Thursday Open Thread

What's on your mind?

Comments

[AmosArch]

Its taken as a given nowadays that nationbuilding doesn't work. And given the events of the last few decades this seems to be almost inarguable. But when you look again there does seem to be fairly recent examples of successful 'nationbuilding'. For example postwar Europe and perhaps even more spectacularly Japan.

Chinese efforts in Tibet, Mongolia, and Xinjiang are arguably even more recent examples that if not proceeding smoothly are proceeding in a fashion places like Afghanistan seem incapable of. There are countless more examples of seemingly successful 'nationbuilding' in earlier history. What really sets these apart from all the impossible places and are they really so firmly divided or is it just a matter of tweaking the strategy and effort?

[AmosArch]

Possible factors contributing to successful vs unsuccessful nationbuilding.

Olden days vs modern: Obvious

International and domestic perceptions and consensus against nationbuilding and colonialism: China and to a certain extent Russia and some smaller countries get around this by simply ignoring it. They have also brilliantly reframed the issue from colonialism to simply reclaiming traditional territories even though a lot of these people they are marauding upon are quite culturally and ethnically different.
The US and European nations have also tried to get around this but with much less success.

Modern western nations inherently suck at colonialism and nationbuilding.

Geographic proximity

National will

Distance between colonizing and subject culture. Distance between previous culture and the one you are attempting to build: At first glance doesn't seen to completely fit since Imperial Japan was quite culturally different than the Allies but still underneath Japan was relatively technologically advanced and in a technical sense was much more like Western nations even compared to Afghanistan now. It also doesn't seem to fit with how different the Chinese and some of the places they are subjugating are. But there are many factors at play.

race/ethnicity: Maybe some ethnic groups are easier to nationbuild upon than others?

Morality: Maybe the Japanese and Germans knew deep down that they were 'in the wrong' and this made nationbuilding them easier than in other more clearly imperialist cases: Again doesn't seem to completely fit with some of the nationbuilding done by China today but they have tried to reframe it. Not sure the subject population completely buys this though.

[Rip Murdock]

Also total destruction of enemy’s will to resist, something that was never achieved in Afghanistan.

[Brett Bellmore]

This isn't a tweak. The Chinese are not aiming to make Tibet a better functioning Tibet. They're aiming to make Tibet an indistinguishable piece of China, right down to the population.

Genocide might leave a functioning nation behind, but it's fundamentally not about nation building. It's about nation replacing.

[santamonica811]

A post where I agree 100% with Brett. God help us all.

[Brett Bellmore]

Don't mistake the fact that we mostly discuss things we disagree about, for us mostly disagreeing. We don't bother discussing the uncontroversial.

[Armchair Lawyer]

I think Nation-Building can work. There just needs to be a commitment. A truly long term commitment. To use the examples of Japan and Germany, we have troops there to this day. That's 80 years worth of troops.

You can't "Nation-Build" for just 10 years, or even 20 years. There needs to be a multigenerational commitment. There needs to be an ingraining of certain social mores and ethics.

[Sarcastr0]

We're not still nation-building in Germany and Japan. Both of those were completed within much less than a generation.

Of course, neither is the middle east.

Bottom line, I'm not convinced it's possible, and even if it is, I'm not convinced it's worth it for either humanitarian or realpolitik reasons. If you go to war with nation building as your goal, you're in a bad war.

[Brett Bellmore]

Countries that take multiculturalism seriously can't do nation building. Nations aren't just about external legal forms, they're about culture, too. Without the culture, the legal forms are hollow, meaningless, they won't be followed.

So, properly understood, nation building is essentially a form of cultural genocide. If you're not willing to deliberately change a country's culture, nation building is hopeless.

And people don't WANT their culture changed. You have to use force, you have to beat people down to the point where they internalize that they've been beaten, and cease resisting.

We lack both the confidence in our own culture to impose it on others, and the ruthlessness needed to beat people down to the point where they'd LET us impose our culture on them. We are not a country that is capable of 'nation building'. We've demonstrated that over and over.

[Armchair Lawyer]

Indeed. Because at its core, "Nation Building" is a system of eradicating the native socio-political order, reforming it to an ideal more in line with what we desire as a nation state. Take what's an imperial system of government and breaking it completely, forcing the people to recognize and even accept a democratic form of government, one that really previously didn't exist.

I think we "could" have the capability to do this. It would require more commitment than we really have at the moment though.

[Krayt]

I don't think this is true. People flee their own cultures, in your context, to get away from dictatorship, corruption, and failed states, which are just the same but warlord level.

There is no culture for that stuff, and if there were, happy destruction. Wearing a pretty green weave while dancing to an 800 year old song has nothing to do with a dogged economy because you have to pay thousands of dollars to some local thugling to open, then more as an ongoing concern.

[Armchair Lawyer]

"There is no culture for that stuff"

That's not exactly true. Let's give you an example. One of the reasons the Afghan army failed, was because of the native culture. As one of the US officers said

"“We don’t have to teach American soldiers to obey the law, not to take bribes, to respect human rights; they come into our force having internalized those things already.” We try to create militaries in our image, and that’s often not congruent with the political and social circumstances in which those forces are operating."

Think about corruption for a second, specifically bribery. On an individual level, it makes a great deal of sense. You get money, which use can use. The briber gets what they need. It's a win/win on the individual level. Society as a whole loses out. But on the individual level, it's a win...especially if it's largely accepted.

If you're a person who doesn't take bribes, while everyone around you does, you're suffering the losses while not gaining any of the advantages. It's only in a society which doesn't accept bribery (and is harshly punished) that it's the best option.

That concept of bribery and corruption works its way up and leads to large scale inefficiencies, lack of trust in the law, and ultimately a reliance on individual leaders, rather than a system of governance. But that bribery issue is cultural to a large extent. It's accepted in some cultures. It's not in others. And in a third category, it's a grey area.

[M L]

Even pure legal forms themselves are ultimately cultural constructs, to say nothing of the broad and deep cultural norms that are completely necessary to support them.

But yeah, dancing in a pretty green weave to an 800 year old song is also "culture" so it's a pretty broad term.

[bernard11]

I think we're dealing with some pretty vague terms here, specifically "culture" and "nation-building."

Was anyone really trying to set Afghanistan up as a western style pluralistic democracy? I don't think so.

Imagine it had become a peaceful, stable, Muslim, not-particularly democratic country on the order of Saudi Arabia, say. Wouldn't that have been regarded as a huge success?

[Armchair Lawyer]

"Was anyone really trying to set Afghanistan up as a western style pluralistic democracy?"

Yes...We were. And did. There's a reason it was the Islamic Republic of Afghanistan. With elections. Political parties. Not to mention pushing to educate women (which was done).

https://en.wikipedia.org/wiki/Islamic_Republic_of_Afghanistan#Elections_and_parties

[Don Nico]

That would have been a success

[M L]

Well, no. Apparently "Afghanistan" has been warring tribes for a thousand years, never united or controlled though many have tried. Everyone knows the cliche that it's "where empires go to die."

If we just tried to empower a dictator who would not be too terribly awful, yes, that plan would have been ten thousand times smarter than what the totally incompetent morons who run this country came up with. And it might have appeared to "work" enough that someone would claim success. But at the end of the day, I'm certain that foreign military adventurism never ever truly "works" for or benefits those who are supposed to be benefitting, the American people. But that's the last thing on the mind of any imperialist, globalist, war profiteer, or neocon.

[M L]

That's a good thought bernard, but you're mistaken on the facts. They were literally trying to force them to be a democracy. And then they started with the radical gender studies programs, and actual QUOTAS based on sex for representatives in government and so on, which accounts say was very divisive there.

[Sarcastr0]

There is something to what you're saying, but I'm not sure you cannot build a nation with a culture other than your own, if you're clever about it. Happened in the ancient world a decent amount, at least.

I don't think you can pull off a cultural genocide very easily either. Look at the troubles China has, and it's about as anti-diversity as you get. Force of arms is not a powerful tool to persuade in any kind of long-term fashion.

It's an easy argument that we just need to be more savage and we can accomplish our goals. But I don't think that's true for the complicated goals we have these days.

[Armchair Lawyer]

"I don’t think you can pull off a cultural genocide very easily either."

It's not easy, but it's doable. A combination of force, resources, and education can effect it quite well.

Tibet as a free country has largely left the common view in the rest of the world.

[Sarcastr0]

Tibet still has it's own culture, so dunno how you're using that as an example. Hell, even Hong Kong does.

Military occupation doesn't get you there. I even take back my ancient world example - Christianity and Judaism were targets for ages by enthusiastically genocidal empires. To no avail.

You can create incentives, but you cannot manufacture consent.

[Don Nico]

But you can use the old technique
"the solution to pollution is dilution"

[Sarcastr0]

Haha - you may have it! The only real way to nation build is to go full colonial, and just start giving away plots of land for Americans to move to in Afghanistan and start a new life!

[Don Nico]

Exactly!

[Brett Bellmore]

" Tibet still has it’s own culture,"

And it's own population. But less and less every year. You don't have to think a job is done, to notice somebody is doing it.

[Sarcastr0]

I, mean, sure, fuck China, Free Tibet.

But this does show the difficulty of cultural genocide, even for a genocidal state.

[Armchair Lawyer]

It's a long term process for sure. But when's the last time you saw a "Free Tibet" shirt?

[Jmaie]

Not sure why I can't reply to Armchair Lawyer's comment below about Free Tibet tee shirts...one of my all time favorite bumper stickers read, "Free Tibet, with the purchase of another Tibet of equal or greater value."

[Nige]

Has it occurred to you that you're just doing it wrong? Or you're not very good it it? That's a ridiculously inflexible approach you're describing to something that must need incredible amounts of flexibility. Or that nation building was never really the priority? In fact, since your inflexible approach seems to have been what was attempted in Afghanisatn, I think it's fair to see that on a fundamental level, it was never taken seriously as a project, but rather a massive PR campaign and an effort to control a power base, and exert a sphere of influence

[Don Nico]

Many errors were made. However you characterization is a rather arrogant gross exaggeration.

[Sarcastr0]

I'd say the safer thesis is that rather quickly we failed to have much of a priority at all, other than not leaving. Plenty of ideas, sure, but never a real vision we stuck with.

Same with Iraq, really.

[Brett Bellmore]

So long as we didn't leave, we could pretend we hadn't lost. So we stayed.

[Armchair Lawyer]

There's a certain amount of realpolitik for an in-between ground.

Commit enough resources to have a holding pattern, not enough to have a outright stable nation state. Resources aren't unlimited, after all. In the meantime, you prevent Afghanistan from being a host-state to terrorism.

[Brett Bellmore]

Give it a couple years, and I'm sure we'll find we're not doing that anymore.

[Nige]

It was nothing more than a massively corrupt criminal conspiracy as far as I can tell, and it's swimming in blood. The US military should be ripped apart for it.

[Brett Bellmore]

And I should point out that Germany and Japan were both functioning nations before we went in. All we did was tweak them a bit, and even that required properly crushing them first, so that they admitted that they'd been beat.

Afghanistan hasn't been a functioning nation in living memory, it's just a territory other countries have found convenient to treat as a nation. You'd have to start from the ground up, create a nation, not just tweak it.

[Toranth]

Both Japan and Germany already had multi-generation histories as democracies before WW2 anyway.
South Korea may be the better example - it's turned out pretty well, even though the US kept a series of military dictatorships in place until the 1980s.

[Krychek_2]

Neither Germany nor Japan had anything comparable to the Taliban, which continued to engage in militia-style tactics and terrorism after the war ended. There was no well armed and organized opposition to nation building in Germany and Japan as there was in Afghanistan.

The only way nation building was going to work in Afghanistan would have to been to completely eradicate the Taliban. Given the realities of Afghanistan, that may not even have been possible, and certainly not without putting a lot more troops on the ground and killing a lot more people.

[Armchair Lawyer]

The Taliban was supported by Pakistan (and to a much lesser extent, by Iran)

When you have a guerilla group that has support from neighboring countries...especially neighboring countries with porous borders that are difficult to defend...it makes it very difficult.

That didn't exist with Japan or Germany, that support for the "old regime" from neighboring countries.

[Brett Bellmore]

It's long been known that the Taliban were more or less a creation of the Pakistani intelligence services. In fact, I understand that, after the World Trade center bombing, we'd actually resolved to do something about Pakistan, but then some member of Congress spilled the beans, and our operation to swoop in and denuclearize them had to be canceled because they'd moved their bombs.

With Pakistan denuclearized, genuinely taking out the Taliban would have been possible, because it would be possible to deny them support and refuge in Pakistan. As it is, the situation in Afghanistan was somewhat similar to Viet Nam, in that we were in a proxy war where we couldn't afford to directly attack the hand inside the puppet.

[James Pollock]

Taking away the bombs they already have is only useful if they lack the ability to make more.

[Brett Bellmore]

It's notably easier to take away the capability once they don't have the nuclear bombs to defend it with.

[James Pollock]

YMMV.

[Jmaie]

Taliban was supported by Iran? If by that you mean have armed conflict with...

[Don Nico]

"would have to been to completely eradicate the Taliban"
Given the powerful and pervasive links with the Waziri Taliban and the collusion of the Pakistani ISI, that would have been practically impossible

[James Pollock]

"The only way nation building was going to work in Afghanistan would have to been to completely eradicate the Taliban."

The fundamental problem isn't the Taliban. It's the willingness of the Afghani population to accept the Taliban as leaders of government.

[Nige]

Imagine a western democracy invades your country and sets up a government so bad, the Taliban is preferable.

[James Pollock]

Holy Iraq flashback!

[Armchair Lawyer]

You're not convinced nation building is possible, but simultaneously say we were done nation building in Germany and Japan in less than a generation. That's a bit of a paradox.

Nation building IS possible. It simply requires a true commitment, resources, and an understanding of what Nation Building really is. Reforming the existing socio-political-cultural order into one more desirable for the nation building state.

Germany is a good example here, because of its failures and its successes. The "Nation" of Germany existed just fine, in 1914, 1910, and 1945. It was fine as a nation in each of these times, But it didn't match what the Nation Building States (France/UK or the France/UK/US) alliance wanted, either in 1919 or 1945. The Nation Building states wanted a democratic, peaceful, German state. And they tried to institute these reforms in 1919...and ultimately failed. Resources were pulled to early (or weren't used at all...) ending up in the failure of the Weimar Republic. With a longer term commitment and more resources in 1945, a longer running democratic state was developed.

Nation building in a culture that has greater distance from the desired culture requires more effort, time, and resources.

[Sarcastr0]

Either I contradicted myself within 2 sentences, or I was talking about Afghanistan in particular, hence my qualification about the middle east.

I do think it's possible, with a sufficiently centralized power structure, as Brett says.

The Treaty of Versailles did not have as it's goal the unification and stabilization of Germany!

[Don Nico]

S_0,
Those two countries that you cite had highly developed governmental structure and tradition so that you were talking of nation rebuilding rather than nation building.

[Sarcastr0]

Sort of - we did rebuild Japan a lot.

But yeah, we have a definition problem. What does nation building even mean?

[Don Nico]

We did help Japan rebuild.
If you see the way east coastal Japan rebuilt after massive destruction by the tsunami, you can see what a determined and disciplined monocultural (a bit of an exaggeration) country can do, especially with external help.

[Sarcastr0]

I mean, we wrote their Constitution, and made them agree to it. Though notably they've kept it, unammended, ever since.

Though honestly, you may be onto something.
I've not done a deep dive into the area, but I've never quite understood how we were so successful in swiftly rebuilding Japan into this east-west combo culture, coming in from the outside with not a lot of social understanding.

Maybe something about how centralized their power structure was?

[Brett Bellmore]

It was, I think, a combination of their already being a developed nation, and our having very decisively defeated them, to the point where they couldn't have any illusions that they hadn't been beat fair and square.

