Balkinization  

Monday, February 17, 2020

How do republics die? Reflections on "constiitutional rot"

Sandy Levinson

Steve Levitsky and Daniel Ziblatt have written a justifiably much-discussed book on "How Democracies Die," but it's worth attending to the oft-quoted statement from Benjamin Franklin that we established a "republic," and the question was whether we could in fact keep it.  "Democracy" can refer only to the numbers of people who are actually part of the decision-making pool; a "republic," on the other hand, requires as well a certain disposition on the part of the demos in order to assure the genune legitimacy of the decisions reached.  I am especially influenced by the fact that a philosopher friend and I are embarking on reading through Montesquieu's Spirit of the Laws, which I confess I've read only in fragments. It is sobering reading in these parlous times. Early in the book he offers his famous argument that a republic to maintain itself requires a strong sense of civic virtue on the part of both citizens and leaders alike.  It is, to put it mildly, not easy to inculcate or maintain, and there is no reason at all to believe that the United States has in fact been successful in doing so. Indeed, what is most striking is the overlap between his discussions of the "despotic" temperament and the current polity here and in many places abroad.

There might be some debate as to when our republic actuall died (assuming, of course, that it actually operated  even for an instant).  It is surely before the election of the egregious lout who occupies the office once held by Lincoln or Roosevelt.  Reading Montesquieu, I am tempted to say that one possible death-date of the Republic is 1971, with the abolition of the draft and the reliance, therefore, on an all-volunteer army.  No longer do most American youths (or their parents) have to ask what devotion to the country might really mean, including elements of sacrifice and a concomitant duty to make sure that it is in fact defensible that lives be lost, on all sides, in the name of the policies being pursued by our leaders.  To be sure, some members of the armed forces are genuine patriots who instantiate a sense of public service that may in fact generally be lacking in the population at large.  (Everyone should read a stunning full-page piece on the editorial page of the NYTimes by Alex Kingsbury on a classmate of his from college who is a career officer in the Army.  Among other things it conveys is the information that Dwight Eisenhower is the last US President who had a child serving actively in the military.  And, of course, George HW Bush is the last president who himself could honestly claim to be a veteran.  It is striking that the only veterans currently running for the office are Tulsi Gabbard and Pete Buttegieg.)  But it's also worth noting that only an extremely small percentage of Americans enlist, and many of them do so because the armed forces are thought to offer a way out of what might be distinctly straitened circumstances (not to mention, at least until the Trump Administration, an accelerated path to citizenship for resident aliens).  Along with genuine dedication to the US comes what appears to be ever-increasing contempt for the civilian population and its materialistic values (completely instantiated, of course, in the lout in the White House).

But I was also stunned last night by several passages from Jill Lepore's truly outstanding one-volume history of the US, These Truths, a book that should also be read by every American.  I had read most of it shortly after it came out, when I was spending my usual fall semester in Boston.  I brought the 900-page book back with me to Austin and nearly finished it, but got distracted by various teaching duties, and I chose not to take it back with me to Boston this past fall in order to complete the last 100 pages or so,  So only now did I finish the book.  I was almost literally stunned by a passage near the end, when she is describing a now-traditional gathering held at the JFK School at Harvard eery four years, after the presidential elections, when the various campaign managers come up and offer their analyses of the campaign:

'I've sat around these tables with some of these other guys before,' Jeb Bush's campaign manager said.  In a room about the size of a tennis court, its walls painted martini-olive green, the campaign managers of the candidates for president of the United States in 2016 sat around a broad conference table to debrief after the election.  They were warriors, after the war, standing atop a mountain of dead, remorseless.  They had gathered at Harvard's Kennedy School, as campaign managers had done after every presidential election since 1972, for a two-day tell-all.  Most of what they said was shop talk, some of it was loose talk.  No one said a word about the United States or its government or the common good. Sitting in that room, watching, was like being a pig at a butcher's convention:  there was much talk of the latest technology in knives and the best and tastiest cuts of meat, but no one pretended to bear any love for the pig.  (Emphasis added)

Isn't this the perfect evocation of our truly decadent polity, at least in Montesquieu's sense?  There is, it should be emphasized, nothing remotely partisan in her description.  Campaign consultants and managers are, with some exceptions, the equivalent of lawyerdom's hired guns, willing to use their talents for whoever hires them.  (Is it fair to evoke Alan Dershowitz here, at least inasmuch as he seems recklessly indifferent to the actual consequences of failing to convict our truly dangerous lout of a president, even if, as I have earlier argued, he might have been motivated in part by a relentless, and often admirable, defense lawyer's suspicion of sanctimonious prosecutors?)  To be sure, most differentiate between Democrats and Republicans, but is that enough to temper her critique?

No doubt, many of the actual supporters of the candidates, including Trump, are willing to speak the language of common good, even if the ultimate lesson is that there is no consensus on wherein that good consists.  But she is describing the ideology of the professionals who increasingly dominate the actual campaigns and, crucially, the way they talk at a place like the Kennedy School when describing their actions.  Perhaps we should expect the same kind of amoral professionalism if, for example, one brought together the generals of World War II or Vietnam.  I.e., there is a time and place for politics, but one can also learn a lot from the way that dedicated professionals talk about their craft. After all, I presume that teachers at West Point are willing to learn from the decisions made by Confederate or Nazi generals and to incorporate innovations that will help the US to win future wars.  So should we be grateful that the campaign managers would talk about knives and techniques and be indifferent to the victims of the slaughter?

There is one other aspect of the JFK gathering that Lepore didn't mention, but might have:  The various campaign managers, I suspect, were expected to be "good sports" in the sense of not refighting the political battles presumptively decided by the election.  As a matter of fact, I seem to recall reading that there was palpable tension between Corey Landowski and Robby Mook, the managers, respectively, of the Trump and Clinton campaigns, in contrast to the presumably more "professional" demeanor of the other participants.  This, of course, raises the general question of "civility" and how one should be expected to behave in the presence of those one views not simply as one's political adversaries, but, instead, as agents of true evil.  (For some of us, Attorney General Barr is in this last category.  Should we be expected to shake his hand or otherwise treat him with the respect ordinarily accorded Attorney Generals?)

I apologize for these more-than-usual rambling thoughts.  Perhaps, though, they relate to the epistolary exchanges Jack and I traded in our book Democracy and Dysfunction.  I, of course, emphasized the importance of our formal structures or governance, while Jack focused more on cultural features, including "constitutional rot."  Although I continue to believe that our formal Constitution may have us in an almost literal stranglehold, I trust the reader will realize that I find much merit in the notion of "constitutional rot," a notion that I think Montesquieu would endorse.  The real question is whether the "volunteer" military and the JFK gatherings are illustrative of the phenomenon and, if so, exactly why (or why not).

Comments:

A dissenting voice on the Jill Lepore book:

http://www.lawyersgunsmoneyblog.com/2019/11/book-review-jill-lepore-these-truths-a-history-of-the-united-states

I'll just comment a bit on the whole "civility" thing. As a general matter, civility is a good thing and we see this play out in legislative halls following rules of procedure and so forth. I saw something on Appellate Twitter where someone was upset at how a reply brief was particularly snarky. etc.

I do think a line should be drawn. I avoid using a certain word as applied to Trump starting with the letter "p." Now, some would find this silly or even a bad idea (well, then people will not say "President Obama"). But, shades of Prof. Levinson's co-authored article on the limits of a "publian" office holder, do think some bare minimum needs to be met. And, when it is not, basic honorifics are not warranted.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3028725

(An example. A clergy member might clearly be guilty of a heinous act, including child molestation, but for whatever reason, they retain their office. If a parishioner refuses to call the person "Father Ted," particularly if they are a parent, if I was a member of the parish, I would not find it that objectionable.)

How to apply rules of civility is open to debate, but at times, yes, it is overdone.

 

My question would be, in what sense is this constitutional rot? Does the Constitution really have much to do with it? The text of the Constitution hasn't changed in any meaningful way in decades. (I don't count the 27th amendment, which was almost instantly rendered moot the the Supreme court.)

An old joke in conservative circles is that, "The Constitution has it's problems, but it's better than what we have now." The idea being that we're not meaningfully operating under the Constitution anymore. We're using its forms, but not complying with its strictures.

I think what really bothers me about your essay is the idea that the problem here is of recent origin. The rot, however you name it, really started hitting its stride in the early 20th century. Limitations on federal power were no longer accepted, but viewed as something to circumvent or negate by judicial 'reinterpretation'.

I don't think we're looking at a problem with the Constitution, but rather the political culture. And not so much the wider political culture, but the distinct and increasingly isolated culture of those who run our political institutions. An increasingly self-contained group with attitudes and values different from the larger society.

