Category Archives: Articles

McMinn County’s Maus Problem

January 31, 2022 – 9:32 am
https://www.timesfreepress.com/cartoons/2022/jan/28/maus/5265/

The decision was made January 10, but it didn’t go viral until Thursday, which also happened to be Holocaust Remembrance Day: The Board of Education of McMinn County, Tennessee had voted 10-0 to ban Art Spiegelman’s Pulitzer-winning graphic novel Maus, which tells the story of his father’s experiences during the Holocaust.

If you clicked the links and read the longer versions of the story, though, “banned” wasn’t exactly the right word. The county’s 8th-grade reading program for the year had been split into four modules, each with a theme and an “anchor text”. The theme of the third module was the Holocaust, and the anchor text was supposed to be Maus. The kids would spend a quarter of the year discussing Maus while they also read supporting texts that gave them the context to understand what was going on in Maus.

The motion that passed 10-0 was to “remove this book from the reading series and challenge our instructional staff to come with an alternative method of teaching The Holocaust.” The motion doesn’t, say, take Maus out of the school libraries or do anything to stop kids who want to read the book on their own. But it won’t be assigned to 8th-graders.

Why not? The module was ready to go. The teachers were ready to teach it. Why did the school board feel that it needed to step in?

What they said. We don’t need to speculate about this as much as you might think, because the minutes of the meeting are publicly available. This was not some decision made thoughtlessly at the end of a long evening spent hashing out other issues. The meeting appears to have been called for this single purpose, and the discussion goes on for 20 pages.

County Director of Schools Lee Parkinson begins by saying that “two or three” school board members had come to his office to discuss “rough, objectionable language” in the book. He recommends redacting it “to get rid of the eight curse words and the picture of the woman that was objected to”.

But the Board immediately turns the conversation in a different direction: “Is there a substitute for this book?” One of the teachers the director had invited to the meeting says no and offers to explain why:

If you would like, I have some stuff I can run through with you that explains what our curriculum is and how it works and walk you through how this book fits into the bigger picture of what our kids are studying.

It quickly becomes clear, though, that the eight words and the picture are not really what the Board members are worried about:

we don’t need to enable or somewhat promote this stuff. It shows people hanging, it shows them killing kids, why does the educational system promote this kind of stuff, it is not wise or healthy.

Another teacher explains why a text about the Holocaust might get ugly:

I can talk of the history, I was a history teacher and there is nothing pretty about the Holocaust and for me this was a great way to depict a horrific time in history.

The Board goes on to table the discussion for a later date, then reverses itself, considers the motion to remove Maus from the curriculum, and unanimously approves it.

But why?

What is McMinn County’s Maus problem? The official explanation of an action isn’t always true, but it’s usually a good place to start. The Board of Education says on the county schools web site:

The McMinn County Board of Education voted to remove the graphic novel Maus from McMinn County Schools because of its unnecessary use of profanity and nudity and its depiction of violence and suicide. Taken as a whole, the Board felt this work was simply too adult-oriented for use in our schools.

If you’ve never read Maus — and I hadn’t until this weekend [1] — that explanation sounds sensible. I mean: nudity — some parents have a real problem with that. One of the Board members mentioned in the meeting that Spiegelman “used to do the graphics for Playboy” while another says:

My problem is, all the way through this literature we expose these kids to nakedness, we expose them to vulgarity. You go all the way back to first grade, second grade and they are reading books that have a picture of a naked man riding a bull. It’s not vulgar, it’s something you would see in an art gallery, but it’s unnecessary. So, teachers have gone back and put tape over the guys butts so the kids aren’t exposed to it. So, my problem is, it looks like the entire curriculum is developed to normalize sexuality, normalize nudity and normalize vulgar language. If I was trying to indoctrinate somebody’s kids, this is how I would do it. You put this stuff just enough on the edges, so the parents don’t catch it but the kids, they soak it in. I think we need to relook at the entire curriculum.

If you’ve never paged through Maus, you might imagine at this point that it’s downright pornographic, with the kind of drawings you might look for in Playboy. But if you have, this whole discussion seems ridiculous. The “nude” scene is a corner of one panel on page 100 of the first volume. The author’s mother has committed suicide and her body is in the bathtub. You see the back of her head, a single curved line representing not-particularly-large breasts, and a dot indicating a nipple.

So the “Playboy” artist has given us a single nude image in a setting that is not at all sexual. The drawing lacks detail and is not the least bit arousing. Any 8th-grader looking for a sexy picture could probably draw a better one for himself. [2] The “profanity” is similarly unimpressive. Remember: Director Parkinson wanted to white out eight words in a book of 295 pages. And that solution was not deemed acceptable.

The idea that Maus is not appropriate for 8th-graders might be believable if people making that claim had gone on to suggest moving the Holocaust module to the 9th or 10th grade curriculum. But no one did. The people who wanted to take Maus out of the 8th-grade curriculum didn’t suggest any age group that should read it.

So the Board’s official explanation doesn’t pass the laugh test. Clearly, they decided they didn’t like the book, and then went looking for explanations they could defend, at least to people who haven’t seen the book.

So what’s the real reason? During the Obama years, a lot of people didn’t like the president. If they had reality-based reasons for not liking him — they were conservative and he was liberal; he moved too fast or slow to end the wars or the economic disaster he inherited; Obamacare led to too much or too little government involvement in healthcare — I usually took those reasons seriously. No president gets 100% approval; there are always reasons.

But when people explained their dislike of Obama by spouting nonsense — he wasn’t born in America; he was secretly Muslim or Communist; he did objectionable things (that previous presidents had done without controversy) like putting his feet up on the Resolute desk in the Oval Office — then I had to wonder if the real reason was something they didn’t want to admit, like racism. Often, I think, anti-Obama racism was unconscious. People didn’t like him because they genuinely believed wild things him on flimsy evidence. But they wouldn’t have believed those things about a White president.

Something similar could be happening here. Because the Board’s explanation doesn’t make sense, we have to consider motives they’d be ashamed to admit, like Holocaust denial or antisemitism. Lots of people went there. Author Neil Gaiman, for example, tweeted:

There’s only one kind of people who would vote to ban Maus, whatever they are calling themselves these days.

The following cartoon makes the same point by casting Board members as cats (which is how Nazis are portrayed in Maus).

https://www.pnj.com/story/opinion/2022/01/29/marlette-cartoon-all-american-book-banmarlette-cartoon-all-american-book-ban/9255940002/

It’s possible that McMinn County has a Nazi problem, but I don’t think we need to go that far. I’m speculating here (which is all you can do once you reject people’s stated motives), but I lean towards less conscious explanations: Something about Maus bothered the Board members (or the constituents who complained to them), and they went casting about for some way to justify their visceral reaction. They bought the absurd “vulgarity and profanity” explanation the way so many Obama-haters latched on to doubts about his birth certificate: Finding the real reason required too much uncomfortable introspection, so they grabbed the first justification they could find.

So what might the real cause of their discomfort be?

Matthew Parker (crediting the insights of the @JustSayXtian) approaches the question by listing the less “adult oriented” Holocaust books that Board members might have had in mind when they suggested replacing Maus: The Diary of Anne Frank, Number the Stars, The Book Thief, or The Boy in the Striped Pajamas. There’s nothing actually wrong with any of those books, Parker says, but they do something different.

Maus is a story centered on Jews, told in a Jewish way, in which there is horrible violence and no [Good Gentiles Doing Good Things] to save the day. There is no redemption, there is no salvation, there is only a story so terrible it has to be told and a need to remember.

People like this school board are perfectly comfortable teaching the Holocaust as long as it isn’t too violent, too sad, or too Jew-y. Because to them it isn’t a lesson about (largely if by no means exclusively) Jewish trauma, it’s a lesson about Good Gentiles Doing Good Things. The rest–our story, our tragedy, our people and families–are just set dressings for the moral and often explicitly religious lessons they want to take from the Shoah. [3]

Is it really about the children? Children, particularly in their aspect as “innocent” or “naive” children, are often used as screens for adult projection. If someone tells you a book is too disturbing for 8th-graders, they might well be saying that it is too disturbing for them.

The Holocaust, after all, is one of the most disturbing episodes in human history. If you can think about the Holocaust and not be disturbed, you probably don’t get it.

Maus captures that. Horrible things happen to Spiegelman’s father, and even more horrible things to people he knows and cares about. A few people help him, up to a point, but most don’t, and the few who do are mostly looking for payment or some other kind of advantage. Fellow Jews sometimes collaborate with the Nazis, and even family members can’t always be trusted. Vladek Spiegelman himself is a survivor, not a hero, and the scenes in the present illustrate the ways he was scarred by his experiences. Art Spiegelman can try to understand why his father is the way he is, but that doesn’t make him any easier to deal with.

So: People did and suffered horrible things; God didn’t rescue the victims; and if any good at all came out of all that suffering and death, it wasn’t worth it.

That irredeemable truth, in my opinion, is what the Board of Education doesn’t want to face. They’re not trying to protect teens from those ideas. They’re trying to protect themselves.

The Holocaust module. A part of my background that rarely comes up in this blog is all the education theory I read years ago. I went to an experimental public high school. We hosted an education conference every year, and I used to cover it for the student newspaper I edited. I did my homework before listening to the speakers.

One of the stories I remember reading (God knows where, after all these years) was about parents being told by their son’s grade-school teachers that his poor performance in reading was due to a learning disability; he belonged in a special class. What the parents knew that the teachers didn’t was that the boy was doing quite well in the Hebrew-reading class at their synagogue.

The difference, the author claimed, was that the Hebrew class was learning to read the Torah, which the teachers themselves thought was important. But the boy’s grade school was teaching him to read trivial stories that adults would never waste their time on. Reading Hebrew was worth his effort; reading English seemed not to be.

There is a widespread belief among children that school consists of meaningless hoops that adults expect them to jump through for reasons of their own. Even a lot of kids who do well in school believe this: If they’re forced to play this game, they might as well win. But that doesn’t mean they think education matters in any real sense.

The thing every true educator hopes for is to see the lights go on inside a student’s mind. There are magic moments in education, when a kid realizes that school isn’t just a waste of time, or even a way to compete with other kids for adult approval or success in some distant future. Instead, they surprise even themselves by thinking “I want to know this stuff.” Knowledge, they suddenly realize, is power. And all along, their good teachers have been hoping to empower them.

Often it’s one single book that sparks the change. “To Kill a Mockingbird made me a lawyer,” wrote Shami Chakrabarti. I remember reading Plato’s “Apology” as a 9th-grader (not in school; I found it randomly on a shelf), and realizing that a deeper kind of thought was possible. In a later generation, lots of kids didn’t see the point of reading until Harry Potter came out.

When the educators tell the McMinn Board what the English Language Arts curriculum is trying to do, it’s obvious those lights-on moments are what they’re shooting for.

When we were in school, we would hop from one book to the next. We would study one book a few days, do a test then move on to the next book. I want to tell you why curriculum is important and how the pieces of it are designed and how we have an opportunity to teach more than standards.

… The curriculum that we use is called EL, what does that stand for? I see some teachers here, what does that stand for? Expeditionary Learning. So, the whole idea is that students go on these expeditions, and they will spend two months or so on these different expeditions, and that’s their modules. In eighth grade that is four things. We do Latin America, we learn about food, The Holocaust and Japanese Internment.

… There are many lessons that can be learned through this book about how we treat others, how we speak, things that we say, how we act and how to persevere. I just wanted you to get an idea of why these lessons are structured like they are and how this text is just surrounded by excerpts and articles and the things we do to build that background knowledge and the opportunity we have to make a difference in our students lives.

This is the module that a Board member suspects was “developed to normalize sexuality, normalize nudity and normalize vulgar language.”