[Toranth]

Japan's first western-style constitution was put into place in 1888, and was (generally) followed until the military managed a campaign of extra-judicial killings that successfully put them into ruling power, where they could ignore the constitution - right around 1930.
The 1945 post-war constitution was still more Euro-style than US-style, although the US did force them to accept a few clauses, most notably the "No aggressive war" part.

But the 1945 Constitution was not something new or shocking to the Japanese. The details differed, but structurally it wasn't that much different than what they'd been running with.

[Sarcastr0]

That's a decent point - that the Meiji Restoration came with a bunch of conscious, internally-generated westernization already.

Not without it's own turmoil to get there, but it did get there, and it stuck for at least a while.

[Don Nico]

I watch NHK every day rather than US based TV. It is quite revealing and inspiring to learn how that country has rebuilt after massive destruction. They take in foreigners in a very limited fashion and in a way that facilitates and accelerates their integration into Japanese society and culture.

[rsteinmetz]

Germany and Japan were not dysfunctional unrulable places before the end of WWII. In fact both were functioning democracies before they went off the rails.

[James Pollock]

"when you look again there does seem to be fairly recent examples of successful ‘nationbuilding’. For example postwar Europe and perhaps even more spectacularly Japan."

That wasn't "nation-building". That was "pipe down and play nice with your neighbors". The nation of Japan was built well before the post-WWII period. They didn't need any help with that. Similarly, post-war Germany was, well, 3/4 of Germany plus 1/4 of Germany. Allowing the two parts of Germany to become Germany again didn't take any effort on our part other than staying out of the way. The hard part was keeping them from invading other nations...which seems to have worked, after "only" two World Wars. This isn't the same as Afghanistan, say, or Vietnam. Both of those cases involved strong local identity resisting foreign intervention. Vietnam successfully ejected Imperial Japan, Imperial France, and the misguided United States. Afghanistan pushed out the Russkies and us. They did this by having nothing left to lose after being invaded by modern mechanized military forces and engaging them in war of attrition wherein they traded stone huts for tanks, roads and bridges for unarmored convoys. In short, they wanted to be free of us more than we wanted to be in charge of them. It's like being the parent of a rebellious teen... you get to the point of asking "why am I still doing this? This is not what I wanted to be doing." We should have arranged for our allies to take refugees who wanted to be free of the Talib, or taken them in ourselves, and letting the ones who didn't want to be free of the Talib to be ruled by the Taliban. The way people who don't want to be ruled by the "Christian" leaders of the Bible Belt are able to go to California, instead, and try that out. Eventually, the former Confederacy built an industrial base of their own. True, it DID take 150 years, which is longer than expected, and they DID have to be told to try treating the black people more like people (and see how well that is working out.)

[Nige]

Look, all they did in Afghanistan was impose a highly corrupt and deeply unpopular central government, train and arm a paper-tiger army that was also corrupt and infiltrated by the Taliban, throw billions of dollars around, and then lied over and over again that everything was going fine. Its clear that nobody gave even a moment's serious thought to what nation-building in a country of Afghanistan would actually entail and how long it would take. Nation building is never going to work if you don't actually take account of the reality and the people of the country you're supposed to be building a nation in.

[Bob from Ohio]

"Chinese efforts in Tibet, Mongolia, and Xinjiang"

They are not "nation building", they are engaged in population replacement.

They are also a vicious dictatorship using methods that no modern Western country would use for a minute.

[WuzYoungOnceToo]

Using the same term ("Nation Building") to refer to what was done in post-war Germany and Japan as though that was at all like what was being attempted with Afghanistan is silly. Although they were militaristic empires, both Japan and Germany were societies with a well-established national identity for a long time before they were defeated in WWII. Afghanistan has long been just a collection of disparate tribal peoples ruled primarily by the Pashtun, and who identify as whatever their tribal ethnicity is rather than as "Afghans".

[Sarcastr0]

Originalism Deep Dive Episode 5/7: Original Law Originalism. Will and Adam tease out positive law originalism further by discussing "original law originalism," the other new development after the positive turn. They discuss the difference between original intent and original meaning, how scholars might use methods of change, and how originalism handles the Reconstruction Amendments.

[Sarcastr0]

1. What is Original Law Originalism?
Positive turn is 'our legal system has been acting in a certain way for a long and successful time. Lets keep doing that.'

Original law originalism - when in Constitutional law. Start with the language the *legal* public at the time knew them, and then ask if anything has intervened historically. Not original intent for reasons of clarity.
These depart from OG originalism due to 1) the motives they offer for why follow originalism, and 2) the methodology from authorial intent to public's understanding.
In this style of public meaning, you ask what doctrines would spring to mind of a legal contemporary when 'freedom of speech' was mentioned.

This was in response to criticism of checking James Madison's diaries as an ancillary source. Though you can still check them for what he thought the words meant [this doesn't seem to agree with original law doctrine's general theme of checking the listener, not the writer.]
One way this matters is the powers of the Executive. There is some evidence the drafters were thinking about the powers of a king, absent a few they explicitly took away. But publically, that's not how the public saw it though!

Did the public think of Constitutions as having a common law aspect to it? Unclear! Baude is working on it. Looks like nothing like judge-made common law. *But it looks like the founding public did expect some common law-esque evolution in Constitutional law!* within certain norms!! Though Buade has found that common law in that era was not like it is today - fewer seminal cases breaking with the past for reasons. Even if that's how we teach it in law school.

[Brett Bellmore]

"There is some evidence the drafters were thinking about the powers of a king, absent a few they explicitly took away. But publically, that’s not how the public saw it though!"

My impression is that Hamilton, at least, and possible a few more of the founders, were trying to pull a bait and switch on the public. "Planting an acorn to get an oak tree" is how I put it. They didn't actually want limited government.

The anti-Federalists actually come off as quite prescient, if you read the debates between them and the Federalists. They had a better idea of what was going on than most people appreciate.

[Sarcastr0]

I'm not big Hamilton fan, but I don't think he was lying to the public.

[Ed Grinberg]

Unlike Jefferson, Hamilton didn't hold "the public" in a very high regard.

[Sarcastr0]

Neither did Jefferson, for all his talk about democracy leading to wise policy outcomes, he was quite willing to do what he needed to get what he thought was best - we're talking about elites of the elite here, in an era of noblesse oblige.

But there is no evidence Hamilton was pulling off a 'bait and switch' with the American public. That's just more of Brett's seeing bad faith everywhere.

[Stephen Lathrop]

Hamilton absolutely lied when he expressed support for militias in the Federalist Papers. Hamilton (and Washington) hated militias, and both thought militias were a potential menace to the republic. Hamilton pestered Adams to put Hamilton at the head of a standing army. Designed uniforms for it. Adams gave in, but the project fell through when the crisis it was aimed at opposing went away on its own.

[James Pollock]

"Neither did Jefferson, for all his talk about democracy leading to wise policy outcomes, he was quite willing to do what he needed to get what he thought was best"

The Louisiana Purchase worked out well for Jefferson. But it was still a power he didn't actually have when he did it.

[Sarcastr0]

2. Scholarship and originalism.
Originalist papers often insists on something radical (e.g. end the administrative state), and then follows up by saying 'actually, we've never had a nondelegation doctrine, so just a bit of that.'
But isn't that just law papers generally?

Standard methodology article (like from polisci, economics) psychology, - explain what people have been doing, give examples of problems caused by this past method, and then introduce your new method, and explain how they will fix the problem.
But originalism doesn't do that. They aren't discussing the outcome differences. Or they disagree to the point of opaqueness. Part of this is the law generally isn't into methods. But part of it is there is no agreement about what's a 'problem' and what's not. And also originalism is evolving in response to normative external criticism. Which is no way to further a methodology, especially when the claims are often instrumental, e.g. constrain judges. But that is changing some nowadays.

[Commenter_XY]

Sarcastr0....My thought is some scholarship exists from the time of the Founders. Maybe not scholarship as we think of it. Example: Some time ago, Orin Kerr published a paper on the original understanding of the 5th(?) amendment. As I recall, John Marshall had a trial of sorts, and lawyers argued out the original meaning of the 5th amendment.

The point? I think we need to shine more lights on old scholarship, particularly scholarship at the time of the country's founding. My view is a fuller understanding of how the Framers of the Constitution understood the contours of our liberties has now become a 'must have'.

Our country is very divided on what the contours of our individual liberties actually are.

And a good morning to you! You're up early. 🙂

[Commenter_XY]

And BTW, that paper Professor Kerr published here was amazing.

[Sarcastr0]

I'm not one of those who says 'lawyers can't do history! *scoff *scoff*' but lawyers aren't incentivized to give a full accounting of history. And neither are law professors. If I were a school into originalism, I'd endow a chair dedicated to legal history of the Founding and Reconstruction.

From a purely instrumental point of view, I don't think the Founders' understandings of individual liberty will do much to solve our divides about liberty.

I got a call with Japan in 20 mins. But I'm full of coffee so I may just take a walk after that. I'm listening to an old podcast series on the Normans, and it's a lot of fun.

[Commenter_XY]

I understand = Japan call. I sometimes have to talk to remote staff in India and eastern Europe. It makes for odd call times.

[Brett Bellmore]

Historians aren't particularly motivated to do that, either. I'm sure you've seen the studies of partisan affiliation in university faculties: History is by far the most lopsided, with most of the universities studied having no Republican history professors at all.

That sort of total monopolization of a field by one political perspective has to be distorting.

[Sarcastr0]

No, Brett. You are as usual assuming partisanship obliterates professionalism.

Lawyers are expressly advocates - they would not be doing their job if they were presenting objective takes on history.

Historians are the opposite. Is there unconscious bias? Of course, but the idea that history cannot be understood without the modern Republican point of view is ridiculous.

[Brett Bellmore]

Yes, Sarcastro, I'm assuming historians are human beings. That group think sets in when everybody starts out agreeing about fundamentals.

My bad, they're actually Vulcans in disguise. How could I have forgotten that?

Again, I'll annoy you by reminding you of the Belesilles scandal. That Belesilles won the Bancroft award AFTER people had found massive flaws in his work, because his work reinforced the political prejudices of historians, he was telling them what they wanted to hear.

Political monocultures lead to questions that aren't asked, assumptions that aren't challenged. They're poison.

[Sarcastr0]

You assume people have no professionalism.

You often assume this. I continue to find it to be quite incorrect. It is the opposite of my experience with experts, who tend to keep their ego in their expertise, not in some political faction.

A prize that was later retracted doesn't seem to redound in the favor of partisanship over truth to me!

[bernard11]

How many times are you going to bring up Bellesiles as evidence of the corruption of the history profession?

Doesn't the fact that you keep resorting to that case suggest that you don't exactly have tons of evidence.

And does it occur to you that "Historians all disagree with me," might mean you're wrong, rather than that they are some sort of monolithic bloc of anti-Bellmoreites?

[Brett Bellmore]

Every time somebody claims they're not corrupt, obviously. It happened, Bernard. He actually got a prestigious award AFTER people had pointed out the problems with his work.

The only difference today is that today he'd have gotten to keep it.

[James Pollock]

"rather than that they are some sort of monolithic bloc of anti-Bellmoreites?"

There IS a monolithic bloc of anti-Bellmoreites. Because being stuck in objective reality works differently than being free to flit over the Brett-world whenever he wants. The problem with being highly ideological is that you have to be able to ignore reality when reality doesn't work the way your ideology tells you it's supposed to.

[James Pollock]

" I’m sure you’ve seen the studies of partisan affiliation in university faculties"

It's almost like being anti-education and anti-intellectual might drive away educated intellectuals or something.

[Stephen Lathrop]

If I were a school into originalism, I’d endow a chair dedicated to legal history of the Founding and Reconstruction.

Almost right. The problem is that the notion of law as an aperture through which to observe an era is anti-historical. Insight into original meaning (or original context) is not achievable with that narrow view—legal history is a smallish keyhole through a very thick door.

To do your endowed chair right you want a professor who combines with a legal degree and legal history research, top-level achievement as a professor of academic history specializing in the founding era, at least. To complete the fantasy, throw in the Civil War era, and reconstruction.

For a brilliant practitioner, of the sort the job would require, post-undergraduate preparation could probably be adequate within 17 years or so—notably longer than being trained as a medical specialist. That would be the crash course, leaving out the Civil War stuff to be picked up mid-career.

When my son was getting ready to chart a post-BA course, I suggested exactly that, as a way to put himself in an interesting niche, in which he would probably find himself unique, and in constant demand. He didn't take my advice. Maybe pessimistic about the long lead time.

[James Pollock]

"I’m not one of those who says ‘lawyers can’t do history! *scoff *scoff*’ but lawyers aren’t incentivized to give a full accounting of history."

Depends on who stands to gain. And it's probably NOT the people who claim to be following the Founders' original plan.

[Brett Bellmore]

Generally speaking, anybody who claims to be following all of the Founders' original plan is lying. They crafted a constitution for a federation of agrarian states in a technologically different era. We haven't been that in living memory. Heck, the people who were alive when we were that haven't been alive in living memory!

Large parts of the Founders' original plan are, I think, perfectly workable for the sort of country we should aspire to being. Though they'd still be a drastic change from present practice. Other parts were proven to be unworkable in practice even in the Founders' era, and still more are clearly unworkable in a modern context.

The problem here is, workable or not, desirable or not, the Founders' original plan is largely still nominally the LAW. Work-arounds in place of actual amendments resulted in that. And thus resulted in a huge disconnect between the clear letter of the Constitution and practice.

I think it's that disconnect, and the institutional and cultural consequences of how it must be maintained, that are responsible for a lot of the dysfunction in US government. I might not like the modern Leviathan, but a Leviathan with a Leviathan constitution can, in theory, be competently and honestly administered.

A Leviathan with a constitution written for a limited powers federation of agrarian states? Honest administration is off the table. Honest administrators would be attempting to run the original plan, that would be the honest thing to do!

You can't have an honest Leviathan government with a limited government Constitution. It's a contradiction, and it is the consequences of that contradiction that are poisoning our society. One has to give, or the other, or our government will continue growing increasingly corrupt under the necessities of sustaining the contradiction.

[apedad]

And yet, here we are, the world's longest running form of government.

And the strongest, richest nation (with everyone waaaaay behind).

I'd say we're doing pretty good with what we've got.

[Brett Bellmore]

Don't fool yourself. Most of our present relative position dates back to WWII, and being the only developed country that wasn't torn up by that war. And the distinctive characteristics that got us anything beyond that have mostly been eroded away by now by the corrosive effects of governmental corruption, as that disconnect I'm talking about has grown greater and greater.

[apedad]

Sigh. . . right wingers hatin' on America again wishing/hoping we'll fail.

[Brett Bellmore]

No, I don't want us to fail, but avoiding failure requires being realistic.

After WWII, we were basically the only world power that hadn't been bombed halfway back to the stone age. Aside from Pearl Harbor, and a few sporadic raids on the West coast, US territory was spared combat. That was a HUGE economic leg up compared to the competition.

And at the time we had a much freer, less regulated economy, with a lot less crony capitalism. So we could take advantage of it.

Today we face adversaries with intact economies, and our own economy has become corrupt and over-regulated.

If we want to win this competition, we need to up our game. But I don't see us doing that.

[James Pollock]

"I don’t want us to fail, but avoiding failure requires being realistic."

Being realistic involves letting go of ideology. Feel free to give it a try.

[James Pollock]

"Generally speaking, anybody who claims to be following all of the Founders’ original plan is lying."

Originalism is lies? I'll admit, that isn't the position I expected you to start from.

"parts were proven to be unworkable in practice even in the Founders’ era, and still more are clearly unworkable in a modern context."

We started as a country as a federation of strong states with a very weak central government. This, as you say, proved unworkable so they tinkered, and switched to a slightly stronger central government, which worked for a while, before proving unworkable. So we tinkered again, and made the federal government a bit stronger. The problem is, a significant number of people didn't get the memo, and think we have (or more correctly, are supposed to have) that original very weak central government. This causes them unnecessary stress, rebelling against the reality they find themselves unwillingly located in.

