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Friday, April 03, 2020

Common good v. public good or public interest

Let me begin with where I certainly agree with Jack:  Adrian Vermeule is in fact promoting Catholic integralism (just as some Protestants, including, it has been alleged, Vice President Mike Penc,  are adherents of "dominionism"), both of which advocate forms of theocracy.  Indeed, certain members of the Haredi community in Israel and, I suspect, some members of Modi's ruling coalition in India are also theocrats, not to mention supporters of an Islamic Caliphate or even the "Islamic republics" of Saudi Arabia, Pakistan or Iran.  What makes Adrian special is that he is unusually smart and enjoys the institutional location of being a chaired professor at the Harvard Law School.  (One of his predecessors as the Tyler Professor of Constitutional Law was Laurence Tribe!)  He is a relatively recent (four years ago, apparently) convert to Catholicism and, perhaps like many converts, is tempted by some of the more extreme doctrines that are available within the Church.  I put it that way because the Church, like all large institutions, is in fact pluralistic, and one can find a variety, even if not limitless, number of doctrines available for trying to decide the relationship between Moral Reality as enunciated by the Church and the actual political realities of what Augustine called "The City of Man."  One can imagine an American future in which the still relatively young Adrian Vermeule become a genuine political force. (One would be interested, for example, as to whether or not Amy Comey Barrett, a sure candidate to succeed Ruth Ginsburg should Trump be in power when that day comes, adheres to the views articulated by Vermeule or by her Notre Dame colleague Patrick Deneen, who also condemns liberalism in all of its purported aspects.  I personally think it would be perfectly legitimate to interrogate her on this matter, but the "No Test Oath Clause" has been misinterpreted, I believe, to make illegitimate any questioning at all about the religio-theological views of candidates even when they proudly affirm the centrality of their religious identity to how they conduct they lives.

But that isn't the major impetus for this posting.  Rather, I think that Jack's attempt to defend the "pubic good" as against Adrian's "common good" is open to dispute.  The basic problem, as Jack fully realizes, is how one constructs a stable--and admirable--polity for what Holmes called people of "fundamentally different views," where some of the central differences involve precisely what might count as "the public interest" or "pubic good."  As Jack notes, Madison recognizes, kind of, the problem, particularly in Federalist 10, but he scarcely comes up with a convincing, or even plausible, solution.  Or, perhaps, he comes up with two quite different solutions.  The first, which Jack emphasizes, is the theory that the "extended republic" will make it hard (perhaps impossible) for a selfish "faction" to gain control over the national polity, unlike the states, which Madison, at least at that time, viewed as little more than cesspools of faction.  Anyone who believes that the Madison of 1787-88 was a devotee of "states rights" is truly illiterate.  There are all sorts of critiques of this version of Madisonian optimism, beginning with the importance of the creation of national political parties (or factions) that serve to reduce the transaction costs of capturing the national government for their own nefarious purposes.  In any event, this version of Madison leads to what came to be called "interest group liberalism," in which we simply assert, or stipulate, that whatever gains the assent of the relevant coalition of interest groups just is in "the public interest.  To put it mildly, there is no reason to accept this definition, even if it is comforting to accept it as true.

But Madison also offers the possibility that national leaders, unlike local leaders, whom Madison came close to despising, would be imbued with what Jack accurately identifies as sufficient "virtue" to tame the selfishness that pervades society and to adopt policies that in fact serve a genuine "public interest." That model of elite (and "representative") democracy was based on a fundamental mistrust of what we today might call "democracy" inasmuch as the lower orders were expected to recognize and then defer to their betters, what Jefferson notoriously called "the natural aristocracy."  Whatever one thinks of that as a normative model, it clearly did not survive, say, the election of Andrew Jackson.

So the dilemma facing contemporary liberals (and liberalism) is to enunciate a "progressive" political program at the same time that most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites. And the paradox of the Sanders candidacy, as I have repeatedly argued, is that the self-styled "revolutionary" offers literally nothing by way of a serious critique of a constitutional structure, established in 1787, to minimize the actual role of the demos and to assure that the byzantine system of "checks and balances" would make it extremely difficult to meet the challenges of the day, including, in our own time, those presented by Covid-19.

Not surprisingly, Jack and I address some of these issues in our epistolary exchange, Democracy and Distrust, available at a book store near you!  Although our analyses overlap in important respects, there are, nonetheless, significant points of departure.  One of them, in addition to the relative weight we put on political structures as against political culture, is the degree to which there is at present any truly satisfactory theory of "the public interest," "common good," or "public good."  Michael Sandel, who established his reputation as a critic of John Rawls, has been articulating his own theory of the "common good" for quite a while, though I'm not aware that it's really made much headway (and I find it more than a bit problematic myself).  All of this is by way of saying that the gauntlet that Vermeule is throwing down must be taken seriously, even if I certainly agree that one should reject any notions of Catholic integralism, Torah-true governance, or an Islamic caliphate as the answers.  Perhaps the best we can do is to stick with some sort of modus vivendi politics based on compromise and a willingness to forbear from pushing one's own views too far.  To maintain a society of relative peace and good order--the Canadian credo--is no small achievement, but is's hard to come up with a grand theory that necessarily justifies the hard compromises that may be necessary to attain it.

152 comments:

  1. I will not try to comprehensibly respond though perhaps Mark will comment on James Madison. On that, I am somewhat uninterested though it is useful as a historical matter to understand him. But, other things (text, history since then including with many constitutional changes etc.) would be more useful in applying things now.

    I also am interested in Judge Amy Comey Barret's views and would think in some sense we should be able to know them to the degree they would affect her legal judgment. This would not be a religious oath violation. I also was inclined, given the alternative (Kavanaugh), in supporting her for the Kennedy seat. There was a third option on the ultimate short list of three but I was willing to support someone with a bit of difference over him. Maybe, that was mistaken but she intrigued me. For RBG, no. Again, unless you know it's her or the Thomas of the D.C. Circuit.

    I also would push back on this though maybe the debate is over who is being cited: "most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites."

    How though? By direct democracy mechanisms? I do find them troubling in various forms. But, there are various other mechanisms. For instance, I went to a few public meetings involving my new state senator including involving the budget. The people "actively participating" in this fashion with input from people is a good idea. There are proposals of campaign finance reform involving giving people money vouchers that also would seem to fit the wider end here. People directly showing up in hearings more (teens, e.g., showed up in one hearing on education needs in NYC).

    "We the People" should be more directly involved and the spirit of that sentiment is appreciated in the Sanders campaign though how it went down left something to be desired. OTOH, no, I am not a big fan of the idea of some lottery to pick people for a new constitutional convention.

    Anyway, I said on Twitter to someone that I was interested in Sandy Levinson's .02 on that article, and I appreciate his comments.


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  2. "And the paradox of the Sanders candidacy, as I have repeatedly argued, is that the self-styled "revolutionary" offers literally nothing by way of a serious critique of a constitutional structure"

    The self-styled revolutionary, like almost all most revolutionaries, just wants to gain power, and is quite pragmatic about how he gains it. Promising a lot of people a lot of stuff, and being vague about how he's going to pay for it, (Spoiler, he won't, because he won't be delivering on the promises.) is his chosen approach.

    He's aware that the Constitution is very popular, and reasons that critiquing something the masses actually like isn't likely to end with him having the whip hand over them.

    As for Vermeule, I'm a Roman Catholic, (I hope to put off a long while finding out whether I'm a good one!) and I've got no use for the guy. Integralism is, quite properly, viewed by the Church as a heresy.

    "Perhaps the best we can do is to stick with some sort of modus vivendi politics based on compromise and a willingness to forbear from pushing one's own views too far."

    This is the most promising thing I've heard out of you in a long time. Sandy, in an era where we fundamentally disagree about both ends and means, the aims of government should be quite modest. We can achieve civil peace by agreeing that we will pursue our disparate aims in the private sector, and reserve the government for those few things we actually agree about.

    That this accords with the textual limits of federal power is a bonus: In the US, only limited government can be honest government, barring major changes to the Constitution, because it is a constitution of limited government.

    Let's reduce the government to that core we can agree on, and agree to pursue those things we don't agree on without resort to its coercive powers. THAT is how we can achieve peace.

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  4. "I'm a Roman Catholic"

    Didn't you say you weren't a big one for religion in the past? Footnote, perhaps.

    "being vague"

    Yes, this quality of his makes me less supportive than someone like Warren. Just to toss it out there, Trump repeatedly was and is vague ("we will see what happens") and told people that we should trust his abilities, that he would make great deals while being flexible with the rules and all. You know, high school civics stuff.

    "compromise and a willingness to forbear from pushing one's own views too far"

    When I think reasoned compromise, Brett is someone that comes to mind.

    "Let's reduce the government to that core we can agree on, and agree to pursue those things we don't agree on without resort to its coercive powers."

    Trump surely is a lousy person to that extent even as compared to a comparable Republican. But, noting this is hard for some people, who want to make him as just basically average there and concern about him just the left being lefty.

    Anyway, this is a mundane sentiment, fortune cookie like, without more. But, who are "we" actually? Mark, for instance, has called out means by Republicans particularly to make things less representative. This is necessary to determine what "we" agree on.

    And, it is not like "we" here can be some unwieldy supermajority when we govern. Plus, there are various things a majority agree upon that violate rights. What does this amount in practice? We agree on a particular range of action and disagree on details such as the nature of tax policy or whatnot. Support of filibustering so that some energetic minority can in effect blackmail the majority because they aren't quite as passionate about some things to give up the rest isn't great governance.

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  5. I'd note "reduce government" is also a tad meaningless too.

    (1) I still welcome a libertarian to comment here.

    (2) How exactly? There is an appeal to the "private sector."

    You know. The thing in society regulated by the government including by things like the common law tort system that ultimately comes from We the People.

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  6. Interesting, but there is grand or greater theory beyond theories. It is simply " to close to the nose":

    And first: free speech. Free speech, is the actual bridge between all contradictions or conflicts presented. Why ? because, the conflicts are inherent. Yet, the free speech, gives the people and different groups, the perception, that their views, their political stance or ideology held, worth something, and more. It does grant validity to every oppressed person and group.

    Second, independent court. If a policy or action, is arbitrary and capricious, and narrowly tailored for the benefit of one group, and not for the greater good, or, the whole society as such, the court, must disqualify it. Suppose:

    One of the bitterest debate or conflicts: immigration and refugees. Trump on his side or part, must prove, that his policy, is not capricious or arbitrary, but, is actually:

    For the benefit of the US as a whole. Not made solely for republicans and their followers. But to the US benefit. The same for Democrats, what they claim ,is that their view or policy, is made for the greater good, not for just their voters.

