

First, because we now have a systematic divergence between the views of federal politicians, and the general population. States tend to be more responsive to the general population than the federal government, due to this.

As noted, this doesn't come off as actually true if you look at the facts.

So the amendments Congress would like to originate have little chance of ratification, and the amendments that would be readily ratified are not ones Congress wants to originate.

Seems the more likely reason is that there is not the level of united support for amendments or some special cause (which was the reason a significant number of amendments arose). The supermajority rules for amendments ARE complicated especially by the malapportioned Senate, so in that way, if not quite in the way he intended, there is some disconnect between Congress and the people.

The other factor is that 'living constitutionalism' in the judiciary

constitutionalism

has given Congress a better route to dealing with aspects of the Constitution they want changed than amendment.

Judicial review always being a thing, there was no "golden age" here, no "any more." Nothing specifically changed c. 1970 (adding the 27A as a joker) here. Strong judicial review was present in the Gilded Age. But, many more constitutional amendments were ratified since then. The facts don't fit this narrative.

If you can persuade 5 justices that a change is a good idea, you get it, without any requirement of supermajority votes, and without the states ever having the chance to reject the amendment.

Yes, since the 1790s, we had judicial review. OTOH, since then, significant aspects of the Constitution was not in the mix there. So, multiple amendments changed structural things like starting dates, term limits and so forth. Other things were something in the mix, but amendments sealed off debate. The income tax is one such example.

I think the time is approaching when enough states will become fed up with the situation, and call for a convention in terms clear enough that Congress can't justify not acting.

There was some noises about this over the years but there never was enough, the most passionate being something tied to a specific thing like a budget amendment. This would be only of limited value to the concerns cited.

suspect that, if that happens, you won't much like the resulting amendments, though

A budget amendment is a bad idea. But, if you have the number of states you need, you will include liberal and moderate leaning states. So, question if you would like the result in that scenario either.
 

I'd also suggest the "presidential overreach" is the natural consequence of obstruction in Congress.

This isn't really true. Presidents overreach because power corrupts, and because the position both demands someone with a big ego and stokes that ego once the person is in office.

And Presidents further overreach because Congress lets them.

FDR had probably the most compliant Congress in history. He still was a massive abuser of presidential power.
 

Speaking of Japaneses in concentrated camps, recall that it was confirmed by the Supreme court. Unbelievable today.

Really? I think the courts have had an incredibly difficult time imposing limits on the political branches during wartime, and you see this in the Civil War, WW1, WW2, and (for lack of a better term) the "Global War on Terror". Inter arma enim silent legis. There's probably 20 or more major Supreme Court cases that reflect this.

Judges tend to be extremely afraid of imposing these limits for a couple of reasons- one, they don't want their orders disobeyed, and two, they don't want to do something that might cause a war to be lost.

But the phenomenon definitely exists, and if, say, China invaded us in the present time and a President stirred up widespread hatred of Chinese Americans, declaring them a security risk, etc., I think you would see the courts find a way not to enjoin such actions. That is a very sad statement about human rights, but it is true.
 

BD: Congress's power here is ministerial, not legislative or political. Congress has no power to refuse.

Brett: The key distinction here is between "authority" and "power": Congress has no authority to refuse. They absolutely have the power, and the odds of the Supreme court declaring the matter nonjudiciable approach 100%.

Legally, there is no real defense to a mandamus compelling Congress to call an Article V convention. There are a sufficient number of state applications.

Politically, no one will realistically call such a convention absent the nation again staring into the abyss of becoming a failed state as in 1787.

We are approaching that abyss again.
 

BD: An Article V convention is a convention of states, as is any ratification of proposed amendments. Each state has an equal say.

Byomtov: 1. Nothing in Article V says anything like that.

In Article V, each state has an equal say in applying for a convention and in ratifying the proposed amendments. During the previous convention, each state had an equal say in proposing the new Constitution. No Article V function is determined by population.
 

Dilan,

I guess that, that "Really" meant to defy the idea, that not today.

But, you have ignored the second ruling I have left there. Because, the way I see it, Muslims were and are much better candidates for being identified with terror or risk to national security. And yet, one can't compare Muslims with Japaneses at the time.

China or another state today ? Well, today Supreme court, wouldn't be able simply, first of all and above all, because of International conventions the US is party member to, or public opinion, world wide.

Or at least, much more difficult. Imagine:

War with China, all civilians are free to go and leave and travel as usual. Yet, those having Chinese origin, whatsoever, are bound within curfew or concentration camps or alike. This is very unlikely scenario today with all due respect.

Thanks
 

byomtov said...2. Apparently it is you who worried about what "the People" might do in a convention that properly represented their views, else you wouldn't favor such an idiotic idea.

I have advocated an Article V convention of states for years to reverse our increasingly totalitarian political economy.

I do not share the fears of other conservatives that a "runaway convention" would reverse what remains of the original Constitution's limits on government power and guarantees of our freedoms. 3/4 of state legislatures or conventions would never agree to impose progressive totalitarianism by constitutional amendment.

Apart from Sandy, progressives here like David Super understand the math and generally fear an Article V convention.
 

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In Article V, each state has an equal say in applying for a convention and in ratifying the proposed amendments. During the previous convention, each state had an equal say in proposing the new Constitution. No Article V function is determined by population.

In other words, you don't want a convention of "the People." You want one dominated by the political faction you favor.






 

This comment has been removed by the author.
 

byomtov: In other words, you don't want a convention of "the People." You want one dominated by the political faction you favor.

I desire to replace the current totalitarian political economy with one which protects our rights.

Yes, a convention of states will accomplish this easier than a "convention of the people," because nearly half of the people are currently government dependents reliant on the totalitarian state.

I have no theoretical problem with this. We have a natural right to a government which protects our rights regardless of how many of our fellow citizens disagree. The patriot cause in our Revolution was supported by maybe a third of the population.
 

This comment has been removed by the author.
 

" the current totalitarian political economy "

The problem succinctly put is this: we have one party increasingly dominated by Manichean, paranoid, conspiracy minded extremists who think in this kind of paranoid, hyperbolic fantasy world and structurally they are given outsized power in our system. Not much can be done about the first I'm betting and addressing the second is going to be pretty darn tough as well...
 

"In other words, you don't want a convention of "the People." You want one dominated by the political faction you favor."

It's not difficult any more to recognize the close connection between so-called "libertarians" and authoritarians.

The libertarians will force you to be "free" and you will like it. /German accent.
 

I guess that, that "Really" meant to defy the idea, that not today.

But, you have ignored the second ruling I have left there. Because, the way I see it, Muslims were and are much better candidates for being identified with terror or risk to national security. And yet, one can't compare Muslims with Japaneses at the time.

China or another state today ? Well, today Supreme court, wouldn't be able simply, first of all and above all, because of International conventions the US is party member to, or public opinion, world wide.

Or at least, much more difficult. Imagine:

War with China, all civilians are free to go and leave and travel as usual. Yet, those having Chinese origin, whatsoever, are bound within curfew or concentration camps or alike. This is very unlikely scenario today with all due respect.