I listen to the descriptions of what the teachers are trying to accomplish and think, “Wow. I wish I’d had the opportunity to take a class like that.” This is the point that I think is getting lost in the news coverage: Simply defending Maus against charges of vulgarity and profanity makes it sound like the book clears a low bar. In fact, studying Maus, particularly in the in-depth way the module plans, could have been an amazing educational experience.

In the end, though, I’ve got no reason to be jealous of McMinn County 8th-graders, because they won’t get to take such a class either. The Board of Education has made sure of that. Maybe the students will get to study the Holocaust, sort of. But not in a way that might disturb them, or disturb their parents or their classmates’ parents. And not in a way that is too violent, too sad, or too Jew-y.

The Board wants another appropriate hoop for their kids to jump through. Study the Holocaust? Yeah, we checked that box.

Who is the victim here? Most of the coverage I’ve seen has made Art Spiegelman the victim, but I don’t think that’s quite right. Spiegelman’s name is in the headlines, his book is back on the best-seller lists, and Amazon seems to be sold out. People are reading Maus who would never had heard of it otherwise.

Another way of telling the story makes Jews-in-general the victims, and I can kind of see that. Especially in the current climate, when actual fascism is raising its head in America, and Nazi propaganda tropes about manipulative Jewish moneymen are showing up again in mainstream media, this incident is one more reminder that the lessons of the Holocaust have not really been learned. If I were Jewish, I think my anxiety level would have gone up a little this week.

The people I have the most sympathy for, though, are the 8th-graders of McMinn County. They had a chance to do something really amazing in school. Maybe that module, that chance to study something that really matters in some degree of depth, would have lit a fire under a few of them. Maybe they would have realized that school can be more than just busywork.

But that won’t happen, because powerful grown-ups (who have no idea what education is) have screwed that chance up for them. As grown-ups so often do.

[1] PDFs of both volume 1 and volume 2 are available online. I’m not sure how legal these reproductions are, so I intend to buy a copy when local bookstores have it in stock again.

[2] I truly feel sorry for kids who are picking up Maus now because they’ve heard it has nudity.

[3] Saturday’s NYT had an article about Poland’s attempt to shift the emphasis in Holocaust memorials to heroic Poles who attempted to help the Jews. The article does not mention Maus, but corroborates Spiegelman’s account of Poles profiteering off Jews rather than helping out of sympathy or kindness.

It’s also worth mentioning that slavery and the Civil Rights movement are often similarly reduced to stories of Good Whites Doing Good Things. We have a hard time facing up to the unrelenting grimness of American racism, so we tell these uplifting stories as if they were typical.

Is there any town in America that doesn’t have some connection to the Underground Railroad? With all those good folks working on the problem, it seems like the slaves should have been drained out of the South long before the Civil War.

By weeklysift | Tagged | Comments (22)

Merrick Garland Starts Getting Serious

January 17, 2022 – 10:18 am
https://billypenn.com/2021/01/08/malcolm-nance-capitol-insurrection-trump-paramilitary-insurgency-philadelphia/

The misdemeanor part of his January 6 investigation seems to be over.
But will he get all the way to the top?

In a speech on January 5, Merrick Garland described his strategy for investigating the insurrection. Lawfare summarized it:

Seemingly in response to criticism that mostly smaller fry defendants have been charged to date while those behind the planning of the insurrection have not, Garland described the department’s approach as consistent with “well-worn prosecutorial practices.” Large investigations, he explained, start with the more junior people and the more easily proved cases. The public at first sees short sentences (or no jail time at all) handed out, and an absence of the more notorious figures being charged. Garland strongly implied that more significant actions are coming down the pike. Junior people flip on more senior people. And perpetrators who were not directly involved in violence but played planning or other behind-the-scenes roles must be reached with more time-consuming and complex investigations.

This week, we began to see what he was talking about.

On Thursday, federal prosecutors charged Oath Keepers leader Stewart Rhodes and 10 others with seditious conspiracy for their role in the January 6 attacks on the US Capitol. That charge — the most serious yet to come out of the investigation — is one of several in the indictment unsealed Thursday, which alleges Rhodes and his co-defendants brought small arms to the Washington, DC, area; engaged in combat training to prepare for the attacks; and made plans to stage quick-reaction forces to support insurrectionists.

… The new indictments are a significant step up from previous charges in the case, which range in seriousness from disorderly conduct to obstructing an official proceeding before Congress, and have so far resulted in sentences up to 41 months in prison. In comparison, seditious conspiracy carries a potential sentence of 20 years in prison.

The new indictment lays out a plan that goes far beyond the mob.

While certain Oath Keepers members and affiliates inside of Washington, D.C., breached the Capitol grounds and building, others remained stationed just outside the city in [quick-reaction force] teams. The QRF teams were prepared to rapidly transport arms into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power.

So the plan was to overwhelm the Capitol with numbers, then bring in the guns to hold it.

The obvious question is whether the people plotting Trump’s January 6 strategy (the so-called “Green Bay sweep“) knew about this or were complicit in its planning. GB Sweep plotter Peter Navarro claims not, but his plan seems to have had a big hole in it, which an armed militia occupying the Capitol might have filled: A Capitol occupation might have pushed the election certification past Inauguration Day, opening up a huge can of worms could justify authoritarian action.

And Roger Stone is connected to both groups. Maybe that’s why he pleaded the Fifth rather than tell the January 6 committee what he knows.

https://www.nytimes.com/2021/11/09/us/politics/jan-6-subpoena.html

All of which leads to this week’s second development: Electoral College fraud.

When I first ran across the Eastman memo, the game plan for Trump’s attempt to steal the election he lost by seven million votes, this part made me scratch my head:

When [Vice President Pence] gets to Arizona [in the state-by-state electoral vote count], he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. … At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.

Multiple slates of electors? Where did that come from? There have been rare cases in American history where rival slates of electors were named by rival sources of certifying authority. In 1876, for example, Florida’s Republican-dominated Board of Canvassers declared Rutherford B. Hayes the winner and certified his electors. And then the newly elected Democratic governor appointed a new Board of Canvassers that certified Tilden’s electors. So both sets submitted their credentials to Congress.

But the Electoral Count Act of 1887 was supposed to straighten all that out. Each state prepares a certificate of ascertainment signed by the governor (an example is to the right), listing the state’s electors. I could imagine a state legislature deciding that the ECA was unconstitutional and submitting a rival slate, or a state’s supreme court declaring that the governor’s signature was illegal in some way, but I hadn’t heard of anything like that happening. So: what “multiple slates of electors”?

Now we know. In seven states that Trump lost, his defeated candidates for the Electoral College signed fraudulent documents declaring themselves to be “duly elected and qualified Electors”. The fake certificates are all similar, suggesting that somebody — Mark Meadows? — distributed a template. And they didn’t do this just for personal satisfaction. They sent the fake certificates to the National Archives and to Congress as if they were real.

Given how much trouble ordinary Americans would be in if we, say, printed our own drivers licenses, I have to wonder if this forgery is illegal. George Conway, Kellyanne’s lawyer husband, tweeted:

Anyone who prepared or submitted, or aided, abetted or conspired in the preparation or submission of, false electoral-vote certificates, would presumably be guilty of a host of federal and state criminal offenses. False electoral certificates ought to be easy pickings for prosecutors.

Michigan Attorney General Dana Nessel agrees:

Under state law, I think clearly you have forgery of a public record, which is a 14-year offense, and election law forgery, which is a five-year offense.

Since this is a multi-state election fraud case, she thinks the federal Department of Justice should take the lead, and has referred the matter to them. (To their credit, Fox News reported this story. It’s enlightening to read the comments as Fox viewers try hard not to understand what Fox has just explained to them. I’m reminded of what Oliver Wendell Holmes said about a closed mind: It’s “like the pupil of the eye. The more light you shine on it, the more it will contract.”)

So that ball is in Merrick Garland’s court too. He hasn’t said what he intends to do with it.

The fake electors themselves clearly know they’re in trouble. (They should ask Michael Cohen what happens to people who go along with Trump’s schemes.) Arizona State Representative Jake Hoffman was asked by a local reporter what authority he was acting under, and (after Hoffman dodged that question) how he knew to show up for the fake ceremony where Trump’s fraudulent electors cast their ballots. Hoffman said the reporter should ask the state party chair. The follow-up questions “Do you not know how you arrived at the place? Do you really not know how you got a call?” led Hoffman to walk away.

So this where we are: We finally know that Garland intends to move beyond the pawns in Trump’s mob. Now he’s at the knight-and-bishop level. But will he get all the way to the King? Does he plan to? So far there’s no sign of that.

By weeklysift | Tagged , | Comments (6)

The Court and the Vaccine Mandates

January 17, 2022 – 8:46 am
https://theweek.com/political-satire/1009010/sorry-novak

The law gives way to power and politics.

As expected, the Court nuked the Biden administration’s workplace vaccine-or-test mandate, while upholding a mandate for health care workers. The heart of the 6-3 majority’s negative opinion was this argument:

The question, then, is whether the [Occupational Safety and Health] Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. …

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

Got that? The majority doesn’t claim that Covid isn’t a hazard at work, but that you might catch Covid lots of other places too. So if you could pick up black lung disease at the supermarket, OSHA wouldn’t be able to regulate that either. The Atlantic’s Adam Serwer labels this logic “laughable”.

OSHA regulates many, many hazards that are also present outside the workplace. The fact that you can die in a fire in your apartment is not an argument against regulating fire hazards in factories or offices.

Fires, falling down stairs, handling sharp objects, etc. are all “hazards of daily life”. But while Americans can mitigate the risks we face at home, we’re mostly at the mercy of our employers at work. That’s why we need OSHA. The Breyer/Kagan/Sotomayor dissent explains:

OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits — even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities (e.g., stadiums, schools, hotels, even homes). Similarly, OSHA has regulated to reduce risks from excessive noise and unsafe drinking water—again, risks hardly confined to the workplace.

People like me. Let me bring this down to a personal level: My wife and I, being over 65 and having a few other complicating factors, have been very careful about minimizing our Covid risk. We haven’t caught Covid “at home” because we don’t let a lot of people into our home. We haven’t caught it “during sporting events” because we have been staying away from sporting events. And we haven’t caught it at work because we’re retired.

Until the current Omicron surge, our friends and family had almost entirely escaped infection too. How? Partly by being sensible people who take science seriously, but also because those who weren’t retired were almost all in white-collar jobs that allowed them to work from home. (I’d love to see some statistics breaking down Covid risk by education or job category.) The ones I worry most about are the few who have in-person jobs that require interacting with the public.

In short, the workplace isn’t the only place Americans can catch Covid, but it’s the primary source of unavoidable risk.

Now, if you are somebody who thinks Covid is a scam, or if you’re just “done” with trying to avoid it, the Court’s ruling makes perfect sense: You’re interacting with unmasked untested unvaccinated people all the time, so what’s the problem if you meet a few more at work? But for those of us still trying not to get sick — and especially for service-industry people who have been considering when it will be safe to re-enter the job market — this ruling is a major blow. The Court has said that our government is powerless to help us.

What the laws say. The majority’s logic is tenuous on its face, but the best argument against the Court’s opinion is to read the bleeping law, which the dissent reproduces:

OSHA ’s rule perfectly fits the language of the applicable statutory provision. Once again, that provision commands — not just enables, but commands — OSHA to issue an emergency temporary standard whenever it determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

Strangely, though, Chief Justice Roberts and Justice Kavanaugh flipped to the other side of the argument in a similar case decided the same day: In a 5-4 decision, the Court let stand a different Biden administration vaccine mandate — affecting 10 million people rather than 84 million — on health care workers.