[Stephen Lathrop]

Sarcast0, the problem with lawyers and history goes way beyond the incentives—although lawyers are, of course, powerfully motivated to avoid sharing legal power with experts other than themselves. The larger problem is that lawyers resemble the public at large in supposing there is nothing particularly professional about the activity of being a historian. Like many members of the public, lawyers get much of their "history," from writers who are not historians, but popularizers taken by the lawyers to be historians. Thinking that, the lawyers fail to notice that historians practice professional methods, embodied in a discipline called historiography. That means that on a lot of questions of historical practice, there are right ways and wrong ways to do things, just as there are in medicine or bridge building. Folks who don't know that—apparently including almost every member of the legal profession—just go ahead and make the mistakes, and never give it a thought. When historians try to correct them, the lawyers get all, "Who do you think you are? We're the legal experts here, and this method of doing history is one of our legal methods."

I'm neither a lawyer nor a historian—although I did get both undergraduate and graduate training in history. My interest is not in asserting a defense on behalf of poor belittled historians. My interest is in critiquing an influential legal movement which presumes to let amateurs do history for themselves, in nearly complete ignorance of what history can do, what history cannot do, or how to recognize when history has been done wrong. If a popularizing history writer does that, it's not good. If a lawyer or a judge making a consequential legal decision does that, it can be far worse.

[Sarcastr0]

3. Unwritten law and originalism
Sovereign immunity is not written down. But it is part of public expectations at the time. So original intent can't deal with it - says it isn't a thing because the Founders didn't think they needed to write it down. Public meaning can examine this and see that states at common law could not be sued without their consent back through the Founding. Which implies you can't just make up immunity like, e.g. qualified immunity. Also, at the Founding you could sue people in their personal capacity, so no complete immunity for prosecutorial abuse.
Qualified immunity comes from a Warren decision. Which is part and parcel with the Warren Court's practice of making up new doctrine willy-nilly. But it was pretty reasonable at first, until in the 1980s conservatives revamped it to be much more extensive. And even more so in the 2010s. [Which makes this a somewhat mixed example of the evils of nonoriginalism in my book - 1) I can find the original formulation as an implication of the ex-post-facto clause. 2) there are other ways to constrain judges without originalism.]

[Sarcastr0]

4. The originalist game.
Originalists when they get together play a *secret game* - what is the case that is the most unthinkable to get rid of, but the most hard to justify under originalism?

Brown v. Board is originalist - lots of evidence that the 14A was going to desegregate schools. New Orleans schools desegregated right after, in the height of reconstruction. And supermajorities nearly pass nationwide desegregation, until the Republicans at the time turned away from reconstruction.
But also lots of strategic ambiguity by the legislators - citing cases that would supposedly clarify the terms they were using, but the cases clarify nothing. But it helped it get passed!

Gideon is probably the winner here - you can get parts of it via due process...states can't have complicated legal rules and not furnish counsel. But not a lot of evidence this should be a categorical rule.

Also Brady. But oftentimes originalism helps defendants e.g. jury rights and confrontation.

Gay marriage - original law originalism allows that rights are supposed to be found over time. Indeed, this is recognized by the Court in Obergefell - that the public in the time of the Founding knew and expected the understanding of what is liberty to change over time. So new rights are legit under original law originalism.

Due process looks like it doesn't evolve like the concept of liberty does. So we should return to P&I. Baude has a seminar next quarter on it - stay tuned! And would this make a functional difference, or is it just fiddling with methodology? Hard to say.

[Brett Bellmore]

I don't think Obergefell is a good example of rights being found over time. It was more of a judicial fad imposed on a nation that was fighting back democratically. You saw one state after another try to stop the judiciary with initiatives and laws, and the courts just steam rollered the public over the course of a few years.

I suppose you could say the judiciary is responsive to opinion, just not public opinion. Elite opinion sways them, public opinion merely limits them in high profile cases if elite opinion is divided.

[Sarcastr0]

Things moved fast, but polls at the time say otherwise - support collapsed in the course of like a year.

Another sign you're not speaking for the public is the public's almost immediate acquiescence. Gay marriage became boring very quickly.

You can continue to yell that gay marriage isn't a real right. But it's just going to make you look small and petty.

[Brett Bellmore]

Support collapsed AFTER the judiciary imposed it. They weren't following public opinion, they were driving it. And the public didn't acquiesce until the legal system had rubbed our faces in the fact that democracy wasn't going to be allowed to work, that opposition wasn't going to be permitted, and might even be punished.

CALIFORNIA passed a ballot measure banning same sex marriage. Twice! In 2000, and 2008. Basically every state that had initiatives and propositions voted it down. A few later reversed course, but only after the judiciary had already made their determination not to allow opposition to mean anything clear.

This might evolve over time into acceptance, but it started out as resignation, and it wasn't the judiciary responding to changed public opinion, that gets things totally backwards.

[Sarcastr0]

No, support was already gone by the time the case came up.

https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx

Also the Presbyterian Church, famously.

You're arguing what you feel, but that's not how it was.

[Brett Bellmore]

Again, California passed two ballot measures banning SSM, 8 years apart. That is the clearest possible measure of public opinion, in an unusually liberal state.

Now, by the time the Supreme court weighed in with Obegefell, it was all over but the shouting, the rest of the judiciary had already done the work of defeating democracy, and resignation was setting in. But don't pretend that SSM was popularly adopted. It was imposed by the judiciary in the teeth of massive public resistance.

[Sarcastr0]

You're privileging the evidence you like and ignoring all else.

I gave you polls, churches. If you want states passing measures, there's those as well.

[Brett Bellmore]

Polls vs actual political outcomes. I know which I trust, and it's not the polls.

[Sarcastr0]

2008 - California's Supreme Court overturns the ban on gay marriage. This leads to California voters approving a constitutional ban on same-sex marriage. Florida and Arizona voters do the same.
2009 - The Iowa Supreme Court overturns the state ban on same-sex marriage. Vermont's legislature legalizes same-sex marriages. Maine and New Hampshire follow suit, though Maine voters later repeal the state law allowing same-sex marriage.
2010 - California's voter-passed ban on same-sex marriage from 2008, known as Prop 8, is declared unconstitutional.
2011 - President Obama declares DOMA unconstitutional. New York legalizes same-sex marriage.
2012 - The Ninth Circuit finds Prop 8 unconstitutional. Washington state, Maine, and Maryland legalize same-sex marriage by popular vote.
2013 - Rhode Island, Delaware, Minnesota, New Jersey, Hawaii, Illinois, and New Mexico legalize same-sex marriage. The U.S. Supreme Court finds Section 3 of DOMA unconstitutional. It also decides the Prop 8 defenders lack standing, clearing the way for same-sex unions to be legalized in California. The IRS recognizes same-sex married couples. Utah's same-sex marriage ban is found unconstitutional.
2014 - Oregon, Pennsylvania, Kansas, and South Carolina legalize same-sex marriage. The Presbyterian church votes to allow same-sex ceremonies. The U.S. Supreme Court decides a case that allows for same-sex marriage in 5 states (VA, OK, UT, WI, and IN) but declines to make a blanket statement for all states.
2015 - The U.S. Supreme Court makes same-sex marriages legal in all 50 states in Obergefell v. Hodges.

https://guides.ll.georgetown.edu/c.php?g=592919&p=4182201

You have this one thing and you cling to it for dear life, declaring by arbitrary standards that this one thing is stronger than all the other things. But you're wrong, and all the other things, some exactly like your thing, show that.

[Brett Bellmore]

Right, you make it look like a swift march to victory, by editing out about 8 years of history. The fight started in 2000, not 2008.

[Sarcastr0]

When the fight started does not change that your thesis about where the country was in 2015 is flatly wrong.

[Brett Bellmore]

"When the fight started does not change that your thesis about where the country was in 2015 is flatly wrong."

So, you're saying that you're not actually bothering to read most of what I'm writing?

My thesis is that the judiciary imposed SSM on an unwilling public, and the Supreme court only weighed in after the public had been defeated and resignation set in.

But like hell the courts were implementing public opinion. They were ignoring it, and you can tell that from the fact that when they started, and for years after, they were imposing it in the teeth of democratic opposition.

[Sarcastr0]

I had missed that.

But by that standard, Brett, no nontextual rights can exist, because there is always a time when they are not recognized before the time that they are.

[James Pollock]

"My thesis is that the judiciary imposed SSM on an unwilling public"

As usual, your thesis is only partly correct, and you're unwilling to concede that other people might have differing opinions that are reached in good faith.

Some part of the public was, and is, entirely unwilling to accept SSM. Another part of the public was, and is, largely blase on the notion. Why would it bother me if those two dudes want to be married to each other? If they don't take a position on who I'd like to be married to, I'll return the favor and not give a damn about their choice.

[James Pollock]

"California passed two ballot measures banning SSM, 8 years apart. That is the clearest possible measure of public opinion, in an unusually liberal state."

The anti-gay coalition of social forces overreached in Prop 8. They didn't just close the "loophole" that was allowing people who wanted same-sex marriages to get them. They also wanted to retroactively revoke the ones already performed. That's what got their initiative overturned.
In Oregon, the anti-gays were primarily visible as something called the "Oregon Citizens Alliance", which successfully overturned an executive order extending anti-discrimination laws to cover gay people, and then went on an exended losing spree, losing ballot measure after ballot measure year after year, trying to prevent gay people from being able to adopt children or teach in public schools. Near the end, the margin of losing was increasing so they finally stopped bothering collecting signatures to put losing measures on the ballot. One of the founders of OCA went overseas to help foreign countries write laws criminalizing being gay.

[James Pollock]

"You can continue to yell that gay marriage isn’t a real right."

In theory, you have the right to do anything that isn't specifically prohibited by statute. Marriage didn't used to require statutory authorization, you were married if you told people you were married, and lived your life in a way that supported an inference that you were married. Over the years, statutory marriage registration overtook the common-law recognition of marriage.

I don't want a same-sex marriage, and I'm currently dubious as to whether I want any other kind, either. But I think it's my call, not anyone else's, whether or not I'm married.

[James Pollock]

"I don’t think Obergefell is a good example of rights being found over time. It was more of a judicial fad imposed on a nation that was fighting back democratically. "

The powder keg was when the California Supreme Court had a look over their statutory marriage enabling statute and noticed that, say, the plaintiffs were right, and the statute didn't contain a requirement that would-be spouses be of differing gender. Whoever wrote the statute assumed that nobody would ever want to be married to a spouse of identical gender. Oops. So the people who did want such a marriage and qualified otherwise for marriage could have one. EEK!

So the Mormons, along with other allies, drove a petition initiative that not only closed the loophole, but also stripped away the existing marriages that had already been registered. That's a Constitutional violation.
Then, it turned out that letting the people who wanted to be married to other people who wanted to be married to people of the same gender did NOT cause chaos, except among the bigots who lost their freaking minds.

[Brett Bellmore]

"and the statute didn’t contain a requirement that would-be spouses be of differing gender."

Because that would be spouses be of differing gender was part of the very definition of marriage. It's what the word MEANT. You might as well have noticed that the statute didn't contain a requirement that one of the spouses not be a sewing machine.

"Then, it turned out that letting the people who wanted to be married to other people who wanted to be married to people of the same gender did NOT cause chaos, except among the bigots who lost their freaking minds."

I'd honestly say that my primary objection to SSM fell into two issues:

1) That it simply wasn't a proper judicial act for the judiciary to impose this sort of thing. If it had arrived by action of the political branches, or by initiative, eh, whatever. Those are legitimate ways of changing policy, and so few gays actually wanted to marry that the social implications would be minor.

2) That it was perfectly predictable that the next step after permitting SSM would be punishing anyone who didn't want to cooperate with it. The bakers, florists, wedding photographers, private adoption agencies. You see the same thing with perpetual efforts to force medical schools to teach abortion procedures, force hospitals to provide them, force people who consider them murder to pay for them. No victory by the left is complete without forcing people who opposed it to become complicit, grinding their face in the fact that they're not allowed freedom of conscience.

Even I didn't figure on their tracking down people who'd successfully participated in the ballot initiatives, and getting them fired. That surprised me, the left had become more vengeful than I had realized.

[Sarcastr0]

That it simply wasn’t a proper judicial act for the judiciary to impose this sort of thing

Except both Baude and Roberts say that recognizing unacknowledged rights is absolutely part of what the judiciary should do, even according to the Founders!

[Brett Bellmore]

Yes, as opposed to simply inventing them.

The 9th amendment recognizes that traditional rights are to numerous to completely enumerate, and establishes that the failure to enumerate a right didn't extinguish it.

It wasn't a blank check for the judiciary to invent new rights out of whole cloth. You can't say that SSM was a traditional right that simply hadn't been enumerated, it basically wasn't legal anywhere in the entire world until 2001.

You want examples of 9th amendment rights, that would be things like a right to homeschool your children. Things that were taken for granted as rights until they came under attack. Not things that were nowhere viewed as a right until fad swept the judiciary.

[Sarcastr0]

The public in the Founders time absolutely realized that the rights of the 1700s were not going to be inviolate.

The judiciary isn't making things up out of whole cloth just because you don't like what they say.

As for homeschooling, you're arguing from emotion and not facts yet again.
I did a cursory bit of Googling:
https://www.findlaw.com/education/education-options/compulsory-education-laws-background.html

Massachusetts became the first U.S. state to enact a compulsory education law in 1852, having already passed a similar law in 1647 when it was still a British colony. The 1852 law required every city and town to offer primary school, focusing on grammar and basic arithmetic. Parents who refused to send their children to school were fined and (in some cases) stripped of their parental rights, and their children apprenticed to others.

Do you want to argue it is a new right that has only recently been recognized? Because in that case, maybe you're right! - plenty of state-level support, albeit not nationwide. But a case worth arguing, IMO.

[James Pollock]

"I’d honestly say that my primary objection to SSM fell into two issues:

1) That it simply wasn’t a proper judicial act for the judiciary to impose this sort of thing."

It isn't a proper judicial act for judges to interpret statutes? Or just not to interpret them in a way you didn't like?

[James Pollock]

"2) That it was perfectly predictable that the next step after permitting SSM would be punishing anyone who didn’t want to cooperate with it. The bakers, florists, wedding photographers, private adoption agencies."

This perfectly predictable next step is not happening in all the states. So much for your prediction. Some have chosen to protect homosexual people from discrimination, and some have also chosen NOT to, even though the states aren't allowed to criminalize homosexuality any more, I'm sure a few would if they could.

[James Pollock]

"Because that would be spouses be of differing gender was part of the very definition of marriage. It’s what the word MEANT."

That's what you thought the word meant. You were wrong.

[bernard11]

Gideon is probably the winner here – you can get parts of it via due process…states can’t have complicated legal rules and not furnish counsel.

Why don't you get it straight from the 6th Amendment?

I know that there is a claim that the 6th only meant you could have a lawyer if you could pay one, but that's just another example of a situation where we basically wised up, and realized that was sort of silly.

[Brett Bellmore]

There's nothing silly about the concept of negative rights.

I agree that providing counsel if it can't be afforded is a good idea, and would even go much further, requiring that every acquitted defendant be made whole at government expense, so that the process can't be the punishment.

But that a right doesn't obligate the government to provide something, only to get out of the way, is actually the default understanding of rights.

[James Pollock]

So the right to keep and bear arms ALSO shouldn't be abridged by lack of ability to afford one? And the right to keep soldiers out of your house shouldn't be infringed by the fact that you can't afford a house?
Of course, being in an active militia unit does take care of both problems.

[Sarcastr0]

Why don’t you get it straight from the 6th Amendment?

Are you making a textualist argument? Because, at least according to Baude, funding does not seem to have been part of the original public meaning.

And since this was a pretty big change compared to prior precedent, you have a hard time arguing it was the slow evolution the Founders seemed to envision.

I'm no originalist - I think it's a great decision under modern public meaning - but Baude does seem to have it right that it's something originalists need to grapple with.

[bernard11]

at least according to Baude, funding does not seem to have been part of the original public meaning.

He's probably right, to which I say, "So what?"

