Free Minds & Free Markets

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Atheism More Prevalent Among Americans Than the Polls Generally Show

A new study finds that 26 percent of Americans likely do not believe in God.

GotGodZazzleZazzleAlthough acceptance of atheists is increasing, their fellow Americans still eye them with considerable suspicion. The percentage of Americans who declare themselves religiously unaffiliated has risen from 5 percent in 1972 to 25 percent now. But depending upon the poll, the share of Americans who call themselves atheists varies from a low of 3 percent to around 11 percent.

Given the social stigma attached to atheism, researchers at the Public Religion Research Institute (PRRI) hypothesized that polls might underreport the number of Americans who are nonbelievers. To test this hypothesis, they used the unmatched count technique, in which poll respondents are randomly divided into two groups. The control group is asked how many of a number of harmless statements—"I am a vegetarian," "I can drive a motorcycle," "I own a dog," etc.—are not true statements about them. The second group is asked to respond to one additional, more sensitive statement: "I believe in God."

Respondents are not specifically indicating which statements are true for them, only the total number that is. This type of polling has been used, for example, to estimate the size of the LGBT community and the extent of antigay feeling.

The researchers ran two slightly different unmatched count technique surveys involving 4,000 Americans. In their report, "How many atheists are there?," they conclude that about 26 percent of Americans likely do not believe in God.

Over at FiveThirtyEight, PRRI research director Daniel Cox notes that public attitudes toward the LGBT community have become more accepting as more Americans report having a gay friend or family member has increased. He suggests that the same dynamic is happening as more atheists come out of their nonbelief closets.

Interestingly, PRRI's 2013 American Values Survey reported that "fewer than 6-in-10 (58%) libertarians believe that God is a person with whom one can have a relationship, one-quarter (25%) believe God is an impersonal force in the universe, and 16% report that they do not believe in God."

For more background, see my article, "The New Age of Reason: Is the Fourth Great Awakening finally coming to a close?"

Also see ReasonTV's report on the Rally for Reason, a 2012 gathering of nonbelievers on the National Mall:

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Michael Flynn to Plead the Fifth, Supreme Court Takes Patent Trolls to the Woodshed, Bitcoin on the Rise Again: P.M. Links

  • Mike FlynnDouliery Olivier/Sipa USA USA/NewscomSources say former National Security Adviser Michael Flynn will invoke the Fifth Amendment's protection against self-incrimination in response to a subpoena to testify over his communications with Russian officials.
  • An 8-0 Supreme Court ruling today severely limits where patent lawsuits may be filed, which will likely reduce the ability of "patent trolls" to shop around for friendly courts to try to shake down businesses and tech firms.
  • The Supreme Court also ruled, 5-3, that Republicans in North Carolina improperly used race when drawing congressional boundaries in order to diminish the power of black voters.
  • People (and babies) have died (sometimes gruesomely) in the jails overseen by Milwaukee Sheriff David Clarke, but by all means let's argue instead over whether he properly attributed quotes in his master's thesis and whether the journalist who pointed this out completed college.
  • The fatal stabbing of a black student on the campus of the University of Maryland in College Park on Saturday is being investigated as a possible hate crime. The suspect in the stabbing allegedly belongs to a Facebook group called "Alt-Reich: Nation."
  • Turkey is, probably unsurprisingly, trying to blame the United States and accuse officials of "aggressive and unprofessional actions" for the brawl last week where they were caught on video physically attacking pro-Kurdish protesters.
  • Ford Motor Company is replacing its chief executive officer. Stock prices for Ford have dropped 30 percent over the past three years, even though the market for auto purchases has been on the upswing.
  • Bitcoin prices are soaring, as they often do during periods of government uncertainty. There was also that ransomware thing, too.

Follow us on Facebook and Twitter, and don't forget to sign up for Reason's daily updates for more content.

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HHS Secretary Tom Price Touts Faith-Based Rehab Over Evidence-Based Addiction Treatment. These 600 Experts Disagree.