Indeed, I think a lot of the hatred directed against Trump is a result of the fact that he managed to arrive in an important elected position without being a member of the political establishment. This suggests that their stranglehold on the government might not be as secure as they thought; It's an existential threat from their perspective.

But maybe an indication that democracy may start working again as a way for the public to control government policies. Disturbing indeed if you LIKE the policies the political class have imposed on the nation, I suppose.
 

Here's the thing about "constitutional rot": it requires some agreement on what it is that the Constitution (and associated norms) demands. That very much depends on one's starting point. You and I see the starting point as the structural reforms of the Warren Court and LBJ's important legislation: one person, one vote; fair elections; voter rights; racial and sexual equality; etc.

But a substantial percentage of the population doesn't think this, not at all, and never has. For them, the essential features of the Constitution are white (male, Christian) supremacy and rule by an oligarchy which keeps "those people" in proper subordination. The entire era since 1968 has been a battle over these issues, sometimes open sometimes quiet. One reason I think Trump receives such devoted loyalty is that his cultists see him as *openly* restoring the government to what they think it was (or should have been) before the "rot" set in. It's kind of like the slogan of the Union Democrats: "The Union as it is, the Constitution as it was." For them, Lincoln was the source of the "rot".

For me, the idea of republican government in the US has always been aspirational. As Lincoln said of the Declaration of Independence,

“[Congress] did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”

The danger of the Trump Cult is that they not only reject the aspirations, they want to create the circumstances in which they can never be fulfilled. It's not Montesquieu who speaks to them, it's Carl Schmitt.
 

Note that I wrote my comment before I saw Brett's. I think it would be hard to find a more perfect example of my point than his comment though.
 

"For them, the essential features of the Constitution are white (male, Christian) supremacy and rule by an oligarchy which keeps "those people" in proper subordination."

I don't think you have a hope of understanding people who disagree with you, so long as you're committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.
 

To answer the questions in your last 2 sentences, I think that the JFK gathering reflects the amoral, quest-for-power attitude among campaign consultants. It's the elevation of winning above virtue.

I'm less sold on the military idea. Sure, the Romans had everyone eligible in military service, as did the Spartans. Unlike Montesquieu, I wouldn't consider either of those a "republic"; they're both oligarchies as far as I'm concerned. But leaving that aside, the US never really adopted the Roman practice except in theory (the militia system). Even if we limit the discussion to white men, there was no actual practice of universal service at any point in time. That's also leaving aside the changes in weaponry and other factors which make military service much different today.

If restoring civic virtue were as simple as instituting some sort of universal service, I'd be fine with it. I just doubt it's that simple.
 

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"which everybody who disagrees with you does so from horrific motives"

Physician heal thy self.
 

I look at the Constitution from a structural standpoint. It was designed to produce a functioning federal government, while reserving most topics to the state level. The federal government was only supposed to handle things that had to be uniform across the nation, like foreign policy.

Federal politicians didn't LIKE most topics being reserved for the states. They didn't LIKE the Constitution telling them that they couldn't do this or that.

Well, the Constitution had a structural flaw: The chief legal constraint on the federal government usurping powers it wasn't constitutionally entitled to exercise was a judiciary the members of which were chosen by... federal politicians.

So they suborned the judiciary, which now no longer enforced those limits. Enumerated powers doctrine is dead. The interstate commerce clause is now treated as a grant of general police power, so long as the magic words are used. And N&P is now, "Convenient, and eh, whatever."

Nothing in this has to do with white male Christian supremacy. It has to do with the structural design of the Constitution being undermined to undo the subsidiarity built into that design, and centralize power.

Centralization of power is orthogonal to what that power will be used for.
 

I think civic service, not just military related, would be generally beneficial even if it is not some general panacea for the ills at issue. A true "militia" including local police or the like would also be an interesting matter. Imagine if each police precinct worked directly with neighborhood residents, including providing clerical staff etc.

See also here: https://blog.oup.com/2019/12/why-there-moral-duty-vote/
 

Your description of the constitutional design is wrong on essential points. But leaving that aside, it is true that lots of issues were left to the states. And why was that? *Because the South needed to maintain slavery*. So yes, it had a great deal to do with white supremacy. And denying that the original design excluded women seems Quixotic to say the least. You at least have a better argument about Christianity on originalist grounds, since observance was at a relative low around 1790; the push for (Protestant) Christianity came in the 1800s and 1900s.
 

I shouldn't say that the original design "excluded" women. It's more accurate to say that the implementation -- the norms -- excluded them. It was an issue of how society should be structured, just as it is today.
 

"But leaving that aside, it is true that lots of issues were left to the states. And why was that? *Because the South needed to maintain slavery*"

Ah, yes, that 1619 garbage. The Constitution stands in the left's way, and it is far too popular. So it has to be de-legitimized. And the way the left has settled on doing this is claiming everything about the Constitution was designed solely to preserve slavery. It's the Constitution's central organizing principle!

Because if it weren't for slavery. sovereign states would have positively leapt to give all their powers and prerogatives to a new central government. Right?
 

Very interesting one. But, let me offer you, another perspective or angel, with all due respect:

The related article, describes, the moral and mental detachment, between the army, and ordinary civilians in the US. Here quoting:

For too many Americans, the military is a distant and indecipherable culture. As for politicians, many are happy to salute the troops when it suits them. The last president to have a child serve in combat was Dwight Eisenhower.

“As a result, the nation’s most expensive and trusted institution is remote from the population that provides the people and money essential to its existence,” the RAND Corporation concluded in a 2019 report. “Such an approach is inconsistent with a vibrant democracy.”

End of quotation:

So, those veterans, or campaign managers, you like so much to dislike, may also defy your stance on the other hand. But:

That is the main role or function of the constitution. To form common ground, between, so many groups, differing in so many ways in the US. Making them, at least, unite, when dealing with human rights. Seeking for freedom, and the constant pursuit for happiness. That is the great advantage of the US constitution, although in legal terms, old, and having many weak points.

Even towards the rest of the world, the US, is the main force, spreading the word of freedom for all. Under all administrations ( even under Trump) monitoring and sanctioning, violation of human right all over the world.

Speaking of Bush, that is why he had invaded Afghanistan and Iraq (although presenting other pretexts as we all know). Here I quote Bush at the time:

Many Middle Eastern governments now understand that military dictatorship and theocratic rule are a straight, smooth highway to nowhere. But some governments still cling to the old habits of central control. There are governments that still fear and repress independent thought and creativity, and private enterprise — the human qualities that make for a — strong and successful societies. Even when these nations have vast natural resources, they do not respect or develop their greatest resources — the talent and energy of men and women working and living in freedom.

End of quotation:

So, the respectable author of the post, may find some comfort (at least) in the current constitution, and the notions of constant seeking for freedom and happiness. The US, is the only nation in history, that somehow ( at least) fought for the freedom of other nations.

Here to Bush:

https://www.ned.org/remarks-by-president-george-w-bush-at-the-20th-anniversary/

Thanks

 

The Constitution stands in the left's way, and it is far too popular. So it has to be de-legitimized

"I don't think you have a hope of understanding people who disagree with you, so long as you're committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives."

Back to tarring those who disagree with you in simplistic terms. As with your admitting that the Trump impeachment trial was a sham, perhaps this is allegedly a matter of fighting fire with fire. OTOH, even there, going by what Mark has said over time as a whole, he is not the one delegitimizing the Constitution as a whole. That is more that other guy.
 

"Ah, yes, that 1619 garbage. The Constitution stands in the left's way, and it is far too popular. So it has to be de-legitimized. And the way the left has settled on doing this is claiming everything about the Constitution was designed solely to preserve slavery. It's the Constitution's central organizing principle!"

I could swear that it was only a week or so ago that I was arguing that the Constitution was NOT "designed solely to preserve slavery". How time flies.

But you really are king of the excluded middle here. Just because "states rights" were not *exclusively* designed to protect slavery, that doesn't mean they had no role in that. Everybody understood that in 1788. I don't know why it's so hard for so-called "originalists" to recognize the single most obvious fact about the US in those years.
 

I don't think you have a hope of understanding people who disagree with you, so long as you're committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

Do you own a mirror? Your standard approach to disagreement is to claim there are broad conspiracies with all sorts of nefarious motives that are behind those who you disagree with. You seem unable to imagine that anyone could do so in good faith. And you accuse others of this?

That's stunning, Brett. Just a stunning lack of self-awareness.
 