My conception of how these things work is that the Constitution, among other things, lays down certain principles which we are bound to follow. But we are not bound by the practices used at the time of the drafting. We are entitled to notice that the way things were done then is not, in fact, in keeping with the principles laid down.

So when the Constitution guarantees a right to counsel, we are allowed to notice that a great many defendants are indigent, lawyers are expensive, and so if we mean it we will provide counsel at public expense.

We are also entitled to notice, as you suggest, that since criminal trials can be more complex, procedurally and otherwise, than in days gone by, not having counsel effectively denies due process.

My fundamental point is this: it is a mistake to assume that late 18th Century practices perfectly embody the principles - call them aspirations if you like - stated in the Constitution. There is no reason we should be bound by those practices.

[Sarcastr0]

I agree with you completely.

And I think we both agree that the arguments we make are not originalist. Which is why this case is a problem for originalism.

[bernard11]

And I think we both agree that the arguments we make are not originalist.

I honestly don't know if they are or not. Nor do I really see why it matters.

I'm not a big fan of shoving things into categories and then basing conclusions, or reactions, on the category rather than the thing categorized. I think it leads to a lot of careless thinking.

Whether an argument is originalist, according to some definition or other, has nothing to do with judging its validity until you offer a solid definition of originalism and explain why arguments not meeting those requirements are necessarily wrong.

[James Pollock]

"I know that there is a claim that the 6th only meant you could have a lawyer if you could pay one"

The "and we'll pay one if you can't afford one" is NOT ACTUALLY IN the text of the 6th amendment. Likewise, the 1st doesn't guarantee you a press to use freely, and the 3rd doesn't guarantee you a house to keep free of quartered soldiers. The 4th doesn't even guarantee you paper if you don't have any of your own. As much as I might like to mount a GAU-8 on the centerline of my truck, I cannot afford one and they ain't providing it for me.

[Sarcastr0]

5. So has Baude conceded away what makes originalism novel?
So with the positive turn allowing precedent, and original law originalism allowing evolution over time, and then the 14A's public meaning allowing a lot of the Civil Rights Era's laws...how is this a change? Baude says it introduces falsifiability. Rather than mere power to persuade judges, now there are some arguments that are objectively bad. Hard to say the upshot - we need to see how it shakes out.
[To me, it looks a lot like not many arguments count as bad here, between precedent and public meaning allowing evolution of concepts. Functionally, Baude's originalism is the status quo but you can make stronger attacks on Warren Court precedents, but not much else. -Sarc]

[Sarcastr0]

This section is the nut of both Baude's reformulation of originalism, and my functional issue with it. [I have other issues, both functional and formal, but this seems an especially clear one.]

[Sarcastr0]

6. So is there any hope on choosing a methodology?
Maybe in academia, but not now that it's gotten political. No politician is going to allow a neutral method keep them from what they want to do anymore. Plus with the fractured court, everyone will be pitching to the methodological preferences of the median justice at the time. And then lots of academics flip-flop the moment politics gets involved. No, methodology is destined to be eternally argued about and never decided upon.

[Brett Bellmore]

If we returned to amending the Constitution, we could have a constitution that did what was popular without requiring unnatural 'interpretation'; It would just straightforwardly mean what people wanted.

Using methodology to 'change' the Constitution was a work-around to achieve constitutional changes that didn't have enough public support to be accomplished as amendments.

The problem is, the work-around has its own effects, because it requires staffing government with people who are actually comfortable with reading the interstate commerce clause, and interpreting it as a grant of general regulatory power. These sort of people don't govern the same way people who'd feel constrained by the words would.

This is why I advocate a new constitutional convention. While I don't think I'd like the result, we'd get to enjoy a while with honest constitutional interpretation, because no work arounds would be needed or feasible.

The obvious problem is, the government is already staffed with people who are comfortable with circumventing constitutional language. They might just instantly start circumventing the new language every time it got in their way.

Maybe we're just screwed at this point.

[Commenter_XY]

I don't think we want a second constitutional convention, Brett. It would not be peaceful. Better to play the game with known rules, even if the interpretations of rules might differ.

[Brett Bellmore]

Play the game with known rules that are already being grossly violated.

But, yeah, once the umpires have been bought, changing the rules is kind of beside the point, it's probably too late.

[Commenter_XY]

The point is, Brett: there are rules present. In a constitutional convention, there are no rules. Considering where we are, in a civic sense, I don't think that convention would be fruitful, or peaceful. Quite the opposite.

Note I did not say change rules, I said interpret rules. There is a meaningful difference between those two.

[Brett Bellmore]

Actually, there are plenty of rules in a constitutional convention, starting with the fact that all the work product has to be ratified in the ordinary way.

"Note I did not say change rules, I said interpret rules. There is a meaningful difference between those two."

Not under living constitutionalism, there isn't.

[James Pollock]

let me try arguing this in the Brett manner.

I didn't bother to actually respond to what you had to say, and everyone but me is acting in bad faith, anyway.

[Stephen Lathrop]

Brett, you want to think like the founders did? You better start with acknowledging that the Constitution is not the final authority on American constitutionalism. According to any of the founders, that final authority would be the sovereign People.

One implication? Even if you were right about everything you say the text of the Constitution originally meant—and as a matter of history you are very often wrong about that stuff—you would still in your prescriptions about how to interpret the Constitution be as arbitrary as anyone else.

Bureaucrats you hate are better situated than you are to see their interpretations implemented. They are in no way morally inferior to you for doing it. They are in the same interpretational pickle you are, and always will be, so long as the People themselves continue as the final, sovereign arbiter of American governance.

Forgetfulness about the role of a continuously active sovereign as the keystone of American constitutionalism is the most persistently nagging fault disfiguring American political commentary. It is an utter disconnect with so-called "originalism," to have that notion out of mind. That is why I mention it from time to time, even if some folks think it gets tiresome. Leave the sovereign out of your political commentary, and trying to make sense out of the rest becomes a near-insuperable challenge, fraught with apparent internal contradictions. Put the sovereign back in, and those contradictions tend to go away.

[bernard11]

I don’t think we want a second constitutional convention, Brett. It would not be peaceful.

I agree. It would be more likely to lead to a dissolution of the country than to a better Constitution.

[Brett Bellmore]

Yeah, probably. I wouldn't have a problem with that. A federation can be big and free, but a nation as big and heterogeneous as the US is unworkable.

We'd be a much happier country as a half dozen countries.

[James Pollock]

Newsflash: The Confederacy lost.

[Sarcastr0]

This is a functionalist argument. But that can only come after you decide on your theory of interpretation. And you need to deal with the fact that your originalism doesn't seem to be very originalist anymore.

Baude has noted that:
1) Founders' acknowledged that precedent had force of law; the law can evolve.
2) The public at the time of the Founders knew that our understanding of rights and liberty would evolve, and expected Constitutional practice to evolve along with it.

Your insisting there is only one way to change the Constitution is not originalist!

Maybe you want to argue that even if it's not originalist, it's still the best way to go because anything else gives the judiciary too much discretion, but that seems a very weak case to make, given what you'd prefer we tie ourselves to.

You also conflate textualism, which just about everyone follows, and originalism, which deals with the many ambiguities left in the Constitutional framework. You don't get to take the logical force of textualism and apply it to the much less clear originalism.

And no, we are not screwed. Plenty of non-originalist countries are doing fine. Some even without a written Constitution! I think this is important stuff, but avoid the temptation to make it existential.

[Brett Bellmore]

"You also conflate textualism, which just about everyone follows, "

Bullshit. And I gave the example of the interstate commerce clause, which gives Congress power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

Following textualism would require actually giving the words after "to regulate" meaning. We don't anymore.

[Sarcastr0]

The obvious problem is, the government is already staffed with people who are comfortable with circumventing constitutional language.

This is a textualist lament. What's it doing in an originalist argument?

[Sarcastr0]

I don't see how we ignore the 'to regulate' text. And even if we do, it's not originalist to argue for overturning McCulloch v. Maryland at this late date.

Well, it could be, but it's not positive turn originalist, which seems to have a lot fewer logical inconsistencies than OG originalism.

[Brett Bellmore]

I'm not proposing to ignore the "to regulate" text, it's ignoring everything that comes after that's the problem. That language was genuinely intended to limit the reach of federal regulation to nothing more than actual commerce crossing actual boundaries, and its interpretation since Wickard has specifically aimed at rendering that language moot, and giving the federal government the general regulatory authority it was deliberately denied.

"Well, it could be, but it’s not positive turn originalist, which seems to have a lot fewer logical inconsistencies than OG originalism."

The basic problem of originalism is that it comes too late in the day, the departures from a legitimate originalist reading of the Constitution have grown so huge that the temptation to find some way to legitimate them is almost irresistible, especially for those involved in the practice of law, who must live with what has replaced our original Constitution.

But legitimating the departures from an originalist reading of the Constitution renders originalism incoherent.

I have no trouble being consistent with originalism, because it doesn't trouble me too much to realize that the originalist constitution is already lost, that there's no going back, and what stands in its place is illegitimate. I hope at most to some day see a NEW legitimate constitutional law, realizing that the old is lost.

But many, and especially legal scholars, can't accept that, basically, the lies have won. They keep trying to resolve the contradictions, but all the end up doing is internalizing them.

[Sarcastr0]

That language was genuinely intended to limit the reach of federal regulation to nothing more than actual commerce crossing actual boundaries

That's not at all clear, as it turns out.

[Brett Bellmore]

Yeah, that's the problem with viewing ambiguity as a license to legislate: Everything becomes ambiguous.

[Sarcastr0]

No, even originalists think it's not at all clear the intent of the commerce clause was as limited as you think it is. In fact, there is little to support that, and recent scholarship (by originalists!) is that commerce *itself* meant something different back then, and not just goods and services.

This isn't from the Baude podcast; I can't find the sources offhand, I'll see if I can find them later.

[James Pollock]

"Following textualism would require actually giving the words after 'to regulate' meaning. We don’t anymore."

Maybe you don't.

[Stephen Lathrop]

Sarcastr0, I have a book to suggest to you: Inventing the People: The Rise of Popular Sovereignty in England and America [Edmund S. Morgan.]

You have said a lot about originalism, history, and the legal profession, which I think you might see differently if you read that book carefully.

[apedad]

A constitutional convention would be the death of the US.

I'm all for trying to push through constitutional amendments though.

[Commenter_XY]

We agree, apedad.

[Sarcastr0]

Got any favorite amendments, apedad?

[apedad]

As a retired federal agent, I was very involved with 4 and 5.

I'm not fully versed on the 14th but I think it's probably good too.

1 is the best though.

[Sarcastr0]

Sorry, I meant new ones.

Other than converting to a parliament, I don't have much I'd change myself.

[bernard11]

I obviously favor:

Drastically changing the Senate.

Abolishing the EC in favor of popular election of the President.

Changing the Second to allow restrictions on gun ownership and sales.

[apedad]

Some of the left issues (abolish death penalty, SSM, etc.), should have clear constitutional protection (so not up to SC interpretation.

Maybe clear up some admin stuff (how constitutional are independent agencies), or even add a fourth branch for these agencies.

Nothing drastic - just incremental stuff.

[Bob from Ohio]

"abolish death penalty" "add a fourth branch"

Nothing drastic?

[Sarcastr0]

The death penalty doesn't actually occur that often, and codifying the current state of affairs re: administrative agencies isn't radical either.

I wouldn't bother - no one serious makes a constitutional case against the administrative state - but I don't think what he's proposing is clearly radical.

[James Pollock]

He didn't claim that the category "things the left likes" contains nothing drastic... he claimed that it contained things that are Constitutional.
Admittedly, completely abolishing death penalty WOULD take an amendment, because treason. But taking it away from the states wouldn't have that problem. And the "add a fourth branch" can be done under the present Constitution. Nowhere in it is the power to create a fourth branch prohibited.

[James Pollock]

"I’m not fully versed on the 14th but I think it’s probably good too."

I think a few more words are needed to describing the extent to which federal rights are incorporated against the states would help. As it is now, incorporation is based on implication.

[Brett Bellmore]

You're not going to get any amendments without a convention, apedad. Congress doesn't need amendments anymore, they can get all the changes they want by suborning judges.

And attempting and failing an amendment makes the optics of later imposing a change by interpretation bad.

What's why Bernard isn't going to get his amendment repealing the 2nd: It would be defeated, and then how do you justify violating the 2nd amendment anyway, after you've admitted an amendment is needed to make gun control constitutional?

Better to just go on pretending gun control is already constitutional.

[Krychek_2]

I would have great reservations about a constitutional convention, even though there is much in the current Constitution that I would like to get rid of, just because it's anyone's guess what would emerge. There are lots of people who really don't believe in free speech, or separation of church and state. Or private ownership of guns. There are people who think single payer health care and guaranteed income should be constitutional rights.

And it would be a waste of time anyway since almost none of what they passed would have a ghost of a chance of getting ratified by 3/4 of the states.

[Stephen Lathrop]

Krychek_2, please notice that the moment a constitutional convention convenes, the 3/4 requirement for ratification is in play along with everything else.

[James Pollock]

"Better to just go on pretending gun control is already constitutional."

There's a better case for that than for "if we can just disenfranchise enough voters who like the other guys better than our guys, then the elections we 'win' as a result are true and fair elections."

[bernard11]

Excuse me, but allowing restrictions is not the same as repealing the Second.

I just want a way to put some sort of lid on the absolutists.

[James Pollock]

"I just want a way to put some sort of lid on the absolutists."

Won't work.
They'll just start babbling about the "real" Constitution. Then something something refreshing the tree of liberty.

[Bob from Ohio]

"I’m all for trying to push through constitutional amendments though."

Impossible. 3/4 of the states are impossible to get for anything even a tad controversial. Probably even for uncontroversial things either, I can't imagine anything all parties [and factions within the parties] agree with.

[Brett Bellmore]

Plenty of amendments could be ratified. None of them could be originated from Congress, because Congress doesn't WANT the amendments that could be ratified, and the amendments that Congress would want couldn't be ratified.

The basic issue is that origination, short of a convention, takes place at the federal level, while ratification takes place at the state level. So any amendment that would disadvantage federal office holders won't be originated, and any amendment that would disadvantage the states won't be ratified.

Think back to Gingrich's Contract with America, back in the 90's. They had two constitutional amendments in there, one to impose term limits on Congress, and one to compel a federal balanced budget. Both were (stage) managed to avoid being sent to the states: In both cases, multiple versions were brought to a vote, so that all the members that had to vote for them to save their jobs could do so, without risk any one version would get enough votes to be sent to the states.

This was because they fully expected that, if they were sent to the states, they'd be speedily ratified. Just as the 27th amendment was ratified, once people realized it was still viable, but could never have been originated by today's Congress.

It wouldn't be all that difficult to come up with amendments that would be ratified today. None of them would have a ghost of a chance of emerging from Congress.

[Bob from Ohio]

"Plenty of amendments could be ratified."

Name one. Today, not 25 years ago.

[Brett Bellmore]

I think a balanced budget amendment could still be ratified. Term limits as well.

Why would Common Cause be so scared, if ratifying something was impossible?

[James Pollock]

If it were up to you, I bet those amendments could be ratified. But, everybody else gets a say, too.

Bob is probably right about this one, specific thing. There is no supermajority in favor of anything in today's America.

[Brett Bellmore]

You don't need supermajorties of the public to support something for it to be ratified. Just a majority in a supermajority of states.

Think of this as a 50 samples of the voting public. If support for something is at 51%, and uniformly distributed, 51% of the voters will support it in every single state, and it will be ratified with no trouble at all.

Amendments don't require supermajority support, they require widely distributed support.

[bernard11]

Amendments don’t require supermajority support, they require widely distributed support.

Widely distributed geographically, anyway. Amazing how you worship the value of that sort of diversity, while sneering at the notion that other sorts have value.

"It's important that people in Alabama and Idaho both like this idea, but not at all important that Black or Hispanic people like it. "

[James Pollock]

"You don’t need supermajorties of the public to support something for it to be ratified. Just a majority in a supermajority of states."