I mean, it's an unlikely scenario that China would invade us, given our nuclear arsenal. And it's an unlikely scenario that a President would respond to that the way Roosevelt did.

But if those two things did happen, I am absolutely certain that not just the Roberts court but ANY Supreme Court in American history would find an excuse to uphold the President's actions. There really isn't a single case of a flat-out SCOTUS invalidation of an important wartime measure, occurring DURING the conflict, that stuck.
 

"In other words, you don't want a convention of "the People." You want one dominated by the political faction you favor."

It's not difficult any more to recognize the close connection between so-called "libertarians" and authoritarians.

The libertarians will force you to be "free" and you will like it. /German accent.

We are all counter-majoritarians on the stuff we care about, Mark. I wouldn't want the majority to decide 4th Amendment protections, for instance, and neither would you.

When we are talking about processes like a constitutional convention, I think appeals to majoritarianism have limited utility. The Constitution is not designed to be amended when a majority thinks it should. It is designed to be amended when a bunch of procedural hoops are cleared. I am confident that the American right cannot clear those hoops at this point with the sorts of amendments they favor. But it isn't because of any sacrosanct notion of majoritiarianism- plenty of stuff a majority favors can't clear those hoops either.
 

BD: the current totalitarian political economy.

Mr. W: The problem succinctly put is this: we have one party increasingly dominated by Manichean, paranoid, conspiracy minded extremists...

Your killing the messenger dog will not hunt.

(1) Name a single American progressive policy which as not first imposed by a socialist and/or fascist government.

(2) Name all the aspects of your life which our government does not direct to some extent.

Yes, Virginia, totalitarianism.


 

Dilan: It's not difficult any more to recognize the close connection between so-called "libertarians" and authoritarians. The libertarians will force you to be "free" and you will like it. /German accent.

Force you to be free? That is one whopper of a contradiction in terms.

Even in a free society, if you are bound and determined to be subservient, you are free to find a parent, spouse and/or boss to direct your life for you.
 

A person who puts the US in the same category as North Korea or the Soviet Union is borderline deranged. Our current nation is the apex of limited government and individual freedom in human history.
 

Mr. W: A person who puts the US in the same category as North Korea or the Soviet Union is borderline deranged. Our current nation is the apex of limited government and individual freedom in human history.

Your usual straw man dog also will not hunt.

Answer the questions or concede the point that our government directs nearly every aspect of your life.

Once you actually consider the questions, it is amazing the amount of freedom we have surrendered over the past century.
 

Of course, there is no straw man in my comments (it's well nigh impossible to straw man an extremist like Bircher Bart). He said the US was totalitarian. Unless he wants to argue the USSR and N Korea are not he literally put the US in the same category. Deranged.

It's important to note we are at an apex of limited government and individual freedom right now. Take Bircher Bart's 'Golden Age' of the 1870s. My past Sunday morning would have been impossible then. I awoke in the morning and had sex with spouse involving activity that was criminalized in most states. Remember, sodomy laws were common then (as well as laws criminalizing adultery and cohabitation). I went to the grocery store to shop, blue laws criminalizing opening most businesses on Sunday were common then. I bought a bottle of wine, laws restricting the sale of alcohol were common then (especially on Sunday!). I used my credit card, usury laws prohibiting the charging of interest at rates over 6-8% were common then. I also bought a lottery ticket, laws prohibiting the sale of such were common then. The store employed black and white persons, in many states back then that was against the law. I came home and read a book and watched a movie that would have been prohibited by the obscenity laws common at the time (remember anything racier than James Joyce was subject to these laws). I read a book by a political pundit that would have landed the author in jail as criminal libels laws were common then (and civil libel laws had a much wider net as well). I walked my dog that evening, back then if the police wanted too they could take or kill my dog without a hearing (dogs were not property at common law and they would not be seen as falling under protected 'effects' of the 4th until quite recently). Indeed, if the police wanted to they could have arrested me for something like the extraordinarily vague 'vagrancy' 'loitering' or 'disturbance' laws that operated at the time.

Now, of course, add to this that women, more than half the population, could not vote (that's *actual* tyranny), serve on juries in many places, could not engage in many occupations by law, etc., and that in many places this was true for persons of color, and any non-deranged person can see we've come a long way, baby.


 

Name a single American progressive policy which as not first imposed by a socialist and/or fascist government

Idiotic question. The identity or ideology of the government that first imposed a specific policy plainly has zip to do with the policy's merits.

Who first decided that everyone should drive on one side of the road, whether right or left? I don't know, but suppose it was, say, Genghis Khan, or Vlad the Impaler.

Would that make it a bad idea? An undue interference with liberty?
 

By the way, I've shown that even using the cramped ideas of 'freedom' that Birchers insist on we're far more free today then we were in these oft cited Golden Ages of Freedom past. But of course we need not relegate ourselves to that cramped sense of the word. I'm also much more 'free' today than I would have been then *because* of government activity. I'm 'free' to work many miles from where I live because of the federally funded highway I use. I'm 'free' to work from home during the Covid because of government subsidies of my rural internet. I'm 'free' from worry that the wine and the food I bought probably won't kill me or make me go blind because of regular government regulation. Etc.

We are living at the apex of limited government and individual liberty.
 

I agree with Mista that it is absolutely silly to think that the US was more free in the Gilded Age than it is now.

I am not sure we are the freest society in human history, though. New Zealand and Switzerland tend to top lists of civil liberty and we often don't finish in the top 10.

We are still a very free society as these things go. Ironically, I don't think Bart would like New Zealand's governing philosophy. (He might at least respect that Switzerland has a strong gun culture, though it is a MUCH more regulated, communitarian philosophy than Second Amendment advocates here tend to push.)
 

Pshaw! The free-est society in human history (sic) occurred in Africa, about 200,000 years ago. You had no restrictions whatsoever on which logs to turn over in looking for grubs, and no game laws, or bans on slash-and-burn agriculture (which hadn't been invented yet, but still...) and if you didn't like the way the alpha male treated you, you could get up and leave, to find some other place to start your own group.

And if you were an alpha male, you could treat the rest of the group as your personal possessions. Try that now, and you are liable to end up like David Koresh or Charlie Manson.

These discussions on "how free is today's society" always founder on the rocks of disagreement over the metrics ...

 

Nasty, brutish, and short isn't the same as free.
 

Dilan, that's the point: it really depends on your definition of "free" -- after all, there were a lot of people in the southern states who felt that they had lost enormously by the inability to own other people as slaves...
 

I don't think there are that many people in 2020 who think that slavery was so great. But there's certainly a lot of segregationists, and not just in the South. Most liberal cities are ruthlessly segregated too.
 

Dilan,

But such extreme measure, it highly unlikely. The Justices at the time, were pretty disgust by the action. Let me quote some from the ruling:

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."

And more with more than just apologetic attitude:

" It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified."

End of quotation:

And if it could be done at first place today, then, Muslims were in far greater danger in this regard. Things have changed. One of the first things, Bush did after the twin towers attack, was to visit a mosque and calm down, any hostility towards Muslims. Here:

https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010917-11.html

So, Muslims constitute or pose, far greater danger by all means over those Japaneses at the time. Yet, he ( Bush) has declared that "Islam is peace". And courts were very patient so far with Muslims. Despite far greater higher probability of danger. Read the ruling I have left there ( surveillance in New Jersey).