    So, as long as:

    There is free speech. Independent and fair courts. Ruling of law. Adherence to constitutional principles, and:

    Public policy, that must show that it does serve the greater good ( beyond ideological and conceptual debates, that would always exist, even how to defeat the current pandemic) then:

    There is almost no issue here. Even within the slightest tribe or group or theocracy, there are bitter debates. Speaking of Iran, there we have:

    Conservatives V. Reformists. Bitter conflicts. This is a given. Yet, not the issue:

    But free speech, independent courts, and public policy, not made for capricious or illegitimate goals, but, at least seemingly, for the whole society as such.

    Thanks

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  7. Just correcting something in my comment above:

    The saying goes: " too close to the nose" of course, not as written: " to close....."

    And hereby, to different political groups in Iran, despite, the fact, that it is a classic theocracy:

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

    I shall illustrate more, maybe later....

    Thanks

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  8. Missing: any discussion of the competing Calvinist view of the state. In power, Calvinists tended to become theocrats, cf. John Knox, Salem, even Calvin's own Geneva in its burning of Servetus. But as I understand it, Calvinis *theory*, going back to Augustine, was extremely sceptical of claims of divine right by rulers enforcing one Christian rulebook. These rulers were predominantly Catholic at the time, so no better than non-Christian Roman Emperors were to Augustine. The city of man labours of necessity under the weight of original sin, and theocracy does not wash it whiter.

    Developing this line of inquiry calls for knowledge I don't have. But Roger Williams and his predecessors in the Dutch Republic had theological as well as pragmatic arguments for pluralism. It worked out fine for the Dutch.

    Anecdote about Gladstone. In his viva voce B.A. exam at Oxford (they still do this to decide on marginal cases and the award of Firsts), he was asked "whether the state should enforce the precepts of revealed religion". Drawing a deep breath, the young Gladstone started in. After five minutes of this, the examiners had heard enough and and interrupted him: "That will do, Mr. Gladstone". To no avail; the graduand responded : "With great respect, gentlemen, that will *not* do", and carried on.

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  9. "I will not try to comprehensibly respond though perhaps Mark will comment on James Madison. On that, I am somewhat uninterested"

    Well, with an intro like that how could I resist?

    My basic view of Madison's system is like Chesterton's view of Christianity: it's not that it's failed, it's that it's never been tried. Actually implementing a system of representative democracy would eliminate some of Sandy's biggest criticisms of the Constitution (e.g., the Senate and the EC) and I'd add some things to eliminate others too. Whether it would "work" after that depends in substantial part on one's definition of "work"; Brett wouldn't like any of them, but then he's not a democrat.

    That's not to elide the issues with the whole theory of representative government. For example, the whole idea depends on the legislature being a "mirror" of society at large. However, there's no obvious way to use an electoral system to achieve that. Suppose that libertarians constitute 10% of the population but are evenly distributed across the US. It's hard to see how any libertarians make it into Congress at all, much less at the level of 10%.

    It may be that Churchill was right, and that democracy is the worst system of government except for all the others. And certainly there have to be limits to majority rule or it becomes a form of tyranny. I think those limits can be implemented, but that's more faith than experience. I'm ok with that and I think Madison would have been too. The Framers generally understood that they had made progress in the "science" of government, but also recognized that the future would bring more and that their own work might be found insufficient. That should be our attitude today.

    "I also am interested in Judge Amy Comey Barret's views and would think in some sense we should be able to know them to the degree they would affect her legal judgment. This would not be a religious oath violation."

    I don't think it would be either, but I'm not sure how useful it would be. Senators are pretty bad at examining witnesses in general, and few would have the background knowledge to engage with her ideas. Then too, more cynically, Jesuits took the view that lying in support of a more important cause was justifiable and I don't know whether Barrett takes the same view or not.

    "I also would push back on this though maybe the debate is over who is being cited: "most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites."

    I generally agree with this, notwithstanding my support for representative over direct democracy. But I do think a representative system can add more popular input than ours currently does without serious risk.

    "The self-styled revolutionary, like almost all most revolutionaries, just wants to gain power, and is quite pragmatic about how he gains it."

    Judging by his campaign, Bernie is about the least pragmatic candidate to be found.

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  11. Some of the Founders views were a bit utopian here, but not their system.

    The government cannot establish a "public good." You are the best judge of what is good for you. Because we are all different, most "public goods" imposed by a government will by definition favor some and disfavor others.

    With the exception of slavery, the Founders' constitutionally limited, liberal government recognizes this reality:

    (1) The Constitution limits government to a list of express powers.

    (2) A Bill of Rights places large parts of our lives outside of the exercise of those powers.

    (3) A separation of powers and a hybrid popular and geographic electoral system requires an effective supermajority consensus to exercise the remaining powers.

    Thus, under the Constitution as written, we are generally left to pursue our own individual good and a supermajority would need to find any "public good" to be in their self interest before they would allow government to impose it.

    The concept is sound. The Constitution needs to be substantially strengthened to achieve and maintain these goals, but the concept is sound.

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  12. The concept is sound. The Constitution needs to be substantially strengthened to achieve and maintain these goals, but the concept is sound.
    # posted by Blogger Bart DePalma : 10:24 AM


    Sniffles, if you want to live in a libertarian utopia you should move to Afghanistan.

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  13. bb:

    The closest proposed American political economy to an Afghan-style theocracy would be the "Green New Deal."

    Our Constitution prohibits both.

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  14. in an era where we fundamentally disagree about both ends and means, the aims of government should be quite modest. We can achieve civil peace by agreeing that we will pursue our disparate aims in the private sector, and reserve the government for those few things we actually agree about.

    But this says that the way to civil peace to concede to your viewpoint.

    The factory is spewing pollution, damaging the health of those who live or work in the area. I say, we must require them to install equipment that eliminates or substantially reduces emissions. You say, that would cost them too much, and probably lead to a loss of employment and economic output in general, so we should live with it.

    Since we disagree, by your rule, you win.

    Banks start to fail, inducing financial panic and threatening a major turndown in the economy. I favor a rescue plan. You are a liquidationist.

    Since we disagree, by your rule, you win.

    No thanks. I don't like your rule.

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  15. "This is the most promising thing I've heard out of you in a long time."

    It's inherently difficult to compromise with paranoid conspiracy theorists. But perhaps you're working on that? In that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  16. byomtov:

    If you apply the liberal Harm Principle, where the only proper law is one which prohibits you from harming another, then a legislature can enact a law to bar harmful pollution. On the other hand, the government has no business taking your money to bail out my failing business, whether it be a bank or otherwise.

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  17. "The closest proposed American political economy to an Afghan-style theocracy would be the "Green New Deal.""

    This sounds like more paranoid conspiracy theory. I'd hoped you'd take the opportunity to start to establish you could be more serious than that. But, it's never too late to start. In that vein:
    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  18. Barrett *was* asked, of course, about her views regarding the role of a judge’s religious faith and the relationship between that faith and decisions regarding questions about the positive law and her answers were entirely mainstream and unobjectionable - certainly nothing “integralist” or “Schmittian” about them.

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  19. "When I think reasoned compromise, Brett is someone that comes to mind."

    Indeed, the least self aware man on the planet.

    Of course, if you read what he's proposing it's a compromise where he gets everything he ostensibly* as a libertarian wants and gives nothing. Basically 'the government shouldn't do much of anything' offered as a 'compromise' between one side that wants the government to do a lot and the other which doesn't.

    *ostensible, because Bircher Brett loves him some big, intrusive government tied to vague textual Constitutional support when it suits his predilections: witness his support for aggressive anti-immigration measures. They literally round up thousands upon thousands into camps, separating families, trampling on what less-ostensible and more actual libertarians argue are the free association, contract, movement, religious, etc., rights of US citizens and undocumented aliens alike. Businesses must e-verify, churches must expel those seeking sanctuary, people who leave water in the desert for parched travelers there must face the coercive power of the state, we must all line up with 'papers, please' to vote lest an undocumented alien cast a vote in our place. And note, the only even *implied* justification for federal immigration measures is the slave importation ban measure (a reed so thin that SCOTUS bypassed it and located the power as an a-textual 'plenary' one, truly a libertarian embracing that broad and shaky constitutional foundation deserves the qualifier 'ostensible' at best.

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  21. BD: "The closest proposed American political economy to an Afghan-style theocracy would be the "Green New Deal.""

    Mr. W: This sounds like more paranoid conspiracy theory.


    Only to someone without a clue as to the meaning of the word "conspiracy."

    I am now understanding why you have problems with analogy.

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  22. "If you apply the liberal Harm Principle"

    As I noted recently, this COVID crisis has exposed the silly idea that 'classical liberal*' governments were, as opposed to other political economies, ones that recognized 'natural rights limiting government.' Classical liberal* governments readily and often recognized a right to act to quarantine that infringed on every basic 'fundamental' rights one could mention. The only difference between a 'classical liberal*' government and a socialist, progressive, whatever, is in what emergencies they will decide warrant government intrusion.

    *as an empirical and historical matter, these governments were of course did not live up the fantastical ideal type of 'classical liberal' in myriad ways (abortion laws, obscenity, granting of monopolies, restrictions on gambling, lotteries, restrictions on women in exercising basic, fundamental rights, law restricting sexual relations, and, of course, slavery, abounded there was well as things like quarantine power.

    Also, in reference to the author of the above quoted nonsense, there's something that needs to be cleared up. The little matter of whether this is a serious person or not. Thankfully, there's an easy way for him to take a step to start establishing he might could be, so let's offer the chance to take that step:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  23. "Only to someone without a clue as to the meaning of the word "conspiracy.""

    Conspiracy theories regularly subscribe the actions and programs of even mainstream political opponents in the most hyperbolic of ways, and your comment fits the bill. But then you have a bit of a record of engaging in absurd conspiracy theories. Perhaps you'd like to clear up this record, acting like an actual man and owning up to the absurd nonsense you peddle, perhaps discuss any introspection and plans to address this tendency so people might think your comments could actually be taken as serious rather than as the equivalent of a guy pushing a shopping cart down the street with spittle hanging from his lips screaming about socialism (hat tip, Annie Hall). In that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  24. BD: "If you apply the liberal Harm Principle"

    Mr. W: As I noted recently, this COVID crisis has exposed the silly idea that 'classical liberal*' governments were, as opposed to other political economies, ones that recognized 'natural rights limiting government.' Classical liberal* governments readily and often recognized a right to act to quarantine that infringed on every basic 'fundamental' rights one could mention.


    The Harm Principle recognizes our natural right to liberty does not extend to harming others. My infecting you with a communicable disease is such a harm.