You are a minority. A minority with strong party discipline; good enough to win elections by consistently showing up to vote in most years. You guys lose when enough people show up at the polls.

There isn't a big enough pile of votes for your balanced budget amendment. Which, as is noted below, is still a bad idea.

[James Pollock]

You don't need a supermajority, you only need a supermajority. Doesn't matter, if you don't even have a regular majority.

[bernard11]

I don't think a balanced budget amendment would be ratified. At least I hope not, because it's a truly idiotic idea.

[James Pollock]

"I’m all for trying to push through constitutional amendments though."

Maybe what we've needed all along was a plebiscite mechanism... get enough signatures from citizens of enough states on a petition, and it gets introduced to Congress on the first day of the next session. They can spend the first couple of days going on record supporting or opposing all the petitions, along with voting for committee assignments, leadership positions, and office placement

[Brett Bellmore]

I've a fairly long list of Congressional reforms I'd propose.

1. All votes without exception to be recorded roll call votes.
2. Leadership votes, and ONLY leadership votes, secret ballot.
3. All legislation must be posted on line in searchable form well in advance of final votes.

But giving each member one free cloture win they can spend on a bill of their choice would be good. I'm all for forcing them to go on the record on everything except the leadership elections.

[James Pollock]

"I’ve a fairly long list of Congressional reforms I’d propose.

1. All votes without exception to be recorded roll call votes."

How long before someone starts whining about recorded roll call
Congressional votes being stolen, and the whole thing is a giant fraud?

[James Pollock]

"If we returned to amending the Constitution, we could have a constitution that did what was popular without requiring unnatural ‘interpretation’; It would just straightforwardly mean what people wanted."

Except Mitch won't play, and so there won't be any amendments.

[Brett Bellmore]

Oh, screw Mitch.

In theory, Mitch has no say in the matter, if enough states call for a convention, Congress calling one is not discretionary.

In reality, if enough states call for a convention, Congress will either refuse to admit it, or decide to call one with the members of Congress as the designated delegates...

[James Pollock]

Mitch is a symptom, not a cause. A substantial portion of the population wants the federal government to not exist, badly enough to act against their own interests to achieve it. Mitch serves these people, and serves them exactly as they wish.

[Brett Bellmore]

Yeah, you're as much a symptom, fella. Thinking that the federal government doing anything less than everything you want is it ceasing to exist.

There are plenty of things we agree the federal government should be doing. Limiting itself to just those things isn't anarchy.

[James Pollock]

"Yeah, you’re as much a symptom, fella. Thinking that the federal government doing anything less than everything you want is it ceasing to exist."

You've attached this comment to one of mine, but you seem to be addressing someone who is not me.

[James Pollock]

So, should I just ignore your posting as a mistake? Or do you want to attach it to a comment by somebody who said the thing(s) you disagreed with?

You apparently don't want to double down on it.

[James Pollock]

"There are plenty of things we agree the federal government should be doing. Limiting itself to just those things isn’t anarchy."

Feel free to publish your list, that you think there is universal agreement upon, of what the federal government is supposed to be doing. Sight unseen, I'll put the odds that I disagree with your list at 2:1, and that someone disagrees with your list at at least 20:1.

[KCar]

Need a national divorce, not a convention. This country is way to big and divided. I honestly dont understand why anyone is against it, other than they enjoy being the biggest and baddest.

[Sarcastr0]

Because not everyone is so terminally partisan they fail to recognize that we're stronger as a union, even if we disagree.

[James Pollock]

A house divided against itself cannot stand.

[Sarcastr0]

But we are not half slave and half free. Not hardly.

[Brett Bellmore]

On particular topics we are.

Every time somebody wins a policy decision, somebody loses. That's bad enough when they're people in the same place, and maybe you should ask if it had to be one of those "everybody does the same thing" topics in the first place.

But if it's a case of the people over here getting their way, and the people over there having to submit, then, yes, it is kind of a piecemeal half slave and half free.

[Sarcastr0]

Slavery is slavery, it is not losing out in a policy decision; it's not comparable.

Losing your vote in a Republic does not make you a slave. Disagreeing with a Court's take on your rights does not make you a slave.

The blacks, during the Civil Rights era, suffered depravations of their rights vastly worse than any you contemplate. And they did not talk about breaking up the Union.

Talk of secession is jut entitled melodrama from people who are terminally political.

[James Pollock]

"But we are not half slave and half free"

Have you not heard the bewailing lamentations of the poor, oppressed, middle-aged, white Christians. They're at least half slave, and have been ever since that court decision that said they all had to participate in same-sex weddings and make sacrifices unto Moloch... Show them at least a shred of sympathy.

[bernard11]

If we returned to amending the Constitution, we could have a constitution that did what was popular without requiring unnatural ‘interpretation’; It would just straightforwardly mean what people wanted.

When was this Golden Age of Amendment, exactly? Between the BoR and the Reconstruction Amendments - 75 years or so - there just two Amendments. Between Reconstruction and now we've managed twelve more, most of them having to do with procedures rather than any substantive policy matter.

The fact is the difficulty of amendment is a major flaw in the document.

[James Pollock]

"The fact is the difficulty of amendment is a major flaw in the document."

That's a feature, not a bug. Look at what happens in states that offer amendments to the state constitution by initiative.

[bernard11]

Could be, but if it is then maybe we could have an end of commenters telling others that the thing to do is get an amendment passed, and how wonderfully democratic that process is.

[James Pollock]

Leave it up to me, and I'd rewrite the amendment process from requiring a supermajority mechanism to requiring at least two separate majority votes, at least ten years apart. I haven't decided yet if anything happens after the first vote succeeds, or if everything is held up until the second one. Maybe a provision that 40 or 50 years after an amendment goes into effect, it automatically reverts unless some reaffirmance procedure is followed. The problem with that approach is that obstructionists could block the confirmation vote unless they got some concession that otherwise they couldn't get.

[Don Nico]

S_0,
Why aren't you writing this as a monograph and posting it on SSRN?

[Sarcastr0]

It's 95% a rewording of someone else's work. I'm not sure that's cool to do.

[Sarcastr0]

Though I am enjoying myself enough, I may continue after with my 2 favorite cases he highlights in that same podcast.

[Commenter_XY]

A legal question for the lawyers and professors. There have been a few VC posts on the CDC eviction moratorium. I have followed them because I am personally interested in the interplay and conflict of different individual liberties here (5th amendment, 1st amendment, possibly 3rd amendment, etc) and state/federal powers.

Now imagine for a moment, Commenter_XY has a magic wand (I know, scary thought) and has made YOU the lawyer to argue this case. You have to argue the case before the 5th circuit. The sitting judges for your case are Ho, Haynes and Costa. You may argue either side: For the eviction moratorium, or Against the eviction moratorium.

Now my question: What constitutional argument would you use?

note: I know there are cases now! I want to hear how different people would argue the case. I learn a lot just reading how you think through your positions.

[James Pollock]

"Now my question: What constitutional argument would you use?"

The Constitution is not a suicide pact.

The current political landscape involves people who do not agree as to the nature of objective reality. In that environment, it is very likely impossible to to craft a response that all players will agree is founded on unchanging, objective, principles of law.

[Brett Bellmore]

That's not an argument, it's a slogan. And it's a slogan used by people who think the Constitution IS a suicide pact, and as such should be broken.

How is it suicidal for the nation to pay the damn landlords instead of authorizing stiffing them?

[Sarcastr0]

Nah, it's just a drama'd-up argument from functionalism. You're super formalist, so it looks like blasphemy to you, but that's all it is.

[James Pollock]

"That’s not an argument, it’s a slogan."

I lifted it from a court opinion.

"How is it suicidal for the nation to pay the damn landlords instead of authorizing stiffing them?"

PAY the landlords? What a wacky idea... if only someone in a position of political power had suggested doing that.

[Brett Bellmore]

Yeah, I know. It's still a slogan, not a legal argument.

"PAY the landlords? What a wacky idea… if only someone in a position of political power had suggested doing that."

Yeah, Congress didn't want to do that. Congress didn't want to pay insurance companies for giving people with preexisting conditions subsidized insurance, either. I suppose next year Congress won't want to pay groceries for the food poor people need, so they'll just make it illegal to prosecute shoplifters.

Congress not wanting to pay for what they hand out doesn't make confiscating it constitutional. Been an increasing amount of confiscation of this sort going on lately. It's starting to become the default way of doing something without the cost showing up in the federal budget.

[James Pollock]

The hold up getting the landlords paid isn't Congress, it's the states.

[AmosArch]

Biden strategy to address botched withdrawal: Invent and argue against a phantom major opposition group that wants to stay in Afghanistan indefinitely.

[Sarcastr0]

He had the balls to get out.

I don't think it was very well executed, and I'm all for dinging him on it. But the right, with you included, are pretending this obviates the good thing he did by finally shutting this nonsense down.

It doesn't.

[Brett Bellmore]

Plenty of people had the balls to get out. Trump had already set a withdrawal date in May, Biden actually kept us there longer than we'd been scheduled to be there. Then he got us out in basically the worst possible way.

[Sarcastr0]

Trump's talk is cheap. Biden got us out.

I get you want everything he does to be bad, but bottom line, Trump coulda, and he didn't.

Quibble about the execution all you want, but writ large, Biden did it, Trump did not.

[KCar]

Biden extended the withdrawl so Trump wouldnt get credit and moved it to 9/11 as a political stunt. At least he did it, which is decades too late.

[James Pollock]

"Biden extended the withdrawl so Trump wouldnt get credit "

If Trump wanted credit all he had to do was, you know, do something worth doing, at pretty much any point in 4 years. So the reason Trump doesn't get "credit" is because of Trump, not Biden, and not anybody else, either.

[KCar]

Trump gets no credit for anything because of people like James Pollock with TDS. It is part of the religion.

[Jason Cavanaugh]

Oh. You're one of THOSE people.

Adios forever.

[James Pollock]

"Trump gets no credit for anything because of people like James Pollock with TDS. It is part of the religion."

No. Trump gets no credit for anything because he doesn't actually do anything. He does, from time to time, TALK about doing something, but until somebody else actually does it, Trump can't pounce on it and claim credit. That you can't see this must be related to YOUR religion. Please go to Florida and kiss your messiah's rectal region.

[James Pollock]

"Trump gets no credit for anything because of people like James Pollock with TDS. It is part of the religion."

How is it my fault you joined a cult?

[Nige]

You'd expect a blank refusal to co-operate with the transition would have a few negative efffects, wouldn't you? Mid you I don't know what the 'best' possible way would be, unless you're referring to the plight of the Afghans, which has never been much of a priority for anyone, or at least anyone who gets listened to. He got US personnel out safely, isn't that all that matters? The US military and its tax-bloated budget intact, waiting of the next catastrophic adventure to justify its existence, all intact.

[Brett Bellmore]

"He got US personnel out safely, isn’t that all that matters?"

Nah. He got US military out. The civilian contractors are still stuck there. Our local employees are still stuck there.

[Nige]

Yes, quite right. My hope is they're not in danger because the Taiban know they've won, know they've delivered a massive humiliation to the US and its allies, and therefore can afford to appear magnaminous, for now. The important thing is the Holy Military is safe and all blame will focus on political leaders and not on what is clearly a vast, malign, distorting controlling factor in US affairs that is treated as a sacred institution instead of a self-perpetuating money and murder machine.

[Don Nico]

"they’ve delivered a massive humiliation to the US and its allies"
My prediction is that the Taliban will milk the opportunity to protract the humiliation as long as possible.
Over the past 20 years they have learned a lot about PR.

[Sarcastr0]

They'll try, for sure. But we'll see if they can stay in the news.

[Brett Bellmore]

Still being on Twitter, unlike the previous President, should help them with that.

[James Pollock]

Unlike the previous President, the Taliban actually won.

[Commenter_XY]

Clearly, the Taliban learned enough PR to lecture Twitter on the finer points of free speech. That was just....poetic.

[James Pollock]

"My hope is they’re not in danger because the Taiban know they’ve won, know they’ve delivered a massive humiliation to the US and its allies"

They're on a high right now, but the last thing they want to do is call us back. I predict at least a temporary lull in Afghan public life before they drop the hammer again.

[Bob from Ohio]

"He got US military out. "

Who are those soldiers at Kabul airport then?

The moment of danger for the US military has yet to occur.

[Don Nico]

Well noted,
Right now there are 6,000 highly visible hostages

[James Pollock]

As a general rule, hostages usually lack the ability to call in airstrikes. We still have A-10's and AC-130's, if we need them.

[James Pollock]

" He got US military out. The civilian contractors are still stuck there. Our local employees are still stuck there."

The deadline for removing the military forces has not yet elapsed. Anyone else could have left any time they wanted to.

[Stephen Lathrop]

There was no better way to get out. No matter what anyone did, there was always going to be a sudden tipping point, when all the Afghans agreed that the U.S. would shortly be gone. And at that moment, every trace of phony U.S. governance effort would always turn into deadly liability for any Afghans implicated in it—including the entire government and loyalist military establishment—who would all abandon their posts simultaneously. Near-instantaneous collapse was the only failure mode that set of facts permitted. The only U.S. choice was to pick a schedule, stick to it until the moment when it crossed the threshold for general recognition, then flee.

[Bob from Ohio]

The same clowns are in charge for 3 more years. That will obviate any good from the withdraw.

Plus, it ain't over yet. Huge potential for hostage situations. We depend on Taliban good graces, all it takes is one incident to end that.

If we had decent generals maybe we'd be alright. We don't.

[Sarcastr0]

OK, dude.

[Bob from Ohio]

Good response, guy. Very thoughtful.

[Sarcastr0]

You're spinning out anti-America fan-fiction because you want the President to lose doesn't require a lot of engagement.

[Bob from Ohio]

You are just spinning for decrepit old Joe.

[Sarcastr0]

No - the future is yet unwritten. You're the only one writing it, with speculations about disaster, not doing a great job of hiding that's what you want.

[Bob from Ohio]

Screw you. Predictions are not hopes.

You back a decrepit old fool that thinks the Taliban are having an "existential crisis " in their moment of triumph.

[Sarcastr0]

They are if you have nothing to go on.

You're pulling an Ed predicting a coming right-wing revolt over and over again.

We all know what's driving your pessimistic crystal ball.

[Sarcastr0]

Yeah, as JP says, I'm not ascribing anything secret or hidden to you here.

[WuzYoungOnceToo]

not doing a great job of hiding that’s what you want

You really are an asshole.

[Bob from Ohio]

He constantly whines that we invent lib motivations but he knows mine.

[James Pollock]

"He constantly whines that we invent lib motivations but he knows mine."

You keep writing about them. Are you saying you're lying when you do? That nobody knows what you're really about because you're SOOOO mysterious?

[Nige]

Imagine the fuck-upedness if Trump had been in charge of this. I mean, we know what his peace talks with the Taliban entailed, so we know this fuck-up is just the diluted version of a Trump fuck-up.

[Don Nico]

Easy to image, Nige, we have seen the same kind of f*ck-up.

[Sarcastr0]

This is why counterfactuals are not helpful. Same prompt, proving basically 2 opposite theses.

[Nige]

I expect Trump wouldn't have said 'the buck stops with me.' Trump would have blamed everybody else, including the Army. And that would have been one of those rare cases where he was accidentally right.

[James Pollock]

You don't have to guess. Just sit back and watch.

[WuzYoungOnceToo]

I expect Trump wouldn’t have said ‘the buck stops with me.’

The problem is that after Biden said that he immediately went on to blame others...which makes for a pretty meaningless claim of accepting responsibility.

[Krychek_2]

Yes and no. Biden deserves blame for not doing a better job of getting people evacuated, and there's no honest way to sugar coat it. On the other hand, I don't think Biden can be blamed for not predicting that the Afghani forces would just lay down their arms and surrender; after all that training we gave them, it was a reasonable expectation that they would put up a much better fight. So, as far as Biden's culpability, don't make it better than it is, but don't make it worse either.