I don't think you have a hope of understanding people who disagree with you, so long as you're committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

Ah, yes, that 1619 garbage. The Constitution stands in the left's way, and it is far too popular. So it has to be de-legitimized. And the way the left has settled on doing this is claiming everything about the Constitution was designed solely to preserve slavery. It's the Constitution's central organizing principle!

Ah. The vicious left. Manichean much?
 

I am tempted to say that one possible death-date of the Republic is 1971, with the abolition of the draft and the reliance, therefore, on an all-volunteer army. No longer do most American youths (or their parents) have to ask what devotion to the country might really mean, including elements of sacrifice and a concomitant duty to make sure that it is in fact defensible that lives be lost, on all sides, in the name of the policies being pursued by our leaders.

I doubt that a draft would be workable, or accomplish what you hope, today. For one thing the numbers to be drafted would be much smaller. There are about 1.3 million active duty members of the US armed forces. More than twice that number were drafted for WWI. Rather than being seen as some sort of universally shared burden being drafted would be seen as a random, unfair, imposition on a small minority of individuals. And it would be unfair. If Vietnam taught us nothing else it should have taught us that when there are lots of ways to avoid the draft, they will be found disproportionately by the well-off and well-connected.


 

"That's stunning, Brett. Just a stunning lack of self-awareness. "

The most un-self aware man in the world is how I often refer to him.

I mean, after all the years of this (and, like today, often happening just hours apart in the same conversation) I really had to wonder, is Bircher Brett unable to formulate neutral principles and see how they at least might apply to either side or is he unwilling? Irrational or dishonest? So I came up with the term 'partisan incoherent.' The partisan encapsulates the latter tendency, the incoherent the former. I honestly don't think the two can be separated in his case and in the case of a growing number of the Right. I'm open though to the possibility that they are just woefully misinformed rubes of the terrible right wing media outlets that exist, but at some point those have led people like Bircher Brett to look so foolish you just can't blame the outlets for them continuing to go back and trust them.

And remember, Bircher Brett's 'argument' the other day was that evidence that the impeachment was illegitimate is it didn't convince people like himself. It's literally a near insane bar...
 

Forget about the concern that the citizenry have stopped feeling "ownership" over the country -- that's putting the cart before the horse.

Republics die when the "representatives" stop "representing" the populace and instead can choose the people who vote for them (ala "gerrymandering", which has now become a pretty exact science) and instead rely on the donations of wealthy donors to whom they are responsible (cf "Citizens United", an ironic name if there ever was one) and -- finally -- an elected set of representatives who then govern only on behalf of their "base" (the current Republican Party.)

Is it any wonder that the populace, who are not as dim as some of the people who comment here, have no real interest in voting in elections for candidates who won't "represent" them anyway?


 

" I don't know why it's so hard for so-called "originalists" to recognize the single most obvious fact about the US in those years."

What's particularly interesting and amazing is that a lot the same people that at the drop of hat yell about slavery and tyranny regarding things like a universal background check or a minimum wage ignore the most tyrannical phase facets and period of our history in which we had actual widespread chattel slavery and made the Taliban look enlightened.
 

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It's important to not whitewash history. Around the time of our Founding the following were common:

Sodomy laws that called for the death penalty (Jefferson famously tried to *reform* Virginia's law in this area by calling for the penalty to be *reduced* to castration).
Chattel slavery not only accepted but protected by law.
Coverture and other laws that restricted women's basic contract and occupational rights.
The denial of the vote to the large majority of the population.
Obscenity laws that would make much of what our current President says criminally obscene, not to mention most of what we watch and read.
Established churches, religious tests for holding office and voting,
Etc., etc.,.

It really was very close to the Taliban.

I do think liberals should recognize more how our Founding was a step in the right direction.

However, what's far more interesting is how so many of our conservatives (and ostensible libertarians) can actually with even a semblance of a straight face, point to this time as a Golden Age of liberty and/or limited government while decrying with heightened hyperbole recent times. That goes beyond ignorant obtuseness to something weird and at least borderline troubling....
 

It's important that we not white wash history. It's no less important that we not black wash history. The American revolution started in the northern colonies, where slavery was the smallest part of the economy, and abolitionist sentiment strongest. Slavery wasn't the central project of the Constitution. Remaining independent from Europe was. Slavery was tolerated with the objective of getting the slave states to join and stay in the federation, and it's easy for us to say they shouldn't have tolerated it.

As I frequently say, I guarantee future generations will condemn us today for something they regard as an evil comparable to slavery. Abortion. The failure to cryonically preserve the "dead". I don't know, but it will be something, and it will be just as obvious as slavery was then. There will have been people today complaining about it, just as their were abolitionists then.

There has been no golden age, Mista Whiskas. But as we improve in some areas, we have, tragically, back slid in others. We have lost even as we gained. Greater equality of lesser freedom. Is it wrong to mourn the lost liberty, even as we cheer that more of the population enjoys what remains?
 

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Slavery was tolerated with the objective of getting the slave states to join and stay in the federation, and it's easy for us to say they shouldn't have tolerated it.

One person here argues the original Constitution was basically simply about slavery and he hasn't commented yet. But, slavery was an important part of antebellum history and government. It was not merely "tolerated" and this overcompensates. White males who at least were nominally Christian (often a lot more) did govern.

I would not be surprised if some future generation will think us barbaric ala Bones in Star Trek IV. But, it is not like people are not criticizing severely some of these things now, just like people did with slavery then. I have cited in the past that it does make me a bit more humble than some about my ancestors.

There has been no golden age, Mista Whiskas. But as we improve in some areas, we have, tragically, back slid in others. We have lost even as we gained. Greater equality of lesser freedom. Is it wrong to mourn the lost liberty, even as we cheer that more of the population enjoys what remains?

It's nice to have such perspective but you rarely do. And, you very well imply there was some better time without much context. Take this:

So they suborned the judiciary, which now no longer enforced those limits. Enumerated powers doctrine is dead. The interstate commerce clause is now treated as a grant of general police power, so long as the magic words are used. And N&P is now, "Convenient, and eh, whatever."

I apologize if this does not imply there was some better time, at least, when the judiciary was not "suborned," but I'm not sure when it was. Who are "they"? Is it a different "they" than those who appointed judiciary that did not protect blacks, women, basic criminal due process et. al? I see no "greater freedom but" here.

And, it is your standard line. Put aside it is not true on the merits. McCulloch v. Maryland (1819): "To use one must be within the discretion of Congress if it be an appropriate mode of executing the powers of Government. That it is a convenient ..."

When is the "then" you reference? Magic words? During the Lochner Era, there were 'magic words' to determine if the powers were used appropriately too. Another word there is doctrinal tests. Changing economic realities making interstate commerce different than in the 18th Century was recognized then as well.

Meanwhile, "now" while the states still retain lots of power, greater equality and freedom has come as well.
 

I'll ignore the issue of where the Revolution "started" and the strength of abolitionist sentiment in the North, to address this:

"Slavery wasn't the central project of the Constitution. Remaining independent from Europe was. Slavery was tolerated with the objective of getting the slave states to join and stay in the federation"

I'll agree with your first sentence, though you might keep a lookout for Voldemort now. But to say that slavery was "tolerated" -- which is itself pretty bad -- understates the problem again. As I pointed out in detail a couple of weeks ago, slavery was more than just "tolerated". It was a sine qua non for the Southern states staying in the Union. The slaveholders then won important compromises which everyone recognized would allow them to maintain slavery: the 3/5 clause; the fugitive slave clause; the inability to tax exports; the permission to continue importing slaves and the limit on taxation of slave imports; the militia clauses even before the 2A. They won those battles because many of the Northern Framers simply didn't care about the slaves. The slaveholders then used those clauses and that attitude to operate the federal government in a pro-slavery fashion for the next 70 years. It's not just the Constitution which is problematic, it's the operating assumptions of white supremacy which governed the way the federal government actually functioned for most of its existence (very much including right now) which you need to accept and account for.
 

And as usual, what Joe said.
 

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"They won those battles because many of the Northern Framers simply didn't care about the slaves. "

Oh, they cared about the slaves. Just not as much as they cared about other things, like not getting gobbled up by European empires. Their bad, but don't exaggerate how bad they were, in your desire to view the founders as unalloyed monsters.
 

"operating assumptions"

Yes. The final Don Fehrenbacher book to me was well argued though as with his book on Dred Scott, you will likely get various takes of exactly what happened.

It is a mixture of underlining premises and specific textual provisions. Such things work together in a complicated fashion.

I wonder if the ERA ever is ratified how it will work there. Maybe, with the House of Representatives passing a resolution recently GM will have another post.
 

"Their bad, but don't exaggerate how bad they were, in your desire to view the founders as unalloyed monsters."