Reading that opinion (which is unsigned, but probably written by either Roberts or Kavanaugh), it’s hard to see the difference between this and the more general mandate. The regulating agency has changed (HHS rather than OSHA), and the agency is implementing a different set of laws, but the main difference is that in this case Roberts and Kavanaugh decided to take those laws seriously.

Both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.”

One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”

It wouldn’t be hard to use these paragraphs as a template and fill in “OSHA” and “workers” in place of “HHS” and “Medicare and Medicaid patients”. (If anything, the law is clearer in the OSHA case.) But Roberts and Kavanaugh couldn’t support such a revision. For some reason, the “core mission” of HHS matters in a way that the core mission of OSHA doesn’t.

Vox’s Ian Millhiser observes that the two opinions are “at war with each other”, and the “The Court is barely even pretending to be engaged in legal reasoning.”

Politics. Probably the Chief Justice’s thinking has more to do with protecting the Court’s image than upholding the law.

Roberts hates to make sweeping decisions whose judicial activism would be obvious to the public. Instead, he prefers to chip away at the federal power or individual rights that he wants to destroy, in decisions that are supposed to seem moderate individually, even as they stack up to create radical change. So he invented with a novel way to uphold ObamaCare while simultaneously undercutting precedents about the Commerce Clause and allowing states to opt out of Medicaid expansion. He left the Voting Rights Act in place while tossing its main enforcement mechanism. He’s been uprooting campaign finance laws bit by bit rather than declaring outright that Money is sovereign (which is clearly what he believes).

And so in these two cases, Roberts cuts the vaccine-mandate baby into a small piece and a large piece. He does what he wants with the larger piece, while letting the law govern the smaller piece to show how moderate he is.

Expect something similar in June when the Court rules on abortion: The other five conservative justices will want to reverse Roe v Wade outright. But Roberts will want to put loopholes in Roe to allow most (but probably not all) of the Roe-violating state laws to stand, while claiming that he technically “upheld” Roe rather than reversed it.

The question then will be whether he can persuade Kavanaugh, as he did this time.

Biden’s next steps. If the Court’s complaint about a broad mandate is that it’s not occupationally specific or tied to specific risks, OSHA could respond by breaking its mandate into occupation-specific chunks or detailing a more complex set of standards that would apply to all businesses, not just those with more than 100 employees. Apparently, it already drafted such a rule, but hasn’t issued it.

OSHA’s path forward to protecting workers from Covid-19 is clear. First, the agency should take the previous OSHA standard out of the desk drawer, dust it off, update the data, make any tweaks to ensure it fits the court’s new suggestion that it be risk-based and send it over to the White House. The standard should cover all workers in higher risk jobs, not only those employed by large employers.

That might or might not work, depending on whether the Court decides to play Calvinball and make up new rules as it goes.

The radicals. One related issue I speculated about last week was whether the Court would base its vaccine-mandate rulings on a “nondelegation” argument that would hamstring not just OSHA, but federal regulating agencies generally. The six-justice majority in the OSHA case (the usual conservative bloc) hints at such sentiments, but never actually invokes them.

But Justice Gorsuch’s concurrence with that ruling, joined by Thomas and Alito, does. The OSH Act can’t authorize the vaccine requirement, Gorsuch writes, because it is a general delegation of power from Congress, not a specific response by Congress to the pandemic. The power-granting subsection the dissent quoted can’t be applied because it

was not adopted in response to the pandemic, but some 50 years ago at the time of OSHA’s creation

It’s not hard to see where this line of thinking goes: Antitrust law can’t apply to markets that were inconceivable when the Sherman and Clayton Acts were passed more the 100 years ago. The Clean Air Act is more than 50 years old; clearly the EPA can’t invoke it to ban pollutants nobody knew about then. How can the SEC regulate complex financial derivatives that the laws don’t specifically mention, and that change faster than new laws can address? (Of course, this logic will never be applied to the Second Amendment, whose authors could not possibly have foreseen AR-15s.)

In this current age of obstruction and filibuster, the ultimate result of nondelegation would be the end of federal regulations across the board. Not because anti-regulation politicians took their case to the voters, won elections, and repealed OSH, the Clean Air Act, and the rest of our regulating laws, but because unelected judges (many chosen by presidents who lost the popular vote) made the entire system of regulation unworkable, independent of whatever the American people might have wanted.

A majority of the Court isn’t there yet. But three justices are.

By weeklysift | Tagged | Comments (7)

One Year Later

January 10, 2022 – 11:28 am

News is supposed to be “the first rough draft of History“, but in practice News and History interface badly. Events of historical significance may happen with a bang, but they often come into focus slowly, as more and more information gets revealed and synthesized into a larger picture. But News, as its name suggests, emphasizes each new detail as it comes out, typically at the expense of the larger picture.

Today, for example, we might find out the color of the car that ran us down, and that it was a 2018 model (and not the 2017, as some at first thought). Is that important in the larger scheme of things? Not really. But it’s new.

For the reader/viewer, the News is like watching the edits to a document flash across your screen without having the document itself open. Now more than ever, a journalist worries about boring those in the audience who already know everything except the new detail. And the unfortunate result is that the public often loses sight of History’s current draft: At this moment, what do we think really happened?

That’s what anniversaries are for. On the one hand, it’s entirely meaningless that Thursday was January 6 again. The Capitol insurrection was part of the four-year presidential cycle, so nothing similar was happening or threatening to happen on Thursday. But on the other hand, the calendar was inviting us to step out of the 24/7 news cycle review the larger narrative as we now know it.

Here’s how I tell that story: It begins with Trump.

https://theweek.com/political-satire/1008693/the-maestro

Plan B. In 2020, Donald Trump wanted the voters to re-elect him as president. But early on, he hatched a Plan B to stay in power in spite of the voters: If he lost, he would claim the election was rigged against him, and use all the powers of the presidency and of his personality cult to overturn the American people’s decision.

He began setting up Plan B well before the election, telling his supporters that the vote count would be full of fraud — which, of course, would all work against him. This was not a new idea for Trump, who never acknowledges his defeats. You may remember that a few weeks before the 2016 election he set up a similar claim:

Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naïve.

In 2016, even having the Electoral College appoint him president wasn’t good enough to satisfy his ego. He claimed fraud to explain why he had lost the popular vote by 2.9 million. [1]

In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.

What you probably don’t remember, though, is that he also claimed fraud when Ted Cruz beat him in the 2016 Iowa caucuses.

Ted Cruz didn’t win Iowa, he stole it.

That’s Trump: He can never lose, he can only be cheated out of victory.

But what is mere immaturity in a six-year-old (“I didn’t lose. You cheated.”) and a character flaw in a private citizen becomes a threat to the Republic when it’s backed by the kind of power Trump wielded in 2020. So his crushing seven-million vote defeat at the polls led to a massive disinformation campaign, which he used to justify pushing on every weak spot in the electoral system in an attempt to reverse the clear decision of the voters.

https://www.washingtonpost.com/opinions/2022/01/05/year-living-dangerously/

Disinformation. His fraud claims were endless, and from the beginning they were all bullshit. [2] Due to the the unprecedented number of early and mail-in votes occasioned by the Covid pandemic, the ballots took longer than usual to count. But there was never any legitimate reason to doubt the result when it finally came in: Biden won, Trump lost.

It’s time-consuming to go through the debunking of all of the bullshit claims, particularly if you want to believe Trump really won. [3] But at this point you don’t really have to get into the details, because the claims don’t even have the shape of truth: Authentic investigations get narrower as they hone in on what really happened, while bullshitters constantly jump from one dubious claim to the next: What about this? What about that? When Trump and his supporters claim fraud today, they spew the same litany of bogus claims they made from the beginning: overseas servers, hacked voting machines, mail-in ballot fraud, dead people voting, mysterious suitcases of ballots, and so on. All bullshit, all debunked many times.

What we never hear from Trump and his allies is a single coherent theory of who did what when, backed up by credible responses to the criticisms of that theory. After having more than a year to assemble such a theory and millions of dollars to fund investigations, that deficiency should make even the most adamant Trump partisans stop and think.

I don’t think Trump himself actually believes any of his fraud claims. [4] We now know that from the beginning, his own people were telling him they were false. Trump had to go to considerable effort to find advisors who would maintain the fantasy that he had really won. [5] Unfailingly loyal Trump supporters like Jared Kushner and Mike Pence may not have openly disputed the fraud claims, but they were noticeably absent from the Stop the Steal campaign.

The point of the claims wasn’t to establish truth, but to justify action.

Overturning the election. After it became clear that he had lost the election, Trump’s Plan B had two prongs:

  • Push on every vulnerable point in the system that leads from an election in November to an inauguration in January.
  • Stir up enough doubt to make it easier for Trump partisans within the system to yield to his pressure and harder to do their duty.

What Trump realized perhaps better than any defeated president before him was that elections do not certify themselves. At every level there are people who must sign off on the results: Yes, these are the totals we counted at my precinct. Yes, this the sum of all the vote reports we received from the precincts in our county. Yes, these are the statewide totals that determine which slate of electors represents our state. And finally, January 6, when Congress would total up the electoral votes and proclaim the winner of the 2020 election.

All those people are human, and so they can be pressured or bamboozled out of doing their legally-defined duty. In Michigan, for example, Republicans on the Wayne County Board of Canvassers were pressured not to certify. Then the focus shifted to the state board, where one Republican member folded to Trump, but the other, Aaron Van Langevelde, did not. Later he told his story.

In November, we were tasked with certifying the results of the presidential election in the midst of widespread public discontent and controversy. Misinformation about the election – and election law – was rampant and growing worse by the day.

As tensions escalated, some political leaders urged the Board to withhold certification based on unproven allegations of voter fraud, even though we had no legal authority to do so. The Board was essentially asked to disregard the oath of office, to abandon its longstanding ministerial (or administrative) role, and to ignore a clear legal duty, along with a hundred years of legal precedent. We were asked to take power we didn’t have. What would have been the cost if we had done so? Constitutional chaos and the loss of our integrity. Our institutions and the rule of law were being tested. And as tensions worsened, it was clear that my family and I were in danger.

Trump put pressure on Republican state officials to block certification and substitute their own preferences for the will of the voters. His most famous attempt to suborn election fraud was recorded by Georgia Secretary of State Brad Raffensperger. After badgering Raffensperger with wild false claims, Trump makes his ask:

All I want to do is this. I just want to find 11,780 votes, which is one more than we [need] because we won the state.

And he issues this threat:

But the ballots are corrupt. And you are going to find that they are — which is totally illegal, it is more illegal for you than it is for them because, you know what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk.

In other words, what if Trump does manage to stay in power? What might his Department of Justice do to Raffensperger?

Trump filed scores of bullshit lawsuits, hoping for favorable results from judges he had appointed. He did not get them. One Trump appointee, appellate court judge Matthew Brann, wrote:

Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.

Trump then pressured Republican-controlled state legislatures, pushing the dubious theory that legislatures can overrule the choices made by their voters. After meeting with Trump, the Michigan speaker of the House and Senate majority leader issued a statement:

The candidates who win the most votes win elections and Michigan’s electoral votes. We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election

His plan to pressure Georgia legislators corruptly involved the Department of Justice. Trump sycophant Jeffrey Clark composed a letter for Acting Attorney General Jeffrey Rosen to sign that would falsely tell Georgia officials that DoJ had

identified significant concerns that may have impacted the outcome of the election in many states, including the state of Georgia.

The letter went on to recommend — as if DoJ had any business making such a recommendation — that the legislature convene a special session to investigate the election and possibly name a new slate of electors.

Rosen refused to sign the letter, and Trump decided not to sack Rosen in favor of Clark after he was threatened with mass resignations at the Department of Justice.

In the end, none of these efforts succeeded in stopping the states Trump lost from naming electors, or stopped those electors from voting for Biden.