Thanks


 

Dilan,

Just to emphasize it again. Those Japaneses were citizens of the US ( most of them). Made no harm. No proof of nothing. Yet, severe restrictions.This is not about declaring war, or, military action abroad ( like targeted assassination).Those were US citizens, like you, like every one else, and effectively, just due to their race or origin, they were restricted so heavily. Unlikely today.
 

Mr. W: It's important to note we are at an apex of limited government and individual freedom right now.

Not remotely. Before you begin tilting at this particular wind mill, remember that freedom is the right to live your life as you please so long as you do not harm others.

Take Bircher Bart's 'Golden Age' of the 1870s. My past Sunday morning would have been impossible then. I awoke in the morning and had sex with spouse involving activity that was criminalized in most states. Remember, sodomy laws were common then (as well as laws criminalizing adultery and cohabitation). I went to the grocery store to shop, blue laws criminalizing opening most businesses on Sunday were common then.

Religious laws sexual conduct laws against sodomy, incest and bestiality, were generally aspirational and almost never enforced.

I bought a bottle of wine, laws restricting the sale of alcohol were common then (especially on Sunday!).

Blue laws did apply to a minority of jurisdictions and limited the sale of what was generally a handful of goods and services on one day a week. Progressive laws and regulations outlaw thousands of goods and services seven days a week.

I used my credit card, usury laws prohibiting the charging of interest at rates over 6-8% were common then.

Usury laws do no prevent the use of credit cards. In any case, progressive laws and regulations have outlawed entire areas of finance and excused debtors from a wide range of finance contracts.

I also bought a lottery ticket, laws prohibiting the sale of such were common then.

Still are for everyone but the progressive state, which enjoys a legal monopoly on numbers rackets to finance the state.

The store employed black and white persons, in many states back then that was against the law.

I will concede Democrat government racism, which party progressives continue today. We should outlaw the racism and the party imposing it.

I came home and read a book and watched a movie that would have been prohibited by the obscenity laws common at the time (remember anything racier than James Joyce was subject to these laws).

You really need to read some history. Pornography and other types of obscenity were widely available in 19th century America. Once again, aspirational, but unenforced laws, are essentially the same as no law at all.

I read a book by a political pundit that would have landed the author in jail as criminal libels laws were common then (and civil libel laws had a much wider net as well).

You have no right to harm others by defamation. Progressives have largely legalized this harm, making the victims of such defamation less free.
 

Mr. W: I walked my dog that evening, back then if the police wanted too they could take or kill my dog without a hearing (dogs were not property at common law and they would not be seen as falling under protected 'effects' of the 4th until quite recently).

If your dog is vicious and a threat to others, including the police, the police still and properly can put him down without judicial due process.

Indeed, if the police wanted to they could have arrested me for something like the extraordinarily vague 'vagrancy' 'loitering' or 'disturbance' laws that operated at the time.

Vagrancy, loitering, trespass and disturbing the peace laws prevent you from harming your neighbors and their businesses. Many progressive states and cities now allow vagrants to harm their neighbors by turning entire sections of cities into medieval cess pits of pestilence, making everyone less free.

Now, of course, add to this that women, more than half the population, could not vote (that's *actual* tyranny), serve on juries in many places, could not engage in many occupations by law, etc., and that in many places this was true for persons of color, and any non-deranged person can see we've come a long way, baby.

Unfair denial of a political power, not a freedom to live your life as you please so long as you do not harm others.

Now, can you even begin to name all the ways the progressive state limits your freedom concerning shelter, food, health care, finance, and other goods and services you can produce, sell and buy; personal activities, travel, communicate and any other aspects of your everyday life which were completely unregulated during the "Gilded Age."

This request is rhetorical and for the benefit of other readers because you have no intention of honestly addressing this issue.
 

Mr. W: I'm also much more 'free' today than I would have been then *because* of government activity. I'm 'free' to work many miles from where I live because of the federally funded highway I use.

All forms of government produce public goods.

I'm 'free' to work from home during the Covid because of government subsidies of my rural internet.

The government has shuttered your business and ordered you to work from home. This is a loss of liberty.

I'm 'free' from worry that the wine and the food I bought probably won't kill me or make me go blind because of regular government regulation. Etc.

You enjoyed this freedom in a free society. Businesses which sell goods which harm their customers go out of business. There is no substantive evidence regulation substantially decreased food poisoning and the like.
 

BD: Name a single American progressive policy which as not first imposed by a socialist and/or fascist government

byomtov: Idiotic question. The identity or ideology of the government that first imposed a specific policy plainly has zip to do with the policy's merits.

The point was American progressivism is without exception the importation of totalitarian socialism and fascism and, thus, our progressive state is to an increasing extent totalitarian.

If you really want to argue totalitarianism is a good, I am willing to address any arguments you may offer.
 

C2H5OH: Pshaw! The free-est society in human history (sic) occurred in Africa, about 200,000 years ago. You had no restrictions whatsoever...

Anarchy is not remotely the freest political economy.

The classical liberal ideal of the government limited to preventing people from harming one another prevents both the government and other individuals from abidging your liberty is, thus, the freest political economy yet devised.
 

(3) So long as everyone shares in the growth of economic productivity (wealth creation),economic inequality per se is not a threat to our republic. For example, during the so called Guilded Age where industrial entrepreneurs ("robber barons") built enormous businesses, the American working class became the wealthiest in the world and attracted millions of immigrants from our economic rivals.

A great many of the members of the American working class in the Gilded Age would not have agreed with you that everyone was "sharing" equitably, Bart. That is why that era, beginning with the Great Strikes of 1877 and continuing through the 1930s, was one where working people constantly fought to get a better, fairer set of economic arrangements. What changed in the 1930s was simply that the political balance was more favorable. The policy changes in the 1930s, particularly the ones that leveled the playing field in the area of labor law so that unions could operate with reasonable freedom, set the stage for the period when the American working class truly did become "the wealthiest in the world," which was not during the Gilded Age, but during the post-World War 2 economic boom.

The unconstitutional COVID shutdown decrees

What constitutional provision explicitly and specifically prohibits states from passing legislation giving their governors emergency powers during a pandemic?
 

"Religious laws sexual conduct laws against sodomy, incest and bestiality, were generally aspirational and almost never enforced."

This statement is of course not true (more people were arrested for these than, say, are arrested for violating the shut down or mask orders Bircher Bart thinks are the worst thing in the world), and it's interesting he leaves out adultery and cohabitation. More importantly they demonstrate that during the Gilded Age contrary to Bircher Bart's fantasies the government recognized little limits-even the most intimate behavior was criminalized.