No. Lord V. hasn't commented yet. Mark is the racist one who hedges.

Framers from all over "cared" to some degree about slaves, but it is a question of them actually willing to do much that might actually burden whites in the process.

On a basic level, they were found wanting there though limited examples can be found.
 

"your desire to view the founders as unalloyed monsters."

You clearly have me confused with someone else. I regularly defend the Founders here. I'm just not blind to their faults.

Look, it's pretty hard to "exaggerate" the evils of slavery, so there's little risk of that. But minimizing the evil is quite popular among some. You may want to exercise your right of association to disclaim them.

As for "getting gobbled up by European powers", I don't see that as a big risk. The conditions of the time didn't really allow for military control at that distance, as the Revolution amply demonstrated. The concern instead was that the Europeans would ally with some states and influence them to disrupt or break up the Union. That is, that the united states would end up separated, leading to the wars like those which blighted Europe. You might ask yourself which European nation has that goal today and who his quislings are.
 

You might ask yourself which European nation has that goal today and who his quislings are.
# posted by Blogger Mark Field : 8:05 PM


Pick me!
 

But as we improve in some areas, we have, tragically, back slid in others. We have lost even as we gained. Greater equality of lesser freedom. Is it wrong to mourn the lost liberty, even as we cheer that more of the population enjoys what remains?

I am curious as to the nature of the liberty lost.
 

The liberty to discriminate and/or to oppress.
 

"Greater equality of lesser freedom."

This isn't the stale, contrived 'equality vs freedom' talking point of ostensible libertarians. The vast majority of what I noted *were* freedom restrictions, and on a level with and enforced with barbarity of groups like the Taliban. There's just very little today, with the exception perhaps with how we treat the suspected undocumented, that even comes close. What Bircher Brett is doing is a typical Bircher move: elevating the relatively minor restrictions that the current federal government may be perceived by him to inflict on him with the much more massive restrictions the states routinely inflicted on all, but some more than others to very high degrees, at the Founding. Its all part of the inflated victimhood narrative conspiracy theorists swim in.
 

I am curious as to the nature of the liberty lost.
# posted by Blogger byomtov : 9:32 PM


He can't use the n-word in public any more.
 

Seriously, if you can't think of any freedoms we've lost, you either have a very poor memory indeed, or just refuse to admit liberties you despise are actually liberties.

When I was a kid, you could buy 20mm anti-tank guns mail order, and brand new machine guns were legal to buy. I got extra credit for sharing my thermite recipe with my HS chemistry teacher, not a juvenile record.

You could walk into a pharmacy and restock your chemistry set with real chemicals, and slap down some money and walk out with decongestants that really worked. And nobody put you on a list.

You could bake and sell cookies without a license. It was no small thing that starting a new business was almost trivially easy.

You wanted to form a new political party? You just did, and a bit of paperwork put your party on the ballot, you didn't have to bankrupt yourself on ballot access drives. Oh, and write-in votes were legal everywhere, you could donate whatever you wanted to your favorite candidate without worrying about going to jail over it.

And, yes, freedom of association: It was that treasured moment when we didn't tell bakers and florists who they had to or couldn't do business with. A brief dalliance with liberty before launching the "all that isn't forbidden is mandatory" approach to civil liberties. Yes, I know: You despise freedom of association.

We certainly did lose a lot of liberty along the way, and, no, I don't think it was a necessary trade to get the equality.
 

"We certainly did lose a lot of liberty along the way, and, no, I don't think it was a necessary trade to get the equality. "

Good grief, it's like a script he feels he must read from (or is all he had and doesn't recognize how it doesn't fit here?).

My point was that everything named pales *as a liberty interest* to the things I noted the Founding routinely restricted (and enforced with far more serious, in fact barbaric, penalties).

Take sodomy laws, which criminalized (as a felony!) oral and anal sex. Now, sex is one of the most intimate, fulfilling things most people think they do. The sex drive is a fundamental one whether you're Freud or Darwin, our culture from it's advertising to it's entertainment to it's pharmaceutical demands is one that acknowledges that this is one of the most important things people can do. And the vast, vast majority of people, hetero and homosexual, engage in oral sex with some regularity and a good plurality in anal sex. It's > than the inclination to own a specific type of ammunition, or to *not have to write your name on a list before buying a specific type of OTC medicine.* I mean, it's bizarre that given the time to think of the grave tyranny he's inflicted with in today's federal government dominated world in response to the things I noted states routinely restricted in the Founding era that Bircher Brett came up with such very weak sauce.

I mean that write-ins are restricted in a handful of states vs. the fact that women were barred from very basic property and occupational rights? That businesses must (gasp!) provide the product they provide to all non-unruly customers vs. chattel freaking slavery or even just obscenity laws that were so broad that James Joyce, DH Lawrence, etc., would run afoul of them (btw, these were later day applications of obscenity law, common law obscenity had an *even lower* bar, probably 80% of modern entertainment would run afoul of the bar they had back then)?

These aren't even close calls in terms of which is more liberty restricting (in the sense of reaching more behavior of more people overall and in terms of the fundamental-ness of the liberties restricted). It's amazing and very telling that Birchers like Brett can't (or won't) see that.

It's true to say the Founding was an important step in the right direction, but it's crazy not to realize that it was also about a mile behind where we are now.
 

I think I see the problem here. You can't tear your eyes away from the bottom line, and look at the pieces that went into it. That, and you don't actually value the liberties we lost, and don't particularly care that other people do. Maybe you even anti-value many of our lost liberties and celebrate that they were lost.

We lost things, and we gained things. We should celebrate what we gained, but why not regret what we lost, and want it back? The losses weren't necessary to achieve the gains! We didn't need a war on drugs to legalize sodomy. We didn't need gun control to end segregation.

We didn't need to abolish freedom of association to end Jim Crow, Jim Crow itself violated freedom of association.
 

Sandy:

The Americans attempted to create a different type of republic - a free republic, whose end was to protect liberty and whose means was a Constitution enforced by the rule of law which limited government power over the citizenry to express powers, a bill of rights which limited exercise of those powers over large parts of our lives, then checks and balances requiring an effective supermajority to exercise what powers remained.

This free republic was imperfect because it did not fully protect everyone’s liberty. However, equal protection of the law gradually extended to everyone over the next two-plus centuries.

As equal protection expanded, though, the republic’s liberty protections themselves diminished. As designed, our free republic started its death spiral during the Wilson administration’s “war socialism,” then after a decade long respite, resumed its descent with the Roosevelt administration’s New Deal.

We have reached a point where there is little left of the original republic apart from the formalities of electing essentially figurehead representatives who have largely delegated their governance to a bureaucracy exercising absolute power and have placed a majority of appropriations on auto-pilot.

I am unsure what sort of “people’s republic” you envision. Your two favored POTUS candidates are open totalitarians who have plans for the government to direct nearly every aspect of our economic and much of our personal lives. The “lout” you condemn as an “authoritarian” is actually making modest gains in reversing the absolute bureaucracy and appointing the best set of constitutionalist judges in a century.
 

"You can't tear your eyes away from the bottom line, and look at the pieces that went into it."

No, this is about motes and beams. We didn't "lose things" and "gain things." That's the morally obtuse equivalent of 'good people on both sides.' Things were Taliban-bad or worse and now they're, at worst, Social Democrat-lite bad. I can grant that some people like buying decongestants without having to be on a list or buying extremely niche ammunition, but they simply do not like those things as much as having sex, being able to make a living, or most of our entertainment, to name just a few examples in which Founding state laws were not only restrictive, but in far more intense ways (you're not going to be castrated or killed for not selling a wedding cake to a gay couple).

And what's perverse is that Birchers rant, literally rant, using the worst hyperbole about the motes while when it comes to the beams of the Founding state regimes they say 'oh, well, let's be careful not to black wash it!' It's really telling about the state of their perceived victimhood, ignorance of the actual past, and solipsistic myopia where anything that impacts them right now is the worst tyranny known to man ever.
 

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"I think a lot of the hatred directed against Trump is a result of the fact that he managed to arrive in an important elected position without being a member of the political establishment"

I'd like to comment on this silly idea that Trump is a counter-establishment figure. Yes, Trump is an uncouth lout who lacks the professional decorum of most successful politicians and professionals in general, but Trump is also an ostensible billionaire who has schmoozed with that class *by his own admission* for his entire adult life. Trump regularly given money to both sides of the 'political class' and has mixed in their mileu easily and regularly. During his campaign he touted his life-long connections and dealings with this class as a prime reason why people should vote for him ("Nobody knows the system better than me, which is why I alone can fix it"). I mean, his recent controversy involves his intervention into the case of his long time friend Roger Stone, if there is the epitome of a man with a long life of being a 'mandarin' political lobbyist-insider it's Roger Stone!