[James Pollock]

"The problem is that after Biden said that he immediately went on to blame others…which makes for a pretty meaningless claim of accepting responsibility."

Meh. He accepts responsibility for his mistakes, not other peoples' That's so unlike what anyone else would do.

[Don Nico]

Nige,
Biden can say the words "the buck stops with me" But he does not mean it.
I'll believe this or any other POTUS when I hear then speak the words, "I failed when...."
That was Obama's great flaw; even we he intellectually admitted that there was a f*ck-up, the only words he could speak were, "Mistakes were made...."
Very big difference. POTUS is not taking responsibility when he uses the passive voice.

[Sarcastr0]

That is a standard not even Truman lived up to.

Closest you get is Carter, and he was roundly mocked for it.

America has trouble with a leader who changes their mind, much less one that admits failure.

[Nige]

It's as close to taking full responsibility I've ever seen from a US president.

[James Pollock]

“'Mistakes were made….'”

That was St. Ronnie's line. He used it to explain why he thought selling weapons to Iran was a good idea.

[James Pollock]

"Imagine the fuck-upedness if Trump had been in charge of this"

He was. This is his deal. We'll get out if you don't attack our guys while they're packing up. He forgot to say "and also don't attack our allies", and didn't think to add it when they started attacking our allies. Well, they didn't really ever STOP attacking our allies, did they? Wonder why Trump didn't try to include them in the deal, what with his irreplaceable deal-making aptitude, I mean.

We smacked the Taliban because they chose to harbor bin-Laden when we were looking for him. The fact that we eventually found him over in Pakistan, which is theoretically an ally of ours, is not important in our cause of action in blowing up random parts of Afghanistan. Failure in Afghanistan was obvious from the time W took our eyes off that particular ball to pick a fight with a totally different country before we had finished with Afghanis.

[James Pollock]

"it ain’t over yet. Huge potential for hostage situations. We depend on Taliban good graces"

They can keep the opium poppy fields.

[James Pollock]

"The same clowns are in charge for 3 more years."

Maybe 4 more after that.

[Don Nico]

"He had the balls to get out."
So did Trump. But like Trump Biden had no good sense of how to do it or whether indefinite deployment of 5,000 troops indefinitely was not a better long range strategy for our national security and international stability.
I see no indication of deep thinking about the threat that an Afghani/Waziri Taliban alliance with the most radical ISI elements can make to the security of 140 nuclear weapons in Pakistan.

[Sarcastr0]

Trump had 4 years. He talked some, but he didn't get out. Don't pretend staying for his whole term was the smart thing to do. It was clear how this was going to turn out back when Bush was still in office.

[Don Nico]

S_0,
You sidesteped the entire point of the comment.
The Orange Clown was just that... so what

[Sarcastr0]

Sorry - I missed an important 'no' in your above comment.

I agree it looks a lot like Biden's decision didn't interface much with the situation on the ground, but:

1) That's like a 25% ding on getting out. Still rates a C after a series of Presidents that get an 'F.'

2) It's pretty well known the intel community has been basically lying about the situation on the ground. There was an article about it in...2019, I think? Here it is:https://www.washingtonpost.com/graphics/2019/investigations/afghanistan-papers/afghanistan-war-confidential-documents/.
Biden should have tracked that, but it's also pretty bad to not trust your intel chief. I am also glad the Dems in Congress are investigating this - I think it's an issue that could garner bipartisan support.

3) I'm honestly not sure how big the impact is. Humanitarian stories are going to be awful, but not as awful as the many stories we almost certainly won't hear about Afghans. And, as I said, the foreign policy effects have been baked into international expectations for the past decade.

[Sarcastr0]

https://twitter.com/NSArchive/status/1428408754178084866

#Afghanistan 20/20: The 20-Year War in 20 Documents
- Primary sources published today by
@NSArchive contradict Pentagon optimism over decades

- Pakistan sanctuaries, Afghan corruption enabled Taliban resurgence #FOIA

[Sarcastr0]

This isn't the end of the US or anything, but I sometimes think a failure to be honest with itself is the top cause of death of empires.

[James Pollock]

"#Afghanistan 20/20: The 20-Year War in 20 Documents
– Primary sources published today by
@NSArchive contradict Pentagon optimism over decades"

Of course, we can see things in hindsight that weren't obvious in foresight. Else there wouldn't be any Americans in Afghanistan to evacuate.

[Nige]

I think Biden had no choice. I think the whole house of cards was about to come crashing down, helped along by Trump's peace negotiations. I think Biden had to get out before he got ensnared in another full-scale ground war. But that's just my working theory at the moment, I'm sure we'll know more soon enough.

[Don Nico]

"I think the whole house of cards was about to come crashing down"
I'll believe David Petraeus' opinion over yours.
Yup I know about his romantic stupidity.

[James Pollock]

Didn't he say the Afghan government could protect itself, if we left them enough military toys to play with?

[Nige]

Why? The US military has done nothing but lie about Afghanistan for twenty years.

[James Pollock]

Depends on which part(s) of the military you were listening to. Quite a few of the lower-level guys came back and openly wondered what the hell they were accomplishing there.

[James Pollock]

"I see no indication of deep thinking about the threat that an Afghani/Waziri Taliban alliance with the most radical ISI elements can make to the security of 140 nuclear weapons in Pakistan."

140 atomic weapons is small change. We have WAY more than that, and much more effective delivery options. ALAS, we also have way more than 140 potential targets, and they may not, unless you count the stuff we built over there.

[BadLib]

I don’t think it was very well executed

That's an understatement of epic proportions.

One of the few primary exclusive jobs of the President is CIC (not, for example, interfering with private contracts between two parties over a resource that, almost by definition, can't move across state lines). Surely this includes the stated objective of protecting our personnel and "allies" (in the sense of translators who helped us etc).

It was clear to anyone that pulling out our troops (the few there were) before closing our embassy and getting all our people out of the country (as well as all those who we felt we should due to the help they provided us) was foolish. I thought it was foolish when he began the intensive draw down without moving aggressively on the necessary prerequisites. Only a fool would think that the Afghan forces would reliably protect Kabul or any other part of the country for any significant period of time and to act based on such an assumption is foolhardy and unnecessarily risky. Unclassified news reports from the region for many years have clearly indicated that it's a very transactional and tribal culture and a poorly educated pool of candidates and this was routinely manifested in the poor performance of the Afghan forces to whom we were providing guidance and training.

And, even now, Biden is trying to shift blame for his failure and/or refusing to acknowledge it was a failure. He should, at least, follow in the footsteps of Musk and tweet something like "If I am wrong, I am wrong. In this case, I was" and move ahead to clean up the mess as best as possible.

This was much worse than Carter's failed attempt to rescue our hostages and far less excusable. First, Carter was an "outsider" w/o decades of Washington experience and exposure to international issues whereas Biden is quite the opposite so should have known better. Second, the failure of the hostage rescue was largely a detailed tactical military failure on what was understood to be a high risk mission and Carter took a calculated risk and the military screwed up while Biden's lightning withdrawal was just an unnecessary risk with little upside or necessity.

Getting out should as cleanly as possible should have been one of Biden's top priorities given that the US had already agreed to do so. Instead, he apparently was more interested in attempting to cram a political agenda down our throats before his "honeymoon" was over even though the voters had spoken quite clearly that they weren't interested in a "Blue Tsunami". And, of course, he hasn't even been very successful in the latter attempt either.

[James Pollock]

"'I don’t think it was very well executed'

That’s an understatement of epic proportions."

WAS there a good choice? Kicking the can down the road doesn't count as a better choice.

[James Pollock]

"Biden strategy to address botched withdrawal: Invent and argue against a phantom major opposition group that wants to stay in Afghanistan indefinitely."

He IS facing a political opposition that is united on the concept that whatever he chooses to do is definitionally the wrong choice. As was the guy before him, and the guy before THAT, and so on as far back as you need to go.

[Ben_]

Did you see what Biden's election opponent did though? He used words some people didn't like and it made those people feel bad.

[Nige]

He did a bit more than that, didn't he?

[Ben_]

That’s the only complaint anyone really had. Everything else was phony drama, made up stories, and pretending words aren’t just words.

Unless you meant … policy? Since when do any of you talk about policy in any way? I know you didn’t mean policy.

[Nige]

What we say and what you choose to hear are apparently wildly divergent things.

[Sarcastr0]

Trump had 4 years, and failed to get out.

[Krychek_2]

That's an important point. For all the execution flaws, Biden at least got us out.

[Don Nico]

Got us out in a way that opens the door for more serious consequences in the years ahead.
Look. we have had many more thousand of troops in Korea and Germany for more than 70 years.

[Sarcastr0]

Our troops in Germany and Korea don't have the implications in blood and treasure that Afghanistan did.

As for international consequences, I fail to see any that weren't baked in by the first decade.

[Brett Bellmore]

The botched manner of the departure carries its own international consequences. We could have systematically evacuated our local allies. Hell, we could have systematically evacuated our own citizens!

Nobody sensible was trusting us to be a reliable ally even before this, now they don't even trust us to be competently unreliable.

[Bob from Ohio]

"The botched manner of the departure carries its own international consequences."

Yes, see the comments coming from Europe, both official and unofficial.

The British commander at Kabul got into a public argument with the American one.

[Sarcastr0]

Truly, earthshaking consequences.

I'm not saying this wasn't a screw-up, but the right's attempts to turn this into something with huge consequences that obviates Biden getting us out is just clowninsh.

[Bob from Ohio]

"earthshaking consequences"

It just happened. These are just signs of consequences to come.

[Sarcastr0]

Funny, you seemed to know all the consequences 2 minutes before this post:
https://reason.com/volokh/2021/08/19/thursday-open-thread-49/#comment-9055932

Maybe bad stuff will occur, but we don't know, and if he stayed in we know how crap it would have been.

I'm not going to hope for bad stuff to happen like you seem to be.

[wreckinball]

Well the Soviets did a much better job 30 years ago. It wasn’t perfect but much better.

Start there?

[Sarcastr0]

We could have and should have, but *this* is not the thing that will make people not trust America as a reliable ally, don't be daft.

[TwelveInchPianist]

It's truly sad to watch people on the left minimize this failure.

One thing that socked me about this is that it demonstrates that Trump, whatever his other faults, was a considerably more competent chief executive than Biden. And Trump was not particularly competent.

[Brett Bellmore]

It was the whole "America First" attitude. He was at least trying to do the right thing in the first place, that goes a long ways.

[Nige]

'It’s truly sad to watch people on the left minimize this failure.'

It's entirely predictable to watch the right try to pretend they had nothing to do with the whole 20 year catastrophe.

[Brett Bellmore]

Afghanistan was a bipartisan failure, stretching over multiple administrations. You start to wonder if it was the military brass giving bad advice to one President after another.

[Nige]

I would say that there is almost 100% certainty that the military brass were doing exactly that, and probably worse.

[Don Nico]

"almost 100% certainty that the military brass were doing exactly that"
President's don't hear what they don't want to hear.

[James Pollock]

"President’s don’t hear what they don’t want to hear."

YMMV. If they go looking for contrary opinion, it usually isn't hard to find. All Biden has to do is pick from a couple of cable news networks to find stuff he doesn't want to hear 24/7.

[Nige]

True, or maybe they actively collude on the best lies to tell the public to justify ongoing operations that are too big to fail. Until they fail. Defund the military, I say.

[James Pollock]

"It’s truly sad to watch people on the left minimize this failure."

And also sad to watch the suddenly anti-American right rooting against us, because loyalty to party outweighs loyalty to country. The military and political conservatives are usually fairly strong allies. Seeing the one turning on the other brings no joy.

[James Pollock]

"Defund the military, I say."

Wasn't that something Clinton was going to do? "Peace dividend" as I recall. How did that turn out?

[WuzYoungOnceToo]

For all the execution flaws, Biden at least got us out.

That's like saying, "Yeah, he botched the surgery and killed the patient, but at least he operated...unlike that other surgeon who just kept trying to figure out the right way to do it."

In any event, tell the up to 15,000 U.S. military and other personnel who are still there that Biden got them out.

[Krychek_2]

The thing is, I'm not sure there is any way that we could have gotten out that wouldn't have resulted in lots of deaths and misery. So the two choices were to stay there forever, or get the deaths and misery over and done with. The real blame belongs to Bush for sending us there in the first place.

[Brett Bellmore]

Well, don't start by abandoning a secure military base with airfield, and plan on extracting your people via a commercial airfield.

Extract the citizens and local civilian contractors first, military last.

Retreat to the secure airbase. Last flight out triggers the explosives.

Or retreat over land to Pakistan, which is at least theoretically an allied member of NATO, and has to cooperate or admit to really being a foe.

[Krychek_2]

Yes, all of that would have been an improvement. There still would have been thousands of Afghanis whom that did not help in the least.

[James Pollock]

In your opinion, when did Pakistan join NATO?

[James Pollock]

" retreat over land to Pakistan"

So, start by landing troops to secure a route to the border through land previously ceded to the Taliban?

[James Pollock]

"don’t start by abandoning a secure military base with airfield"

Unless, maybe, you don't really need any military bases. Declining to close useless military bases is one of the problems of civilian control of the military.
Back in the 1980s, I went to technical training at an Air Force Base in Colorado that had no ability to put airplanes into the air, because outside one gate of the base was Denver, and out the other gate was a suburb of Denver. They turned the runways into streets, and built houses on either side. It was like looking at a residential neighborhood with 7-lane streets. Just about every state has a military base in it, and they fight like hell to keep 'em there, because the local civilian economy makes money by serving the people who live or work on the base.

[James Pollock]

"That’s like saying, 'Yeah, he botched the surgery and killed the patient, but at least he operated…unlike that other surgeon who just kept trying to figure out the right way to do it.'"

This is a good analogy, if you finish it by noting... "although that other surgeon just stood there and watched until the patient coded.

[Nige]

The patient's been on life support for twenty years at the cost of billions of dollars and thousands and thousands of lives, and you're blaming him because the patient flatlines when the machines are finally switched off.

[BadLib]

Note that Trump set a date to get out when he expected to still be President and accountable for the execution of the withdrawal. It wasn't like he was kicking the can down the road beyond him being responsible for it.

Had Trump been re-elected, maybe he would have screwed it up also, but we don't know.

But, remember, if Biden didn't want the job, he was free to withdraw from the race. He knew the withdrawal date while he was still battling in the Democratic primaries (in fact, I think he won his first primary the day the agreement with the Taliban was signed - plenty early enough to step aside and let the other candidates fight it out).

[James Pollock]

"Note that Trump set a date to get out when he expected to still be President and accountable for the execution of the withdrawal. It wasn’t like he was kicking the can down the road beyond him being responsible for it."

Also note that he was still President until he wasn't, and accomplished precisely nothing. Which, coincidentally, is also how he handled that "better than Obamacare" healthcare bill he was going to sign on "day one". Is that almost ready to go?

[MoreCurious]

It'll be ready about the same time Mexico pays for the beautiful wall.

[James Pollock]

You mean the unclimbable one that people keep climbing over?

[Ben_]

Another leftist triumph.

[Sarcastr0]

More unthinking reflexive opposition. Most of what the right does these days.

[TwelveInchPianist]

As opposed to unthinking reflexive support?

[Sarcastr0]

I've said Biden screwed up 3 different times in this thread.

You, on the other hand, are trying to call Trump a better President than Obama *using this issue*.

You've really become a tool.

[TwelveInchPianist]

I said he was more competent. There are plenty of things to criticize Trump about, from the constant overt mendacity to the unwillingness to leave office voluntarily. But it Biden hasn't shown much advantage in the ability to execute the things that a President needs to execute, and after this expedition of abject incompetence I'd say it's hard to argue that Biden has any advantage over Trump there.

I mean, not only did he completely screw up the withdrawal but he was on vacation. Be belatedly returned from vacation, gave a shitty speech where he took no questions, and went back on vacation.

[Sarcastr0]

Biden got us out. Trump didn't.