Addiction researchers and health-care providers shrieked in unison last week after Health and Human Services Secretary Tom Price suggested to a West Virginia newspaper reporter that medication-assisted treatment, in which people who are addicted to heroin and prescription opioids are provided suboxone or methadone to reduce cravings, is "just substituting one opioid for another." Charleston Gazette-Mail reporter Eric Eyre writes that "Price touted faith-based programs while showing less support for medication-assisted programs."

In response to Price's remarks, some 600 academics and medical experts signed a letter asking the secretary to reconsider his position and set the record straight on the value of medication-assisted treatment.

"Medication-assisted treatments meet the highest standard of clinical evidence for safety and efficacy. Indeed, the substantial body of research evidence supporting these treatments is summarized in guidance from within your own agency, including the Substance Abuse and Mental Health Services Administration, the US Surgeon General, the National Institute on Drug Abuse, and the Centers for Disease Control and Prevention," the letter reads. "Myths about medications are likely to reduce help-seeking and reinforce very damaging stigma, ultimately leading to avoidable harms."

The petitioners note that the 21st Century CURES Act, which Pres. Obama signed in Dec. 2016, earmarks $1 billion for state-based addiction treatment programs. Then-Rep. Price (R-Ga.) voted against the House version of that bill, but not because it contained language encouraging states to invest in medication-assisted treatment. In fact, he called the aims of the legislation "laudable," but challenged the fact that it created mandatory spending.

"There's no reason that these programs could not be authorized and then made, appropriately, a priority through the discretionary spending process," he said in a statement explaining his opposition to the bill.

While it's strange to see Price, a physician for more than two decades, tout faith-based rehab over medication-assisted treatment, it's stranger still in light of President Trump's decision to nominate Elinore McCance-Katz for Assistant Secretary for Mental Health. A licensed psychiatrist and medical school faculty member at Brown University, McCance-Katz worked at the Substance Abuse and Mental Health and Services Administration under President Obama, and would run the agency if confirmed. Price would be her direct report.

The kicker? In 2014, McCance-Katz gave an interview in which she said, "At this point, the use of MAT for individuals who have a history with a severe substance use disorder or have a chronic relapsing disease is really an ethical issue. Individuals need access to the treatments to help them recover. It is the right and ethical thing to do."

If confirmed, hopefully she can bring her future boss up to speed.

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Trump's Tough Talk in Saudi Arabia, Cultural Appropriation Follies, And Protesting Mike Pence [Reason Podcast]

What happens when rhetoric is good but totally divorced from reality, whether the topic is the budget or war?

Speaking to a gathering of leaders of Middle-Eastern countries, President Donald Trump has declared that peace is only possible if "your nations drive out terrorists and extremists." In the same speech given over the weekend, Trump also called for foreign-policy realism and told the assembled leaders that he wasn't there "to lecture" them about how the govern their citizens just so long as they suppress terrorists.

Is Trump's rhetoric a shift in U.S. foreign policy or will it have no real impact on how war, diplomacy, and commerce is waged? That's one of the topics that Reason's Nick Gillespie, Matt Welch, and Robby Soave discuss in the latest Reason Podcast. Also on the docket: What is behind the jihad against "cultural appropriation," the idea that artists, writers, and individuals should never be allowed to imagine themselves as members of another racial, ethnic, or gender group? Why did Notre Dame students walk out during a commencement speech by Vice President Mike Pence—and did the peaceful protest actually signal a maturity when it comes to disagreement? Will Donald Trump's 10-year budget plan, to be released this week, be anything other than a fantasy map, or will it actually deliver on his promise to, in the words of his advisor Steve Bannon, "deconstruct the administrative state"?

Produced by Ian Keyser.

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How Deregulation Gave Us FM Radio, HBO, and the iPhone: New at Reason

The FCC is designed to protect incumbents, enrich politicians, and screw consumers, says economist Thomas Hazlett.