But someone still had to count those votes: Congress, on January 6, in a joint session chaired by Vice President Mike Pence.

January 6. Three months before the election, with Trump trailing badly in the polls, I addressed the widespread Democratic worry that Trump would simply refuse to leave office.

Here’s something I have great faith in: If the joint session of Congress on January 6 recognizes that Joe Biden has received the majority of electoral votes, he will become president at noon on January 20 and the government will obey his orders. Where Donald Trump is at the time, and whatever he is claiming or tweeting, will be of no consequence.

If Trump’s tweets bring a bunch of right-wing militiamen into the streets with their AR-15s, they can cause a lot of bloodshed, but they can’t keep Trump in office. They are no match for the Army, whose Commander-in-Chief will be Joe Biden.

So if Trump wants to stay on as president, he has to screw the process up sooner; by January 6, it’s all in the bag

Congress and Pence, like Aaron Van Langevelde and Brad Raffensperger and everyone else in this long process that normally we hear nothing about, had a ministerial role to play on January 6. Their job was to count the electoral votes and announce a winner. They had no constitutional power to overrule the voters, the electors, or the states’ decision to appoint the electors. They all knew that.

Trump tried to claim otherwise. We have since heard reports from multiple sources about the pressure he put on Pence to overstep his legal powers. A memo by Trump advisor John Eastman outlines the plan:

At the end [of the session], he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

Alternate branches of the Eastman scenario involve Pence saying there is no majority of 270 and sending the election to the House, where the GOP controlled 26 of the 50 state delegations. Or perhaps the states could be asked to reconsider their electors, giving Trump another chance to lobby their legislatures.

Or perhaps the whole process could be sufficiently derailed that January 20 would come and go without Congress announcing a winner. Then we’d be off the constitutional track entirely, and what the Army decided to do might matter, as it does in so many third-world countries.

These are the plans Trump was referring to at the January 6 rally, where he said

John [Eastman] is one of the most brilliant lawyers in the country, and he looked at this and he said, “What an absolute disgrace that this can be happening to our Constitution.”

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. … All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

It’s worth considering what the success of the Eastman plan would have meant to the future of American democracy:

The legal merits of the argument don’t matter very much — Eastman’s interpretation is widely derided as crazy, but the key point is that even if he’s right, he would have identified a wormhole in the Constitution permitting the vice-president to override the election results. Since the vice-president’s interests are typically aligned with the president’s, this power would allow the president’s party to stay in office through an indefinite series of elections.

The mob. Trump advisor Peter Navarro now confesses that he plotted to overturn the election, but for one thing: He denies that mob violence was part of that plan.

It may not have been part of Navarro’s plan, but it clearly was part of Trump’s. His initial invitation to the event on December 19 promised it “will be wild!” Anyone following the social media discussion prior to January 6 knew that people were coming with violent intentions. A pro-Trump election protest in DC on December 12 now looks like a trial run: It led to violence by the Proud Boys, who were also involved on January 6.

If anyone involved in planning the January 6 rally and demonstration was worried about inciting violence, that concern barely shows up in Trump’s speech. His instruction to “peacefully and patriotically make your voices heard” at the Capitol was hard to notice in the face of his 23 admonitions to “fight”.

We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.

We now know that Trump was watching closely on TV as his followers fought police and broke down barriers to get into the Capitol. His former press secretary Stephanie Grisham (who was still Melania’s chief of staff on January 6) told CNN

All I know about that day was that he was in the dining room, gleefully watching on his TV as he often did, “look at all of the people fighting for me,” hitting rewind, watching it again — that’s what I know.

When Kevin McCarthy talked to Trump from inside the Capitol, asking the president to call off his supporters, Trump replied: “Well, Kevin, I guess these people are more upset about the election than you are.”

“Fighting for me” involved setting up a gallows and chanting “Hang Mike Pence”, a sentiment that Trump has never criticized. In an interview in March, author and ABC White House reporter Jonathan Karl

reminded Trump that some of his supporters involved in the violent attack were calling for Pence to be killed.

“Well, the people were very angry,” Trump said.

“They said, ‘hang Mike Pence,’” Karl told Trump.

“It’s common sense, Jon. It’s common sense that you’re supposed to protect,” Trump said. “How can you, if you know a vote is fraudulent, right, how can you pass on a fraudulent vote to Congress?”

The possibility that his mob might have found Pence and actually tried to hang him [6] seems never to have bothered Trump.

There are many horrible almosts from January 6, but one of the worst is that the mob might have found the boxes that contained the electoral votes.

Both Democrat and Republican members of the House of Representatives and Senate needed to read aloud the certificates inside the boxes that recorded each state’s electoral votes. Congress then needed to count those votes before Vice President Mike Pence could confirm President-elect Joe Biden as the winner of the election.

One video shows how the Senate Parliamentarian’s office had been ransacked after extremists besieged the Capitol. Papers and files were strewn across furniture and the floor, possibly suggesting the mob had been searching for the boxes containing the votes needed to certify Biden’s win.

Copies existed, but loss of the originals would have been one more step off the constitutional track, and would have opened up new avenues for procedural delays and claims of illegitimacy.

As yet, the public has not seen a smoking gun, but the overwhelming weight of the evidence we do have says that Trump intended violence from the beginning. He had two goals for his mob: to delay Congress from certifying Biden’s win, and to intimidate Pence and others into going along with his unconstitutional plan to stay in power.

https://www.washingtonpost.com/opinions/2022/01/06/over-barrel/

The past year. Initially, it looked like Trump had finally gone too far. Republicans had stuck by Trump through “grab them by the pussy“, through his “blame on both sides” defense of the Nazi rally in Charlottesville, through his siding with Putin against his own intelligence services at Helsinki, through his Ukraine extortion scheme, and many other outrages that they surely didn’t believe they had signed up for when they nominated him in 2016.

But trying to stay in power after losing an election is the worst abuse of his office that any American president has ever committed. Gloating at Kevin McCarthy while a mob threatened even the Republican members of Congress — it was too much.

For a few days. Then the Party began to rally around him. McCarthy went to Mar-a-Lago to kiss Trump’s ring only 22 days later. Mitch McConnell made a tough-sounding denunciation of Trump on the Senate floor, but only after he had rallied the troops to defend him in his second impeachment trial. Lindsey Graham had announced in a January 6 speech that he was “done” with Trump, but he really wasn’t.

Instead, it’s the Republicans who defended democracy against Trump who are on the outs. Aaron Van Langevelde wasn’t renominated. Brad Raffensperger faces a tough primary. Liz Cheney was cast out of the Wyoming GOP.

The only problem today’s Republican Party has with Trump’s attempted coup was that it failed. Next time they’ll try to do better.

Perhaps the best measure of how far the Party has moved in the last year was Ted Cruz groveling to Tucker Carlson on Thursday. Cruz’ sin, for which he could not apologize abjectly enough to placate Carlson, was to call the January 6 rioters “terrorists”. They weren’t terrorists “by any definition”, Carlson claimed. To say they were is “a lie”.

How about this definition, Tucker?

The unlawful use of force or violence against persons or property in order to coerce or intimidate a government or the civilian population in furtherance of political or social objectives.

That definition could be illustrated by this iconic photo.

[1] He appointed a commission to gather evidence of the 2016 fraud, but he disbanded it before it could issue a report admitting that it had found none.

[2] Bullshit sounds pejorative, but it is actually a well defined term.

When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.

[3] Many of the claims have been debunked in detail by Republican election officials who were rooting for Trump to win: most recently in Arizona, but also in Michigan, Georgia, and elsewhere.

[4] Whether Trump believes anything at all is still an open question. David Roberts’ analysis from 2016 holds up pretty well.

When he utters words, his primary intent is not to say something, to describe a set of facts in the world; his primary intent is to do something, i.e., to position himself in a social hierarchy. This essential distinction explains why Trump has so flummoxed the media and its fact-checkers; it’s as though they are critiquing the color choices of someone who is colorblind.

… It’s not that Trump is saying things he believes to be false. It’s that he doesn’t seem to have beliefs at all, not in the way people typically talk about beliefs — as mental constructs stable across time and context. Rather, his opinions dissolve and coalesce fluidly, as he’s talking, like oil on shallow water.

[5] That’s how you wind up with a legal team like Rudy Giuliani and Sidney Powell.

[6] Or Nancy Pelosi or any other elected officials they went looking for.

By weeklysift | Tagged , , | Comments (9)

Democracy Returns to Michigan

January 3, 2022 – 8:38 am
https://www.michiganradio.org/politics-government/2021-12-21/redistricting-commission-releases-private-memos-tape-of-closed-door-session

For the first time in at least a decade, voters will have a chance to elect the legislature they want.

In the year since the January 6 coup attempt, Americans have had many opportunities to lament the decline of democracy. Voter suppression laws have passed in multiple states, while several attempts at federal legislation to protect democracy have died in the Senate. But there is good news in at least one state: Michigan.

Structural hurdles at a variety of levels often get in the way of the type of government most Americans believe in (and believe we have): majority rule with legal protections for minority rights. Instead, the Electoral College has allowed the popular-vote loser to claim the presidency in two of the last six elections. In this century, the Senate’s small-state bias has allowed Republicans to control the Senate about half of the time, even though they haven’t represented a majority of country or gotten more aggregate votes than Democrats since 1996. Gerrymandering has given Republicans a 3-5% advantage in the House; in years when the two parties split the vote evenly, Republicans will get a sizeable majority of the seats.

Minority-rule Republican presidents backed by minority-rule Republican senates have established a partisan Republican majority on the Supreme Court that refuses to defend voting rights or end gerrymandering, but will defend the right of billionaires to spend as much as they want on elections.

Few states have endured as much minority rule as Michigan. Back in 2015, Michigan State University’s Spartan Newsroom explained the state’s political situation:

By all accounts, 2014 was a good election year for Republicans in Michigan. They increased their majority in the Michigan House of Representatives by three seats, now holding 63 to Democrats’ 47. Out of the 14 congressional races, Republicans won nine.

You may assume Republicans across the state received substantially more votes than Democrats. However, that assumption would be wrong. Although Republicans won nine of the 14 congressional races, Democrats received about 50,000 more votes out of 3 million cast.

In 2017, AP noticed the a similar pattern.

Last fall, voters statewide split their ballots essentially 50-50 between Republican and Democratic state House candidates. Yet Republicans won 57 percent of the House seats, claiming 63 seats to the Democrats’ 47. That amounted to an efficiency gap of 10.3 percent in favor of Michigan’s Republicans, one of the highest advantages among all states.

That also marked the third straight Michigan House election since redistricting with double-digit efficiency gaps favoring Republicans. [University of Chicago law professor Nick] Stephanopoulos said such a trend is “virtually unprecedented” and indicative of a durable Republican advantage.

In the 2018 elections the pattern continued: Democrats got a majority of the votes, but Republicans got a majority of seats in the legislature. In the state senate, Democrats won 51.3% of the votes, but got only 16 seats to the Republicans’ 22.

Imagine being a Michigan voter outraged by the fact that the Republican leadership of the state legislature was effectively untouchable. What could you do — ask nicely if the gerrymandered legislature would pass a law to end gerrymandering?

It turned out there was still one outlet for the popular will that Republicans hadn’t managed to choke off: ballot initiatives, where the electorate gets to change the law itself. So in 2018, Michigan voters passed Proposal 2 by a 61%-39% margin. (In 2020, Republicans in multiple states tried to put limits on ballot initiatives.)

Prop 2 created

a 13-member citizens redistricting commission made up of four Republicans, four Democrats, and five people who identify with neither party. The proposal would bar partisan officeholders, their employees, lobbyists, and others with ties to the current system from becoming commissioners.

Republicans sued to block the law from taking effect, but they lost, and so

One of the country’s most gerrymandered political maps has suddenly been replaced by one of the fairest.