This is not going to be a winning issue for you.

[TwelveInchPianist]

Obama didn't get us out either.

Biden caused a whole lot of unnecessary death and rape getting us out. If you're for that, I don't know what to say.

And "getting us out" means that we turn Afghanistan into one of the most morally problematic states ever, worse than old South Africa, etc. I'm not sure the case for getting out is as strong as you think it is.

[Sarcastr0]

Yeah, Obama sucks on this as well.

I'm not for the botched withdrawal, but that doesn't mean I'm not pretty happy we got out.

You're working very hard to pretend Biden doesn't get credit for us leaving because the execution was bad. Well, you're wrong. He's above Bush, Obama, and Trump on this.

turn Afghanistan into one of the most morally problematic states ever
What's this 'turn into?' That was how it started, and was clearly how it was going to end up after the first 3 years.

Do you want us to just stick around forever?

[Armchair Lawyer]

The way Biden "got out" may necessitate going back in, in 3 years...

[James Pollock]

"The way Biden “got out” may necessitate going back in, in 3 years…"

The reason we gon in was because they were harboring bin Laden. I don't think they'll ever do that again.

[Sarcastr0]

Why would we have to get back in?

[Life of Brian]

Biden got us out. Trump didn’t.

One of the very first things Biden did trying to wash his hands of this debacle was say that this was Trump's plan and his hands were tied. I guess that didn't play well in the focus polls?

[Armchair Lawyer]

"Why would we have to go back in 3 years?"

Why did we have to go back into Iraq in 2014, after leaving in 2011......

[James Pollock]

"One of the very first things Biden did trying to wash his hands of this debacle was say that this was Trump’s plan and his hands were tied. I guess that didn’t play well in the focus polls?"

Truth is radioactive.

[Nige]

I don't mind blaming Biden, but to be honest I'd be more concerned about how this shows the US military to be a complete shitshow.

[James Pollock]

whaddya mean? We kicked the Taliban out, and they didn't come back until we were leaving. IT was the Afghani military that underperformed, not our boys.

[Brett Bellmore]

Silly, the Afghani military WERE the Taliban, in alternate uniforms.

[Nige]

'Our boys' were responsible for recruiting, training and equipping them. And lying about how awesome they were. What a joke that turned out to be. Also the persistance of the Taliban as a viable military force in a country occupied by the US Army, to the point where it can simply slide in even before the withdrawal is complete, strongly suggests the US Army is not very good at its job, although it seems it is very good at lying about it.

[Don Nico]

Nige,
Civilians actually control the US military.
If there is a shitshow blame politicians and political appointees

[James Pollock]

"the Afghani military WERE the Taliban, in alternate uniforms."

And nobody noticed the ZZTop-style beards?

[Brett Bellmore]

"Civilians actually control the US military.
If there is a shitshow blame politicians and political appointees"

I think there's an argument for that, certainly, but when a problem with the military persists over multiple administrations of alternating parties and different goals, you do have to wonder if it isn't a problem with the people being controlled, not the long parade of people nominally controlling.

Institutions decay, unless their continuing to be functional is an existential threat to the organization's survival. The military being dysfunctional may be a threat to the survival of individual soldiers, but it has not been a threat to the survival of the US military as an institution in decades. We've been fighting nothing but optional wars for a very long time, not wars for survival.

It's good not to be faced with wars for your very survival, but keeping your military focused on job one, (Where job one is fighting, not cultural outreach and employing transgenders.) is difficult under those circumstances.

[Nige]

'Civilians actually control the US military.'

Does that make a difference to what a shitshow it is? It is bloated, rotten and as corrosive an influence as any dirty corporation with half the Senate in its pockets.

[MoreCurious]

A weekend at Camp David is not a vacation. Vacations are the dozens of trips that Trump took at taxpayer expense to his various properties over the years. Compare the cost to the taxpayers of a week at Camp David to a week at Mar-a-Lago.

[James Pollock]

The difference is the room rate charged to the Secret Service detail.

[Ben_]

False. No position was expressed at all. Try to be less dishonest in future. Thanks.

[James Pollock]

"More unthinking reflexive opposition. Most of what the right does these days."

They'll get that back the next time they're running the show. And be outraged, OUTRAGED! at the anti-Americanism of opposing them.

[Nige]

A final crushing defeat for the great patriotic empire-building right-wing neocon war-hawks, more like. Mission accomplished and all that.

[James Pollock]

"mission accomplished" was Iraq.

[Don Nico]

Gloat now, but in the end it will be your loss too.

[Nige]

Gloat? I'm fucking furious. It's a loss for all the Afghans who are now going to suffer and die, for most US people the loss is trivial.

[James Pollock]

"Another leftist triumph."

In the sense that there is not one leftist Talib in all of Afghanistan. They're religious fundamentalists, you jackass, it's right in their name.

[James Pollock]

"Trump had 4 years, and failed to get out."

He was busy with all those other policy accomplishments, like raiding funds set aside to build schools for American service-members children to build a "wall" on the border that has nearly eliminated the threat of illegal immigration. Right? No more illegal immigrants are getting in, now? Right?

[Blackstone]

Perhaps you could explain the correct withdrawal procedure. If you could give historical examples it could be an important guide for us the next time. I would also like to know the parameters you are using to conclude, in mid-stream, that this withdrawal is a failure. Is it your view that the military-industrial complex is a phantom? Then how did we come to be in this predicament?

[James Pollock]

Here is the correct withdrawal procedure, with options:

1) divide up the country between us, our allies, and Russia. Occupy it forever.

2) Blow up a couple of their cities with atomic weapons. Occupy it forever.

This is our recipe for "getting out" of the last World War, coincidentally that last war we unambiguously won. No, Desert Storm doesn't count... we did win, but we won because we set clear objectives and stopped fighting when we achieved them. We didn't occupy Kuwait, we decided it was over when Saddam wasn't occupying Kuwait, either.

[apedad]

The Washington Football Team narrows list of possible new names down to three final candidates from this list.

Armada
Brigade
Commanders
Defenders
Presidents
RedHogs
RedWolves
Washington Football Team

Meh...

My choice would be the Washington Monuments.

[Commenter_XY]

My vote is the Red Hogs. How apt a name, considering how they would represent The DC. Congress should give them a shoutout for that name. 🙂

[James Pollock]

Road Hogs? They're more infuriating than intimidating.

[bernard11]

"Armada" lends itself to some unfortunate headlines.

The others, except "Presidents," are kind of generic, but that name is unexciting.

What about the Washington Bureaucrats? That ought to intimidate the opposition: "Oh no. We have to face off against the Bureaucrats!"

[James Pollock]

I was also thinking that "Washington Bureaucrats are a huge boogeyman to a large number of people.

[Jerry B.]

I thought the Washington Insurrection would be a good name.

Or Washington Team Football...WTF.

[James Pollock]

"I thought the Washington Insurrection would be a good name."

And the quarterback hands off to the halfback for a... wait a minute... the ball's on the ground...looks like ANOTHER fumble by the Washington Insurrection.

[Nige]

The Washington Georges.

[Don Nico]

George Washington was a slave holder.
He has been cancelled

[Nige]

Oh, good.

[James Pollock]

"He has been cancelled"

I hadn't heard this. That's what I get for skipping the meetings.

[Alpheus W Drinkwater]

There is going to be a note included in our next paycheck from George Soros.

[OtisAH]

Keep Washington Football Team because it sounds as if they’re the only team who is not licensed by the NFL.

[Don Nico]

Better still Washington Team Football.
Get your WTF tee shirt here.

[James Pollock]

"Keep Washington Football Team because it sounds as if they’re the only team who is not licensed by the NFL."

They might have trouble getting trademarks registered. So much for selling the official team logo gear...

[Bob from Ohio]

Pigskins

[apedad]

That's actually the best one!

Kinda goes along with those guys who wore dresses, long sleeves, and flowery hats back in the 70s.

[TwelveInchPianist]

No more Redskins or Indians, but we still have Cowboys, Packers, Fighting Irish, etc.

No more Uncle Ben or Aunt Jemima, but we still have Colonel Sanders, Wendy Thomas, Orville Redenbacher, Sara Lee, etc.

Nice work, guys.

[Don Nico]

12",
Actually we still have Uncle Ben's rice.
BUT Ben's picture has been removed form the box over the past month.

[Gasman]

Orville Redenbacher, Sara Lee, Harlan Sanders, and Wendy Thomas are the real names of people associated with the respective businesses. So, not certain what is meant by including them with the fictitious names listed.

[James Pollock]

Review the list of actors who have been hired to play the role of "the Colonel" in the KFC ads over the past couple of years. Any names stand out?

[Brett Bellmore]

Harlan Sanders might have been a real person, but "Colonel Sanders" was fictional.

[James Pollock]

So was "Donald Trump, successful businessman", but if enough people buy in, you can still make it work.
Remember, this week's attendance at the Washington football stadium is the highest attendance for any football game ever, and any photo that shows half-empty stands is fake news.

[Nige]

Oh, no.

Anyway.

[James Pollock]

Washington Racialslurs.

I'm sure the fans in the stands will be happy to fill in whatever is needed. Everybody can just imagine they meant the one you were thinking of.

[Doug Huffman]

https://media.townhall.com/Townhall/Car/b/mrz081721dAPR20210817024504.jpg

[apedad]

Hobby Lobby Must Pay $220,000 to Transgender Employee the Company Banned from Using the Women’s Restroom, Appeals Court Affirms

A panel of three conservative judges from the Second District Appellate Court of Illinois unanimously upheld the findings of the state’s Human Rights Commission, saying Hobby Lobby discriminated against decades-long employee Meggan Sommerville based on her gender identity.

https://lawandcrime.com/lgbtq/hobby-lobby-must-pay-220000-to-transgender-employee-the-company-banned-from-using-the-womens-restroom-appeals-court-affirms/

Nice to see the progressive, liberal trend is continuing.

[Illocust]

Was Hobby Lobby at least smart enough to argue that desegregating bathrooms would leave them open to hostile work environs lawsuits from female employees? The least their layers could do is secure a ruling that gives them lawsuit protection when the inevitable happens.

[Brett Bellmore]

I think at this point the only thing any sensible company can do is get rid of communal bathrooms, and just have a bunch of unisex individual bathrooms. Then brace for the next fight when somebody demands the right to share one.

[James Pollock]

Or, and this is a crazy, CRAZY idea, is that a sensible company could worry less about how employees pee and more attention to how they work.

[Brett Bellmore]

Requiring guys to stay out of the women's bathroom isn't concern about how employees pee. It's about avoiding a hostile work environment.

The fact that the guy in question is pretending to be a girl (And not doing a very good job of it, based on the pictures.) doesn't change that. Reading other accounts, I find that he is in fact little more than a cross dresser at this point.

But getting rid of communal bathrooms and going to a bunch of single person unisex bathrooms would have mooted the issue quite effectively. It is the obvious defense, which my own employer has begun preemptively implementing.

[James Pollock]

"Requiring guys to stay out of the women’s bathroom isn’t concern about how employees pee. It’s about avoiding a hostile work environment."

Or would be, if anyone worked in there.

Here's the thing. If you aren't going into the bathroom to pee, then the business has a perfectly valid concern with what you ARE in there for. The arguments for potty purity were quite stupid, and have not improved with time.
If you think you have a problem with dudes busting into the ladies' loo to peek at them while they're peeing, make it a crime to be a voyeur. Oh, that's ALREADY a law? If you think you have a problem with dudes busting into the ladies' loo to show off their junk, then make indecent exposure a crime. What? That one, too? But wait... what we need is a law so that we can hassle the transsexual people without having to pay them huge fans for hassling them? No, there isn't already a law for that. In fact, it works the opposite of that.

[Brett Bellmore]

Yeah, you're not taking this seriously: How do you go after the dude for indecent exposure when he's in the women's bathroom with the court's permission, and the court is telling you that you have to pretend he's a woman?

That basically immunizes him against the charge.

The root problem here is that the legal system is forcing people to humor delusions/lies. The guy is a dude, and the company is being forced to pretend he's a girl.

[Sarcastr0]

When these hypotheticals become real in any kind of numbers, then we can talk.

[James Pollock]

"Yeah, you’re not taking this seriously"

No, I'm not. Because there's nothing serious to take seriously. A person peeing acts differently than a person who's showing off their junk. I also think it's dumb to charge people who went back behind the bar after closing time to relieve themselves with sex crimes for peeing on the outside wall of the joint. Charge 'em with vandalism, not indecent exposure.

[Ed Grinberg]

The "liberal" (in the classic sense) approach would be leave Hobby Lobby free run its company however it wants. (The aggrieved employee would also be free to look for a more "understanding" employer.)

[James Pollock]

"Nice to see the progressive, liberal trend is continuing."

That's what happens when you worry too much about how your employees go to the bathroom.

[Cal Cetín]

"*I'm* obsessed? *You're* the one with all the dirty pictures!"

[James Pollock]

That's research.

[TwelveInchPianist]

"That’s what happens when you worry too much about how your employees go to the bathroom."

But Ginsberg said that employers are required to worry about it.

[Brett Bellmore]

You're damned if you do, and damned if you don't. Either the cross dresser sues you, or the actual women sue you for the hostile work environment you're letting him create.

[Sarcastr0]

I don't think such lawsuits on either side are happening very often right now.

[Don Nico]

But when they do they awards are usually big money.
Plus there are many settlements in the $500,000 to $750,000 range. So numbers are not so clear

[James Pollock]

If only someone had invented business liability insurance.

[James Pollock]

Obviously, the only solution suitable for the potty purists is to require that people strip naked before entering the bathroom. so that everyone can tell whether they're entering a bathroom equipped for their needs.

[Brett Bellmore]

Where'd you get the idea that would matter? This dude still looks like a dude, and is still equipped as a dude, and the court knows it and didn't care.

Like I said, the only defense is individual unisex bathrooms.

[James Pollock]

That's why everybody has to strip before they can go pee. So everyone knows which bathroom they're peeing in, and can allocate the assessment of whether they're peeing in the right place as to their own individual preferences as to where other people should pee. Because that's what 's important, here.

[James Pollock]

"But Ginsberg said..."

She's dead. She doesn't say anything any more.

[WuzYoungOnceToo]

That’s what happens when you worry too much about how your employees go to the bathroom.

That your excuse for a "brain" keeps harping on that one prurient item rather than the far more obvious issues such a situation causes for a company tells us volumes more about you than it does Hobby Lobby.

[James Pollock]

Yes, I keep ignoring the "real" problems you've imagined, and plan to continue to do so for as long as I remain trapped in objective reality. Quit bragging that you can leave any time you want.

[KCar]

That is why you dont hire those wierdos in the first place. They are #1 risk to sue you as they have major mental problems.

[James Pollock]

How long have you been unemployed?

[BadLib]

Decisions like this are going to create unnecessary overhead for businesses.

A local store that is pretty busy used to have two restrooms, one for women and one for men. Each could concurrently service three people with two using the toilet facilities (one stall, one urinal for men; two stalls for women) plus one person washing their hands/primping/admiring their hair in the mirror.

However, being a fairly "progressive" or PC store, this apparently created a problem as too how to deal with transgendered individuals. After all, many women customers would not be happy with someone who, in all physical respects (possibly including dress) appeared to be a "man" but "identified" as a woman walking into the women's restroom and vice versa.

So they "got ahead of the curve" recently and turned each restroom into a "all gender" restroom -- with single occupancy ("Vacant/Occupied" deadbolts on the doors). Now, the wait for the restroom can be ten minutes whereas before, there was almost never a wait and, at most, you had only a short wait for one person for the next "phase" of your "transaction". Also, I've seen people use the restrooms, since they now have "complete privacy", for extraordinary lengths of time - probably topping off their drug habit. These factors combined reduced bathroom capacity to less than one-third of the previous capacity.