"We've gone to a modern [broadcast] system that has a lot of places where stuff can happen without permission," says Thomas W. Hazlett, who's the FCC's former chief economist, a professor at Clemson University, and author of the new book The Political Spectrum: The Tumultuous Liberation of Wireless Technology, from Herbert Hoover to the Smartphone. "And we have seen that the smartphone revolution and some other great stuff in the wireless space has really burgeoned...That comes from deregulation."

So-called net neutrality rules are designed to solve a non-existent problem and threaten to restrict consumer choice, Hazlett tells Reason's Nick Gillespie. "The travesty is there's already a regulatory scheme [to address anti-competitive behavior]—it's called antitrust law."

Greater autonomy and consumer freedom led to the development of cable television, the smartphone revolution, and the modern internet. While we've come a long way from the old days of mother-may-I pleading with the FCC to grant licenses for new technology, Hazlett says, "there's a lot farther to go and there's a lot of stuff out there that's being suppressed."

Click below for full text, links, and downloadable versions.

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Texas Transgender Bathroom Panic Law Set to Pass

Compromise waters down worst parts, but it still screws with students.

Transgender protestEli Gerzon/newzulu/NewscomTexas' state senators have succumbed to transgender bathroom panic. But the bill they just approved isn't as bad as it could have been.

Over the weekend, Republicans in the state Senate added an amendment to SB2078, a bill overseeing how public and charter schools manage hazards and emergencies. No, they're not classifying transgender students as hazards or emergencies. But the amendment does order that students use the public school facilities (bathrooms, locker rooms, etc.) of their biological sex. The schools may also offer private unisex single-occupancy facilities.

The amendment has nothing to say about private facilities operated outside the public school system, either to mandate accommodation or to forbid it. Nor does it attempt to tell Texas municipalities what sort of antidiscrimination or public accommodation laws they may pass. The decision not to overrule city laws makes the Texas bill less expansive than the controversial bathroom law that North Carolina passed last year (and then partly rescinded in March).

Compare that to Senate Bill 6, the legislation some Texas state senators and the lieutenant governor were pushing earlier this year. That bill would have mimicked North Carolina's rule banning cities from expanding their own antidiscrimination laws. It would have required people in all government buildings (not just schools) to use the facilities of their biological sexes. It would have authorized the state's attorney general to sue schools and get civil judgments and fines ranging from $1,000 to $10,500 from districts that weren't enforcing the rules. And it would have increased the penalties for a whole host of crimes—including nonviolent offenses, such as prostitution—if they took place in bathrooms or changing rooms.

None of that stuff made it into the new amendment, which was approved on mostly party lines. (One Republican opposed it.) The attorney general is authorized to sue school districts to enforce compliance, but the law no longer includes any financial incentives to do so. The law also specifically states that it doesn't authorize the school district to "disclose intimate details about a student." One fear about laws forbidding transgender accommodation is that their enforcement could potentially "out" transgender students to those who didn't know.

This would still be a bad law, since it strips back the individual's right to control his or her identity in relationship with the government. A better choice would be for the government to accommodate transgender students and then offer more options to all comers, regardless of their biological sex, if they are uncomfortable with the status quo. And then leave the private sector to figure out its own solutions (which will probably do a better job than the government of appeasing all sides).

The bill now heads back to the House and Senate for new votes, and the governor will probably sign it by the end of the week. Then we'll see if Texas will faces boycott threats like the ones we saw in North Carolina.

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Reason Nominated for a Record-for-Us 28 Southern California Journalism Awards

Best website, best blog, and TV journalist of the year are among the honors.