    Preventing harm is only a prerequisite to exercising government power, however. The next consideration for lawmakers (not executives or bureaucracies ruling by decree) is whether a proposed prohibition is worse than the harm.

    As I have noted before, shuttering businesses and placing everyone on modified house arrest is far worse than the harm of COVID 19.

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  26. Mr. W: Conspiracy theories regularly subscribe the actions and programs of even mainstream political opponents in the most hyperbolic of ways, and your comment fits the bill.

    Umm... No.

    Conspiracy theories are theories concerning conspiracies, generally by governments or secretive organizations. For example, the theory that a secret government cabal conspired to assassinate JFK.

    Analogy is the comparison of two like things. In my example comparing an Afghan-style theocracy to the Green New Deal, two systems of government using faith, superstition and fear as a pretext to direct people's lives.

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  27. Senators are pretty bad at examining witnesses in general, and few would have the background knowledge to engage with her ideas

    Such means that a few could and I'll repeat my sentiment that though confirmation hearings can better, I still think they have some value. They also open a period for various groups to examine the record as well.

    her answers were entirely mainstream and unobjectionable

    Unobjectionable to whom?

    But, I'm open to the idea that as a whole, within some rough reasonable realm, her views might be unobjectionable enough to warrant confirmation with the votes of at least moderate Democratic votes that go along with the average person. So, e.g., Roberts got half of the caucus and even Alito, a conservative who moved the Court by replacing a swing seat got a few. And, wasn't filibustered when that was a thing.

    I read a bit of her writings, including an interesting article on religious believers and the death penalty, and found her interesting. I gather people can find "objectionable" things about her if not as extreme as some others nominated. Also, she did not have the baggage of a Kavanaugh and I thought perhaps someone not quite from the same usual suspects education wise (he actually even went to the same school as Gorsuch) and otherwise (such as region of the country) could have added a new voice.

    I offered a suggestion that a wise move by Trump would have been to re-nominate Garland, and in return ask something for his let's say sacrifice of a key seat. Someone here ridiculed that idea as depriving his base of something. This is the sort of thing I was concerned about when being dubious about this call for unity of agreement. There is a certain partisan mentality there that even as to wrongs favors highlighting one side while provide affirmative action ("Trump law") to the other.

    Finally, a bit more on the filibuster. I am somewhat sympathetic to the concept since it provides a chance for a minority to defend certain things particularly important to them. But, not only did the end of the talking filibuster make it too easy, but it was overused as generally a blanket means to advance partisan ends on a range of issues even when in the end let's say a judge was confirmed by something like 90 votes.

    So, I'm open to some means to advance actual debate, including even honest usage of "blue slip" means during judicial nominations, but it has to be limited in form. Such is how practicable republican democracy or even "private" life works too.

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  28. As to James Madison's views never tried, without going into the particulars, perhaps that suggests it was overly artificial. One offering a theory of government, it is best to use something that basically shall we say has a decent change of being used.

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  29. Joe: I was raised as a Roman Catholic, and left the Church in my late teens. I eventually came to notice that this put me in bad company, and have a hard time believing the truth makes people bad. So I came back.

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  30. "The Harm Principle recognizes our natural right to liberty does not extend to harming others."

    And people differ on what does harm. A communicable disease, a libelous statement, climate change, inequality.

    What all governments, including the 'classical liberal*' agree on, is they can infringe on rights in addressing these harms.

    Also, perhaps you would like to stop social distancing yourself from your own words here? In that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  31. "Conspiracy theories are theories concerning conspiracies, generally by governments or secretive organizations."

    Indeed, and a common thinking of conspiracy theory is hyperbolic descriptions of one's even mainstream political opponents. Hence, the classic American conspiracy theorists of the Birchers and McCarthy swore that the Democrats were really infiltrated by Communists and that the programs they were putting forward, from social security to medicaid to the ACA, were 'really' 'socialism,' 'communism' 'totalitarianism,' etc., This is the common parlance of conspiracy theorists, and it sounds a lot like your description of the 'Green New Deal.'

    But then you know this. You seem to engage in conspiracy theories rather easily. But perhaps you're working on this. In that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  32. "As to James Madison's views never tried, without going into the particulars, perhaps that suggests it was overly artificial. One offering a theory of government, it is best to use something that basically shall we say has a decent change of being used."

    Whether a system has a decent chance of being used depends on the circumstances, IMO. In fact, it's inherent in the idea of progress: small steps accumulated over time. Continuing to push for the right system or policy is what democracy is for.

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  33. " the "No Test Oath Clause" has been misinterpreted, I believe, to make illegitimate any questioning at all about the religio-theological views of candidates even when they proudly affirm the centrality of their religious identity to how they conduct they lives."

    Indeed. Reading enough Scalia opinions, dissents and questions during oral arguments (to say nothing of his writings and speeches) it's hard to argue with a straight face that his jurisprudence wasn't shaped in a significant way by his understanding of what his conservative view of what Catholicism required of him.

    In fact, I'd go further to say the Court's demographics in this area are all 'out of whack' with the country. A court that once virtually excluded Catholics (all but the 'Catholic seat' noted historically) even though they were about a 1/3 of the nation is one now that is essentially dominated by Catholics. Indeed, it seems hard for the GOP to find non-Catholics for the position...

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  34. BD: "The Harm Principle recognizes our natural right to liberty does not extend to harming others."

    Mr. W: And people differ on what does harm. A communicable disease, a libelous statement, climate change, inequality.


    Most definitely.

    In On Liberty, John Stuart Mill articulated the principle, then stumbled in describing what constitutes harm. My best definition is a derivation of due process - a person may not deny another their right to life (bodily integrity), liberty or property.

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  35. Joe: I was raised as a Roman Catholic, and left the Church in my late teens. I eventually came to notice that this put me in bad company, and have a hard time believing the truth makes people bad. So I came back.

    Well, on this blog, in the past, you voiced a dismissive opinion of religion generally and did not suggest you were an active member of the Catholic Church. If so, okay.

    Of course, there are a variety of religious faiths out there for those who wish to practice and what "the truth" is a perennial debate there. Especially among Catholics, who come in a variety of forms. But, thanks for the clarification.

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  36. "I offered a suggestion that a wise move by Trump would have been to re-nominate Garland, and in return ask something for his let's say sacrifice of a key seat. "

    I have to say when Scalia died I just assumed 'wow, he'll get replaced with a Democratic appointee, the Court is going to change now.' McConnell's gutting of Senate norms actually caught me off guard, though of course that was naivete on my part I see in hindsight.

    However, were I Obama, I would have nominated someone like Posner. Posner is a GOP appointee, but he thinks outside the box enough that no GOP President in current times could nominate him (the GOP tent is currently about the size of a roach motel). If Obama nominated him he would be saying 'here's a guy with 1. unimpeachable judicial credentials; 2. was acceptable to Saint Ronald and 3. is quite old, he's not even going to likely keep the seat warm that long. Make the GOP say 'we've moved so far from the party of Reagan and this is just a 100% partisan turn that we're still not even going to give the guy a hearing.'

    Course, these critters know no shame so they probably would have just done the same thing, and their base knowing none as well the same result would have occurred.

    But it would have been fun to watch.

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  37. Whether a system has a decent chance of being used depends on the circumstances, IMO. In fact, it's inherent in the idea of progress: small steps accumulated over time. Continuing to push for the right system or policy is what democracy is for.

    One thing that leads me to be more accepting (on a flawed level) of them than he who shall not be named was that they were practical sorts on a basic level. He lived in the circumstances and if his philosophy wasn't really even tried [the concept of equality, e.g., was tried, even if the class respected only slowly grew in breadth], it is problematic. You have to deal with what is practical on some level.

    It's fine to push for the right system, but if your proposal never really was tried, it is impractical. It has to be tried at least somewhat. Though I think it was.

    As to Mr. W's point as to Catholics, the Court once upon a time was dominated by Protestants, but my concern more so is that we basically have a bunch of conservative sorts on the Court with three basically secular Jews tossed in (ironically, Breyer's daughter is a Episcopalian minister -- she wrote a book about her religious education). Sotomayor is a lapsed Catholic.

    At least Kennedy was a Catholic with a liberal view on certain subjects. If we had a liberal Protestant or two, it would help a bit. I understand the wariness about asking religious questions, btw, but if nominees are going to be specifically chosen for their views there, views with implications on judging [phony neutral boilerplate aside], it probably has to be addressed somehow.

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  39. Posner. Yes. Sure. Nominate a 77 year old. That works. :)

    Garland was put out there by Republicans as an ideal Democratic choice for years & apparently is someone John Roberts respects.

    Posner would have been labeled a RINO too, surely.

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  40. BD: "Conspiracy theories are theories concerning conspiracies, generally by governments or secretive organizations."

    Mr. W: Indeed, and a common thinking of conspiracy theory is hyperbolic descriptions of one's even mainstream political opponents. Hence, the classic American conspiracy theorists of the Birchers and McCarthy swore that the Democrats were really infiltrated by Communists and that the programs they were putting forward, from social security to medicaid to the ACA, were 'really' 'socialism,' 'communism' 'totalitarianism,' etc.,


    Once again, no. The necessary elements in all conspiracy theories is a theory concerning a conspiracy

    Democrats within the Roosevelt and Truman administrations working with the Soviet NKVD is indeed a conspiracy. Given the later KGB archives confirmed this fact, it is no longer a theory.

    In contrast, noting that various progressive policies constitute socialism and/or fascism is a statement of fact, not a conspiracy or a theory.

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  41. If you apply the liberal Harm Principle, where the only proper law is one which prohibits you from harming another, then a legislature can enact a law to bar harmful pollution. On the other hand, the government has no business taking your money to bail out my failing business, whether it be a bank or otherwise.

    Is the government entitled to prevent you from harming me, even if it harms you in the process? That's what involved in the pollution example. If emission reduction were free there would be no issue. This is all Coasean stuff, of course, so it's just a question of who has a property right in clean air.

    Anyway, if the government can spend money to prevent harm then I don't see why it can't spend money to save a failing bank, thereby preventing harm to lots of individuals and businesses who had absolutely nothing to do with the failure. Banks, including investment houses, especially big ones, are not stand-alone businesses whose failure have limited effects.

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  42. "It's fine to push for the right system, but if your proposal never really was tried, it is impractical. It has to be tried at least somewhat."

    I think many of the states have democratic systems which work quite well (not just D states, some R too like Utah). So I think there is experimental evidence for it and the issue is whether it would work similarly well if expanded to the national scale.

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  43. " noting that various progressive policies constitute socialism and/or fascism is a statement of fact, not a conspiracy or a theory."