It's amazing how much Trump's followers engage in either deception or self deception to these obvious facts.
 

"the “lout” you condemn as an “authoritarian”"

It's important to remember who is talking about judging relative authoritarianism here.

Bircher Bart is on record here saying, in keeping with Trump's own fascist boast along those lines, that he would support Trump even if he knew Trump murdered someone. That's moral derangement. He also argued during the impeachment that there was 'zero evidence' that Trump ever asked the Ukrainian President to investigate the Bidens (he argued this well after the release of the White House quasi-transcript openly admitting to doing this). That's intellectual derangement. This is what Trump begets in his followers: moral and intellectual derangement. You can see it in figures petty like Bircher Bart and figures powerful like Bircher Bart's former GOP fave Ted Cruz (a man who once called Trump 'utterly amoral,' and whose wife and father Trump impugned but who now enthusiastically carries water for Trump).

These are not serious men. They are at best broken, warped by their own crazed partisanship or actual deplorable persons.


 

"a Constitution enforced by the rule of law which limited government power over the citizenry to express powers, a bill of rights which limited exercise of those powers over large parts of our lives"

Again, this just flatly elides the fact that all these comments only allude to the *federal* government. State governments at the time were more tyrannical than our federal government has ever even approached.

"We have reached a point where there is little left of the original republic"

Re my comments about the state governments at the time, thank goodness!

"bureaucracy exercising absolute power"

This is of course false, more dishonesty from a profoundly dishonest person. The Congress can and has overruled executive branches and new executives change those agencies commonly. Additionally, the judiciary does the same.

 

"No, this is about motes and beams."

Exactly what I said: The lost liberties are liberties YOU don't value. Or maybe actively oppose. So you're reluctant to acknowledge them.

But losing them was not necessary to the gains, so why not aspire to getting those liberties back?

It's not a matter of longing for a lost golden age, it's a matter of wanting the best of both worlds.
 

Seriously, if you can't think of any freedoms we've lost, you either have a very poor memory indeed, or just refuse to admit liberties you despise are actually liberties.

Mr. W. isn't the right sought of conservative. Again, that is what we are dealing with. Not a libertarian. Not really someone consistently concerned about federal power. Maybe, like "if I had my druthers" (one rarely has them). But, push comes to shove, various things are more important and the others might eventually come up in vague terms. But, "anti-tank guns mail order"? Well, come on!

We are talking someone born around 1960. While you was able to "restock your chemistry set with real chemicals" (this is silly btw since there were historically a myriad of rules that micromanaged things like that in various respects, putting aside without modern industrial developments, the ease of delivery of a range of items was much harder or maybe just not possible for many people), racial discrimination supported by brunt of law (no, not limited affirmative action programs) was still in place.

You could bake and sell cookies without a license. It was no small thing that starting a new business was almost trivially easy.

Regulation of business was something that historically occurred in lots of ways. Meanwhile, women could not get credit without approval of their husband and spousal rape was not criminal. Priorities mixed with a bit too rosy view of reality.

People do sell cookies without a license now. In a low level sort of way, people sell things all the time. I sell on Ebay regularly. I don't need a license. OTHO, yes, bakers historically put in place things to have licensing laws. The Supreme Court in Munn v. Illinois (1876) noted that baking is a matter of public concern and the state can regulate it in a variety of ways.

You wanted to form a new political party? You just did, and a bit of paperwork put your party on the ballot, you didn't have to bankrupt yourself on ballot access drives. Oh, and write-in votes were legal everywhere, you could donate whatever you wanted to your favorite candidate without worrying about going to jail over it.

Back in the day, you didn't have the secret ballot. You had racial discrimination when you went to vote in a blatant sense. There were a myriad of regulations of ballots as well. Politics had a lot of barriers to entry in reality. And, write-ins are fairly regularly in place now. You had campaign laws then too. Actually going to jail for violating campaign regulations is rare -- has to be blatant. Plus, all the regulations in place are geared to a more equitable process. Oh, btw, lobbying in the late 19th Century was strongly regulated. It is much more laxly so now.

And, yes, freedom of association: It was that treasured moment when we didn't tell bakers and florists who they had to or couldn't do business with. A brief dalliance with liberty before launching the "all that isn't forbidden is mandatory" approach to civil liberties. Yes, I know: You despise freedom of association.

Yes, you can not serve black people. Again, public accommodations laws go back hundreds of years. It is not a violation of freedom of association for public businesses to be required to serve all comers. "I know" ...you want to go back to the old days when people can not serve black people. Or gays.

We certainly did lose a lot of liberty along the way, and, no, I don't think it was a necessary trade to get the equality.

What is rights for blacks, gays, women, criminal defendants, the benefits of modern economic developments and more if you have to serve gays at a public flower shop?
 

"it's a matter of wanting the best of both worlds"

It's about Hanna Montana, Come on, Mr. W. Why don't you like Miley Cyrus?

https://www.youtube.com/watch?v=uVjRe8QXFHY
 

Apart from entirely missing the point (to reiterate, what is one to think when one complains about relatively minor liberty deprivations of today at long length and hyperbole but urges restraint in criticizing the much worse restrictions of the Founding generation?), Bircher Brett misrepresents me blatantly: "The lost liberties are liberties YOU don't value. Or maybe actively oppose. So you're reluctant to acknowledge them."

I said explicitly: "*I can grant that some people like buying decongestants without having to be on a list or buying extremely niche ammunition*, but they simply do not like those things as much as having sex, being able to make a living, or most of our entertainment, to name just a few examples in which Founding state laws were not only restrictive, but in far more intense ways (you're not going to be castrated or killed for not selling a wedding cake to a gay couple)." * emphasis added for this comment

This is why at long last I decided Birchers like Brett should not be directly engaged or addressed. They consistently ignore what the people they argue against actually say and just go back to spewing their original talking points (which, of course, change as the partisan needs of the day demand). It's an endless circle with them.
 

joe as often is the case makes the point brilliantly. What are we to think of a person who, thinking of 1960, says 'well, it's true there was institutionalized segregation, but you could buy a complete chemistry set with less red tape!'

It's like a person who is always trying to convince you to be outraged that your wife hugged another man at a party while his works in a brothel to which he says 'well, let's not focus on the bad about her.'

This kind of incoherence of principle invites speculation about other motives.
 

again, joe's comment is full of treasures.

In the Founding generation a black person trying to vote would be beaten and arrested, this was true in many places up to about 1970, but Bircher Brett laments that a handful of states now don't have a write-in option when they go to vote....

Freaking incredible, and telling.
 

You are in error abut the draft ending in 1971. I got drafted in October 1972 and the draft didn't end until June 1973 after a two year extension. Just saying because you used the wrong date in the article's title.
 

What part of "We've improved in some respects, backslid in others, and the losses were not necessary to achieve the gains, so let's get those lost liberties back!" don't you understand?

The past was a mixed bag. The present is a mixed bag. Why can't we take the best from both?

Why do you insist on pretending that wanting the liberties of the past back implies wanting the wrongs of the past back, too? Why pretend that wanting write in votes back means wanting blacks beaten if they try to vote? That's lunacy, you come across as crazy when you start spouting nonsense like that.

Where we really disagree is on freedom of association, I think. I despise people who engage in racial discrimination. More, I think, than you guys do, because I'm offended by racial quotas and preferences, too, I don't cut any slack for people who want to believe their racial discrimination is benign because they have good motives. It's not the motives I care about, it's the discrimination itself.

But private discrimination simply isn't an appropriate subject for regulation, so long as it doesn't involve rights violations. Just because I despise people who discriminate racially or whatever doesn't mean I want to put a gun to their heads and force them to follow MY views, rather than their own.

Freedom means people get to make choices, and sometimes we won't like those choices. Freedom lives in the space between what's encouraged and what's mandated, between what's discouraged and what's forbidden. Not liking somebody's choices doesn't entitle you to take them away! You need more than that, you need the choice to violate another person's rights, not just offend your own preferences.

And you don't have a right to other people dealing with you, associating with you. Those sorts of 'positive' rights are the death of liberty, they're poison for freedom.

That's where we really disagree. Not on whether Jim Crow, which mandated discrimination, and forcibly imposed it, was wrong. That took people's choices away from them, it was a deprivation of liberty.

But it is no less a deprivation of liberty to tell the florist she must sell you a flower arrangement, than it is to tell you that you may not buy it. If you value freedom, BOTH sides of every interaction must be voluntary. Not just the side you like.
 