Suck it, Kraftwerk. ||| ReasonReasonReason magazine was founded in May 1968 by a Boston University design genius and Objectivist visionary named Lanny Friedlander. Originally a mimeographed proto-zine held together by staples, the publication quickly moved to offset printing and a more professional managerial team (beginning in 1971) of Robert W. Poole Jr., Manuel Klausner, and the late Tibor Machan. From the beginning there were breakthrough analyses, breathtaking covers, legendary interviews, and investigative bombshells. But let's be honest, the editorial collective you are reading didn't really have its first paid employee until around 1978, a decade after being birthed. If back then you would have told the ragtag, Santa Barbara-based, mostly volunteer army cobbling together the flagship magazine of Free Minds and Free Markets that Reason four decades later would be competing toe to toe for industry honors with billion-dollar juggernauts like the L.A. Times, well, they might have accused you of over-sampling the product.

And yet here we are. Yesterday, the Greater Los Angeles Press Club, whose coverage area reaches from San Ysidro to Santa Barbara, announced the finalists for its 59th annual Southern California Journalism Awards. The L.A. Times, which since the 19th century has been the dominant media player in the region, received 31 nominations for works produced in 2016, at least according to this snap count by Variety. And Reason? A record-shattering (for us) 28, spreading out over 22 different individuals.

Collectively (and under the leadership of Nick Gillespie), we're up for Best Website, Traditional News Organization (against The Hollywood Reporter and Variety), and Best Group Blog (against four different properties of The Hollywood Reporter: Heat Vision, THR, Esq., Live Feed, and Pret-a-Reporter). Individually, leading the pack was writer/producer Jim Epstein, who is one of five finalists for Television Journalist of the Year. Epstein is also up for cross-platform Best Educational Reporting, for "Brownstone Brooklyn's Racial Divide: Why Are the Schools So Segregated?"

And Jim is a finalist for Best TV Documentary Under 25 Minutes, for "How Brazil's Libertarian Movement Helped Bring Down a President":

The rest of our nominations can be found after the jump.

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Who's Telling the Truth in Washington? Anyone?: New at Reason

freestock.cafreestock.caFor politicians, lying is an art form.

A. Barton Hinkle writes:

Even if you set political slant aside, the media sometimes get stories badly wrong. Think of Dan Rather's "fake but accurate" memos about George W. Bush's service in the National Guard. Or Rolling Stone's retracted cover story about a rape at U.Va. Or CNN's retracted story about how the U.S. military used sarin gas against defectors. Or The New York Times' reporting on Saddam Hussein's purported weapons of mass destruction—reporting The Times eventually recanted. Partly. Sort of. With qualifications and so on.

That combination of ideological slant and human fallibility gives Republicans reason to be skeptical of the press. So doubt is a natural reaction when a long train of allegations against Donald Trump, based largely on unnamed sources and unseen memos, dominates the headlines.

Say this much for the establishment press, though: For all its shortcomings, it doesn't lie to your face. Newspapers and news shows are not going to run with a claim they know is a steaming pile of bogus.

Politicians and their henchmen do. All the time.

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Notre Dame Students Who Protested Mike Pence Did Not Violate His Free Speech Rights

Walking out of a commencement address isn't censorship.

PenceNDCheriss May/ZUMA Press/NewscomVice President Mike Pence gave the commencement address at Notre Dame University on Sunday, and about 100 students walked out of the stadium as soon as he started talking.

These individuals had every right to protest Pence. They did not violate his free speech rights, or anyone else's. They did not prove that they are delicate snowflakes who refuse to listen to other people's ideas.

Students who left told The New York Times that they were expressing opposition to the Trump administration's policies and also registering their disagreement with Pence's stances toward gay people and Syrian refugees. (As governor of Indiana, Pence said he would not let Syrian refugees enter the state and was one of the most anti-LGBT Republican leaders.) It's hard to fault them for wanting to make a statement against Pence. The policies they cited are in fact bad. The students, to their credit, didn't heckle the vice president or prevent him from speaking. They simply declined to play the part of a captive audience.