"Blue laws did apply to a minority of jurisdictions and limited the sale of what was generally a handful of goods and services on one day a week"

Again, this weak attempt to play down what were very common and very broad Blue Laws fails to be true. And, again, it demonstrates the point: when Gilded Age governments wanted to stop something (like the awfulness of business on the Sabbath!) they could and did *shut down a far broader range of business than Covid shut downs even considered.*

"Usury laws do no prevent the use of credit cards. "

I doubt anyone reading this' credit card charges less than 6-8%,

"Still are for everyone but the progressive state, which enjoys a legal monopoly on numbers rackets "

Total illegality is less freedom than state monopolies. He's really flailing now.

"We should outlaw the racism and the party imposing it."

I'm not for outlawing the GOP, but it's tempting.

"Pornography and other types of obscenity were widely available in 19th century America"

Lol, drugs are widely available now, but that doesn't mean that strict enforcement of drug laws doesn't happen. Obscenity charges were common during the Golden Age of Freedom of Bircher Bart. I dare say something like 80% of current entertainment, whether book, film or tv, would get the producer arrested in the 1870s.

"You have no right to harm others by defamation."

Ah, see, Bircher Bart *likes* this government restrictions, which was, of course, much wider then than now. Heck, Bircher Bart would have paid out many times his salary for defaming many politicos here under the old standard.

 

"If your dog is vicious and a threat to others, including the police, the police still and properly can put him down without judicial due process."

Let it be noted Bircher Bart is all for deprivation of property by the government without due process. Also, it was standard practice in the Golden Age of his Fantastical Freedom.

"Vagrancy, loitering, trespass and disturbing the peace laws prevent you from harming your neighbors and their businesses"

These were incredibly broad and vague laws, inviting discriminatory enforcement by the police. Loitering was basically being somewhere without a reason the individual officer thought was a good one. This is the kind of awesome government power Bircher Bart defends. No wonder he liked the 1870s so much, it's authoritarianism suits him!

"Unfair denial of a political power, not a freedom to live your life as you please so long as you do not harm others."

Incorrect, but Bircher Bart was never a fan of democracy. Living in a polity as a citizen with no vote in the government that makes the rules you have to live by and taxes you to enforce them is the exact idea of tyranny our Founders revolted over. Of course, as women and persons of color's lives and dignity mean little to Bircher Bart he doesn't put much weight on this.

 

"All forms of government produce public goods."

Yes, exercises of government power often frees people. My point exactly.

"The government has shuttered your business and ordered you to work from home. This is a loss of liberty."

All forms of government involve restrictions to protect public safety. Bircher Bart approves of broad loitering laws but not public health quarantines. Partisan incoherent.

"usinesses which sell goods which harm their customers go out of business. "

Governments stop businesses from doing dangerous things all the time. Business are often very short sighted, and they can just pop up under different names and fields. Caveat emptor has been rejected by every modern developed nation for a reason.


 

"The point was "

Lol, Bircher misses byomotov's point, simply reasserts his.
 

"Just to emphasize it again. Those Japaneses were citizens of the US ( most of them). Made no harm. No proof of nothing. Yet, severe restrictions.This is not about declaring war, or, military action abroad ( like targeted assassination).Those were US citizens, like you, like every one else, and effectively, just due to their race or origin, they were restricted so heavily."

I think anything is possible when people are pissed off enough.

We tortured people quite recently. No constitutional provision, and no international law prevented it. And courts have gone to great lengths to avoid ruling on its legality.
 

American progressivism is without exception the importation of totalitarian socialism and fascism and, thus, our progressive state is to an increasing extent totalitarian.

You are no better at logic than arithmetic. The validity of an idea does not depend on who originally thought of it.

 

As per Bart's usual methodology, all of a sudden we are supposed to use "political economy" as the measure of freedom. Move the goalposts much, Bart? And even if we agreed to use "political economy" (which means what, precisely? Politics is the art of compromise, it is said, but "economy" is the dismal science, so "political economy" would be a dismal compromise, wouldn't it?) there are a few disagreeing schools of that ...


 

Indeed Dilan, those tortured weren't US citizens(typically)let alone, on US soil. They were tortured in "Black sites" (or Guantanamo Bay). And indeed, the prosecutor in Hague, has initiated investigation for those tortures(among other)causing great headache to the US(the latter imposed sanctions on the court and officials there). In fact, Trump recently, prevented annexation of parts of the west bank (Israel) among others, because of the ICC(International criminal court in Hague).

Here you can read about black sites:

https://en.wikipedia.org/wiki/Black_site
 

C2H5OH: As per Bart's usual methodology, all of a sudden we are supposed to use "political economy" as the measure of freedom.

As I mentioned at least a half dozen times before on this thread, freedom is living your life as you please without harming others.

Different political economies provide different measures of freedom - classical liberalism being the freest and totalitarianism being the least free.

My proposition is our classically liberal political economy has become less free over time as progressives imported totalitarian socialism and fascism.

My proof is the massive loss in individual freedom over the past century as a largely unelected and unaccountable government increasingly directs nearly every aspect of our lives with libraries of law, regulations and intepretations.
 

BD: "All forms of government produce public goods."

Mr. W: Yes, exercises of government power often frees people. My point exactly.

Straw man. We are discussing government directions of our lives, not highways.

BD: The government has shuttered your business and ordered you to work from home. This is a loss of liberty.

Mr. W: All forms of government involve restrictions to protect public safety."

Classical liberalism limits government from keeping people from harming one another. Ex. Quarantining those ill with a deadly communicable disease.

Totalitarianism limits your liberty beyond harming others. Ex. Shuttering the businesses and destining the healthy.

BD: Businesses which sell goods which harm their customers go out of business.

Mr. W: Governments stop businesses from doing dangerous things all the time.

When you provide an unaccountable absolute bureaucracy with the power direct businesses, they exist for no other reason but to direct businesses regardless of the need for or cost effectiveness of the direction.

In sharp contrast, when you grant legislative power to an elected legislature answerable to the people, limited to cases of substantive harm and applied equally to all the people and their businesses, the legislature is far less likely to direct businesses regardless of the need for or cost effectiveness of the direction.
 

"freedom is living your life as you please without harming others."

I love freedom. I should be free to have sex with a consenting adult in whatever position we want, but this was criminalized in the Gilded Age. I should be free to cohabitate with someone of the opposite sex is we want, but this was criminalized in the Gilded Age. I should be able to read books, magazines and internet sites and watch entertainment that is as or more racy than James Joyce novels, but this was criminalized in the Gilded Age. I should be able to open my business even if it is considered by some to be the Sabbath, I should be able to buy and sell alcohol or a lottery ticket, but this was criminalized in the Gilded Age. I should be able to work as a lawyer or vote or serve on juries if I were a women, but this was illegal in the Gilded Age. I should be able to do business with people of a different color, but this was criminalized in the Gilded Age. I should be able to peaceably walk down the street without my wallet or sit quietly on a curb without being subject to arbitrary arrest by any officer that doesn't like my reason for being there then, but the law in the Gilded Age was to the contrary. The government should not have its officers determining without a hearing that my dog may have rabies and should be shot or harassed livestock and should be shot, but the law did not agree in the Gilded Age.

From economic activity to intimate activity to assocciational activity to even petting the family dog, the Gilded Age was far less free than we currently are. We are living at the apex of limited government.
 