The new Michigan map still has a slight Republican bias — expect the GOP to hang on to small majorities if the votes split evenly — but that’s because Democrats tend to cluster in Detroit and other cities, not because the Commission rigged things in the GOP’s favor.

And don’t be shocked if Republicans win legitimately. Michigan is a swing state that Biden won by only 2.8%, and many experts are predicting 2022 to be a bad year for Democrats. (A lot can happen between now and November, though.)

But this time, and for the rest of the decade, the voters will decide. And that’s what democracy is all about.

Maps in some other swing states are still undetermined, with a few hopeful (and a few discouraging) signs.

Ohio also passed an anti-gerrymandering ballot proposition in 2018, with an even bigger majority than in Michigan: 75%-25%. However, the legislature still had a role in drawing the new map for congressional districts, which gives Republicans an even bigger advantage than they had in the previous decade. The Ohio Supreme Court is considering whether or not they will get away with it.

Pennsylvania is another swing state whose map is still undecided. The Republican legislature has submitted a map that favors the GOP, but it still needs the approval of Democratic governor Tom Wolf.

Wisconsin has been one of the most gerrymandered states in the country, another state where Democratic votes often lead to substantial Republican majorities in the legislature and in Congress. In 2018, for example, Republicans lost the governorship and other statewide offices, but still held on to 63 of 99 seats in the Assembly.

Wisconsin looks likely to remain rigged: The gerrymandered Republican legislature and the Democratic governor couldn’t agree on a map, kicking the decision to the state Supreme Court. The court hasn’t yet produced a final map, but has committed itself to a minimum-change model that ignores partisan results, essentially maintaining the gerrymandered 2010-census map.

You can find a state-by-state analysis of the redistricting process at 538.

By weeklysift | Tagged | Comments (10)

Closing Out a Dismal Year

December 27, 2021 – 9:03 am

The funniest year-in-review pieces are the serious ones that try to be positive.

https://www.washingtonpost.com/magazine/2021/12/26/dave-barrys-year-review-2021/

I didn’t completely get it until yesterday, when I read “Dave Barry’s 2021 Year in Review” in the Washington Post. But then it hit me full force: Not even Dave Barry can make 2021 funny.

He hit all the high points: January 6, Ted Cruz in Cancun, the George Floyd trial.

Hilarious, wasn’t it? I can tell you’re laughing already.

Another year-end WaPo article is actually funnier, though I don’t think the Editorial Board intended it to be: “21 Good Things That Happened in 2021“. It starts well with #1 “Vaccines”, which are undeniable good. But the article already begins to lose its way with #2 “Innovations”, which is partly repetition (vaccines were a great innovation) and already starting to get ambiguous.

Innovations abounded in telemedicine and remote work, and we began to commune as never before with faraway friends and family.

Think back to all the time you spent on Zoom this year. Was that really the second-best thing about 2021? Maybe it was. (Oh, shit.)

#3-#8 are all variations on the theme that we got rid of Trump, even though he was so determined to stay in office that he nearly overthrew American democracy. By #13 we’re celebrating Britney Spears getting free from her father’s conservatorship. (I haven’t done my research: When was the last time Britney was #13 on the charts?)

Imagine being down to Britney and knowing you still have to come up with eight more upbeat things to remember about the year. I want to make fun of the WaPo editorial board’s clueless choices, but try to do better: Did 21 genuinely good things happen in 2021? To anybody?

The Year of Almost

The true highlight of the year came in June, when we almost got past the Covid pandemic. Remember? It happened right after Biden’s vaccination program got rolling and before Delta and Omicron broke out. The national 7-day average for daily new cases got down to 14K (compared to nearly 200K on Inauguration Day and over 200K now).

In Massachusetts, where I live, that average got down to 52. Not 52 thousand — 52 cases in the whole state. Now it’s 7150. In early July, the 7-day average daily deaths was down to 1, and we had a number of days where nobody at all in Massachusetts died of Covid. Now we’re losing about 32 a day.

In Congress, the Democrats’ razor-thin margins in each house allowed them to almost accomplish all kinds of things. They almost started doing something about climate change, almost protected voting rights, almost renewed the child tax credit, almost reduced the cost of prescription drugs, almost reformed the filibuster, and much more.

As the year ends, the January 6 committee has almost gotten to the bottom of Trump’s coup, and I’m sure that 2022 will see the Justice Department almost get off its butt, investigate him, and send him on a well-deserved multiyear vacation inside some federal facility.

Well, I’m almost sure.

The point of no return

For Republicans, 2021 was the year when all hope of redemption was lost.

Remember the old Republican Party? I wasn’t a fan, because it was mostly dedicated to preserving traditional dominance relationships: rich over poor, capital over labor, men over women, Whites over people of color, Christians over non-Christians, the US over the rest of the world, and so on.

Nonetheless, Republicans could be counted on in certain important ways. Like all sensible Americans, they wanted to protect the country from invasion, terrorism, crime, and disease. They didn’t want to crash the economy. They had their own interpretation of democracy, human rights, and the Constitution, but they were more-or-less faithful to that interpretation, and could even at times be principled about it. Party leaders like Newt Gingrich and John McCain could see the reality of climate change and even support doing something about it.

Then came the Tea Party wave of 2010, and the rise of hostage-taking politics: If Obama wouldn’t give them what they wanted, they’d let the government crash into its debt ceiling, doing unpredictable damage to the world economy. Playing chicken with the debt has been a first-choice conservative tactic ever since, along with other hostage-taking tactics like government shutdowns and threatening to deport the Dreamers. Sure, almost nobody wants those things to happen, but what will you give me to make sure they don’t?

With Trump, the new anything-goes style came into the White House. But the old-time Republican Party was still represented by Senate-confirmed cabinet secretaries like John Kelly, Jim Mattis, and Rex Tillerson, who buffered the country from the worst impulses of the “fucking moron” in the Oval Office.

Whatever they privately believed about their president’s mental capacity, though, most Republicans publicly stuck by him. When Trump turned a public health crisis into a partisan issue, and took the wrong side of it, Republicans (other than a few governors) either supported him or stayed silent, allowing the GOP to become the party of Covid disinformation, snake-oil treatments, and opposition to virtually any policy that might save American lives.

By end of the Trump administration, the “adults in the room” were almost all gone, and the executive branch became an authoritarian personality cult. A handful of Justice Department officials loyal to the Constitution interfered with Trump’s plan to rig the Electoral College, and Mike Pence refused to miscount the votes. Otherwise, the US would have gone the way of Hungary (as Tucker Carlson believes we should).

Then came the January 6 riot, whose purpose was to intimidate Pence and Congress into throwing the election to Trump, or at least delaying the electoral process past Inauguration Day and creating chaos Trump might use to stay in power.

For a few days, it looked like this was the long-anticipated moment when old-style Republicans would find a line they could not cross. Sending his thugs into the Capitol itself, staying silent while they threatened to hang the vice president — it was finally too much. Weather-vanes like Lindsey Graham and Kevin McCarthy turned against Trump.

But then they turned back.

https://theweek.com/political-satire/1008199/democracy-and-hypocrisy

Mitch McConnell could have convicted Trump in either one of his impeachment trials — the evidence to do so was certainly there — but ultimately he didn’t. During 2021, the whole party has gotten behind the Trump’s Big Lie about the stolen election, has made excuses for the attempted coup, and has calmly watched Trumpists set up for the next coup. Those few old-style Republicans who rediscovered their oath of office or their loyalty to the Constitution — Brad Raffensperger, Liz Cheney, and a handful of others — they’re targets now. The Party disowns them.

2021 was the GOP’s last chance to redeem itself, and it refused. Now it will either succeed in sweeping away democracy in favor of Trumpist fascism, or it will die. I wouldn’t want to place bets either way.

Today, our two-party system consists of one party committed to authoritarianism, and another that will almost defend democracy.

Dave Barry can’t make that situation funny, and the Washington Post editorial board can’t put a positive spin on it without looking ridiculous. So I won’t even try.

By weeklysift | Comments (12)

The Emotional Roots of Political Polarization

December 20, 2021 – 9:27 am

Some deeper introspection into how I got trolled.

At first I couldn’t figure out what was so annoying about the article.

Maybe you saw it; for a few days this week it was the most-read post on The Atlantic’s site: “Where I Live, No One Cares About COVID“.

The author, Matthew Walther, lives in rural southwestern Michigan and usually writes for Catholic and conservative outlets. The gist of his article is summed up well by the title: In Walther’s world, people already live as if the pandemic is over.

This was not news to me. This week my wife and I have been (very carefully) making our way down the East Coast to re-establish the decades-long Christmas-with-friends-who-now-live-in-Florida tradition that lapsed last year. We’ve seen the mostly unmasked travelers at the rest stops. (My college roommate and his wife caught Covid in 2020 after their own very careful road trip; they blame the rest stops.)

In North Carolina, we were the only diners who chose to sit on the restaurant’s outdoor patio. A Florida lunch spot had only one outdoor table, which no one else wanted. In South Carolina, we bought the instant Covid tests that no CVS back in Massachusetts could keep in stock. When we asked about a limit on how many we could buy, the clerk looked at us strangely, as if we didn’t understand that the whole point of retail is to sell as much as you can.

Believe me, the number of people living as if Covid isn’t happening any more has not escaped my attention.

So why do I feel trolled by Walther’s article? He isn’t denying evident reality, as so many Covid minimizers do. He acknowledges that the virus is still spreading, and that hospitalizations are high, though they “are always high this time of year without attracting much notice”. He backhandedly acknowledges the existence of variants, but claims not to be paying much attention.

COVID is invisible to me except when I am reading the news, in which case it strikes me with all the force of reports about distant coups in Myanmar.

He says (without much concern) that 136 people in his rural county have died of Covid, undermining the whole everybody-knows-everybody image urbanites have of the countryside. (He isn’t saying “Aunt Josie died, but I never liked her anyway.” 136 is just a number to him, like the “statistic” famously attributed to Stalin. I wonder how his Catholic sanctity-of-life sensibilities would react to hearing about 136 local abortions.)

His point isn’t that none of this is happening, but rather that trying to avoid catching and spreading the virus yourself is too bothersome.

What I wish to convey is that the virus simply does not factor into my calculations or those of my neighbors, who have been forgoing masks, tests (unless work imposes them, in which case they are shrugged off as the usual BS from human resources), and other tangible markers of COVID-19’s existence for months—perhaps even longer.

He reports that “from almost the very beginning” he has been attending weddings, taking vacations, and regularly going to indoor bars and restaurants unmasked. His kids belong to a homeschooling group, which they also attend unmasked. They regularly visit (and hug) their grandparents, and did even before vaccination was possible. And while Walther doesn’t disparage the vaccines directly, “The CDC recommends that all adults get a booster shot; I do not know a single person who has received one.”

Well, OK. The people he knows live differently than the people I know. That can’t be what got me roiled.

It also isn’t that his excellent arguments leave me without a coherent response. (We all know how annoying that can be.) Several quick retorts immediately pop to mind.

  • 800,000 of our countrymen are dead. If we’d seen that many deaths in a war, most Americans would be ashamed to admit they had opted out of the war effort, as Walther and his community apparently have.
  • Risk-takers often have long runs of good luck, but that doesn’t prove that the risk isn’t real. Back in the days before they became a personality cult, conservatives understood this.
  • From the beginning of the pandemic, a steady stream of voices have scolded the rest of us for overreacting. And every few days, I hear about another one of those scolders dying.

So no, my annoyance isn’t covering up my embarrassment at finding myself speechless in the face of Walther’s unanswerable logic.

And yet, it was hard to let it go and move on. Why?