Pence used the opportunity to decry the fact that some campuses are besieged by the forces of "safe zones, tone policing, and administration-sanctioned political correctness," which chill free expression. And he's right: Student-inspired censorship has become a big problem lately. But the Notre Dame graduates' small act of polite defiance isn't an example of this. Protest doesn't become censorship unless the protesters prevent their target from speaking.

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Avoid Impeaching Trump Without Good Cause: New at Reason

Forcing the president out of office should not be easy.

Trump protestBastiaan Slabbers/NurPhoto/Sipa/NewscomAnyone infuriated and exhausted by the chaos of the Trump administration can be forgiven for wishing it would end as soon as possible. But as Sen. Dick Durbin, D-Ill., noted the other day, a lot of Democrats "wanted the president gone on November the 10th of last year." They don't want to miss a chance to be rid of Trump.

Forcing a president from office is among the gravest tasks members of Congress can undertake, and they should refrain unless he gives them no choice. To attempt it with so many questions yet unanswered would look like partisan revenge—not just against Trump but against the people who voted for him.

Presidential impeachment is a club that has been taken out of the closet only three times—for Andrew Johnson, Richard Nixon, and Bill Clinton. Johnson and Clinton fought in the Senate and survived. Nixon resigned in the face of certain impeachment and removal. It's a last resort, and anyone who sees it as a first resort is not to be trusted. Steve Chapman explains.

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Coroner Says Everyone Should Avoid Energy Drinks, Which Kill at Random

As usual, coverage of the latest scare ignores or misrepresents the relative potency of caffeinated beverages.

CNNCNNLast week a South Carolina coroner blamed a teenager's sudden death on caffeine-induced arrhythmia, prompting yet another burst of alarmist warnings about the dangers posed by energy drinks. As usual, the stories either glossed over or misrepresented the amount of caffeine these products contain compared to other, less controversial beverages.

Davis Cripe, a student at Spring Hill High School in Chapin, collapsed during art class on the afternoon of April 26 and was rushed to Palmetto Health Baptist Parkridge Hospital, where he was pronounced dead about an hour later. Cripe's friends reported that he had drunk a McDonald's latte, a large Mountain Dew, and an unspecified energy drink over the course of two hours. Richland County Coroner Gary Watts attributed Cripe's death to a "caffeine-induced cardiac event causing a probable arrhythmia."

Watts, who announced his findings at a news conference that also featured Cripe's grieving father, conceded that his conclusion was debatable. "I realize this is a controversial scenario," he said. "There are are obviously people that don't think this can happen—that you can have this arrhythmia caused by caffeine."

One reason to doubt Watts' determination is that Cripe does not seem to have consumed a very large dose of caffeine. According to the website Caffeine Informer, a McDonald's latte contains 142 milligrams of caffeine, a large (20-ounce) bottle of Mountain Dew has 90, and the most popular energy drinks contain 10 milligrams per fluid ounce, or 160 milligrams in a 16-ounce can. That's a total of less than 400 milligrams, which is the daily limit recommended by the Food and Drug Administration (FDA) for adults. A lethal dose of caffeine is estimated to be somewhere between 5 and 10 grams—i.e., between 5,000 and 10,000 milligrams—for an adult. Cripe was 16 and weighed about 200 pounds.

Watts acknowledged that Cripe did not consume very much caffeine. "This is not a caffeine overdose," he told Reuters. "We're not saying that it was the total amount of caffeine in the system. It was just the way that it was ingested over that short period of time, and the chugging of the energy drink at the end was what the issue was with the cardiac arrhythmia."

Millions of teenagers chug energy drinks, of course, but very few of them die afterward. So assuming Watts is right, Cripe must have been especially sensitive to caffeine. Yet Watts said Cripe seemed perfectly healthy and there was no evidence of previously undetected cardiovascular disease. The coroner suggested that energy drinks kill at random. "This is what's dangerous about this," he said. "You can have five people line up and all of them do the exact same thing with him that day, drink more, and it may not have any type of effect on them at all. It's not something that just because you drink one drink or three drinks [it] is necessarily going to have this effect."