"We are discussing government directions of our lives, not highways."

Highways literally determine where we go and what we do. And I suppose in Libertopia they are paid for via voluntary bake sales.

"Classical liberalism limits government from keeping people from harming one another."

Such as regulating food and drugs to ensure someone doesn't sell them if they harm another (or are frauds)?

"Quarantining those ill with a deadly communicable disease."

Of course the point is that we can't know off hand who is ill with a deadly communicable disease and who is not, so of course restrictions for all are sensible. Logic is not Bircher Bart's strong suit.

"When you provide an unaccountable absolute bureaucracy with the power direct businesses, they exist for no other reason but to direct businesses regardless of the need for or cost effectiveness of the direction.

In sharp contrast, when you grant legislative power to an elected legislature answerable to the people, limited to cases of substantive harm and applied equally to all the people and their businesses, the legislature is far less likely to direct businesses regardless of the need for or cost effectiveness of the direction."

Unempirical twaddle. Again, literally tons of food that would otherwise be on its way to markets have been stopped by government inspectors and regulators. The companies usually admit after the fact that the food was bad. Again, every developed nation does this sort of thing. I guess Bircher Bart thinks they're all totalitarian states? I mean, he is the guy who said North Korea = the United States.

 

Bart: who is to determine the harm that one person causes another? Lawyers? (muted laughter) How is it to be defined? By laws? (more laughter)

You seem to think all these things are self-evident. You continually prove the old saying that, to every complex problem there is a simple, easily understood answer...which just happens to be completely wrong.

 

Indeed Dilan, those tortured weren't US citizens(typically)let alone, on US soil. They were tortured in "Black sites" (or Guantanamo Bay).

That is one of the most tortured sentences I have ever read. First of all, at least some of th people we picked up in Afghanistan WERE American citizens. Some of them may have been tortured; we don't know because the government buried a lot of the evidence. Second, Guantanamo Bay IS US soil. The entire fiction of Guantanamo was to create this place where courts would leave detainees alone.

As for the proceeding in the Hague, wake me up when the people who ordered the torture are in the dock over there. That will NEVER happen. The US will literally use all of its many powers to ensure no American is ever imprisoned for the tortures.
 

Dilan, but the issue of Guantanamo Bay is an issue, of being under military jurisdiction over civil US one. That is a hell of difference.

And the very initiation of such investigation,is huge matter. Previously, one couldn't even think of such thing. Because finally, arrest warrants may be issued. And such person, would have to very carefully, calculate his travels. Suppose western Europe:

Such American person ( subject of such warrant) wouldn't be able to travel to the UK, France, Germany etc....

Things may progress in time. Like in many other areas so far.

And I shall leave you later, rulings from the US, suggesting clear progress. Don't be so upset and tortured and agitated. You will see.Or at least, hold on.

Thanks


 

Dilan,

Here a case, more than bit upsetting indeed. Yet, I quote what is all about (background):

Amir Meshal is an American citizen who alleges that, while travelling in the Horn of Africa, he was detained, interrogated, and tortured at the direction of, and by officials in, the American government in violation of the United States Constitution. After four months of mistreatment, Mr. Meshal was returned home to New Jersey. He was never charged with a crime. Mr. Meshal commenced this suit against various U.S. officials under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which allows a victim of constitutional violations to sue the responsible federal officers or employees for damages.

I quote further the judge (district of Columbia):

The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad. Nevertheless, in the past two years, three federal courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, have expressly rejected a Bivens remedy for citizens who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs. This Court is constrained by that precedent. Only the legislative branch can provide United States citizens with a remedy for mistreatment by the United States government on foreign soil; this Court cannot. Accordingly, defendants’ motion to dismiss must be GRANTED.

End of quotation:

So, you can read, that the problem has to do with bad treatment abroad, not on US soil. That is another illustration, why on US soil today, it is very unlikely, that innocent citizens would be treated like Japaneses at the time. The one left to you previously, concerning surveillance of Muslims after the twin towers attack, is more illustrative even. That's it.

Here to the ruling:

https://www.courtlistener.com/pdf/2014/06/13/meshal_v._higgenbotham.pdf

Thanks
 

"You continually prove the old saying that, to every complex problem there is a simple, easily understood answer...which just happens to be completely wrong."

I think this encapsulates the ethos of much modern conservatism!
 

C2H5OH said...Bart: who is to determine the harm that one person causes another? Lawyers? (muted laughter) How is it to be defined? By laws? (more laughter)

Excellent question, which the harm principle theorist, John Stuart Mill, had problems defining.

Actually, lawyers over the years have done this work in determining when due process is required. Harm should be defined as another denying you life (bodily integrity), liberty or property.
 

BD: Classical liberalism limits government from keeping people from harming one another. Ex. Quarantining those ill with a deadly communicable disease.

Mr. W: Of course the point is that we can't know off hand who is ill with a deadly communicable disease and who is not, so of course restrictions for all are sensible. Logic is not Bircher Bart's strong suit.

Under this totalitarian reasoning, the government can imprison everyone to prevent a tiny subset of them from committing crimes.

If the government cannot prove you pose a harm others, they have no business denying your liberty or property.

 

It's important to note that Mill quickly jettisoned his harm definition as simplistic and casually insufficient. Birchers are stuck on that first, crimped view, which, among its other failings for this discussion, is most certainly not mandated by our Constitution.
 

"Under this totalitarian reasoning, the government can imprison everyone to prevent a tiny subset of them from committing crimes.

If the government cannot prove you pose a harm others, they have no business denying your liberty or property."

Again, Bircher Bart cannot grasp the basic logic of communicable diseases that have incubating periods. When you don't know who has or hasn't the disease everyone must be treated as a potential carrier. There's no analogy to crimes which are voluntary overt acts.
 

The large majority of people with Covid show few to no symptoms, yet they are most unquestionably carriers and potential transmitters of the disease. Bircher Bart's approach here demonstrates spectacularly entirely how unrealistic and silly his ideas are generally: it would deny any restrictions on people who most certainly have and can transmit the disease because they, like the majority of people with it, don't know or show any signs of having it. His approach is literally based on accepting ignorance as a foundational premise.
 

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BD: If the government cannot prove you pose a harm others, they have no business denying your liberty or property."

Mr. W: Again, Bircher Bart cannot grasp the basic logic of communicable diseases that have incubating periods. When you don't know who has or hasn't the disease everyone must be treated as a potential carrier.

There is no period of time we are free from incubating communicable disease. Under this pretext, the government may arbitrarily deny everyone their liberty and property indefinitely...or at least until Trump loses the election.
 

Dilan, but the issue of Guantanamo Bay is an issue, of being under military jurisdiction over civil US one. That is a hell of difference.

That's not right. We lease Guantanamo from Cuba. The lease gives us de facto sovereignty- Cuba has no control over what we do there, no right to police, no right to make laws that govern the territory, etc. The fact that we happen to put a military base there is of no import to the issue of sovereignty- we could turn it into a park or an art installation and it would still be under our complete de facto sovereignty.