"But it is no less a deprivation of liberty to tell the florist she must sell you a flower arrangement, than it is to tell you that you may not buy it."

This conversation will never go anywhere because you don't (or can't) understand that the florist's refusal to sell a flower to a willing customer is not an exercise of freedom by the florist, it's an exercise of oppression. It may not be oppression on the same scale as laws against sodomy, but it's oppression nonetheless because it allows him to treat another person as lesser, as inadequate, as defective. It deprives the customer of freedom AND imposes a psychic and social cost on that customer. Freedom suffers a net loss.
 

There's a reason why MLK and other civil rights leaders enthusiastically backed the CRA, because they knew and often acknowledged that *private discrimination* made like awful for those discriminated against.

But again, we are literally talking to a person more upset about some states not having write-ins than that a huge percent of people were beat and often killed trying to vote because they were brown.

These are not serious persons.
 

Yes, I understand, you have defined freedom as oppression. One side of the transaction gets all the rights, in your vision, the other side none.

The person in search of flowers may pick their florist on any basis they want. You can pick them because you like their race, even. They can treat the florist as inadequate, as defective, impose any psychic or social costs on them they wish, and you won't stop them.

But let the florist dare to make choices on the same basis, and you'd bring the full force of the state down on them. The buyer gets all the rights, the seller gets none, because, in the end, you think the businessman has no rights society is obliged to respect.

Mark, true liberty is reciprocal. True freedom respects the liberty of BOTH sides of every transaction. You don't force me to pick your cotton, I don't force you to hire me to pick cotton.

You only have genuine freedom when both sides of every transaction are voluntary. BOTH sides.
 

"But again, we are literally talking to a person more upset about some states not having write-ins than that a huge percent of people were beat and often killed trying to vote because they were brown."

Because the lack of write-ins is TODAY, the being beaten and even killed for trying to vote is the distant past. Yes, I am more offended by today's evils, than yesterdays evils which have already been abolished.

What is the freaking point about being obsessed with evils already abolished? Does it make people today one iota freer? No, it doesn't. Sufficient unto the day is the evil thereof. Concern yourself with today's problems, not the problems already solved!
 

> But let the florist dare to make choices on the same basis, and you'd bring the full force of the state down on them. The buyer gets all the rights, the seller gets none, because, in the end, you think the businessman has no rights society is obliged to respect.

This is so disconnect from reality, I don't know what to say. But let's try:

Society explicitly grants the seller all kinds of rights (all the more so once they arrange themselves as any kind of corporation). In so doing, society gets to determine the terms for granting those rights. Both the terms and the rights have and will vary over time.

If you use the example of a single individual selling (e.g.) wedding floral arrangements, then sure, it's easy to make it appear that:

1) society doesn't need to grant any rights - in a free society, people should be able
to trade as they desire in consensual arrangements. Libertarianism 101
2) society doesn't actually grant any rights - an individual business has no liability
exceptions or other benefits as provided to corporations

So yes, if you pick this sort of business arrangement - sole proproprietor, essentially - I think you can make a case that there's asymmetry.

But ... this is how hardly any business at all in this country is conducted! Even the small act of organizing a business as an LLC changes all of the above so dramatically that the asymmetry just vanishes.

And sure, America loves its myth of the small business. But they don't employ many people - the overwhelming majority of small businesses are really tiny - and most of the "small businesses" that people interact with have applied to the state for the protection that a corporation offers. In exchange for that, society sets some requirements.


 

"Mark, true liberty is reciprocal."

This is not just wrong, it's grotesquely immoral. It denies the rights, indeed the humanity, of other human beings.
 

"Even the small act of organizing a business as an LLC changes all of the above so dramatically that the asymmetry just vanishes."

But, people don't form corporations for fun. They form corporations because the government's own tort system makes doing business without a corporation legally and financially perilous. We've gone from a society where the only corporations were things like port authorities, where the government was granting some sort of monopoly or other delegation of sovereign power to the company, to a society where people form corporations just to put together a block club. That's because the law has compelled people to form corporations to get together to do things.

You can't justify taking away rights on the basis of a decision you yourself compelled! But that's what the government is doing when it deprives people who form corporations of the liberty they'd retain as individuals.

"This is not just wrong, it's grotesquely immoral. It denies the rights, indeed the humanity, of other human beings."

It's good to be clear on the points we disagree about, even if the clarity doesn't produce agreement. Yes, you think reciprocal liberty is grotesquely immoral. I think depriving one side of the transaction of liberty is what's immoral.

The odds of us ever finding middle ground are slim.
 

freedom as oppression. One side of the transaction gets all the rights, in your vision, the other side none

The person who runs a public accommodation has a variety of rights and many in fact are incorporated, which provides additional special privileges. Since it is a public accommodation (as compared to only sharing with friends), there is a quid pro quo. Or, to quote someone else, it is "true liberty is reciprocal."

Because the lack of write-ins is TODAY, the being beaten and even killed for trying to vote is the distant past.

Well, you aren't that old. When it is something conservatives care about, saying "why are you worrying about that?" and it is about something in the 1970s or 1980s (or even earlier), and racism set by public policy was very blatant then (it isn't gone now), is repeatedly not handwaved.

But, the things cited weren't ancient history. Criminalization of spousal rape occurred in each state in the 1990s (the immunity is not completely gone even today). Same sex couples could be and were arrested for sex in the early part of this century. Of course, several more recent GLBT freedoms are seen as not worth it anyway, so citing the recent nature of some of problems is somewhat besides the point.

What is the freaking point about being obsessed with evils already abolished?

Part of the point is to remember the importance of the freedoms that came as part of the combined whole that you find problematic. Point of fact, conservatives repeatedly don't actually care much about many of the freedoms here, if not actively against them. Some choices are made here (e.g., more equitable voting systems will including some regulations people might not like) and how much they are worth it requires respecting what is being protected. Protections take effort.

This is somewhat besides the point anyhow since the whole history is being confused and again the "evils" in some case aren't even seen as evils. For instance, more ability not to sell to black people would be supported. Some limited zone there -- and even that will be seen as somewhat tragic -- will alone be granted as appropriate.

Gay people? Well, come on!
 

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> They form corporations because the government's own tort system makes doing business without a corporation legally and financially perilous.

Well, if it's not the government's own tort system, then I suppose its the Acme Corp's tort system ("Legal Systems and Services For the Stars (Now Available to Everyone)").

I didn't take you for that hardcore of a libertarian.

Oh wait, let me guess. You're ok with the existence of a government tort system to settle those pesky times when contracts go awry ("But you said you would sail around the world!" "I went as far as I could!" "I want my investment back!"). You just think it has grown in an out of control and liberty depriving fashion, and that therefore it now creates a burden that leads people to form corporations.

Libertarian-ish poster encounters reality, mind blown. News at all 11. The constant declamation from libertarian-ish folk about how reality is messed up and if we had just done it their way is ... simultaneously hilarious and insane.

You know, just yesterday my brother forwarded me a tweet that said: "During my research I interviewed a guy who was a libertarian until he took MDMA and realized that other people have feelings too and that was pretty much the best summary of libertarianism I've ever heard".

 

The point is, "immunities" become important in proportion to the threat you're being immunized against. And the threat corporations are being immunized against is the government's own legal system.

Forming a corporation if you want to do something in the way of a business isn't meaningfully voluntary anymore. So it can't be a basis for saying somebody has voluntarily relinquished their rights.

Not unless you're going to claim there's no right to engage in commerce. And maybe you want to claim that, but you should do so explicitly.
 

They form corporations because the government's own tort system makes doing business without a corporation legally and financially perilous.

Corporations are at least a medieval construct and came before modern tort systems. Corporations benefit from government is many ways. This is part of the looking at part of the whole that is confusing things. For instance, yes, growth of government regulation along with the complexities of the market in the modern world makes the corporate form more and more appropriate than in earlier times. But, net we don't want to go back to the past. The strings on corporations is part of the wider good.

We've gone from a society where the only corporations were things like port authorities

pining for the non-existent golden age again ... again, it is useful to look at the whole picture there (plus note there were corporations for more than port authorities as well as noting the business regime in place had their own problems. And, there were still various regulations, at times (such as race/gender/class restrictions) quite threatening to individual freedom.

to a society where people form corporations just to put together a block club. That's because the law has compelled people to form corporations to get together to do things.

Given how much power corporations have, the form is arguably overused these days and the old days when there were more limited grounds to incorporate, there was more strings, corporations were more term limited etc. had something to teach us. But, we have more freedom there today in a fashion.
 