I had to do a careful second and third reading, watching my emotions closely, to figure it out: I’ve been reacting not to the content of Walther’s article, but to his tone of personal animus. He doesn’t just think that people like me are being foolish; fools are typically pitied. No, he harbors a deep resentment of us. What I can’t shake is a sense of “What did I ever do to him?”

His resentment expresses itself from the early paragraphs, when Walther’s wife responds to an article explaining how to have a Covid-safe Thanksgiving with an exasperated “These people.” [His italics.]

What people? A few lines later he makes that clear:

the professional and managerial classes in a handful of major metropolitan areas

Nailed me there, didn’t he? I have a graduate degree and live just beyond Boston’s Route 128 beltway. Outside my insulated world, he writes, “Americans are leading their lives as if COVID is over.”

So it isn’t just that the people I know are living differently than the people he knows. Walther’s people are “Americans”, while mine are an elite class isolated in our privileged enclaves.

This conservative culture-war version of the Marxist class struggle appears to be a regular part of Walther’s shtick, also demonstrated here and here.

Never mind the CNN poll released this week showing that a majority of Americans report “still taking extra precautions in your everyday life”. That’s just data, and what’s data compared to the deep intuition of a salt-of-the-Earth, real American literary-magazine editor like Walther?

I wager that I am now closer to most of my fellow Americans than the people, almost absurdly overrepresented in media and elite institutions, who are still genuinely concerned about this virus. And in some senses my situation has always been more in line with the typical American’s pandemic experience than that of someone in New York or Washington, D.C., or Los Angeles.

Put aside for a moment that the people being “absurdly overrepresented in the media” are primarily doctors, epidemiologists, and other people who know what they’re talking about. Even ignoring expertise, Walther is strongly implying that there is something illegitimate about the views of people who live in or near a city. (More than one American in seven lives in the three metro areas Walther calls out. Adding in the similarly elite Chicago, Philadelphia, Boston, and San Francisco metro areas gets you up to one in four. That’s a lot of illegitimate opinions.) No urbanite (or even suburbanite like me) can possibly be a “typical American”. We city folk who lower our masks to let acquaintances recognize us when we pass on the sidewalk are “like Edwardian gentlemen doffing their top hats”.

I can see how that kind of lordly behavior might set off a mere peasant like this contributing editor of American Conservative, who is so underrepresented in the media that I am reading his words in The Atlantic.

But you know the worst thing about people like me? It’s not what we’ve done or are doing, but what Walther is sure we will do.

I am afraid that the future, at least in major metropolitan areas, is one in which sooner or later elites will acknowledge their folly while continuing to impose it on others.

Because people like me are like that. No doubt the next time I drive down the coast, I’ll grab the last seat at the bar and insist that some working-class shlub sit out on the patio where it’s safer. Because by then I’ll have realized the folly of trying to avoid a disease that has killed more of my fellow citizens than World War II, but I’ll impose restrictions on the subordinate classes just to lord it over them.

And while I can’t remember ever having done anything like that before, it’s inevitable that I will. Because Walther really has my number.

That’s the kind of argument I have no answer for. It just leaves me wondering what I ever did to him.

It’s tempting to leave the topic there, but I think there’s a deeper lesson to be drawn. What makes culture-war arguments so frustrating generally is that they typically aren’t rooted in facts and logic, but in resentment. Fact-checking has proven to be impotent against Trumpism, for example, and right-wing cultists are never convinced when the absurdity of their logic is pointed out. Because no matter what is true or makes sense, their emotional resentment — wherever it comes from — endures.

That’s why culture warriors who have seen their arguments debunked will just shift to another one rather than change their conclusions. Do hand-recounts prove that Trump’s landslide wasn’t stolen by corrupted voting machines? Well then, it must have been stolen by fraudulent mail-in ballots, or by votes from dead people, or ballots smuggled in from China, or illegal alien votes, or something else.

And if you refute all that, chances are that the argument will circle back around to voting machines — Mike Lindell is still pushing that long-debunked lie — because the elite urban professional class (and their poorer dark-skinned minions) must have stolen the election somehow. There are too many “real Americans” for Trump to have lost, and if the ballots don’t show that, it’s because too many of them came from illegitimate places like Philadelphia or Detroit or Atlanta. How could Trump have lost, when all the White Catholics in rural southwestern Michigan voted for him?

Similarly, QAnoners aren’t bothered when their predictions fail. And even if they were, they could jump to other conspiracy theories that support the same narrative motif: You are part of the red-pilled vanguard party, who are ordinary people’s only hope against the powerful liberal cabal that manipulates the world. Your friends and relatives may not grasp the reality of the conspiracy yet, but someday they too will acknowledge their folly.

The Storm is one way to fantasize mass executions of know-it-all liberals like Dr. Fauci or uppity females like Hillary Clinton, but there are many others.

On Fox News, the lead story shifts from week to week, from critical race theory making White children ashamed of their heritage, to Biden wanting to raise your taxes or take your guns, to vaccine or mask mandates usurping your sacred freedom to die any way you want, to trans women menacing your daughters in bathrooms, to the War on Christmas desecrating your most revered traditions.

Whatever the specifics might be this week, and whether any particular story is true or not, the drumbeat is always the same: Liberals want to take something away from you. That deep resentment you feel against them is justified, because at this very moment they are plotting to destroy your way of life.

So it doesn’t matter whether any particular liberal plot checks out or not, because we must be hatching one. They know what we’re like.

I have to confess that I don’t know what to do about this.

As ridiculous as I find conservative attempts to liken themselves to Jews facing Nazi oppression, there is one particular way in which the current liberal situation resembles pre-Krystallnacht Judaism: When the details of particular plots are allowed to fluidly reshape themselves from day to day, and when you can be held responsible for misdeeds other people believe you are bound to commit, given the kind of person they are sure you must be, then it’s nearly impossible to prove that you are not part of a conspiratorial elite.

That’s where we seem to be.

I am 100% certain that I am not conspiring to destroy the way of life of White Catholics in rural southwestern Michigan. But if some of them want to believe that I am, I have no idea what I can say or do to change their minds.

By weeklysift | Tagged , | Comments (41)

The Roe v Wade Death Watch

December 6, 2021 – 10:10 am
https://www.ajc.com/opinion/mike-luckovich-blog/125-mike-luckovich-no-choice/RLWAWD4BKNGUHMOWE2YYL7TJQY/

Despite numerous claims during confirmation hearings that they would respect precedent, Republican justices look ready to overturn Roe.

Wednesday, the Supreme Court heard arguments in Dobbs v Jackson Women’s Health, a case that invites the Court to overturn Roe v Wade. Their decision will most likely not be announced until the end of the Court’s term in June, and comments justices make during oral arguments do not always predict what they will decide. But it sure sounded like five of the justices — Thomas, Alito, Gorsuch, Kavanaugh, and Barrett — were preparing to overturn Roe, while Chief Justice Roberts was looking for a way to uphold Mississippi’s Roe-violating law (that bans abortions after 15 weeks, in open defiance of Roe’s fetal-viability standard) without reversing Roe completely, thereby chipping away at abortion rights rather than instantly ending them. [1]

What is Roe v Wade? When a Supreme Court decision is talked about as much and as often as Roe has been, sometimes the original gets lost in the noise. So I went back and read Roe, which was decided in 1973. If you’ve never read it, or read it so long ago you don’t remember, it’s worth a look.

For one thing, Justice Blackmun’s majority opinion assembles an excellent summary of the history of abortion laws going back to ancient times. Anti-abortion arguments often imply that abortion has traditionally been illegal, and that only modern judicial hocus-pocus has created a pregnant woman’s right to choose that option. But in fact the opposite is true: Abortion-producing potions are as old as history, and laws banning abortions prior to “quickening” (when women start to feel the fetus moving) were rare until the late 1800s.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

The second thing worth noting is that Roe is a delicate balancing of rights and interests rather than the sweeping extension of judicial authority it is frequently portrayed as. On one hand, “the right of personal privacy includes the abortion decision”, but a state also has legitimate interests that could conflict with an “absolute” right to abortion: “in safeguarding health, in maintaining medical standards, and in protecting potential life.”

That’s where Roe’s trimester breakdown comes from. During the first trimester, Blackmun wrote, abortion is safer than childbirth, so the state’s interest in maternal health can’t justify first-trimester restrictions. The state’s interest in potential life becomes “compelling” at the point of viability.

With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Where does the right to privacy come from? Any anti-abortion critique of Roe is bound to assert that the Constitution never specifically mentions the “right to privacy” that justifies a woman’s right to terminate her pregnancy. In particular, unlike freedom of speech or the right to bear arms, it’s not in the Bill of Rights.

This is an argument Alexander Hamilton anticipated in The Federalist, and why he thought including a Bill of Rights in the Constitution in the first place was “dangerous”: Oppressive governments might use a list the people’s rights to claim that anything not listed was not a right. As Edmund Pendleton wrote to Richard Henry Lee in 1788:

Again is there not danger in the Enumeration of Rights? may we not in the progress of things, discover some great & important, which we don’t now think of? there the principle may be turned upon Us, & what [government power] is not reserved, said to be granted.

The right to privacy has implications far beyond abortion, and had been recognized long before Roe, which provides a long list of previous cases that applied and developed it. One case in particular should resonate with the anti-abortion faction today: Pierce v. Society of Sisters.

In 1925, the Supreme Court struck down an Oregon law that required children to attend public schools. The law was an anti-Catholic measure targeting parochial schools. But if you search the Bill of Rights for a provision that specifically allows parents to choose a Catholic school for their children, you won’t find it. [2] That freedom to choose depends on recognizing a sphere of personal autonomy that governments can’t invade.

Roe does not argue that a right to privacy exists; that was well established by 1973. Rather, the Court concluded in Roe that

This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

What about fetal personhood? Blackmun discussed this at length in Roe. He concluded that no occurrence of “person” in the Constitution could plausibly be claimed to include the unborn. If the Court was going to recognize the fetus as a person with constitutional rights, it would have to do so on its own authority. Blackmun was unwilling to claim such authority.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.

He goes on to describe views of the ancient Stoics, most Jews, and (as was true at that time) “a large segment of the Protestant community” that the moment of conception does not establish an ensouled being with the full moral value that it will have after birth.

Elaborating on that point, I will say that no branch of the US government should be making pronouncements that establish one religious position as superior to another, if there is any way to avoid doing so. The Founders had were well aware of how religious conflicts had torn England apart during the 1500s and 1600s, as one sect and then another claimed control of the government and used it to enforce their views. They wanted no such conflicts in their new country, which is why they wrote a secular Constitution.

Blackmun continues:

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

Gaslighting. Comments the justices made Wednesday underlined just how dishonest and disingenuous many of them had been during their confirmation hearings. AP summarized:

During his confirmation to the Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was “settled law,” calling the court cases affirming it “precedent on precedent” that could not be casually overturned.

Amy Coney Barrett told senators during her Senate confirmation hearing that laws could not be undone simply by personal beliefs, including her own. “It’s not the law of Amy,” she quipped.

But during this week’s landmark Supreme Court hearing over a Mississippi law that could curtail if not outright end a woman’s right to abortion, the two newest justices struck a markedly different tone, drawing lines of questioning widely viewed as part of the court’s willingness to dismantle decades old decisions on access to abortion services.

Kavanaugh in particular now makes a virtue out of breaking precedent and ignoring the principle of stare decisis.

If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent.

That string included landmark cases like Brown v Board of Education, which overturned the prior standard of “separate but equal” schools. [3]

So the question on stare decisis is why, if … we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?

Maybe he should have told Susan Collins that during his confirmation interview. Or maybe she shouldn’t have been so gullible about what he did tell her.