And there's no special legal privilege the military has to torture people. The torture statute and the Convention Against Torture both apply to the US military. Indeed, we have prosecuted individuals for committing torture where it was not a deliberate aspect of our policy.

My point is that when the President actually orders torture, as he did, the American system will not prosecute it, our courts will not block it, and we will use all of our powers to ensure that there is no court of international law or foreign jurisdiction that holds any of the wrongdoers accountable. Which is exactly the same as what has happened consistently with respect to atrocities carried out in wartime as a matter of public policy by the United States.

And the very initiation of such investigation,is huge matter. Previously, one couldn't even think of such thing

Not at all. There were many reports, by international agencies as well as the US government, about Japanese internment, made after World War II. Nobody was actually held accountable, but post hoc investigations did occur.

Similarly, there were extensive investigations of Wilson's imprisoning of dissidents during World War I. There were commutations of sentences, etc. But again, it wasn't stopped while it was happening.

Such American person ( subject of such warrant) wouldn't be able to travel to the UK, France, Germany etc...

Two points:

1. Inability to travel is not holding people to account. It's an inconvenience. It's also not new. Henry Kissinger has not been able to travel to certain places for years.

2. If someone actually attempted an arrest of an American responsible for post-9/11 torture, it would be an enormous international incident and would probably be treated as an act of war by the United States government. There certainly would not be any prosecution- again, the US would use all of its powers to prevent one.

Amir Meshal is an American citizen who alleges that, while travelling in the Horn of Africa, he was detained, interrogated, and tortured at the direction of, and by officials in, the American government in violation of the United States Constitution. After four months of mistreatment, Mr. Meshal was returned home to New Jersey. He was never charged with a crime. Mr. Meshal commenced this suit against various U.S. officials under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which allows a victim of constitutional violations to sue the responsible federal officers or employees for damages.

We should talk about the Supreme Court's evisceration of Bivens sometime (indeed, the fact that this is never discussed shows you that 99 percent of our vocal and oft-quoted "Supreme Court experts" are people who do not actually know diddly squat about appellate law), but, suffice to say, as someone who actually represented the plaintiff in a Bivens claim based on violations of international law by the US government 20 years ago, there is in fact no Bivens claim available against the US government for this.

In any event, even if there were, a Bivens claim isn't the same as enjoining an action or prosecuting perpetrators. The Japanese internees, after all, eventually got some money.
 

"There is no period of time we are free from incubating communicable disease. "

This is uncommonly silly. There are times of appropriate heightened risk and concern (for example when new and especially bad strains of disease arrive). It's totally appropriate for government to rely on measures during those times to protect the safety and well being of its citizens, especially when those measures amount to minor restrictions such as wearing of masks or social distancing requirements in businesses. Bircher Bart's argument is analogous to this: the lettuce produce of a farm is suddenly connected to dozens of sicknesses by buyers of the produce, according to Bircher Bart the government should have to prove each head of lettuce is tainted before it can recall the heads en masse for a time period. Of course, we can add diseases to the many subjects Bircher Bart seems as woefully ignorant of as he is overconfident enough to pontificate about.

This is of course the usual partisan incoherence from Bircher Bart. When 2,000 Americans were murdered by terrorists he climbed to the top of the cheerleader pyramid and cheered on travel restrictions, virtually unsupervised mass warrantless surveillance, torture, rendition and a trillion dollar debacle of a foreign military misadventure. Now with 170,000 Americans dead he thinks government requiring face masks in some public venues is the worst form of tyranny. Partisan incoherent.
 

BD: There is no period of time we are free from incubating communicable disease. "

Mr. W: This is uncommonly silly. There are times of appropriate heightened risk and concern (for example when new and especially bad strains of disease arrive).

Heightened risk defined as what and by whom?

Even after all the government's data game playing, COVID only equals a severe flu, yet the government is denying liberty and property to an extent never before seen in American history.

Unless the government can prove you pose a harm to others, they have no business denying you liberty and property PERIOD.
 

"Heightened risk defined as what and by whom?"

By people who are trained experts in this around the world. Or the hundreds of thousands who are dead.

Again, we're back to our Bircher denying that Covid is a threat. He has to, because to the extent it is a threat it's a classic harm the government is totally justified in taking efforts to combat.

This is not a serious person.
 

By the way, apart from Bircher Bart's scientific silliness there's this: as a philosophical matter he's flat wrong: government restrictions can be justified to simply prevent the risk of awful harms. That's what stop signs, drunk driving, fire codes, etc., are about.
 

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The assertion "COVID only equals a severe flu" should be Bart's epitaph. Hopefully, not for many years...I wouldn't wish this disease on anyone.

We are only beginning to find out the extent of the damage this virus causes. In addition to immediate death (well, after a week or a month of gasping for breath in the ICU) there is mounting evidence of myocarditis and subsequent damage to the heart, even among young people who have apparently recovered without hospitalization.

Of course, given the pathetic state of medical tracking in this supposedly advanced country, that will take years to identify.

The number of deaths per million due to the COVID-19 according to worldometer, which is more up-to-date than the CDC (see a previous paragraph), gives the number in the USA at over 500. To say that this is comparable to the seasonal flu requires a truly "Bartistic" definition of "comparable."

And, of course, this isn't over. Unlike in Melbourne, Australia, which locked down completely a few weeks ago, the number of cases hasn't even begun to level off in many places here.

And school is about to start...
 

Bear in mind too that the official death count understates the actual deaths. The true figure is probably 230,000 or more.
 

Bear in mind too that the official death count understates the actual deaths. The true figure is probably 230,000 or more.

That probably doesn't have any effect on the comparative arguments are making between the US and other countries, because official death counts in other countries are also probably understated.

But it definitely underscores that the "we don't really need to do anything, this is no big deal" messaging from some on the right is quite wrong.
 

When we are talking about processes like a constitutional convention, I think appeals to majoritarianism have limited utility.

Which is not to say they have no utility. There has to be some decision mechanism after all. Majoritarianism is far from perfect, but one state one vote is absurd.

The rights of individuals and minority groups, including unpopular ones like criminal defendants and so on, certainly need to be respected, but that hardly means we should use a process that can be controlled by an essentially randomly selected minority, which is what a "convention of the states" would amount to.

Given that those rights are secured it seems to me that there are constitutional mechanisms that should be established by majority vote. Who should have the power to declare war? Who has the power to decide how government funds are to be spent? What taxes are permitted?
 

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Mr. W:

Government official credentialing does not strip you of your due process rights. Unless the government can prove you pose a harm to others, they have no business denying you liberty and property PERIOD.

Dilan:

The non-standard of counting as COVID deaths any death assumed to be related to COVID, which in real life has included vehicular accidents and the like, means the official COVID death estimates are grossly overstated.

C2H5OH:

Even with the overstated COVID death estimates, COVID falls in the top five influenza years. Yes, Virginia, COVID = a severe flu and provides no basis for the government shuttering tens of thousands of businesses, unemploying tens of millions and requiring everyone to wear these ridiculously ineffective masks.


 

As to the general concern of the post, I tend to find myself in a mixed place where stating how we are as a nation. We have various problems, obviously, but just in my not THAT long lifetime, various improvements have occurred to help many groups.