    "Democrats within the Roosevelt and Truman administrations working with the Soviet NKVD is indeed a conspiracy. Given the later KGB archives confirmed this fact, it is no longer a theory."

    Lol, Bircher Bart denies he's a conspiracy theorist while...dealing in one of the iconic conspiracy theories of the modern American age!

    Like I said, a common thing for Birchers and Mcarthites to do was to call nearly every major Democratic policy proposal 'socialism' or 'communism' (implying the conspiracy that they're out to enact communism). Bircher Bart confirms this is still the form they follow.

    But Bart, you dwell on a lot of conspiracy theories. I don't know why you're self-isolating from your own history of conspiracy theorizing here. I'd like to hope you could overcome whatever fear, inadequacy, etc., that seems to keep yo sheltering in place hiding from your own words here. But I'd like to give you a chance yet again to man up. In that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  44. BD: If you apply the liberal Harm Principle, where the only proper law is one which prohibits you from harming another, then a legislature can enact a law to bar harmful pollution. On the other hand, the government has no business taking your money to bail out my failing business, whether it be a bank or otherwise.

    byomtov: Is the government entitled to prevent you from harming me, even if it harms you in the process?


    If you have no right to harm another, then the government is not harming you by prohibiting you from harming others.

    That's what involved in the pollution example. If emission reduction were free there would be no issue.

    If I invested time and money into polluting, the investment does not transform the harm into a right, no more than if I invested time and money into murdering you.

    Anyway, if the government can spend money to prevent harm then I don't see why it can't spend money to save a failing bank, thereby preventing harm to lots of individuals and businesses who had absolutely nothing to do with the failure.

    When you enter into a relationship with a business, you assume the risk the business and the relationship will fail.

    The government using force to take from X to bail out Y to prevent harm to Y's business associate Z is still theft, the government harm you were looking for.

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  45. "In On Liberty, John Stuart Mill articulated the principle, then stumbled in describing what constitutes harm."

    Mill was smart enough to realize that the concept of 'harm' can no more be pinned down as the concept of 'property' (Nozick himself notes how classical liberal theories of the latter break down). But, the point is, that whether it styles itself as 'classical liberal' or something else, nearly all government forms sans anarchists allow government to infringe the most basic rights in extreme ways once they think a harm exists. The only difference is in what a government recognizes as a harm, and views on that nebulous concept of course differ in myriad ways.

    But speaking of stumbling, I'm concerned at how you continue to stumble around your own words without owning up to them. Perhaps you'll soon have the, as some say, 'cajones,' to own up to your own words? In that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  46. joe
    Posner was old and certainly no Democrat. But he would have ruled more in favor of what the Democrats want than Gorsuch. And it would have made for much more fun to have the GOP Congresscritters stand up and explain why they weren't going to give a lifelong Republican judge even a hearing...

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  47. Where the Catholic Church is a minority faith it is concerned with avoiding restrictions imposed by the majority. By limiting federal authority, constitutional originalism serves this function.
    Although Catholicism in America remains a minority faith, conservative Catholics are a majority on the Supreme Court and the Church has made an alliance with fundamentalist Protestantism that has captured effective control not the federal courts at every level. Therefore, originalism no longer serves the purposes of the Catholic Church. Instead, the Church is now concerned with imposing its rules of conduct on all Americans regardless of their beliefs. Powerful federal courts serve this goal.
    That's really all you need to understand here. Pretending that Vermeule is making a good faith argument rooted in constitutional doctrine is a foolish thing to do.

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  48. "If you have no right to harm another, then the government is not harming you by prohibiting you from harming others."

    byomotov-Bircher Bart and his ilk want you at the start of any argument about the proper role of government to accept as axiom what's at issue-their definition of what is a harm (then you're locked into only accepting government intervention, though intervention that will infringe on every basic fundamental 'right,' to address what they see as a harm). It's classic question begging. It also exists with the concept of 'aggression.'

    Of course Bircher Bart begs questions almost as much as he dodges his own words written here. Perhaps he'll stop doing the latter and the first step in regaining an iota of intellectual and moral integrity could be done by addressing the latter. I'll keep offering him that chance until he gains the courage to step up.

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  49. Unknown is right on. When the Catholic Church was a beleaguered, suspect group they argued for toleration and protection from religious discrimination, now that they are at the levers of power in the GOP (just as he described in alliance with the less academically proficient Protestant conservatives) they are exploring ways to flexibly use government power and constitutional power to give aid to the Church and get its policy preferences enacted. The Court is on the verge of (well, in some ways they've already passed) ruling that laws requiring that government money not go directly to Churches, which was a cardinal point of the Founders re: separation of church and state.

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  50. Mark, what would you highlight as good features of Utah's governance? I'm honestly ignorant on the subject, though I've often heard they have a much more mild, sensible 'good government' type of conservatism there. Perhaps, as you suggest, it's structural rather than cultural re their governing. Curious to hear about it.

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  51. BD: "Democrats within the Roosevelt and Truman administrations working with the Soviet NKVD is indeed a conspiracy. Given the later KGB archives confirmed this fact, it is no longer a theory."

    Mr. W: Lol, Bircher Bart denies he's a conspiracy theorist while...dealing in one of the iconic conspiracy theories of the modern American age!


    Really? The extensive verification of this "conspiracy theory" is old news. I recommend the following for your education:

    John Earl Haynes, Harvey Klehr & Alexander Vassiliev, Spies: The Rise and Fall of the KGB in America (Yale University Press 2009) (sourcing KGB archives)

    John Earl Haynes, Venona: Decoding Soviet Espionage in America (Yale University Press 1999) (sourcing FBI intercepts of NKVD communications)

    Like I said, a common thing for Birchers and Mcarthites to do was to call nearly every major Democratic policy proposal 'socialism' or 'communism' (implying the conspiracy that they're out to enact communism).

    You could refer to Democrats working together to enact a socialist policy like Medicare for All a "conspiracy." I consider it politics. However, simply noting that Medicare for All is socialism is no more a conspiracy than noting the sky is often blue.

    If your point is that Democrats often dismiss as "conspiracy theories" others noting their work with and borrowing policies from socialist and fascist nations, I completely agree. This is a decades long chapter in the Democrat playbook.

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  52. It would be interesting to know if
    1. the Federalist Society has a disproportionate number of Catholics
    2. if the answer to 1 is yes, then why? I could think of several (Catholic schools provide one of the few places of rigorous thought that many conservative minds flower in, they've got a mega-institutional apparatus of pre-k-Graduate education institutions, and to the extent a fair amount of conservatism is 'baked into' the Catholic Church, they are going to be a disproportionate source for a lot of academic conservatives; the Federalist Society could be led by, started by or funded by a group disproportionately Catholic, etc.,).

    Whatever the reason, it's clear that Catholics dominate the conservative choices for justices and judges at this time, and equally clear that conservative Protestants, who not that long ago would have been uneasy with this to say the least, don't care a whit now, and/or are completely ok with it.

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  53. Mr. W: Mill was smart enough to realize that the concept of 'harm' can no more be pinned down as the concept of 'property' (Nozick himself notes how classical liberal theories of the latter break down).

    In On Liberty, Mill never considered the centuries of legal work the Brits and Americans put in determining what government harms require due process. Individuals can also inflict those harms on one another.

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  54. "Mark, what would you highlight as good features of Utah's governance? I'm honestly ignorant on the subject, though I've often heard they have a much more mild, sensible 'good government' type of conservatism there. Perhaps, as you suggest, it's structural rather than cultural re their governing."

    I'm hardly an expert, but from what I see they (a) actually represent their constituents; and (b) implement their policies competently. Now, I don't necessarily agree with their policies (from what little I know of them) but they aren't corrupt like the Trump Cult and they seem to have a general sense of reality outside of their religion.

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  55. "The extensive verification of this "conspiracy theory" is old news."

    Lol, it's not that Bircher Bart denies he's a Bircher, it's his contention that the Birchers were simply correct. Not surprising!

    "simply noting that Medicare for All is socialism is no more a conspiracy than noting the sky is often blue."

    Bircher Bart really has an avoidance for his own past words here. He repeatedly called the ACA 'socialism' and said it 'nationalized the health care industry' (and '1/6 of the US economy,' remember that line?). Now he's going on his latest krazy konspiracy kookiness that Medicare for all is socialism....I guess he forgot that we already socialized this area, so Medicare for All can't be 'socializing' it...Here we see why the hyperbolic tendencies of non-serious krazy konspiracy kooks always bites them in the behind eventually.

    But perhaps Bircher Bart can find some backbone sturdier than what could be fashioned from a banana and address the goofy places his conspiracy theorizing leads him? Certainly he can't be that fearful of addressing his very own words? I agree they're embarrassingly silly, but men have to stand up against embarrassment to be men I should think. So Bart, I'll give you the opportunity to man up in that vein:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  56. "Unknown is right on. When the Catholic Church was a beleaguered, suspect group they argued for toleration and protection from religious discrimination, now that they are at the levers of power in the GOP (just as he described in alliance with the less academically proficient Protestant conservatives) they are exploring ways to flexibly use government power and constitutional power to give aid to the Church and get its policy preferences enacted."

    John Locke did warn us. Half-joking on that. Locke was blind to the dangers posed by Protestant churches, and to the dangers of religions generally (or at least fundamentalist-type religions, whether Muslim, Catholic, Orthodox, Protestant, Jewish, Hindu, or Buddhist).

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  57. "In On Liberty, Mill never considered the centuries of legal work the Brits and Americans put in determining what government harms require due process. Individuals can also inflict those harms on one another."

    Now we've reached the gibberish stage...I guess the anxiety of facing his own words really is weighing on Bircher Bart...Perhaps he's three sheets in the wind from a few wine coolers in an attempt to deal with that and it's also producing such gibberish?

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  58. "or at least fundamentalist-type religions"

    I think you've hit on it here...What defines most fundamentalist religions is what defines conspiracy and extremist types: a worldview where they're clearly right and other people are clearly wrong, and the clearly wrong are also badly motivated (Bircher Brett calls those that disagree with him on the Constitution, in even mild ways, 'subverting' the document, as 'bank robbers' and such; Bircher Brett says there's 'no distinction' to be drawn between progressives and fascists/communist/totalitarians). It's hard for people who think this way to adopt a favorable view of what JB and Sandy speak of as the 'public good,' because to the extent the 'bad guys' start to win in defining the public good they see it as a clear, obvious, and of course (because they're extremists) an *extreme* blow to the 'common good.' Therefore, any other semblance of moral or intellectual integrity (Bircher Bart saying he would support Trump over a Democrat even if he know the former committed murder, Bircher Brett saying he not only saw nothing wrong with an official purposely targeting political foes but wished it went on more) gets thrown out the window with the idea that we must retain a system promoting the 'public good' which necessarily allows the 'bad guys' a decent chance at winning.