The implication that energy drinks kill something like one out of six teenagers who consume them obviously has no basis in reality. Yet for some reason Watts wants people to think that energy drink consumers face Russian roulette odds. "Our purpose here today is to let people know, especially our young kids in school, that these drinks can be dangerous," he said. "Be very careful with how you use them, and how many you drink on a daily basis." But since Watts is saying even one can might be lethal, complete abstinence would seem to be the only prudent course.

That does appear to be Watts' message. "These drinks can be very dangerous," he said. "I'm telling my friends and family, 'Don't drink them.'" Yet he also claimed that "the purpose here today is not to slam Mountain Dew, not to slam cafe lattes, or energy drinks." It is hard to see how Watts is not slamming energy drinks when he describes them as so dangerous that no one should consume them.

Although Watts emphasized that Cripe did not die from a caffeine overdose, news outlets bent over backward to exaggerate the amount of the stimulant he ingested. Relying on Caffeine Informer's numbers, BBC News reported that "a McDonald's latte has 142mg of caffeine, a 570ml (20oz) Mountain Dew has 90mg, and a 450ml (16oz) energy drink can have as much as 240mg." That "as much as" is a bit of a giveaway. Since the type of energy drink is unknown, it seems more reasonable to cite the caffeine content of the leading brands, which generally contain 160 milligrams or less of caffeine in a 16-ounce can. But even adding another 80 milligrams brings the total to just 472, not far above the level the FDA deems safe for adults (a cutoff that seems to be excessively cautious).

To make that number seem more impressive, BBC News claims a cup of brewed coffee contains "roughly" 100 milligrams of caffeine, even though Caffeine Informer, the source it cites for the other beverages, says it's more like 163 milligrams for an eight-ounce cup. According to Caffeine Informer, brewed coffee typically contains about twice as much caffeine per ounce as those "very dangerous" energy drinks. Brewed coffee sold by some retailers is less potent but generally contains at least as much caffeine per ounce as energy drinks. Dunkin's Donuts brewed coffee, for instance, has 15 milligrams per ounce, while Peet's has about 17. At the low end, McDonald's coffee contains about nine milligrams of caffeine per ounce.

BBC News is suggesting that Cripe consumed the caffeine equivalent of more than four cups of coffee, which is true only if the coffee is unusually weak. The coffee served at other news organizations seems to be even less potent than the BBC brew. NBC News says 400 milligrams of caffeine is equivalent to "about five cups of coffee," while The Washington Post says "about four or five."

BBC News also reports that "most energy drinks contain a caffeine equivalent of three cups of coffee," relying on an estimate by the American Academy of Pediatrics. Even if we compare eight-ounce coffee cups to 16-ounce energy drink cans, that cannot possibly be true, since it implies a total caffeine content in the neighborhood of 480 milligrams. None of the energy drinks listed by Caffeine Informer contains anywhere near that amount in a container of any size.

The Post is slightly more cautious, saying "energy drinks may contain about 300 mg of caffeine." Although that is literally true, fewer than 10 of the 401 varieties listed by Caffeine Informer contain that much caffeine in a single container. Yet an earlier version of the Post story, later corrected, said that potency was typical.

"We're not trying to speak out totally against caffeine," Watts said. "We believe people need to pay attention to their caffeine intake and how they do it." But if that is the message, why did Watts single out energy drinks, which are about half as potent as coffee, urging people to eschew them entirely? And why are news organizations so keen to reinforce the same irrational distinction?

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Libertarian Legal Scholars Reject Trump Judicial Nominee's Views on 14th Amendment

Gage Skidmore / Flickr.comGage Skidmore / Flickr.comOne of President Donald Trump's federal court nominees favors an interpretation of the 14th Amendment that libertarian legal scholars have roundly rejected.