We can also find various problems, including long term problems of the political system getting worse. Looking long term, I do think eventually the Republicans will have to recalibrate themselves. Their own party arose from a recalibration.

As to the usual "constitutional stupidities" that Prof. Levinson is concerned about, even there, things move eventually. I don't know what will happen there. The 2020s come off to me as a possibly major moment. We might have a D.C. state etc. We shall see.

===

One more thing. There are various things for people to do and one thing people should be doing now is to fill out the census. I know people coming to your house, as is happening now, is annoying. But, it takes a few minutes & it is a basic thing, a basic responsibility of residents. Many do not even know what the census is.
 

"Government official credentialing does not strip you of your due process rights. Unless the government can prove you pose a harm to others, they have no business denying you liberty and property PERIOD."

Laughable stuff.
1. Even Bircher Bart concedes government can engage in severe restrictions on those who are 'ill.' How will their 'ill'ness be determined? By a...government credentialed doctor? Well, public health experts are doctors with even more authority in the field of public health.

2. Even given that, of course expert authorities holdings can justify restrictions on liberty. When a government traffic official studies traffic patterns and holds that a stop sign is warranted in a location up it goes, and any country lawyer who wants to argue an ensuing traffic infraction on Bircher Bart's logic will be laughed out of court.

3. Note that in Bircher Bart's twisted 'libertopia' a country cop making the decision that your reason for hanging out somewhere is not a good one being grounds for an arrest or deciding without a hearing that your beloved dog harrassed livestock and shooting your dog on site are just fine and a-ok, but a public health expert ordering people to wear face masks in limited venues and times to combat an especially dangerous highly communicable disease which has killed hundreds of thousands is an unallowable outrage.

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

joe, I like your comment. It's too easy to go off track debating a fool who thinks North Korea=the US and that Covid is not a big deal or that government power combating spread of a communicable but often asymptomatic disease can only used on symptomatic persons and forget there are actually honest, coherent people here to talk about Sandy's point. Sandy has long provided a voice in the wilderness pointing out that we hold out constitutional order too sacrosanct, that at least some of it is indefensible. We need that voice. But I think more focus needs to be on how to fix it. If the main problem with our system is that it gives an increasingly lunatic minority outsized power under its federal system, then I don't think this can be solved by amendments or conventions, because the very problem, the outsized power of minority states, will be just as present there. Strategies for change lie in things like DC and Puerto Rico statehood. These have the added advantage of being the right thing to do since taxation and rule of citizens without representation is abhorrent and unAmerican.
 

BD: "Government official credentialing does not strip you of your due process rights. Unless the government can prove you pose a harm to others, they have no business denying you liberty and property PERIOD."

Mr. W: Even Bircher Bart concedes government can engage in severe restrictions on those who are 'ill.' How will their 'ill'ness be determined? By a...government credentialed doctor?

Traditionally, a physician will examine and test a person before quarantine. Nothing like that is occurring under the COVID decrees, which were based entirely on wildly wrong wild ass guesses posing as “models.”
 

Joe, if I may make a suggestion, what would be worthwhile would be for the parties in a dispute to list their desires in order of priority. I'm sure that there are things people could agree on. But this will not work as long as the attitude is that the first priority is to make the other side as unhappy as possible -- and that's basically the attitude of the Trump supporters.

-- and as for me, I'm done responding to Bart for a while. He shows no sign of the ability to reason. Thomas Paine quote here. --
 

I do support some for of ranked choice voting. At least, I think some form of instant run-off voting is a good idea. Some elections going on have multiple candidates and sometimes the winner can have less than 40%, depending on the rules.

That is sort of forcing in something. Anyway, I do think it helpful to get stuff that people agree on. Being optimistic, that is often the case -- people agree on stuff though sometimes it is hard to get that on the table. Some people are more inclined to focus on what they disagree with. But, Trump is so bad, e.g., that you have Republicans speaking at the Democratic Convention.

It is a bit amazing that things get done there. Basic stuff is done in Congress. Juries agree on verdicts etc. I welcome reasoned debate by those willing to admit there is some common ground.
 

I do think a basic wrong is that territorial residents, sometimes places with a more than their proportional share of military service members, do not have full rights as citizens. Some places like Guam are too small really to be states but they should have the right to vote for POTUS. The desires of the citizens of Puerto Rico to my knowledge has been mixed, so it's complicated. But, again, they should have equal representation and right to vote for POTUS. The original idea -- see Northwest Ordinance -- was no permanent colonies w/o full rights of citizens.
 

"Traditionally, a physician will examine and test a person before quarantine."

Not true, quarantine measures often turned upon a person simply traveling from high infection areas, no exam necessary. Also, not true for many preventative measures in general."

"which were based entirely on wildly wrong wild ass guesses posing as “models.”

I think he means 'the science of public health and epidemiology.' Of course a government can reasonably take such holdings of experts in the field over the holdings of a partisan motivated country lawyer.

btw, remember Fauci's prediction way back of 200,000? Looks like his 'wild guess' was pretty accurate.
 

BD: "which were based entirely on wildly wrong wild ass guesses posing as “models.”

Mr. W: I think he means 'the science of public health and epidemiology.' Of course a government can reasonably take such holdings of experts in the field over the holdings of a partisan motivated country lawyer.

Every single model the government used as justification for deny the population liberty and property without due process were ALL wildly wrong. The one our Dictator in Denver is using to justify his decrees is projecting one out of every 80 Coloradans will die from COVID absent the decrees.

If this is 'the science of public health and epidemiology,' Exhibit 1 why everyone with a lick of common sense should reject totalitarian rule by "experts."
 

Bircher Bart can be counted on to be wrong about basic facts.

https://www.npr.org/sections/coronavirus-live-updates/2020/03/29/823517467/fauci-estimates-that-100-000-to-200-000-americans-could-die-from-the-coronavirus
 

The non-standard of counting as COVID deaths any death assumed to be related to COVID, which in real life has included vehicular accidents and the like, means the official COVID death estimates are grossly overstated.

I don't buy this at all.

But if you want to convince me, do you have any epidemiologists criticizing our counting methodologies?
 

Trump is so bad, e.g., that you have Republicans speaking at the Democratic Convention.

It's pretty standard in American politics that each party's convention finds some disaffected politicians from the other party. Zell Miller spoke at the Republican convention. James Brady spoke at the Democratic convention. Etc.

What's actually weird about this cycle is that there's a cadre of lefty Dems who are claiming this some incredibly outrageous practice rather than standard political outreach.
 

BD: Every single model the government used as justification for deny the population liberty and property without due process were ALL wildly wrong. The one our Dictator in Denver is using to justify his decrees is projecting one out of every 80 Coloradans will die from COVID absent the decrees. If this is 'the science of public health and epidemiology,' Exhibit 1 why everyone with a lick of common sense should reject totalitarian rule by "experts."

Mr. W: https://www.npr.org/sections/coronavirus-live-updates/2020/03/29/823517467/fauci-estimates-that-100-000-to-200-000-americans-could-die-from-the-coronavirus

Fauci is Exhibit 2. The man has been wrong about everything. When he is flopping instead of flipping, Fauci has admitted the models have been wrong.