    The courts and the Constitution become, of course, simply tools to ward off the existential threats they see around every corner.

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  59. So Mark, you think it's a cultural thing, sort of like what many describe re Canada? That jibes with what I've known or heard. Certainly even the Utah politicians that I disagree with policy wise tended to have milder, less vulgar, more pro-decorum/professionalism demeanors than many MAGA types. And perhaps the position of the Church Elders and the operation of the centralized Church itself lends itself to less conspiracy type suspicion/distrust of the ideas of deference to professional expertise, standards and competence...

    I was hoping you'd point to something structural though, because that could likely be changed before cultures could...

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  60. When you enter into a relationship with a business, you assume the risk the business and the relationship will fail.

    Many, indeed most, of those harmed by a bank failure never entered into a business reationship with the bank.

    Many were hurt by Lehman's collapse who had no dealings with Lehman at all. Since you purport to be a student of the Depresion, for example, you must be aware of the problems of bank runs, among other things.

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  61. "So Mark, you think it's a cultural thing, sort of like what many describe re Canada? That jibes with what I've known or heard. Certainly even the Utah politicians that I disagree with policy wise tended to have milder, less vulgar, more pro-decorum/professionalism demeanors than many MAGA types. And perhaps the position of the Church Elders and the operation of the centralized Church itself lends itself to less conspiracy type suspicion/distrust of the ideas of deference to professional expertise, standards and competence...

    I was hoping you'd point to something structural though, because that could likely be changed before cultures could..."

    What I suspect is that Utah is an example of Montesquieu's type of republic: everyone holds very similar views of "the common good". It's a small state, dominated by the descendants of a small group of settlers who don't see their fellow citizens as "others" because of their shared religious heritage. And it's well-educated.

    It might be that Utah would change if we suddenly transported lots of POC or Muslims there, though maybe they'd just try to convert them all. :) But Utah lacks the racial subdivides which corrupt R governments in the South so it never has to face those issues.*

    Other states -- notably HI and CA -- have shown that a generally egalitarian democracy can scale to multi-ethnic/religious societies. Utah has the basic steps in place, and I think it might be able to also.

    *Yes, I'm very aware of the LDS's less than stellar history when it comes to blacks. Those attitudes may still be at play in ways I don't see because they don't affect me. However, LDS seems quite willing to accept converts from Central America, so I'm giving the benefit of the doubt.

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  62. The closest proposed American political economy to an Afghan-style theocracy would be the "Green New Deal."

    Our Constitution prohibits both.
    # posted by Blogger Bart DePalma : 10:42 AM


    This is random gibberish.

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  63. If your point is that Democrats often dismiss as "conspiracy theories" others noting their work with and borrowing policies from socialist and fascist nations, I completely agree. This is a decades long chapter in the Democrat playbook.

    Or "gibberish" or whatever. Anything but admit what you really stand for.

    The original progressives ran away from the socialist label as they worked to impose the entire Socialist Party platform.

    Then FDR ran away from the progressive label in favor of misappropriating the liberal label, while he imposed both socialist and fascist policies.

    Now, progressive is cool again, but still not socialist, while arguing for government taking over health insurance (Medicare for All), then the entire economy (Green New Deal).

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  64. This comment has been removed by the author.

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  65. Looking at the numbers, there appears to be a 20-25% percentage of Catholics in this country, with about 70% of the country itself being Christian. The split is different in various areas of the country, so Catholics are more numerous some places while others are more Protestant.

    But, the Protestants are a mixed group. A Pew poll suggests that 25% of the population is evangelical Christian. Of them, there is talk (see, e.g., John Fea, a history professor who wrote a book on the Trump evangelical phenomenon and is himself a dissenting evangelical) of a 80/20 or so split there that is conservative and supportive of Trump. Each evangelical group can similarly obtain a slice of the Catholics, who come in a variety of forms as well. This was seen, e.g., by the split in the 1960s on contraceptives and other issues.

    So, as noted, it is importance to emphasis that conservative Catholics are at issue here. So, e.g., both Thomas and Gorsuch had some fluidity, with Gorsuch going to a Episcopal Church. But, the line between that and conservative Catholic is fairly small. We are not talking about the liberation Catholic types who were socialists or were killed in Latin America by right wing dictators here.

    And, yes, they are times forget their history. Scalia wished to mix church and state when back in the day that resulted in de facto establishment Protestants discriminating against Catholics, including the types of bibles in public schools or the prayers officially spoken there. Sotomayor in the Trinity Lutheran case appealed to the likes of James Madison (whose brother was clergy) to show separation honored religious liberty.

    Diversity of all kinds is useful, including on the courts. Thus, e.g., Biden saying he wants to nominate a black woman justice.

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  66. The original progressives ran away from the socialist label as they worked to impose the entire Socialist Party platform.


    Arguing about whether something is socialist or not, and then making one's opinion depend on the outcome of that debate, is lazy and silly. Polices are good or bad, whether promoted by socialists or not.

    You want a strong military? So did the Nazis.

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  67. byomtov: Polices are good or bad, whether promoted by socialists or not.

    True enough. Labels are often misleading. Fascists enact socialist policy, socialist enact fascist policy and progressives or social democrats enact both.

    Instead, let us define good and bad policy. I'll start:

    We all enjoy a fundamental right to live our lives as we please so long as we do not harm others and any policy which abridges that fundamental liberty is bad.

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  68. Sniffles, you STILL won’t admit that there was no WMD in Iraq. Discussing policy with you, or really anything, is a completely useless exercise. You are living on a different planet from the rest of us.

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  69. Bart,

    I'm not going to play your game. You start by agreeing that labels are bad, and then jump right back to labeling things and people.

    A to your principle, it's pretty useless. I mean, it sounds fine, but anything that doesn't take account of risks, costs, magnitudes, benefits, interactions, etc is not much help.

    Policy-making is not Euclidean geometry. You can't lay out five axioms and have everything follow in an orderly inexorable fashion.

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  70. byomtov:

    You were the one who said: "Polices are good or bad," but you refuse to say what makes them good or bad.

    As the Declaration of Independence correctly noted, the purpose of government is to ensure our freedoms. My definition of good policy does just that.

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  71. Sniffles, you think that being taxed is a threat to your liberty. There really is no point in discussing anything with you. You’re a right wing propaganda spewing troll.

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  72. The government cannot establish a "public good." You are the best judge of what is good for you.

    This is certainly false as a matter of my own experience of my own life, and I have met no candid people who tell me their experiences of their own lives are different. It is, to be sure, irksome to be told by someone who purports to know better than you what is in your best interests as you yourself perceive them, and even more irksome to be told what you may or may not do -- and yet more irksome when "they" are right and you are wrong. So, pragmatically, governments would be ill-advised to step in all the time to advance your interests over your own mistaken view of them. But the idea that they shouldn't because you necessarily know best what is good for you is just, factually, wrong.

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  73. if a person has publicly undertaken to promote “the Kingdom of God on earth” or some other theocratic vision—say as a member of Opus Dei—and is then nominated to an office wherein s/he must swear before the (presumably) same God to “preserve, protect and defend the Constitution of the United States,” then the public is entitled to know what s/he would do in the event the oath and undertaking come into conflict. If the answer is there can be no conflict because correct understanding of the latter presumes the former, get the hook.

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  74. "The original progressives ran away from the socialist label as they worked to impose the entire Socialist Party platform."

    The original 'progressives' were 'good government' types in both parties that wanted to replace the incompetence and corruption of the patronage system with the idea that government work should be done with professionals who saw their tasks as non-partisan challenges of their professions. In this sense was Teddy Roosevelt a 'progressive' (when he was police commissioner he instituted novel 'progressive' reforms like...training [police academies]!). Saying that someone like TR was the same thing as a socialist, fascist or communist because he eventually supported social programs *that every industrial political economy then and now adopted* is ludicrous.

    It's the kind of thinking one would expect from, say, a conspiracy theorist. Come to think of it, Bircher Bart has a bit of a history of wacky conspiracy type thinking. He's trying to social distance himself from even his rather recent record in that regard. But I hate to see a grown man cower, especially from his own record, and would like to extend to him the opportunity to man up once again. So, in that vein Bircher Bart:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

    ReplyDelete
  75. "while arguing for government taking over health insurance (Medicare for All)"

    The non-seriousness of Bircher Bart is exhibited and manifested in many ways. He's not just running like a scared canine, tail tucked between his legs at facing up to his absurd krazy, kooky konspiracy theories promulgated here, but note he also totally elided my point that he told us when the ACA passed that the bill meant the health care industry was 'socialized' and 'nationalized.' So how can Medicare for All be 'socializing' what was already 'socialized?'

    More evidence that for Birchers, whatever the policy of the other side of the day is, it gets the same, tired Bircher label ('communism!' 'socialism!') even if they already cried that wolf dozens of times before....

    ReplyDelete
  76. "but you refuse to say what makes them good or bad."

    But of course, neither did Bircher Bart, since 'freedoms' differ wildly for everyone, and as he himself noted one doesn't have a 'freedom' to 'harm' others. What is 'harm?' Those things Bircher Bart thinks are 'bad!' So essentially, Bircher Bart's criteria for what makes them bad is: 'they don't do things that Bircher Bart thinks are bad.' A meaningless, gibberish definition.

    Also, let's look at how fundamentally, I mean chronically, dishonest Bircher Bart is.

    Bircher Bart engages in his common lazy, conspiracy type thinking making the argument: socialists, fascists and communists supported X, progressives supported X, therefore socialists, fascists and communists = progressives!

    byomotov blew this out the water quite properly with 'by that logic, you want a strong military, the fascists want a strong military, you=fascist.'

    Note carefully Bircher Bart's reply. He takes the opportunity to 1. simply restate his smear ("Fascists enact socialist policy, socialist enact fascist policy and progressives or social democrats enact both") and 2. ignores/doesn't answer byomotov's point altogether.

    Now, no honest discussant would do this. The other discussant having raised an objection to his 'point,' the honest discussant would feel inclined to *address this point* in some way *before* simply repeating his (hyperbolic) claim.