I don't think you have a hope of understanding people who disagree with you, so long as you're committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

This.

And this sums up exactly why I think a person like Mark Field is much more dangerous to Americans than your average conservative.

I have lots of conservative friends. Lots of liberal friends too. None of them are white supremacists. Some of them have greater or lesser degrees of racism and racial blindness, and I am certainly willing to call out conservatives or liberals when they act in a racist manner.

But no, you're average conservative voter, including, yes, Trump supporters, is not a white supremacist. Probably 5 percent of the population or less are white supremacists.

We can defeat white supremacism. If you notice, even after the President's comments, it isn't as though any significant group of people came to the defense of the folks with the Tiki torches in Charlottesville.

But my worry is that liberalism, a movement that is supposed to be about tolerance and diversity and inclusiveness, gets taken over by the type of political hacks who just want to win and destroy their enemies and who are willing to tell all sorts of lies about the right in order to do that, while ignoring huge logs in their own eyes when it comes to their own racism.

In short, the Mark Fields of the world.
 

One person here argues the original Constitution was basically simply about slavery and he hasn't commented yet.

The original Constitution was basically about creating a government that would protect slavery. It was the single non-negotiable aspect of the entire thing. No Constitution could pass without substantial protections for slavery- and that's not true of any of the things people now say the Constitution is about. For instance, the Constitution DID pass without a Bill of Rights, so we know that wasn't integral. We also know they considered making George Washington a monarch, so we know that democracy wasn't integral. The only thing that was taken as a given was slavery. That's what the thing was about.
 

@brett despite their employing a tiny percentage of the workforce, there are nevertheless hundreds of thousands to millions of sole proprietorships in the US. So your claim that it is mandatory to form a corporation in order to do anything "business-y" is simply false.

However, even if it were true, you have no alternative to offer. If it's not the government's tort system, which has expanded and changed in response to the needs and desires of both the wealthy and (less often) the broader population, then it would precisely what tort system?

I don't anticipate that you're going to suggest that contract violations are not subject to tort, so there's going to have to be some system in place. Are you just stuck in some dreamscape where whatever super-limited system existing in 1787 remains the tort system a few centuries later?

 

"Liberalism" is a name that got taken over by Fabian socialists a long time ago. (Forcing the former "liberals" to start calling themselves "classical liberals" or "libertarians" to avoid being mistaken for socialists.) It has very little to do with tolerance and diversity and inclusiveness, that's just protective coloration it dons when it feels threatened. When it feels empowered, the mask starts to come off.

You can see this on our college campuses; where the left has the power, it conducts purges.

I think, and I certainly hope, they're taking the mask off too soon.
 

We didn't need to abolish freedom of association to end Jim Crow, Jim Crow itself violated freedom of association.

This is where you really get history wrong, Brett. We very much did.

Jim Crow was, yes, a governmental system. But it wasn't only a governmental system. The reality is even if the Supreme Court had struck down Jim Crow laws in 1920, you still wouldn't have been able to open an integrated restaurant in Alabama in 1920. Because there really was living, breathing White Supremacy back then (unlike Mark's overheated rhetoric now).

There was no free association, because private power, collectively, could deny it. And conservatives and libertarians ought to be able to recognize this, because it is the same argument that they make nowadays about academics, Hollywood, the media, etc.

Yes, it is very true, as Wechsler said it was, that Civil Rights laws came at a real cost to free association. You can see that in Katzenbach v. McClung, where an off the beaten path barbecue place that was patronized by Good Old Boys types had to integrate. But there really was no way to preserve the rights of those Southern whites and blacks who DID want to associate with each other without taking that step.
 

This conversation will never go anywhere because you don't (or can't) understand that the florist's refusal to sell a flower to a willing customer is not an exercise of freedom by the florist, it's an exercise of oppression. It may not be oppression on the same scale as laws against sodomy, but it's oppression nonetheless because it allows him to treat another person as lesser, as inadequate, as defective.

And this isn't as wrong as what Brett says, but it is also wrong.

The notion that someone's refusal to do business with another person raises no association issues at all would seem strange to anyone who has ever participated in a boycott of anything. And no, not all boycotts are oppression.

Now, I know you can say "yes, but boycotts are based on politics, and not immutable characteristics". Well, how about refusal to do business based on religion. Does a person who, for instance, patronizes only Kosher restaurants engage in oppression? Does a restaurant that serves a lot of pork products and thus is unattractive to Jews and Muslims engage in oppression?

The reality is there are serious free association issues with respect to anti-discrimination law. Society made a judgment that the problem was big enough that we needed to override those interests, and that was a correct judgment. As was the judgment that overall this was a net gain for freedom. But that doesn't mean that no freedoms were lost or that anyone who ever refused to do business with someone else was engaging in oppression.
 

BD: "the “lout” you condemn as an “authoritarian”"

Mr. W: It's important to remember who is talking about judging relative authoritarianism here. Bircher Bart is on record here saying, in keeping with Trump's own fascist boast along those lines, that he would support Trump even if he knew Trump murdered someone.


My lying correspondent, what I posted was I would support Trump over any of the totalitarian Democrats running for POTUS even if he murdered someone on the street, THEN we can hang him after he finishes his term.

I stand by that hypothetical sentiment.

A murderer employing Trump’s policies will benefit my family and nation. A non-murderer seeking to misdirect the entire economy under a “Green New Deal” and nationalize my health care will cause m family and nation irreparable harm and likely impose grinding Venezuelan poverty on us.
 

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Oh. I'll let, if he cares to, the spectre (Mark Field) respond to replies to his comment. Seems to be some talking past what he said though.
 

Fabian socialists?

I see one definition being "a British socialist organization whose purpose is to advance the principles of democratic socialism via gradualist and reformist effort in democracies."

What is "democratic socialism"?

This is a term favored by Bernie Sanders (who Brett once said he respects as a person if not for what he stands for) but his action program overlaps with basic policies that the average person would support.

When we actually still said things like "Fabian socialism," things like Medicare or broad based public education were things found in utopian novels. Rhetoric as much as such labels (ditto talk of 'purges') sheds more smoke than light much of the time.
 

@bart no doubt you're as certain about the effects of proposed Democratic policies as your ideological ancestors were about the New Deal, a 40hr work week, WWII tooling, the GI bill, the civil rights act, the race for the moon, and extremely high marginal tax rates.

Fortunately, those of us living with you today have the benefit of hindsight to aid us in understanding how shallow, intellectually deficient, ecologically and economically limited and ultimately just plain wrong that perspective was.

Now, I'll admit that I don't know for certain what the impact of trying to move in the direction that Sanders/Warrent have outlined within the context of a national security state, a military/industrial complex, weaponized social media and the contemporary financial services "industry". But I would have thought that a little humble pie was warranted when assessing the prospects, given the "grinding Venezuelan poverty" that the the last round of Democratic populists and progressives in general actually delivered.
 

"I'll let, if he cares to, the spectre (Mark Field) respond to replies to his comment."

It's my fault for using the name.
 

"via gradualist and reformist effort in democracies."

Wow. That's... not exactly wrong, but it's kind of like describing Hitler as a vegetarian artist.

The Fabian society's emblem was a wolf wearing a sheep skin, to symbolize their intention of success through pretending to be something other than what they were.

"Fabian" socialism, for those who aren't favorably inclined towards socialism, denotes socialism that hides its true nature, and advances by deceit.
 

So, we should we call Trump a "Fabian conservative"?

Ha ha.

"Fabian" is a classical reference to an ancient general who used gradual means to wear down the enemy. Gradualism as a means to address something is fairly standard stuff, and yes, can be used by any number of ideologies. The "vegetarian artist" thing is silly since it is completely separate from his overall ideology.

Focus on an emblem, which was eventually abandoned, is a somewhat limited way of understanding the movement. Again, just what "Fabian socialism" entails is unclear since there was a moving target on what is okay. Akin to William F. Buckley Jr. saying his message was "stop," but eventually accepting what he once opposed as the line changes.

And, there is no general hiding the ball for many self-labeled liberals. But, it does have a nice conspiratorial sound for those who favor that framing.
 

To be precise, Fabius didn't use "gradual" means -- he fought in an entirely defensive manner, never attacking. He'd simply go to the area and set up a fortified camp, and, when Hannibal's forces would go out foraging (which they must do, as they were far from their lines of supply) he'd take advantage.

"... he dreaded Marcellus when he was in motion, and Fabius when he sat still."

So the takeaway would be a socialism that would simply wait and let the other side make mistakes and take advantage of them.
 

But that doesn't mean that no freedoms were lost or that anyone who ever refused to do business with someone else was engaging in oppression.