Kevin Newsom, the former Alabama solicitor general recently nominated by President Trump to the U.S. Court of Appeals for the 11th Circuit, is the author of a January 2000 article in the Yale Law Journal in which he argues that the Supreme Court's 1873 decision in The Slaughter-House Cases correctly held that the Privileges or Immunities Clause of the 14th Amendment offers zero protection for economic liberty. That view is hotly contested by libertarian constitutional experts.

At issue in The Slaughter-House Cases was a Louisiana statute that granted a private corporation a lucrative 25-year monopoly to operate a central slaughterhouse for the city of New Orleans. A group of local butchers challenged the law in federal court, arguing that the monopoly was a special-interest boondoggle that served no legitimate health or safety purpose and violated their fundamental rights to earn a living free from unnecessary government control. According to the butchers, the right to economic liberty was one of the privileges and immunities of U.S. citizenship recently secured against state abuse by the 1868 ratification of the 14th Amendment, which reads in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

From the standpoint of constitutional text and history, the butchers had a strong argument. The debates over the framing and ratification of the 14th Amendment make it clear that the provision was originally understood to protect economic liberty. Indeed, according to the principal author of the Privileges or Immunities Clause, Republican Congressman John Bingham of Ohio, "the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States" includes "the constitutional work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

But the Supreme Court saw things differently. Adopting a posture of judicial deference, the Court ruled 5-4 in favor of the state legislature and effectively eliminated the Privileges or Immunities Clause from the Constitution. According to the majority opinion of Justice Samuel Miller, the Court had no business acting as "a perpetual censor upon all legislation of the States." To rule otherwise, he said, would "fetter and degrade the State governments." The Privileges or Immunities Clause basically offered no real protection at all, Miller insisted, except for a handful of mostly inconsequential federal rights, such as the right to access federal waterways. Slaughter-House rendered the clause toothless against virtually all state action.

Because Slaughter-House was the first case in which the Supreme Court interpreted the meaning of the new 14th Amendment, the ruling had a transformative impact on the future course of American law. Its significance cannot be easily overstated.

Today, a growing number of constitutional originalists, particularly those associated with the libertarian wing of the conservative legal movement, have concluded that Slaughter-House was wrong the day it was decided and therefore deserves to be confined or even overruled by the Supreme Court.

For example, according to Clint Bolick, the Institute for Justice co-founder who currently serves as an Arizona Supreme Court justice, Slaughter-House is "one of the worst decisions in American law." In Bolick's view, the ruling eviscerated "one of the most sacred and central rights of Americans: economic liberty, the right to pursue a business or occupation free from arbitrary or excessive government regulation." Georgetown law professor Randy Barnett, one of the most influential originalist scholars at work today, has likewise concluded that Slaughter-House "ignored the original meaning" of the 14th Amendment.

To be sure, Slaughter-House has had its defenders, particularly among the school of legal conservatives who favor a more deferential judiciary. For example, the late Robert Bork, who famously maintained that, "in wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities," insisted that Slaughter-House represented a "sound judicial instinct" and should be applauded as "a narrow victory for judicial moderation." Along similar lines, Ken Blackwell of the Family Research Council, writing with Ken Klukowski of the American Civil Rights Union, has argued that "what's so important about [Slaughter-House] is that there's nothing in the Constitution about such an economic right." If the case is ever overturned, the two have argued, "activist" judges might "use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, and business regulations around the country."

Kevin Newsom, Trump's nominee for the 11th Circuit, falls in the Bork-Blackwell-Klukowski camp. In the Yale Law Journal, Newsom praised the Slaughter-House majority opinion for its "judicial restraint" and for its opposition to "the constitutionalization of laissez-faire economic theory." When it comes to the "economic rights claimed by the butchers" in Slaughter-House, Newsom maintained, the Court was right to conclude that "the 14th Amendment did not safeguard [them] against state interference."

Newsom's views on the 14th Amendment thus put him directly at odds with the flourishing camp of libertarian-minded lawyers, judges, and scholars whose influence on the conservative legal movement has been on the upswing in recent years.