    But of course Bircher Bart doesn't act that way. Because Bircher Bart is *not an honest discussant.*

    How would a propagandist act? *Exactly as Bircher Bart did.* They have a talking point, a propaganda point to spread, and regardless of the context of the give and take and replies of an on one side honest discussion, the propagandist will just fall back and *do their duty (as they see it),* which is *take another opportunity to spread the propaganda.*

    And that's exactly what he did. In fact, it's increasingly clear that *it's all he's capable of doing.*

    One lunatic pushing a shopping cart down the street screaming about socialism who, when you answer him honestly, simply engages in the scream again is one thing. The disturbing thing, given this discussion of public and common good, is that the GOP base is increasingly like Bircher Bart. Remember Saint Palin's directive to her konservative kommando komrades: 'don't retreat, reload!'?

    ReplyDelete
  77. Mark, the moment I sent you my reply I thought on the issue, and as someone who lived in the South quite a bit I also came to the conclusion you did, though stated in a different way: in the South there is all too often less concern with the government providing competent services to white people than there is with the concern that they do not, under any circumstances, do that for black people. As long as the government certainly isn't helping 'them,' the fact they do a less than ideal job of helping 'us' is overlooked. And that's lacking in Utah and the Mormon faith in general.

    So your response in general agreement to mine makes me happy along the lines of 'great minds think alike' (since I value your contributions so much here) :)

    ReplyDelete
  78. "you STILL won’t admit that there was no WMD in Iraq"

    Indeed. Let's let that sink in for a spell, shall we? W Bush, Powell, Rice, these once mighty political figures invested a great deal of political capital into the argument that Iraq had those WMDs. Sheepishly, almost pathetically, they all have long conceded they were wrong about that.

    If there were any *respectable, serious* argument/evidence they could grab here to prevent the political freefall that befell them because of this, they would grab that reed with both hands (and possibly feet if possible).

    But they recognize there is no *respectable, serious* argument/evidence to that. Anything that might be offered is a sad equivocation at best.

    But Bircher Bart is still there, dying on that hill.

    This is not a serious man. This will tell you that.

    Another thing that will tell you that is that I can repeatedly bring up this laughable, recent krazy kooky konspiracy theory he confidently put forward, and he is running it from it faster than Scooby Doo at the site of anything vaguely frightening.

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  79. BD: The government cannot establish a "public good." You are the best judge of what is good for you.

    CJColucci: This is certainly false as a matter of my own experience of my own life, and I have met no candid people who tell me their experiences of their own lives are different.


    Really?

    What government leader or bureaucrat knows better than you what is good for you? No matter how brilliant they were, how would they obtain the knowledge to do so?

    Every single government who has thought so is failing or has failed.

    I would recommend you read the following:

    Friedrich August von Hayek, “The Use of Knowledge in Society,” American Economic Review, XXXV, No. 4; September, 1945, pp. 519–30.

    James C. Scott, Seeing Like a State (Yale University Press 1998).

    ReplyDelete
  80. Thanks MW. The GMTA works both ways, and I appreciate that.

    ReplyDelete
  81. Mr. W:

    Your fixation with me is deeply disturbing.

    Do you honestly think I give you or what you think a second thought?

    For every word I type here, generally to other correspondents, you post twenty-five for me, nearly all of which I simply scroll past.

    Seriously, get help.

    ReplyDelete
  82. Seriously, get help.
    # posted by Blogger Bart DePalma : 10:10 PM


    Physician, heal thyself!

    ReplyDelete
  83. Bart DePalma said...

    What government leader or bureaucrat knows better than you what is good for you?


    Pretty much every one of them that has access to risk assessment data. Humans are notoriously bad at risk assessment. You appear to be even worse at it than most people.

    ReplyDelete
  84. "What government leader or bureaucrat knows better than you what is good for you?"

    Maybe one that can own up to what they've said, unlike yourself?

    ReplyDelete
  85. "Seriously, get help."

    I'm not the one running scared from my record my cowardly friend!

    ReplyDelete
  86. BD: What government leader or bureaucrat knows better than you what is good for you?

    bb: Pretty much every one of them that has access to risk assessment data.


    So, all I need to do is access government risk assessment data and I can direct your life better than you can?

    ReplyDelete
  87. so, all I need to do is access government risk assessment data and I can direct your life better than you can?
    # posted by Blogger Bart DePalma : 11:14 PM


    Not better than me. Unlike you, I think science is a good thing. But they definitely have a better grasp on reality than you.

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  88. They probably won't say embarrassingly wrong things and run like Usain bolt from them with your regularity, my Bircher friend.

    ReplyDelete
  89. So, let's be clear about Bircher Bart.

    He said this nonsense about M. Cohen and L. Parnas. Note he doesn't deny it, because I suspect he knows I have the archives on this bookmarked, copied, etc.,

    He can't/won't defend it because it's the typical nonsense he peddles.

    His amazingly sloppy thinking there is indicative of his amazingly sloppy thinking on everything he comments on.

    His not responding reflects his fear/cowardice/inadequacy, any honest discussant not similarly afflicted would address the charge head on. A propaganda agent would do the same.

    Note, he will do exactly what this post predicts.

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  90. BD: What government leader or bureaucrat knows better than you what is good for you?

    bb: Pretty much every one of them that has access to risk assessment data.

    BD: So, all I need to do is access government risk assessment data and I can direct your life better than you can?

    bb: Not better than me. Unlike you, I think science is a good thing. But they definitely have a better grasp on reality than you.


    "They" being, say, the average Obamacare drone at HHS, who has access to risk assessment data and believes in scientific socialism like you do, can run your life better than you can?

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  91. Note: Bircher Bart has 1. guaranteed a Romney presidency; 2. guaranteed Iraq had those WMDs ; 3. confidently asserted that L. Parnas and M. cohen were being used as political prosecutions; 4. asserted, after the release of the WH 'quasi-transcript' demonstrably admitting to the same, that there was 'zero evidence' Trump asked for investigation into the Bidens; etc.,

    This is not in any way a remotely serious man. He's been invited to comment, but note his pathetic propagandist responses.

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  92. So, Bircher Bart...Should anyone take you seriously?

    Do you want to deny your Cohen/Parnas thoughts? I've got them bookmarked/saved.

    Do you want to defend them? You've been running like a scared yellow dog from every opportunity I've given you on that.

    If you're prone to saying such absurd things you can't muster enough fortitude to defend, then why shouldn't everyone here see you as a pathetic paltry propagandist?

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  93. "They" being, say, the average Obamacare drone at HHS, who has access to risk assessment data and believes in scientific socialism like you do, can run your life better than you can?

    # posted by Blogger Bart DePalma : 11:38 PM


    Not better than me, Sniffles. I believe the science. Better than you. Because you're a moron.

    ReplyDelete
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    ReplyDelete
  95. you refuse to say what makes them good or bad.

    I don't refuse at all. I refuse to discuss the matter with you.

    As the Declaration of Independence correctly noted, the purpose of government is to ensure our freedoms. My definition of good policy does just that.

    Your "definition" is not a definition at all. It's a principle. Sounds nice, but doesn't help much.

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  96. BD: What government leader or bureaucrat knows better than you what is good for you?

    If by "knows better than you what is good for you" you mean comprehensibly, about everything, then none, individually or collectively. But it is quite common in my experience, and that of most people I know, that many government bureaucrats know far better than I how to get from Point A to Point B when what I want is to get to Point B. I may resent this fact -- I don't, actually, but I can see how someone might -- and it would, therefore, be unwise for government officials to be too heavy-handed in making people do what they will, ultimately, realize is in their own best interests as they themselves conceive them. But that is an entirely different question from whether I, simply by being me, am necessarily the best judge of what is good for me. On many questions, I know for a fact that I am not and have a pretty good idea who is a better judge.

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  97. Byomtov:

    Once you have defined harm, as I did above, the principle becomes a definition.

    ReplyDelete
  98. BD: What government leader or bureaucrat knows better than you what is good for you?

    bb: Pretty much every one of them that has access to risk assessment data.

    BD: So, all I need to do is access government risk assessment data and I can direct your life better than you can?

    bb: Not better than me. Unlike you, I think science is a good thing. But they definitely have a better grasp on reality than you.

    BD: "They" being, say, the average Obamacare drone at HHS, who has access to risk assessment data and believes in scientific socialism like you do, can run your life better than you can?

    bb: Not better than me.


    Exactly.

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  99. CJColucci: I know, that many government bureaucrats know far better than I how to get from Point A to Point B when what I want is to get to Point B.

    Can you think of an example of a government bureaucracy decreeing a rule which better directs you from Point A to Point B than you can direct yourself?

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  100. First, have a good (or as good as possible) Holy Week or Passover for those who celebrate.

    Second, I want to say a bit more on the popular involvement that me and Mark support to a greater support than is present now. I think we do have an obligation as a good citizen to be knowledgeable about public affairs, vote and in various ways engage with our government. A basic right, after all, is the right to petition.

    Public hearings, not just confirmation hearings, are often ridiculed. But, they are important, including to hear from affected people and relevant experts, sometimes people who simply know what is being discussed (such as veterans in need of medical and psychological care).

    Running for office has various dubious aspects including the length and cost of campaigns. But, there too the public can have a major role. One person here thinks the party should pick the candidates, who would run in the general election. But, we (in a way at times open to caricature as seen in "Around the World in 80 Days" and other accounts) have a democratic tradition where the people are felt deserving to choose. This affects who wins elections, including local ones, and mass movements can significantly matter there.

    Having legislation by poll is not advisable, but there are many ways for the public at large to have more of a roll here. So, I'm open to certain issues being pressed to negotiation and a vote if the public decides it (e.g., a majority could have required NY to have a constitutional convention). This is a form of initiative. The 10A speaks of the "power" of "the people" and such things come to mind.

    Also, proposals have been made to give people some voucher that can be used for political contributions. Moving power more to the people than corporations and other groups is a major possibility in campaign finance reform.

    Finally, this counsels for an informed electorate, including civics education, both for children [I think a high school civics class should be like drivers ed -- the end result should be a registered voter.] but adults. We cannot have people talk (as one did to me) of "Trump passing" CARES Act. "Obamacare" is also the road to ignorance. The Affordable Care Act was crafted with a lot of effort by the Senate and House. The term misinforms the public.

    This is the end of my TED Talk. Virtual palms for everyone.

    ReplyDelete
  101. Bart,

    Your 11:20 is a perfect example of why I don't want to discuss it with you.

    ReplyDelete
  102. "Can you think of an example of a government bureaucracy decreeing a rule which better directs you from Point A to Point B than you can direct yourself?"

    This is quite the softball. Every day you drive on a road this happens. Certainly our Bircher is no road engineer, the people who make the roads and the speed limits certainly know better how to do this for Joe Average or Bircher Barts than the latter do. Multiply this by many other instant, obvious examples.