Dahlia Lithwick thinks it would be “refreshing” if the conservative justices’ new honesty about their intention to reverse Roe meant that the gaslighting is over

After confirmation hearings in which they promised that stare decisis was a deeply felt value and that Roe v. Wade was a clear “precedent of the court” and “the law of the land.” there’s something sort of soothing about knowing the lying to our faces will soon be over. They were all six of them installed on the Supreme Court to put an end to Roe v. Wade after all, and that is exactly what they intend to do. There will be no more fake solicitude for women making difficult choices, no more pretense that pregnant people really just need better medical advice, and no more phony concerns about “abortion mills” that threaten maternal health. There is truly something to be said for putting an end to decades of false consciousness around the real endgame here, which was to take away a woman’s right to terminate a pregnancy—rape, incest, abuse, maternal health no longer being material factors. At least now we might soon be able to call it what it is.

Sadly, though, she goes on to point out that the lying continues. Now they’re gaslighting us about the significance of reversing Roe: Kavanaugh pretended that leaving abortion to the states (i.e., giving Mississippi exactly what it wants) would be a compromise. Alito claimed personhood-at-conception isn’t a religious view, because some secular philosophers agree. (Plato believed in the immortality of the soul. Does that secularize the doctrine?) Barrett opined that forced pregnancy is not such a big deal anymore, because (assuming you survive childbirth) it’s easier now to give the child up for adoption. (Why should it bother a woman to devote nine months of her life to the survival of her rapist’s genes?)

But the most extreme gaslighting concerns the implications of overturning Roe: It won’t stop there. The right to privacy undergirds, for example, same-sex marriage, gay rights in general, and the right to use contraception. All of these rights are targeted by the same theocratic faction that put Gorsuch, Kavanaugh, and Barrett on the Court.

At their [confirmation] hearings, Roe was settled law, the precedent of the court. But now Roe is Plessy, which is why when the justices whisper softly that Lawrence v. Texas, Obergefell, and Griswold are not under threat today, you might wonder why you should trust them. They are all settled law—until they are not. They told us as much at their confirmation hearings and assured us today they were lying then, but aren’t lying now.

Where will abortion be illegal? You might imagine that the only immediate effect of the Court deciding in Mississippi’s favor is that their ban-at-15-weeks law would take effect. But 12 states have already passed abortion bans that are set to apply automatically as soon as Roe is reversed: Mississippi, Texas, Idaho, Arkansas, Kentucky, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, and Utah.

https://sportsugar.com/7-maps-and-charts-that-show-what-could-happen-if-roe-v-wade-fell/

But that’s not all. Josh Marshall connects the dots between abortion and the Republican minority-rule project.

Many purple and even blue states are sufficiently gerrymandered at the state level that we should assume they’ll soon outlaw abortion too. I’m talking about states like Wisconsin, Michigan, Pennsylvania, Ohio.

Wisconsin as so often is an instructive example. Wisconsin is a very closely divided state politically. It usually goes to the Democrats at the presidential level. But it’s always by a narrow margin whoever wins. The state’s governorship is similarly always close, though at the moment there’s a Democratic governor. The Democrats won the governorship in 2018 by a tiny margin. Then Joe Biden won the presidential race there by another very small margin. And yet Democrats struggled in 2020 to prevent Republicans from getting a supermajority in the state legislature. A supermajority!

Given that Republican majorities in purple-state legislatures have successfully insulated themselves from the people, all it takes is electing a Republican governor one time, and abortion rights will be gone for decades to come.

[1] Appearing to respect a law or precedent while gutting it in practice is a very Robertsy thing to do. For example, he didn’t strike down the Voting Rights Act in 2013, he just eliminated the government’s main tool for enforcing it.

If you look at the broad sweep of Roberts’ career, he wants to achieve partisan objectives without tarring the Court’s non-partisan image.

[2] You also couldn’t claim that the Founders intended to include such a protection. Some of the Founders were virulently anti-Catholic. In a 1774 letter to Parliament, which I believe was written by John Jay, the Continental Congress described Catholicism as “a religion that has deluged your island in blood, and dispersed bigotry, persecution, murder and rebellion through every part of the world.”

[3] It’s worth pointing out that the Court didn’t reverse the Plessy standard of separate-but-equal just because the 1954 justices had different views than the 1896 justices. The intervening half-century had brought a long series of cases to the Court in which states claimed that their segregated schools were “equal”, but they really weren’t. In Brown, the Court concluded from experience that the Plessy standard wasn’t workable; separate schools for Black students were always going to be unequal.

Nothing similar has been happening with respect to Roe. The only difference between 2021 and 1973 is that different people are on the Court.

By weeklysift | Tagged , | Comments (15)

Does the red pill have an antidote?

November 22, 2021 – 9:59 am

Why do previously reasonable people go down the rabbit hole of conspiracy theories, and what can be done to bring them back?

A handful of problems can plausibly be put forward as obstacles to solving all other problems: climate change and the corruption caused by money in politics are two that pop to mind. Whatever other problem you might be trying to solve, chances are that at least one of those two will get in your way.

But a third problem is joining that group: the explosion of conspiracy theories and the disinformation they spread. Want to control the pandemic? You’ll wind up dealing with people who think Anthony Fauci has been behind the virus all along, or that the vaccines contain microchips that track your movements.

Want to cut greenhouse gas emissions? You must have been duped by the conspiracy that is using the climate change hoax to institute a global socialist dictatorship.

Worried about the state of our democracy? You obviously don’t understand that there’s nothing to save, because all our elections are already rigged. Millions of illegal immigrants are allowed to vote! And dead people. And the servers that count our votes are actually in some other country.

Whatever else you might want to focus on is a waste of time anyway. It’s just a distraction from the blood-drinking child-sex ring that controls the world. That’s the real problem.

David Neiwert’s book. I first heard of David Neiwert when he was writing the Orcinus blog. Already in 2004, he was warning about the right-wing drift towards fascism, but doing so in a responsible way, i.e., actually defining fascism and checking current developments against that definition rather than just throwing around loaded words. (That’s why he called the drift of 2004 American conservatism “pseudo-fascism”. It had the seeds, but they hadn’t fully sprouted yet.)

His 2020 book Red Pill, Blue Pill: how to counteract the conspiracy theories that are killing us is a quick read that is full of insight. It falls into a few separable parts:

  • a history of conspiracy theories from the medieval blood libel to the Yellow Peril to the Red Scare to QAnon. I found this fascinating, but if you don’t, you could skip over it.
  • why conspiracy theories are attractive and who they attract
  • how someone can get drawn in
  • what can be done to pull someone out

The title comes from the red-pill/blue-pill choice Morpheus gives Neo in The Matrix. The red pill represents awakening to the hidden reality that other people fail to see or refuse to see. Conspiracy theorists often talk about the moment they were red-pilled.

How to tell real conspiracies from conspiracy theories. A question I often raise on this blog is whether a term actually means something or is just an insult. Political correctness, cancel culture, critical race theory — do they have any content beyond being pejorative labels?

You might think conspiracy theory is another term with little objective meaning — just “a theory other people believe, but I don’t”. But Neiwert uses the term more precisely than that: A conspiracy theory isn’t just a theory about a conspiracy, it’s a theory that goes against everything we know about actual conspiracies.

People really do conspire sometimes, but actual conspiracies (Watergate, say) are narrow in scope, limited in time, and involve a fairly small number of conspirators. Cross any of those three lines, and odds are excellent that your conspiracy won’t stay secret long enough to achieve its goals.

Conspiracy theories, on the other hand, postulate vast conspiracies that control everything and yet operate in the shadows for decades or even centuries. The Illuminati has been manipulating world politics since the 1700s, and the conspiracy of blood-drinking child abusers is so large that QAnoners expect thousands of arrests and executions will be needed to stamp it out. The goal of the reptilian conspiracy is to control the Earth, forever.

Some conspiracy theories start with a plausible hypothesis. It’s not crazy, for example, to wonder if alien civilizations exist, or if alien explorers might have visited this planet. But such speculations become conspiracy theories when countervailing evidence that would at least prune the branches of an ordinary hypothesis gets explained away by expanding the conspiracy to completely implausible proportions.

Conspiracy theory epistemology. Conspiracy theorists are hard to argue with because they literally think differently. A conspiracy theory catches on not because it is well supported by evidence, but because it connects a lot of dots. The wider and wilder a theory is, the more interest it generates.

A person trained in mainstream critical thinking will want to pick out a small part of a theory and nail down whether it is true or false before moving on to other parts. But a community of conspiracy theorists isn’t interested in that kind of analysis. The attraction of the theory is its broad sweep; whether any particular part of it is true is almost irrelevant. For example, the fact that JFK Jr. did not return from his apparent death a few weeks ago probably did not disillusion most of the people who came to Dallas expecting to see him.

Think about the attempts to debunk Trump’s Big Lie of how the election was stolen from him. (Neiwert’s book came out before the election, so the Big Lie is not discussed.) Debunkers are fighting a hydra: There is no single explanation of how the election was supposedly stolen, but rather dozens of independent theories of rigged voting machines, hacked servers, boxes of ballots appearing from nowhere, dead voters, fraudulent mail-in ballots, illegal voters, and so on. Debunk one, and the theory’s proponents shift to another. (And as soon as your back is turned, the theory you debunked will rise again.) The conspiracy constantly grows as even Republican officials — Brad Raffensperger, the Michigan Senate — refuse to validate it.

It is not inherently crazy to believe that elections can be stolen. But by now the Big Lie is clearly recognizable as a conspiracy theory.

Psychology of conspiracy theorists. The experts Neiwert quotes paint the following picture: People who feel a lack of control in their lives are attracted to conspiracy theories for two main reasons:

  • The conspirators become scapegoats. They — not me — are to blame for the way the world (and my life) is going. Rather than falling victim to random events or societal trends, I have an enemy: Illegal aliens have taken my place in the economy, and the Jews helped them do it.
  • The theory inserts the believer into a more hopeful, more powerful narrative. By learning about the conspiracy, the believer has joined a heroic resistance group that will expose and ultimately defeat the evil conspirators.

These underlying motives explain why conspiracy theorists reject debunking evidence: Evidence was not the primary reason they bought into the theory in the first place.

How people get drawn in. If your first contact with a conspiracy theory is full-blown nuttiness, you’ll probably turn away without a second thought. No one hears out of the blue that the British royal family are shape-changing alien reptiles and thinks, “I should look into that.”

But even the wildest conspiracy theories have a plausible-looking public face. Jeffrey Epstein, for example, appears to have really maintained a stable of under-age sex partners he could offer his global-elite-level friends. Understandable concern for the possibility that missing children could have been kidnapped for sex leads many people to read social media posts or watch YouTube videos that slowly introduce them to the QAnon theory that such a child-sex ring has world-dominating power.

And once you start investigating one conspiracy theory, you will run into others that connect even more dots that you had always wondered about. The people you meet in one conspiracy-theory online community will introduce you to other conspiracies, which interlock in weird ways.

Social media algorithms accelerate this process. If you watch a video that raises plausible-sounding doubts about the effectiveness of masks or vaccines, YouTube will then suggest more radical videos suggesting that vaccine side-effects are being covered up, and then others claiming Covid was engineered by the Chinese — maybe with the connivance of the CDC — to attack America.

If you’d run into that last video first, it probably would have made no impression. But YouTube has groomed you to accept it.

A common mistake. Neiwart points out something I had not thought of: The way we typically research new topics increases our vulnerability. Dylann Roof is a case in point: His journey into mass murder began with a simple Google search: “black on white crime”.

The problem is that the phrase “black on white crime” is primarily used by White racists. (The people who do academic research on crime seldom break things down that way. But how would you know that if you hadn’t thought about this topic before?) If you read one of the White-racist articles Google sends you to, you’ll run into other phrases that are part of that worldview (and seldom occur elsewhere). Google them, and you’re on your way down the rabbit hole.