It remains to be seen if this clash of constitutional visions will play any role in Newsom's confirmation hearings before the Senate Judiciary Committee.

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Trump in Saudi Arabia, Pence at Notre Dame, NASA Astronauts to Emergency Spacewalk: A.M. Links

  • White HouseWhite HousePresident Trump was in Saudi Arabia, where he spoke about the need for all religions to combat Islamic extremism.
  • Vice President Mike Pence delivered the commencement address at Notre Dame, telling students to be "men and women of integrity and values," dozens of whom walked out in protest.
  • The Congressional Budget Office is set to release its score of the GOP healthcare bill on Wednesday.
  • New York Gov. Andrew Cuomo is asking Trump for funding for improvements to Penn Station to avert a "summer of agony."
  • The Pentagon is reportedly going to examine its ability to recruit transgendere people, according to a memo seen by Reuters.
  • North Korea says it has conducted another successful ballistics missile launch.
  • Two NASA astronauts on the International Space Station will conduct an emergency spacewalk to replace a failed computer.
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No, ‘The Conceptual Penis as a Social Construct’ Hoax Doesn’t Prove Gender Studies Is Garbage

Hoax social science paper is more an indictment of pay-to-publish journals than anything else.

HoaxVadymvdrobotTwo authors submitted a hoax paper filled with postmodern gobbledygook to an academic journal in order to demonstrate that the field of gender studies lacks rigor: wholly incoherent screeds about "The Conceptual Penis as a Social Construct" (yep, that was the title of the hoax paper) will pass muster.

The authors, Peter Boghossian and James Lindsay, succeeded in a very narrow sense—a journal did agree to publish their paper. But they did not prove their larger point, since the journal that accepted "The Conceptual Penis as a Social Construct" is Cogent Social Sciences, a kind of vanity publisher that requires its writers to pay a fee.

Boghossian, a philosophy professor at Portland State University, and Lindsay, a mathematician and author, were attempting a Sokal-esque scheme—Alan Sokal being the author of a very famous hoax paper, "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity," which was published by the leftist academic journal Social Text. But Boghossian and Lindsay were turned down by their initial target, NORMA: The International Journal of Men's Studies. The fact that Cogent agreed to publish their work—for a fee—isn't exactly powerful evidence that the field of gender studies is, as Boghossian and Lindsay put it, suffering from a "deeply troublesome disease."

"Having managed to pay for a paper to be published in a deeply suspect journal the hoaxers then conclude that the entire field of Gender Studies is suspect," writes James Taylor of Bleeding Heart Libertarians in a highly critical post. "How they made this deductive leap is actually far more puzzling than how the paper got accepted."

Hank Reichman points out that the experiment works better as a critique of pay-to-publish journals, rather than as an indictment of gender studies:

Interestingly, the hoax could have been viewed as a useful exposure of pay-to-publish journals. And the authors do dedicate some of their Skeptic piece to discussing the problem of predatory publishing. They write that "in the short term, pay-to-publish may be a significant problem because of the inherent tendencies toward conflicts of interest (profits trump academic quality, that is, the profit motive is dangerous because ethics are expensive)." But that was not the reason Boghossian and Lindsay published their piece or submitted their hoax.

To be sure, there are some real problems with gender studies as a field. "The Conceptual Penis as a Social Construct" was a deliberate hoax, but "Women's Studies as Virus: Institutional Feminism and the Projection of Danger," was real enough. (Feminist authors: feminism is cancer—but that's a good thing!) And who can forget that paper about feminizing glaciers?

But, if the main criticism of gender studies is that it's unscientific and dogmatic, the field's critics should be careful about not falling prey to dogma themselves. Skeptics ought to be more, well, skeptical.

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Brickbat: Eat and Run

kebabsMamonello via / CC BYAuthorities in Venice, Italy, have banned new fast food restaurants including kebab shops and places that sell pizza by the slice. They say they want to "preserve decorum and traditions."


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