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  103. "Once you have defined harm, as I did above"

    Bircher Bart, of course, did not define harm. This is partly because there is no sensible, principled definition of harm that would, for example, include the 'harm' from libelous speech but not the harm that stems from not bailing out businesses such as banks as byomtov noted.

    What Bircher Bart *could do* is stop hiding in abject fear (apparently, how else to explain it?) from his own nonsense arguments/propaganda. But people find courage sometimes when you least expect it and perhaps today is Bircher Bart's day to 'grow a pair' as they say in locker room talk. In that vein Bircher:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

    ReplyDelete
  104. joe
    I applaud your 11:40 comment. One of the most sad things these days is that one of our major parties sees civic engagement as something that should be restricted/discouraged by much of the population.

    ReplyDelete
  105. bb: Not better than me.

    Exactly.
    # posted by Blogger Bart DePalma : 11:27 AM


    Not better than me because I believe in science you moron. When the experts tell me something is dangerous, I listen to them.

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  106. Nothing was funnier than Bircher Bart making a rather basic mistake of logic (invoking the deductive appeal to authority fallacy principle while ignorant of the inductive logic principle endorsing deference to expertise) *in* arguing why he doesn't defer to experts.

    This is not a serious man.

    ReplyDelete
  107. BD: "Can you think of an example of a government bureaucracy decreeing a rule which better directs you from Point A to Point B than you can direct yourself?"

    Mr. W: This is quite the softball. Every day you drive on a road this happens. Certainly our Bircher is no road engineer, the people who make the roads and the speed limits certainly know better how to do this for Joe Average or Bircher Barts than the latter do. Multiply this by many other instant, obvious examples.


    You returned to your teaching tool role.

    Speed limits are a perfect example of my point. As a driver, only I have the information about local conditions (traffic, pedestrians, light, weather, visibility and road conditions) necessary to determine a safe speed for that time and place. The speed limit set by some bureaucracy years before is an arbitrary standard completely unrelated to the local conditions at the time.

    The proper measure for building roads is not you or I, but rather a road contractor who regularly performs this work. That road contractor generally has more experience and certainly better information about the local conditions to build a road than a bureaucracy back at the state and federal capitols.

    I can also go on and on in this vein.

    For lurkers who take this subject matter seriously, I would recommend you read the following:

    Friedrich August von Hayek, “The Use of Knowledge in Society,” American Economic Review, XXXV, No. 4; September, 1945, pp. 519–30.

    James C. Scott, Seeing Like a State (Yale University Press 1998).

    You can read the former in PDF form on the web.

    ReplyDelete
  108. As a driver, only I have the information about local conditions (traffic, pedestrians, light, weather, visibility and road conditions) necessary to determine a safe speed for that time and place.
    # posted by Blogger Bart DePalma : 12:22 PM


    The only problem is that you have a long history of ignoring the local conditions and plowing on ahead blindly selecting only the conditions that support your preferred outcome and ignoring the conditions that indicate that you should slow the fuck down.

    “Sniffles v John McCain’s GREAT poll numbers” is my personal favorite case, but there are many others.

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  110. I could add a lot more but do want to reference things like local community boards which provides a means for the average person to have a role in local government. Efforts can be made there to sponsor engagement with state and federal government as warranted.

    And, of course, there is the jury, an ever lesser used institution. Juries in some jurisdictions have stronger power to influence sentences, and fair representation of the society can often be more just there than a single judge.

    The concept of the 'militia' also is the average person works together, under the leadership of government officials such as the governor or president, to serve public functions. They are part of the virus response. These days, a select group of the public serve actively in the militia. The public at large can have a bigger role there.

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  111. This comment has been removed by the author.

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  112. BD: As a driver, only I have the information about local conditions (traffic, pedestrians, light, weather, visibility and road conditions) necessary to determine a safe speed for that time and place.
    # posted by Blogger Bart DePalma : 12:22 PM

    bb: The only problem is that you have a long history of ignoring the local conditions and plowing on ahead blindly


    My state of CO recognizes that problem and prohibits driving too fast for conditions. The officer making the charge would have personal knowledge of the local conditions. A bureaucracy setting a single speed limit from Denver would not.

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  113. "As a driver, only I have the information about local conditions"

    This is ridiculous, in part because it doesn't take into account what's best *generally.* There's gobs of evidence that tweaks to road design, speed limits, etc, result in more or less accidents, injuries and death. It's not a mystery to any but the most willfully dense as to why every industrialized nation with a system of roads adopts general speed limits, effective road designs, etc., that come from 'bureaucrats' (i.e., people who are experts in the subject and happen at the time to work for government).

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  114. " in this vein."

    Hmm, that reminds me. I'm giving you yet another chance. Why do you cower so?

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

    ReplyDelete
  115. Note also that Bircher Bart's idea would grant an enormous amount of discretion to a government 'bureaucrat' (the police officer), a better invite to abuse one's official government power couldn't be granted. This is a guy who calls himself a classical liberal btw.

    This is not a serious man.

    This is a man scared to own up to his own words as well.

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  116. As one might expect, the article by Hayek contains not a single *number.* Austrian economists seem allergic to doing actual scientific, empirical work. It's dilettant-ism masquerading as an actual academic project (this also explains why it's popular with people like Bircher Bart-it's simplistic and therefore easier to understand than complex empirical work).

    People who actually do empirical work on the subject find that speed limits are superior to 'public choice of speed' regularly. See here: https://www.annualreviews.org/doi/pdf/10.1146/annurev-publhealth-031811-124634 and here: https://www.sciencedirect.com/science/article/abs/pii/S0967070X10000181 for examples.

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  117. BD: "As a driver, only I have the information about local conditions"

    Mr. W: This is ridiculous, in part because it doesn't take into account what's best *generally.*


    What combination of weather, visibility and road conditions constitute "generally?"

    The entire point is life has too many variables for a bureaucracy with insufficient knowledge to direct it with general, one size fits all rules.

    This is why every totalitarian political economy has or is in the process of failing.

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  118. "Perhaps the best we can do is to stick with some sort of modus vivendi politics based on compromise and a willingness to forbear from pushing one's own views too far."

    Ah. A Joe Biden supporter. I'll take it.

    Wisconsin Primary still a thing as of now.

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  120. Mr. W: Note also that Bircher Bart's idea would grant an enormous amount of discretion to a government 'bureaucrat' (the police officer), a better invite to abuse one's official government power couldn't be granted.

    A law enforcement officer is an executive who brings a criminal complaint to be decided by the judicial system employing due process.

    The LEO is not a bureaucrat setting one size fits all speed limit.

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  121. "a road contractor who regularly performs this work. That road contractor generally has more experience and certainly better information about the local conditions to build a road than a bureaucracy back at the state and federal capitols."

    This is also silly. Any individual road contractor may be ignorant of other, better techniques for building roads (his work may survive in local conditions as less than ideal for a variety of reasons-he's connected to the decision maker who hires him [the kind of awful patronage system that Birchers like Bart would return us to with their suspicion of expertise], the work is 'satisficing' (in the Simonian sense), etc.,). What's needed to advance the field are studies of different approaches to determine which work best generally (and which work best under certain conditions). That's the kind of thing a bureaucrat does.

    Bircher Bart is the kind of loon that would tell someone running for office to eschew hiring a pollster or campaign consultant and instead just go around knocking on doors and 'get a feel' for public opinion and then use 'common sense' to craft their campaign. The fact that virtually no politician with any sustained success in the modern age does this should show anyone with any sense what an uncommonly silly idea this is...

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  122. "The LEO is not a bureaucrat setting one size fits all speed limit."

    He would be in your world, his opinion of what's safe and not safe would be the speed limit. And he's a government employ. And note you've given him a vast amount of discretion which can be routinely abused. Great job Bircher!

    These poll numbers are looking GREAT for John McCain!

    You seem to make intellectual errors like this regularly. Perhaps you'd like to man up and own a recent one of yours?

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  123. "This is why every totalitarian political economy has or is in the process of failing."

    Let's remember that Bircher Bart is on record here that 'progressive' political economies cannot be distinguished from 'socialist,' 'communist,' 'fascist,' etc., 'totalitarian' political economies. So under Bircher Bart's 'logic' the US, the UK, Germany, etc., are all totalitarian societies! And they, of course, ain't failing.

    This guy is just like Sideshow Bob stepping on the rakes over and over.

    https://www.youtube.com/watch?v=aRq1Ksh-32g

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  124. Mr. W: People who actually do empirical work on the subject find that speed limits are superior to 'public choice of speed' regularly.

    Excellent examples of bureaucrats making "general" assumptions to support a "general" speed limit, neither of which take in account local conditions, including the rather important fact we do not have an accurate baseline because people routinely exceed the speed limits at rates which vary according to local conditions.

    The bureaucracies themselves disagree concerning their "general" assumptions. Sticking with the speed limit meme, German bureaucracies believe traffic congestion and not speed should be the primary consideration and only impose speed limits during times and at locations of high traffic volume. In the US, the bureaucracies concentrate on speed to the exclusion of nearly all other variables.

    Bureaucracies of failed totalitarian states produced libraries of "scientific studies" on how best to direct their people's lives by general rule Such systems simply do not work.

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  125. Bircher Bart has struggled with a lot of concepts over the years. Today's is 'general' (well, and courage, because he's too cowardly to own up to his silly Cohen/Parnas argument and therefore demonstrates he is not to be seriously engaged with here, instead just a target for easy mocking).

    Of course what 'general' here means is 'overall.' And studies show that the 'overall' public safety (meaning that there are less crashes, injuries, fatalities, etc., during an examined time period than there were or are pre or without the measures) is promoted by things like speed limits, road design, etc., that come from 'bureaucrats.'

    Note how this basic concept is strange to a follower of Austrian economics. That stuff rots the brain, again it's only popular with some *because* it's unscientific and simplistic and so easy work for the lazier minds to get.

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  126. Apart from his ignorance (likely due to inability to understand them) of empirical work on the subject (a common failing of our Bircher Bart), Bircher Bart also just has a basic failing of common sense here (again, common failing for him). Were his common sense operating it would tell him this: every polity once did not have speed limits or experts giving guidelines on road design and such. And yet *every* industrial nation has adopted them. Why would *every* industrial nation, given their wide ranging cultures, mores, politics, etc., adopt these unless they found it was necessary to get a better overall outcome, that the preceding conditions of driver choice of speed, non-guidelines for road design, etc., were not 'cutting the mustard.'

    I mean, does Bircher Bart really think that all these different polities just got hornswoggled by nefarious 'progressive' politicians and 'mandarin bureaucrats?'