Instead, Neiwert recommends a media-consumption practice that media-literacy expert Michael Caufield calls SIFT: Stop, Investigate, Find, Trace.

Before reacting to something you see on social media, and rather than continually going deeper into a topic, take a moment to stop and investigate the source: Who is making this claim? What other claims have they made? How credible are they?

Then try to find a more reliable source for the same information. And once you have, trace claims back to their origins: If, for example, so-and-so is supposed to have said something outrageous, see if you can find a full transcript or a video. If a new law is supposed to do something horrible, what law is it exactly? And what does it really say?

Where the rabbit hole goes. It’s striking how many parallels there are between conspiracy theories and drug addiction. The drug provides a feeling that life is getting better, while actually making it worse; so the perceived need for the drug grows.

If someone’s underlying problem is a lack of efficacy in life, believing in a conspiracy is not going to fix it. Instead, a conspiracy obsession will pull a person away from their support system, alienating friends and relatives. But each loss in the real world makes the conspiracy a more important part of the life they still have. Believers become ever more attached to other conspiracy theorists, and to the fantasy that someday (after the Storm comes, say) their former friends and loved ones will see the truth and come back to them begging forgiveness.

Eventually, the believer has no human contacts outside the conspiracy-theory community. And since many of the other conspiracy theorists are broken in one way or another, conspiracy-related relationships tend to be brittle. Groups often fracture, or turn against individual members.

When someone has given up everything for a conspiracy-theory obsession, and then feels rejected by the conspiracy-theory community too, the stage is set for violence.

Like drug addiction, not everyone goes all the way. Most casual users of illegal drugs never become street people who will do anything for their next fix. For many, similarly, Trump’s Big Lie is a relatively harmless way to meet people online and channel an otherwise amorphous rage. They have learned not to discuss their conspiracy-theory hobby with normies, and they will never storm the Capitol or beat police with flagpoles.

But the possibility is always there, and it’s hard to say what will send someone into a tragic spiral.

Can you pull a friend out? Independent of the negative effects conspiracy theories have on our democracy and our social cohesion, many of us know and care about individuals whose lives are being sucked down that rabbit hole. Is there anything we can do to help?

The closing chapter of Neiwert’s book is a 15-step plan based on research he gleans from a number of sources. Before explaining the steps, he warns that the plan doesn’t always work, it takes a lot of effort, and if you aren’t really committed to it you can make things worse.

The gist of the program is that people are pulled out of conspiracy theories when they’re ready and through personal relationships with people who care about them. Again, I see addiction parallels: You’re not going to pull a friend out of drug addiction during the early phase when the drug seems to make everything wonderful.

So the underlying idea is to stay in an honest relationship with your friend — not pretending to agree about stuff you think is crazy, because they’ll eventually see through you — until they hit a crisis of their own and are looking for a way out. Don’t try to argue them out of it by assembling counter-evidence, because evidence is not the point. Instead, try to understand the needs the conspiracy fills and how it fills them. Compassionate listening plays a bigger role than passionate explaining. Keep your other shared interests alive and even expand them if you can. And wait.

The final pages of the book are about the holes conspiracy theories fill in society, and how we can close them. This is largely a work in progress. For example: Conspiracy theories are largely a problem of trust, and who can claim that our current institutions are 100% trustworthy? Long-term, the challenge is to create more trustworthy ways of getting information, and to rebuild our power structures to be more transparent and more responsive to people’s real needs.

By weeklysift | Tagged | Comments (15)

Does America Need an Anti-Cancel-Culture University?

November 15, 2021 – 9:22 am
https://en.wikipedia.org/wiki/The_School_of_Athens

Will the University of Austin promote “the often uncomfortable search for truth”, or create a new safe space for traditional biases?

Last Monday, the former president of another educational institution announced that he and a collection of intellectuals who feel unwelcome or uncomfortable in academia (as it is currently constituted) were forming a new University of Austin in Texas. “We can’t wait for universities to fix themselves,” wrote Pano Kanelos, the former head of St. John’s College in Annapolis, “so we’re starting a new one.”

His essay is dotted with high-minded phrases like “the fearless pursuit of truth”, “freedom of inquiry and civil discourse”, and “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” It includes stirring rhetoric like: “We can no longer wait for the cavalry. And so we must be the cavalry.”

Many of his criticisms of existing universities are hard to argue with: “At our most prestigious schools, the primary incentive is to function as finishing school for the national and global elite.” Four in every ten students who enter a college or university leave without graduating. The soaring cost of higher education has left students with $1.7 trillion of debt — much of it owed by that 40% that didn’t even manage to buy a marketable credential. “[A]n increasing proportion of tuition dollars are spent on administration rather than instruction.” Those who do graduate learn “ever-more-inaccessible theories while often just blocks away their neighbors figure out how to scratch out a living”.

Kanelos’ conclusion that “something fundamental is broken” is not one I’m inclined to dispute. Too many college classes, particularly introductory ones, belong in a credential-producing factory, not a successor to Plato’s Academy. Like Kanelos, I feel the romance of a school “where there is no fundamental distinction between those who teach and those who learn, beyond the extent of their knowledge and wisdom”.

But beyond the educational theory and his nostalgia for Golden Age Greece, Kanelos’ truly motivating concern seems to be the “illiberalism” that “has become a pervasive feature of campus life”. One factor unites the truly impressive list of names Kanelos gives us: original co-founders Niall Ferguson, Bari Weiss, Heather Heying, Joe Lonsdale, and Arthur Brooks, later joined by “university presidents: Robert Zimmer, Larry Summers, John Nunes, and Gordon Gee, and leading academics, such as Steven Pinker, Deirdre McCloskey, Leon Kass, Jonathan Haidt, Glenn Loury, Joshua Katz, Vickie Sullivan, Geoffrey Stone, Bill McClay, and Tyler Cowen” not to mention “journalists, artists, philanthropists, researchers, and public intellectuals, including Lex Fridman, Andrew Sullivan, Rob Henderson, Caitlin Flanagan, David Mamet, Ayaan Hirsi Ali, Sohrab Ahmari, Stacy Hock, Jonathan Rauch, and Nadine Strossen.” They’ve almost all been critics or self-styled victims of “cancel culture”. [1]

That’s the context through which I read Kanelos stated goal: producing “a resilient (or ‘antifragile’) cohort with exceptional capacity to think fearlessly, nimbly, and inventively.” Today’s university students, with their trigger warnings and safe spaces and whatnot, Kanelos seems to imply, are snowflakes. Austin U won’t cater to such whimps, but will forge tough-minded students who can take the rough-and-tumble of real debate.

That vision is undercut, though, by one of the surveys Kanelos quotes to bolster his argument about the current campus illiberalism. He summarizes a survey by Heterodox Academy as saying that “62% of sampled college students agreed that the climate on their campus prevented students from saying things they believe”. However, if you dig into that survey, you’ll find the main reason students give for suppressing their opinions is that “other students would criticize my views as offensive”. In other words, I keep quiet because other students might respond to my free expression with their own free expression. [2]

So who’s the snowflake?

Which makes me wonder: Will Austin U really have more “free inquiry and discourse”, or will it just be a safe space for those who like to say things that are racist, sexist, transphobic, or otherwise offensive to people who didn’t previously complain because they didn’t previously have a voice? Kanelos’ essay may criticize institutions that “prioritize emotional comfort over the often-uncomfortable pursuit of truth”, but looking at his list of participants, I have to ask if the University of Austin will just prioritize the emotional comfort of a different set of people. [3]

The more I think about “free inquiry” the more I’m reminded of “free markets”. We may imagine that such freedom occurs naturally whenever authority gets out of the way. But in reality, neither discussions nor markets can be “free” without a substantial structure of rules and values and habits and institutions. The “natural” freedom idealized by pre-revolutionary philosophers like Locke and Rousseau happens in the wilderness. Bringing freedom into society requires structure.

There are questions a community can’t discuss without undermining the discussion itself. At German universities in the early 1930s, for example, Jewish students and professors (before they were banned completely) had to face discussions of “the Jewish question“, or even “the Jewish problem” — whether or not they should have a place in German society at all. How freely could they discuss that topic, or whatever topics might follow?

Or suppose I freely state my opinion, and the next person uses his freedom to suggest that people who think like me should be killed — and, by the way, here’s Doug’s home address for anybody whose plans might require that information. How long will that discussion stay free?

We need to understand that freedom inside society can never be pure or absolute. We can only be free in certain ways, and only because we accept limitations on certain other aspects of our freedom. My freedom to drive across the country depends on giving up my freedom to drive on the left side of the highway.

In particular, the kind of “free inquiry” Kanelos champions can only happen if all the participants retain their safety and dignity. This is easy to grasp when your own safety or dignity is threatened — as Austin U’s prospective faculty apparently believes theirs has been. But it is more difficult to appreciate how your own freedom may need to be reined in to accommodate others. Maybe an American university should discourage debate over the genetic inferiority of its Black students, or whether its gay and lesbian students are sick and need to be cured. Maybe women on campus can’t be kept safe from harassment and rape without men yielding some of the benefit-of-the-doubt they have historically been granted. Maybe respecting the dignity of trans students requires using their chosen pronouns, rather than insisting that you know more about their gender than they do.

And so on.

An age-old adage says that your freedom to swing your fist ends at my nose. Until recent decades, though, large classes of people understood that they just needed to keep their noses out of the way, because other people’s fists had to remain free.

That has changed — not everywhere and not completely, but moreso on college campuses than most places — and if you belong to one of the previously dominant classes you may feel disoriented. What a repressive world it suddenly seems to be, when you have to look all around before you start swinging your arms! How can you still be free, when the people you have been offending for years acquire their own freedom to respond?

There actually is intellectual work to be done here: I don’t think anyone perfectly understands yet exactly where the boundaries ought to be. Perfectly free discussion and inquiry is a myth; as long as we live in society, we will have to live within rules. But what rules, values, practices, and institutions do the best job of creating the environment we want for our universities, one where people of all descriptions can come closest to achieving the Socratic ideal?

That seems to me to be exactly the kind of question that universities ought to work on. And if they do that thinking well, they may become models for the rest of society.

So if the founders and supporters of the University of Austin truly have something positive to contribute to that discussion, I wish their experiment success. But if they just want to turn the clock back to a time when they felt more personally comfortable, I doubt they’ll do much good, even for themselves.

[1] I’d say “all” rather than “almost all”, but I’m not willing to do the research necessary to back that up. I recognize many of the names from various controversies and anti-cancel-culture manifestos.

MSNBC’s Katelyn Burns describes the U of A backers as “a group of self-described ‘heterodox’ academics and journalists (who all happen to have the same opinions on the the two topics they collectively discuss most often, trans rights and racism)”.

[2] A question worth asking: How many conservative students’ fears are justified, and how many have been manufactured by Fox News’ anti-cancel-culture propaganda?

[3] The Intelligencer’s Sarah Jones compares U of A to conservative Christian universities like Jerry Falwell’s Liberty U.

Falwell was no outlier. The right has long dreamed of alternatives to traditional higher education. The televangelist Pat Robertson founded Regent University for similar reasons. Michael Farris, the founder of the Homeschool Legal Defense Association, founded Patrick Henry College in 2000 to shelter homeschool graduates and funnel them into Republican politics. Hillsdale College has assumed a sharply right-wing political identity over time, and rejects federal funding “as a matter of principle.” (A Hillsdale professor sits on the University of Austin’s board of advisers.) These schools exist as laboratories for right-wing thought; they are committed not to free expression but to indoctrination. The University of Austin will be no different.

I will add that Fox News’ founding rhetoric sometimes sounded as idealistic as University of Austin’s: It would be the “fair and balanced” alternative to the “liberal bias” of the mainstream media.

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