Of course you can still refuse to do business with someone else. You just can't base that decision on certain characteristics. And the reasons for that are plain. Certain groups have a history of being systematically oppressed, excluded, being widely regarded as inferior or defective. It is this systematic discrimination that the laws are designed to fight, because it is destructive to our society. An awful lot of the freedom of association argument rests, it seems to me, on the hidden assumption that discrimination is sort of a random, rare, idiosyncratic behavior. Some idiot refuses to serve people with red hair or something. But that's not so. It is precisely the systematic nature that is the problem

Does a person who, for instance, patronizes only Kosher restaurants engage in oppression?

No. No more than a person who dislikes Chinese food oppresses Chinese restaurant owners. The choice is based on the product offered, not the ethnicity of the owner. And yes, a person who refuses to patronize any place run by Chinese is, in some sense, "oppressing" Chinese people by reducing their ability to make a living simply because of their ethnicity.

Does a restaurant that serves a lot of pork products and thus is unattractive to Jews and Muslims engage in oppression?

Silly. The refusal to eat at the restaurant is made by the Jew or Muslim, not the owner. The owner of a vegetarian restaurant is not oppressing carnivores.
 

They form corporations because the government's own tort system makes doing business without a corporation legally and financially perilous.

I don't understand. I thought part of the job of government was to administer justice, which includes holding individuals accountable when they cause serious harm to others.

If you want to argue that the system doesn't work as well as it should I'd agree, but sneering at "the government's own tort system" doesn't help.

Besides, I thought libertarians revered torts as a substitute for regulation. Silly idea, of course, but you can't have it both ways.
 

There was no free association, because private power, collectively, could deny it. And conservatives and libertarians ought to be able to recognize this, because it is the same argument that they make nowadays about academics, Hollywood, the media, etc.

There was no free association for that reason, and also because market forces, in the 1920's and for a long time thereafter, provided strong incentives to discriminate. Anyone who knows anything about the history of racil discrimination should be able to figure that out. There were any number of situations where discriminatory practices were not mandated yet were widespread, almost universal.

Yes, it is very true, as Wechsler said it was, that Civil Rights laws came at a real cost to free association. You can see that in Katzenbach v. McClung, where an off the beaten path barbecue place that was patronized by Good Old Boys types had to integrate. But there really was no way to preserve the rights of those Southern whites and blacks who DID want to associate with each other without taking that step.

Ollie's was not in fact "an off the beaten path barbecue place that was patronized by Good Old Boys types." It was an extremely popular place, noted citywide for the quality of its barbecue and patronized by a (white) cross-section of Birmingham residents. JFTR.

 

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Deleted too much.

I agree with C2H5OH's precision.
 

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PaulDavisTheFirst said...@bart no doubt you're as certain about the effects of proposed Democratic policies as your ideological ancestors were about the New Deal, a 40hr work week, WWII tooling, the GI bill, the civil rights act, the race for the moon, and extremely high marginal tax rates.

Any honest economist who is not selling progressive mythology will admit the New Deal was a catastrophe. The Hoover/Roosevelt increase in taxes, borrowing, spending and regulation created the first of two progressive depressions (serious recessions followed by years of low growth and endemic high unemployment) over the past century.

During the first century plus of our Republic, our economy never experienced a depression (although people in the 19th Century used that term to refer to recessions). Indeed, recessions were generally brief and followed by booming levels of growth. This was the longest period of sustained high growth in human history and transformed a bankrupt, war ravaged colonial backwater into the world’s preeminent economy in less than a century.

After the Hoover/Roosevelt imposition of progressivism, the private economy did not recover from the resulting depression until after WWII, when government massively slashed taxes, borrowing, spending and regulations. The key New Deal programs were either eliminated entirely or cut back substantially and there was not a resurgence of regulation until the 1970s.

Thankfully, we did not have to wait nearly as long to end the Obama depression because he was term limited out before he could do massive damage with the tidal wave of AGW regulations in the pipeline. Instead, Trump thankfully spent the past three years reversing a substantial number of the misdirections of the economy Barry did inflict. Not enough, by any means, but far better than continuing the status quo of depression.

What Sandy’s preferred candidates, Sanders and Warren, are proposing is exponentially worse, collapse instead of stagnation. The rest are not much better.
 

"Obama depression."

Come on, Bart.

Even trolls have to be a little bit credible.
 

"Obama depression."

Come on, Bart.

Even trolls have to be a little bit credible.
# posted by Blogger byomtov : 9:22 PM


He's a lying hack. There's no reason to do anything but mock him.
 

Nah, bb.

He just likes to troll. No one who believed the stuff he says would have the brains to even turn on a computer, much less post a comment.
 

I think it's more than a bit of a stretch to call the Obama years a "depression". It could have become such, but didn't have the chance if it was going to.

OTOH, it is indeed widely viewed that the New Deal gave the Great Depression it's "Great", and that it otherwise might have been a normal recession, and over with fairly quickly. It was used as an excuse to implement central planning in the US, and central planning really doesn't work well.
 

Now THAT'S a troll.
 

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Well, I was born in the lower peninsula of Michigan, after all.

See, for instance.
 

I think it's more than a bit of a stretch to call the Obama years a "depression". It could have become such, but didn't have the chance if it was going to.

There is not the slightest bit of evidence to support this. It is pure partisan nonsense. The economy grew steadily once the Bush recession ended. Od course it could have grown more strongly had Obama been able to get a larger stimulus, but he got what he could. There is zero reason, zero, to think we were headed for a recession until the Mighty Trump came along.

OTOH, it is indeed widely viewed that the New Deal gave the Great Depression it's "Great", and that it otherwise might have been a normal recession, and over with fairly quickly.

If by "widely viewed" you mean that's what Amity Shlaes said, this is accurate. Otherwise, no. GDP fell 8.5%, 6.4%, and 12.9% from 1930 through 1932. "Over fairly quickly?"

It fell a further 1.2% in 1933 (FDR was inaugurated on March 4) and then rose 10.8%, 8.9%, 12.9%, and 5.1% the next four years. It dropped 3.3% in 1938, because FDR succumbed to deficit mania and produced a balanced budget, before taking off again, mostly due to war production.

Everything you wrote in your comment is twaddle.
 

The "normal" trajectory of a recession, up through the 1980's, was for the economy to quickly drop, hit a bottom, and then rapidly grow, (The "recovery") to where it would have been if the recession hadn't happened. That point where the economy recovered to where it would have been if the recession hadn't happened was normally regarded as the recession's end.

Here's a helpful comparison of recessions in America.

Notice most of those recessions saw a recovery that was about as steep as the fall that preceded it? But then you get to the 2007 recession, and it doesn't follow this pattern. Instead, the economy heads down rapidly, hits bottom, and then, instead of a rapid recovery, just resumes normal growth rates from the bottom.

The 2007 recession, unlike prior recession, represented a permanent setback for the American economy. We never recovered to where we would have been if growth had continued uninterrupted, we just hit bottom and that became "the new normal", as Obama termed it.

In this regard, it actually does look more like a scaled down version of the Great depression, than a regular recession. Which is why many took to calling it "The Great Recession".
 

Maybe, it's time for more spam.
 

Also, that pardon discussion turned out to be rather topical.
 

Brett,

Just read this.

Yeah, you hate Krugman, but you know what, he actually knows what he's talking about, unlike idiots like Kudlow and Navarro. The main point he makes are that there wasn't much room to cut rates, in contrast to previous recessions, and the fiscal policy response was limited, mostly by Republican stupidity.
 

Oh yeah. What about those Depression figures?
 

I don't actually hate Krugman. Takes an awful lot to get me to hate somebody, I think the last guy who made the cut was a bully in elementary school, back in the late 60's. I'm a pretty mellow guy.

Krugman's the guy who said that, as a first approximation, the economy would never recover from Trump being elected, right? Still trying to live that remark down, I guess.

My own impression is that the problem was that the "stimulus" funds were all diverted to political cronyism, like buying out Solindra, and making sure financial institutions didn't take a haircut, instead of anything that could be expected to have stimulatory effects. Congrats on proving that multipliers can be less than 1...

But I think even he concedes that the 2007 recession wasn't a typical recession.

Oh, yeah, the Great Depression. There's a reasonable comparison of it and the 2007 recession here. Bottom line, the Great Depression earned it's "Great", the 2007 recession wasn't remotely as bad... Except that the recovery during the Great Depression was much faster. It was just from a deeper low.
 

Not stupidity, malice. Remember Moscow Mitch wanted to make Obama a one-term president. He was willing to tank the economy and harm millions of Americans to do that.
 

Mellow Brett.
 

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