    Wait, what am I thinking this is the guy who thinks, for example, that the consensus on climate change held by experts from around the globe working for multitudes of agencies is a conspiracy, that the reaction to COVID-19 found in nations, medias and polities around the world is a conspiracy, etc.

    This guy is a krazy konspiracy kook.

    But we knew that. He knows it. And he even obviously fears us knowing it and/or himself knowing. For example, he's too pathetic to own up to a prime example of his 'thinking' on these kinds of subjects, such as his absurd Cohen/Parnas krazy kooky konspiracy theory. This *just how this guy rolls* period.

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  127. You know what's funny about krazy konspiracy kooks? They cook up these elaborate, sloppily reasoned, house of card krazy kooky konspiracy theories to cast aspersions and satisfy silly suspicions re their political enemies, but the flip side of their behavior is they are incredibly gullible and easily convinced that those on their political side are ok and in the right. So, for example, Bircher Brett and Bart's laughably embarrassing double standards re: Trump's corruption and abuse of office and, say, Hillary, Biden, well, every Democrat they fear has a chance of winning important office (that's how krazy konspiracy kooks roll of course). So while they squint to see krazy kooky konspiracy everywhere in their enemies they can't see actual *very likely* conspiracies even when the evidence strongly suggests suspicion is warranted. Since this is a con law website take Justice Thomas' laughable dissent in in the Census question case where he, in an act of extreme karma, tried to ridicule the lower court judge as a conspiracy theorist for his exploration of the hidden motives of the Trump administration in trying to add the question. Of course subsequent events (thankfully in part due to that judge's exploration itself) revealed demonstrable evidence that the Administration's stated rationale was pure applesauce and they had indeed conspired long and hard to suppress the count of certain groups.

    So you see, krazy kooky konspiracy thinking is actually not *the* problem, it's just a symptom of that old mind rotter: extremism in partisanship and ideology.

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  128. The bureaucracies themselves disagree concerning their "general" assumptions. Sticking with the speed limit meme, German bureaucracies believe traffic congestion and not speed should be the primary consideration and only impose speed limits during times and at locations of high traffic volume. In the US, the bureaucracies concentrate on speed to the exclusion of nearly all other variables.

    Your exchange with MW on this point ilustrates why I am unwilling to enter a discussion of political theory with you.

    That different countries have different objectives in road design does not remotely mean that their engineers disagree on their assumptions. It means they apply their skills towards different ends. Oncologists do not disagree with cardiologists on medical facts, even though they apply different treatments.

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  129. MW,

    Austrian economics specifically rejects empirical research in favor of deductive reasoning from its own assumptions.

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  130. Yes, it's a pseudo-science, like astrology.

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  131. Ironically, Austrian economics falls guilty to its own conceit-applying simplistic conclusions regarding complex, multi-variable situations.

    Of course, conspiracy theory does the same thing.

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  132. joe, Mark, byomotv, et al, Do you live in states with stay at home orders? If so, how are you adapting to this 'new normal?' For myself, working from home has been a successful transition. I actually rather like it! I'm a bit bummed re not being able to eat out and that my local gym is closed, but our parks are generally open and so old school non-treadmill cardio exercise is available. Toilet paper and eggs are hard to find but most other things can be gotten at the store. My spouse is a great cook so eating at home more is no problem. I hope the same for you all.

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  133. Also, any suggestions for good screening shows? For myself, I've been enjoying Babylon Berlin (a noir detective story set in the Weimar Republic Berlin) on Netflix and Counterpart (a sci-fi/spy show) on Amazon Prime.

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  134. Also, I read today about how some Red states are using the COVID crisis to shutter abortion clinics as 'non-necessary' services/procedures. The 5th Circuit just allowed such an order in Texas to stay in place (no surprise there, the 5th Circuit is about the conservative equivalent of how conservatives used to view the 9th), but I see in Ohio a district judge has struck down a similar order. I wonder if Blue states are using the order to, say, shutter gun stores and if any 2nd Amendment suits will follow.

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  135. BD: German bureaucracies believe traffic congestion and not speed should be the primary consideration and only impose speed limits during times and at locations of high traffic volume. In the US, the bureaucracies concentrate on speed to the exclusion of nearly all other variables.

    byomtov: Your exchange with MW on this point ilustrates why I am unwilling to enter a discussion of political theory with you. That different countries have different objectives in road design does not remotely mean that their engineers disagree on their assumptions. It means they apply their skills towards different ends.


    Mr. W and bb contend bureaucrats act on scientific truth, which qualifies them to direct your life. If this were so, their assumptions and conclusions would be substantially similar. The point of my response was to demonstrate bureaucrats are not acting on scientific truth, but instead falsely cite "science" to justify their arbitrary decrees. Wildly divergent COVID 19 assumptions and projections to justify government placing the people on home arrest is another perfect example of this phenomenon.

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  136. I’m in Florida. They just shut down all non vital businesses on Friday. Coincidentally, all businesses were declared vital. Actually, bars and restaurants are all shut except for take out. The beaches are also closed.

    I’ve been golfing. The golf courses are actually pretty good for social distancing.

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  137. Mr. W and bb contend bureaucrats act on scientific truth
    # posted by Blogger Bart DePalma : 4:05 PM


    Sniffles, it’s always funny when you pretend that you understand science.

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  139. Golfing is allowed here as well, though I don't golf (it looks like a fun thing to do right now though). I was surprised that tennis courts were shut down-even in doubles tennis you maintain a decent social distance througout the game...

    Also, drive in theaters got shut down. I somewhat question that one too.

    But, you have to expect a few questionable provisions in orders dealing with so much activities done in a rush due to emergency.

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  141. "Mr. W and bb contend bureaucrats act on scientific truth,"

    I wouldn't be foolish enough to make any generalization about the motives of 'bureaucrats' (which, in this context of the entire world involves literally hundreds of thousands of people from different places with different mores, cultures, political views, etc.,). This is the kind of silly mistake someone like Bircher Bart makes. Ironically, it's something very silly for a Hayekian to do given Hayek's central conceit about how easy generalities about complex, multi-variable systems/groups go awry.

    What I do contend is that the average bureaucrat is likely to have more education, expertise, training and experience on the subject they study and make rules for than the average Joe Driver, and therefore are more likely to know about the soundness of questions in their area. This is of course just common sense and inductive logic at work, two things, like backbone, which krazy konspiracy kook Bircher Bart struggles with. Heck, this guy not only put forward the ridiculous Cohen/Parnas krazy kooky konspiracy theory, he now runs from it tail tucked betwixt his legs like the whey and curds eating young lady after seeing the spider.

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  142. Mr. W and bb contend bureaucrats act on scientific truth, which qualifies them to direct your life. If this were so, their assumptions and conclusions would be substantially similar. The point of my response was to demonstrate bureaucrats are not acting on scientific truth, but instead falsely cite "science" to justify their arbitrary decrees.

    This is just utterly idiotic. First of all, highway engineers are not directing anyone's life. They are designing highways, much better than you or I could.

    And how do you know their assumptions differ? There's a not a reason in the world to think that. The designers of PC's and Macintoshes produce different products. That doesn't mean they disagree on the principles of computer design, or electronics, or software. It means the apply those principles towards different objectives, just like automotive engineers working for Ferrari design different products than those at Toyota. Just like highway engineers assigned different objectives.

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  143. MW,

    I do live in such a state.

    To answer your questions: I'm retired and live alone, and have always been a bit reclusive, so I'm feeling less strain than lots of other people. Also, many of my friends live elsewhere, so I'm accustomed to communicating with them by telephone or computer.

    Stores seem reasonably stocked in general, though there are waits if you want to just do a grocery pickup.

    I do some work, some reading, some puzzles, some working out. I keep looking for good things to watch, and am, coincidentally, trying Babylon in Berlin. First episode wasn't gripping, IMO, but I'm willing to give it a chance. I find that it takes a while to get into the swing of these series.

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  145. byomtov: The designers of PC's and Macintoshes produce different products. That doesn't mean they disagree on the principles of computer design, or electronics, or software.

    Government technocrats cannot direct and perfect people's lives like engineers applying the hard sciences to design a better computer. People are not machines and "social engineering" is an impossibility. This misconception is one of the fundamental errors in totalitarian thought.

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  146. We were talking about designing highways, not lives.

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  147. I’m pretty sure that Sniffles has entered the day drinking phase of social distancing.

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  148. ""social engineering" is an impossibility"

    This also isn't true. To take an example, look at how, in a mere matter of decades, people's behaviors and attitudes about race changed after the Civil Rights and similar Acts were passed. People commonly used the 'N' word in public, interracial couples faced harassment and disdain regularly, etc., and yet within a decade or two after those laws passed these became marginal behaviors and attitudes. Something very similar has been happening with gay persons.

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  149. "I’m pretty sure that Sniffles has entered the day drinking phase of social distancing."

    Drunkeness would, if anything, probably improve the intellectual and moral integrity of Bircher Bart. It might make him man enough to own up to his silly krazy kooky konspiracy theories as well...

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  150. This also isn't true. To take an example, look at how, in a mere matter of decades, people's behaviors and attitudes about race changed after the Civil Rights and similar Acts were passed. People commonly used the 'N' word in public, interracial couples faced harassment and disdain regularly, etc., and yet within a decade or two after those laws passed these became marginal behaviors and attitudes. Something very similar has been happening with gay persons.

    # posted by Blogger Mista Whiskas : 6:31 PM


    Not sure this is a good example. This country is still racist AF. That’s how we got Trump.

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  151. "joe, Mark, byomotv, et al, Do you live in states with stay at home orders? If so, how are you adapting to this 'new normal?' For myself, working from home has been a successful transition. I actually rather like it! I'm a bit bummed re not being able to eat out and that my local gym is closed, but our parks are generally open and so old school non-treadmill cardio exercise is available. Toilet paper and eggs are hard to find but most other things can be gotten at the store. My spouse is a great cook so eating at home more is no problem. I hope the same for you all."

    I'm in CA, so definitely under a pretty strict shut down order. This doesn't bother me much. I spend a lot of time on line and can spend the rest with family who live close by. I'm retired, so work isn't an issue. My wife works from home, so that's ok too. I'm sure we're at the top end of dealing well with the situation.

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  152. "Not sure this is a good example. This country is still racist AF. That’s how we got Trump. "

    Yes there's still too much bigotry in the US, but at the very least the more brazen and vulgar forms of it have dropped off significantly, and that's due in very large part to changes in law and policy.

    Though our krazy konspiracy kooks probably think the illumanati in black UN helicopters made those changes in our totalitarian society. A fellow who could put forward, and then run all day long from, that ridiculous Cohen/Parnas krazy kooky konspiracy theory could believe any nonsense...

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