The model on which the US government is relying was wildly wrong at the beginning and has since reverse engineered its projections based on the fictional COVID death data being issued by the government.
 

Some places like Guam are too small really to be states but they should have the right to vote for POTUS. The desires of the citizens of Puerto Rico to my knowledge has been mixed, so it's complicated. But, again, they should have equal representation and right to vote for POTUS. The original idea -- see Northwest Ordinance -- was no permanent colonies w/o full rights of citizens.

Well, we became an expansionist, imperial power, and the voting public didn't want to extend full constitutional protections to these people who had darker skin and spoke foreign languages. So we got the Insular Cases (and Mr. Dooley's famous comment about them).

Obviously, the Electoral College is stupid, and one piece of that stupidity is that many territories are excluded. To the parties' credit, at least some representation is provided in the party primaries.

But the lack of representation in Congress is also terrible. Remember, the Framers (and you all know how dishonest I think they were, but if we are going to pretend that their words mattered despite what they actually thought, this is relevant) went on about "taxation without representation", and yet here we are.

This would take a constitutional amendment, but there should be some sort of a formula for representatives and Senators from territories. Or maybe let Congress decide what states to attach them to or how to group them, but with the requirement that every person under US jurisdiction be somehow represented by at least one House member and two Senators.
 

Dilan, but in my experience there's never been so many. Typically you'd have a couple.

But you can understand the progressive side being a bit torqued about this. It's routine for a candidate to run to the left for the primaries, then back toward the middle for the general -- but in this election, there was no need for the leftward run. The Democratic base is largely only interested in defeating Trump, so Biden got a pass. For him to now run to the right, starting as a moderate, is simply an own goal.

Typical Democratic negotiating with themselves in a mistaken attempt to court voters who will not vote for them anyway. "Triangulation v7.8"

As per above comments, when one side practices scorched-earth politics, attempting to occupy a middle ground only results in fried feet.

 

(BTW, for what it's worth, I think Bart once took the position here that we could attach DC to Maryland, which would have the result of giving the city representation in the Senate and of increasing the House delegation from Maryland, probably kicking a seat or two to the Democrats. That actually may work as a reasonable compromise on the DC statehood issue, especially since DC's politics are at least broadly consistent with Baltimore's and thus the city would be a fit in Maryland.)
 

BD: The non-standard of counting as COVID deaths any death assumed to be related to COVID, which in real life has included vehicular accidents and the like, means the official COVID death estimates are grossly overstated.

Dilan: I don't buy this at all. But if you want to convince me, do you have any epidemiologists criticizing our counting methodologies?

Dozens of doctors on the ground (including my sister) question this non-standard. I have previously posted links to them and to the non-standard.

If anyone here is interested, follow my links back to my Facebook page, which has dozens of COVID links.

Since we have last discussed this farce, Swedish COVID deaths have nearly vanished after declining to impose the US decrees and the US recession. Of course, they likely have actual standards for counting COVID deaths.
 

Dilan said...(BTW, for what it's worth, I think Bart once took the position here that we could attach DC to Maryland, which would have the result of giving the city representation in the Senate and of increasing the House delegation from Maryland, probably kicking a seat or two to the Democrats. That actually may work as a reasonable compromise on the DC statehood issue, especially since DC's politics are at least broadly consistent with Baltimore's and thus the city would be a fit in Maryland.)

Exactly right. I would reduce DC to the federal government buildings.

 

"Fauci is Exhibit 2. The man has been wrong about everything."


Fauci Estimates That 100,000 To 200,000 Americans Could Die From The Coronavirus

*March 29, 2020*

Total Deaths 172,416 (Updated *August 20, 2020*, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

Maybe Bircher meant himself?
 

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But hey, 'dozens of doctors' and his sister have gotta be right on that other point!
 

""Swedish COVID deaths have nearly vanished after declining to impose the US decrees and the US recession."

The highest number of confirmed coronavirus (COVID-19) deaths in the Nordic countries as of August 18, 2020 was in Sweden, where the number amounted to 5,802. Denmark followed with 621 corona-related deaths, Finland with 334, and Norway with 262.


Sweden was also the Nordic country with the highest number of people confirmed infected with the coronavirus, reaching a total of 85,411 cases as of August 18, 2020.
https://www.statista.com/statistics/1113834/cumulative-coronavirus-deaths-in-the-nordics/

"Sweden has had 57 deaths per 100,000, compared with five in Norway and 11 in Denmark. (For the UK it is 70 and the US 50.)"

Read more: https://www.newscientist.com/article/2251615-is-swedens-coronavirus-strategy-a-cautionary-tale-or-a-success-story/#ixzz6VgR1tfJr
 

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Mr. W:

As you well know, there is zero evidence any decree or lack of decree has affected COVID curves anywhere. You compare Sweden with Norway and Denmark? I will raise you NY and NJ, both of whom suffer far higher mortality rates than Sweden as well as government imposed recessions, which have reduced Manhattan to a virtual ghost town and chased a good chunk of the wealthy paying the taxes out of the state.
 

Lol, what i know well is Bircher Bart is a partisan incoherent, flinging partisan poo at the wall at random hoping something sticks: it was he that brought up Sweden and now when faced with the facts about it wants to say the example proves nothing.

Partisan incoherent.
 

Mr. W:

The absence of a depression level recession is nothing?

Let them eat cake!
 

https://www.businessinsider.com/coronavirus-sweden-gdp-falls-8pc-in-q2-worse-nordic-neighbors-2020-8
 

Zell Miller v. a bunch of significant players including the wife of a former candidate, a former candidate, a former top official in another Republican Administration etc.

But the lack of representation in Congress is also terrible. Remember, the Framers (and you all know how dishonest I think they were, but if we are going to pretend that their words mattered despite what they actually thought, this is relevant) went on about "taxation without representation", and yet here we are.

That actual term isn't in the Constitution. It was one aspect of the argument of the times. It also was well understood to have a limited reach. They were upfront about that. So, e.g., women didn't have the right to vote.

Yes, later on, there was imperialism and the idea of permanent colonies became a thing. Some were opposed to a two tier approach. There were, e.g., dissents in the Insular Cases.

TODAY, not "the Framers" time, we have Puerto Rico (millions) and others without full representation. TODAY, not back in the Framers day, again, I note that in the future we too will be called out, we have issues.

We are hundreds of years in. We can stop talking about the Framers so much. Things were changed in the Constitution since then. More things can be changed too. It is up to us.
 

"Sweden's GDP fell more than its Nordic neighbours in the second quarter of 2020, dealing another blow to its lockdown-free coronavirus strategy"
 

Zell Miller v. a bunch of significant players including the wife of a former candidate, a former candidate, a former top official in another Republican Administration etc.

Joe Lieberman was a former veep nominee on a ticket that we are constantly reminded won the popular vote for the Dems. And he spoke at the RNC in 2008.
 

We are hundreds of years in. We can stop talking about the Framers so much. Things were changed in the Constitution since then. More things can be changed too. It is up to us.

I don't disagree.