Yes, the store could probably have crammed three individual restrooms, one of which was "handicapped accessible" into the space to attempt to service a few more customers. However, that would have cost quite a bit more and, more importantly, been difficult to do without significant customer disruption to their 7 day a week, 12+ hour a day shopping hours in the limited space available. It would have required moving walls and plumbing -- some of the plumbing changes would require cutting through the slab and almost all work would have had to be done during closed hours. Each day the contractors would have had to "button up" before opening to provide at least the legally required number of functional "customer acceptable" restrooms which met code. This would have substantially increased the cost and elapsed time for the work.

[James Pollock]

"However, being a fairly “progressive” or PC store, this apparently created a problem as too how to deal with transgendered individuals. After all, many women customers would not be happy with someone who, in all physical respects (possibly including dress) appeared to be a “man” but “identified” as a woman walking into the women’s restroom and vice versa."

If only some bright soul had invented the toilet stall, so that the curious wouldn't be able to inspect the excretory apparatus of other people in public bathrooms.

[Cal Cetín]

If the Supreme Court in Bostock decided that strict textualism is the order of the day, reading legal instruments literally, what will the Court do with the 6th Amendment's guarantee of jury trials in "all criminal prosecutions"? What happens to juvenile courts, contempt proceedings, trials for petty crimes?

[Sarcastr0]

Wasn't Bostock a statutory decision?

[Krychek_2]

I don't think the Supreme Court decided in Bostock that strict textualism was the order of the day.

[Brett Bellmore]

Wait, you're expecting the Supreme court to take such a case, and then be consistent?

That's hilarious.

[wreckinball]

Just some constructive criticism of the VC for the professor.

It’s really boring. Used to be my first stop. About once a week maybe now.

Start writing about some of the edgy interesting issues.

[wreckinball]

Notice nobody is discussing actual exit strategies. Just assigning blame Biden Trump or arguing it was impossible

Well first off it was possible and second the guy in charge is responsible.

BUT do you think the Taliban was debating “optics” or the symbolism of an attack date or any of that ridiculous political stuff?

Hell no they were stone cold killer planning the assault.

Our guys were busy with “white rage” or something

The results were predictable. If you are making a military plan stick with things that are relevant to the mission

[Sarcastr0]

First, the Taliban absolutely thought about optics. The statements they've been putting out are absolutely calculated.

Second, issuing correction on this previous post of yours, regarding the Taliban. you do not, under any circumstances, "gotta hand it to them"

[wreckinball]

Statements not actions
Who won? Case closed

[Sarcastr0]

...You think we lost because we weren't enough like the Taliban?

That seems a great argument for us not getting in to begin with, since I'd rather we not become like the Taliban myself.

[James Pollock]

Picking a winner is difficult. the Talibs won't be harboring Mr. bin Laden again, which is why we went to Afghanistan in the first place. They learned to fear the skies, and the A-10 airplanes that come out of the skies, even if they do not fear sgt. what's-his-face walking patrol.

The people of Afghanistan did not reject the Talibs, so they get what they have coming, unless they can get the hell out.

[James Pollock]

"the guy in charge is responsible."

The guy in charge of Afghanistan fled Afghanistan because it turned out that the Afghanistan military forces were unable or unwilling to fight for Afghanistan's government. Was Biden supposed to parachute out of an AC-130 and lead troops on the ground.

[wreckinball]

We’ve been at this 20 years. You never assign the safety of your civilians or your very valuable property to others.

Whatever the fighting capability of the Afghans we needed to take care of our own

Fail, and the buck stops with Biden

Like he said a month ago

[James Pollock]

"Whatever the fighting capability of the Afghans we needed to take care of our own"

By, say, bringing them back here? The ones who want to come, anyway. The "our own" who are actually "ours" absolutely belong here.

[James Pollock]

"We’ve been at this 20 years. You never assign the safety of your civilians or your very valuable property to others."

So you DO think Biden should have flown in and led the troops from the front?

[James Pollock]

"Well first off it was possible "

So tell us how.

[apedad]

Proposal to raise North Carolina marriage age to 16 gets OK.

A study by the International Center for Research on Women found North Carolina ranked among the top five states in the number of minors listed on marriage applications between 2000-2015, and that 93% of the marriage applications it reviewed for the years 2000-2019 involved a marriage between a minor and an adult.

https://www.charlotteobserver.com/news/nation-world/national/article253557299.html

North Carolina, very, very, very slowly but steadily turning blue.

[James Pollock]

"North Carolina, very, very, very slowly but steadily turning blue."

This may be true, but the marriage age change is probably unrelated. These are the same guys who brought you the first potty purity law, and it wasn't that long ago.

[Voize of Reazon]

I'm not seeing it.
The minimum age in NC was: 18, or 16 with parental consent, or 14 with a court order. They are planning to up the 14 to 16.
Meanwhile, in California the rule is: 18, but with both parental consent and a court order there is no minimum age.
Is this NC getting bluer, or CA showing its true color?

[James Pollock]

Count up the number of underage California married people. Is the number higher, or lower, than the number of underage North Carolina married people?

[Bob from Ohio]

EXCLUSIVE: @GStephanopoulos: “Do you believe the Taliban have changed?” Pres. Biden: “I think they’re going through sort of an existential crisis about do they want to be recognized by the int’l community as being a legitimate government.”

[James Pollock]

One the one hand, they really, really want to stay in the 12th century. On the other hand, some of them like some features of the 21st.

Like Conservatives here, they won't ever accept same-sex marriage, and they won't like having limited access to Facebook. Hopefully, we can get the smart women out before the Taliban is entrenched enough to make being smart while female a capital crime again.

[Rev. Arthur L. Kirkland]

I have little respect for superstitious, misogynistic, gay-bashing, stale-thinking, gun-fondling, poorly educated clingers in Afghanistan, in Mississippi, in Pakistan, in Tennessee, in Iran, in Wyoming, in Oklahoma, in Iraq, or anywhere else.

[Don Nico]

The Taliban will be recognized. There will be at least a dozen instant countries on-board following Russia and China.

[James Pollock]

...because Russia and Afghanistan are so cozy with each other?

[Don Nico]

Because it is to the benefit of the Taliban and Russia. And that is actually obvious to anyone who thinks just a bit about it.

[James Pollock]

It's so obvious that you can't provide any evidence to support it.

[M L]

As everyone knows, Benjamin Franklin said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

Of course, when you scratch the surface, this raises the questions of what kinds of Liberties might be fairly considered "essential," and what what sort of Safety might be described as "a little" or "temporary."

Would anyone say that the very general liberty to work at a trade, occupation, or operate a business (whether landscaping, construction, carpentry, a coffee shop, gift shop, flower shop, etc), as necessary to earn a living and provide for self and family is properly considered an "essential" liberty?

Might the potential, but unproven and dubious possibility of slowing, not stopping, by some wholly unspecified degree, the spread of a virus which has a 99.9% (or whatever) survival rate, be fairly characterized as "a little temporary" safety?

[James Pollock]

Translation: I'll won't complain when you get sick.

In Atlanta, there're having protests because the hospitals are requiring the staff to get vaccinated for coronavirus. A couple of years ago, I had to get a bunch of shots so that I could work on the computers in a hospital, and they and I don't even have interchangeable viruses.

[Jason Cavanaugh]

No.

[M L]

Afghanistan finally liberated from a regime that imposes mandatory face coverings, destroys statues, and promotes the genital mutilation of children

https://twitter.com/kwamurai/status/1426946717124108288

[Sarcastr0]

Doesn't this comparison between the US and the Taliban show your griping about asks is full of shit?

[M L]

How so?

[James Pollock]

Well, your inner cavity is full of shit. That means there's nothing but shit in there.

[Sarcastr0]

One is what real oppression looks like, the other isn't even a masks mandate.

[M L]

Ah. So something can't be objectionable, if there are worse things that exist. I honestly couldn't see where you were going with this. Thanks for the clarification.

[Sarcastr0]

You made a comparison. As though the 2 things are comparable.

They are not.

You're full of shit.

[M L]

So you didn't like the funny tweet?

[James Pollock]

make one, and we can find out.

[Don Nico]

Wait S_0,
The Taliban won't impose a mask mandate on women because it covers their whole body with a great piece of cloth

[James Pollock]

they shoot girls for wanting to go to school. We have protests over whether or not gathering large numbers of unvaccinated people together without implementing rules to limit the spread of communicable diseases is a good idea.

[Archibald Tuttle]

George Stephanopoulos didn't ask Biden the tough question in today's interview.

Biden said, "Nobody predicted that the Taliban would take over in 11 days."

George Stephanopoulos should have asked, "What evidence is there that you had a plan for those refugees to leave by your own date of September 1? Were they told where to go? Did you provide them with ID? Did you disseminate information to them? Where is the plan?"

But nobody dared to ask Biden those questions.

[James Pollock]

Why didn't anyone ask him "why wasn't there a plan for the thing that nobody thought would happen"?

[Cal Cetín]

Or go back a bit and ask, why did nobody (except the Taliban perhaps) think it would happen?

[James Pollock]

There's a portion of the American public that thinks that things become true if they wish for it long and hard enough. Perhaps some of them enlisted.

[Brett Bellmore]

There's a thin line between not thinking something will happen, and not caring if it happens, I guess.

[James Pollock]

But enough about Trump.

[Bob from Ohio]

“why wasn’t there a plan for the thing that nobody thought would happen”

In war, its negligence if you don't have multiple plans for multiple contingencies.

[James Pollock]

So Japan should blame the Imperial Navy because America had project Trinity and caught them by surprise with it?

NOBODY expects the Spanish Inquisition!

[James Pollock]

"In war, its negligence if you don’t have multiple plans for multiple contingencies."

Somebody tell the 1930's French that fortiying the Maginot Line was a waste of time and resources, because the Germans weren't coming over the German border, they were coming over the Belgian border.

[nothisispatrick]

Any other criminal defense lawyers (or just anyone interested) have issues with prosecuting attorneys taking things personally and making accusations against you in court? I've had a pretty crazy week at work, and it all started out on Monday with a prosecutor saying in open court that I had "abetted a violation of an order of protection" by subpoenaing a witness who has an order of protection against my client. The witness wants the client out of jail, and has moved (on her own accord) to have the order withdrawn. Other than how obviously insane it is to say that this could be a crime, I was weirded out by the prosecutor turning this into an allegation against me personally.

[James Pollock]

Perhaps your Monday prosecutor did not mean to suggest that the state cannot adequately protect your witness from your client at the courthouse. After all, it IS full of law enforcement personnel and guarded metal detectors at the door.

[nothisispatrick]

Perhaps. Since the client was appearing via Zoom and the witness was in the courtroom, I wonder what psychic powers he may possess to be able to harm her, but I am not an all-knowing prosecutor so I guess I should defer

[loki13]

I'm on the civil side (HA!), but I would say this-

Over the past four years, the level of professionalism has declined immensely. IMO.

Look, we all used to pass around the Joe Jamail deposition video, and we used to laugh at stupid pleadings, but the lack of civility in society at large has infected swathes of the legal profession.

This isn't to say that there was some halcyon days of yore when attorneys used to be all rainbows and unicorns, but you have to expect that the same things that we are seeing "out there" are also occurring in the courtroom.

FWIW, the first time I really started noticing it was 2.5 years ago, when I had a routine civil (business/contract) litigation case in federal court (!!) and the opposing counsel started in with all of these bizarre paranoid personal attacks on individuals who weren't even named parties. And I've seen more of that since then.

Just my 2 cents.

[nothisispatrick]

Yeah, I think you're right. I first noticed it with opposing counsel in federal court who literally fabricated a quote from the Eighth Circuit. Thought at first he'd cited the wrong case or something, but no, he just made it up and attributed it to some random case, like we weren't going to check.

[nothisispatrick]

Yeah, I think you're right. I first noticed it with a guy in federal court who fabricated a quote from the Eighth Circuit. I thought he'd cited the wrong case at first, but no, he just made it up and attributed it to a random case like we weren't gonna check.

[Ridgeway]

Maybe he just wrote it down and then quoted himself?

[Rev. Arthur L. Kirkland]

I have noticed a number of newer lawyers who appear to have developed poor habits consequent to working alone or in tiny firms since their first day on the job. Without mentors, how are they to know better?

Also, being required to fend for themselves economically seems to make some of them believe that being exceptionally aggressive and theatrical is the proper course. Perhaps watching too many television portrayals of lawyering contributes, too.

A few years ago, while arguing a motion, I watched a young lawyer return to a point after the judge had moved to another issue. The judge gently informed the lawyer the issue had been decided and that it was time to address another point. The lawyer nonetheless continued to press the threshold issue. 'You don't understand,' the judge interrupted him. 'I have already decided that . . . '

'No, you don't understand,' the lawyer declared forcefully, pointing his finger at the judge. 'If you don't get this one right it is going to mess up the entire case. I need you to understand this.'

I felt somewhat sorry for that guy. And for his client.

[Commenter_XY]

No way....did that young lawyer really do that? = No, you don’t understand. If you don’t get this one right it is going to mess up the entire case. I need you to understand this.

Did that young lawyer ever argue a case in front of that judge again? I am sitting here literally LOL at the mental picture.

The truth is stranger than fiction, Arthur.

[Rev. Arthur L. Kirkland]

I was startled a bit by the vehemence, but quickly calmed as I recognized: 'All I need to do is to refrain from insulting the judge's parents or asking to date his wife and this one is in the bag.'

After the hearing, the other lawyer and his client were reliving that exchange in the hallway, with the client impressed by how dedicated the lawyer was to pressing the client's case. 'You should have seen the looks on their faces,' the client said. I had planned to discuss settlement after the argument but changed my mind.

That judge has become a (50-something) federal district judge. Good luck to that lawyer for the next few decades.

I do not know how representative that courtroom experience was. I argue in court roughly once a year just . . . because. Maybe it seems to be part of being a practicing lawyer (probably more 'one case per year' than 'one time per year'). Outside courtrooms, however -- transactions, documents, disputes, etc. -- I encounter non-housetrained young lawyers with disappointing frequency.

We are failing these young people, at least to some degree.

[nothisispatrick]

I agree, but I don't think that's what happened in this case. The fake quote guy had been practicing for more than fifteen years by this point, and the prosecutor I described is kinda young, but her worst behavior is probably being influenced by her boss, who is older and a famous asshole around these parts

[James Pollock]

"Over the past four years, the level of professionalism has declined immensely. IMO."

Almost 20 years ago now, my now ex-wife told the judge to "bite her" when a ruling didn't go her way. The judge was the only lawyer in the room.
The clerk did press the panic button, though, so a couple of deputies busted into the room and gathered around my table, trying to figure out what the fuss was.

Unfortunately for me, the case was then transferred to another judge, and didn't end immediately. In fact, the custody order remained contested until the kid was almost 18.

[dwb68]

I think that people should look on the bright side of the Taliban capturing billions of dollars in American munitions.

When given the chance, the Taliban dropped their commie pot metal AKs and bakelite mags in favor of American patterned rifles faster than you can mag dump into the ceiling of an Afghan girls school to clear it out. Settling the AK vs AR debate forever. Mic drop. Now they can do some much longer range intimidation of Afghan women. Russia will have no problem diverting that cheap Tula steel cased zinc-plated crap with minute of goat accuracy that they pawn off as “ammo” here in the US. That stuff is dirtier than Cuomo's text messages, and smells just as bad as his girlfriends when the polymer coating cooks off.

To which I say, good riddance. I am not bitter at all about paying more for ammo, because people should striving to get a heavenly 72 pieces of virgin brass through their rifles in the first place.

[James Pollock]

The Commie rifles were left behind more than 30 years ago. The American ones were just dropped last week. Some of them barely have fingerprints on them. They're all shiny and new, never fired.

Another way of looking at it is that the Afghan military forces had brand new American weapons and the Talibani forces had relics, and the Afghanis were so afraid they were outgunned that they never fired a shot. Pick up that mic.

[Sarcastr0]

Dude by the Capitol:

“The revolution is on. It’s here… I’m ready to die for the cause.”
“The south’s here. There’s five of us spreading all across your little DC part here.”

Working from home, but not loving that.

[apedad]

You mean this dude?

Police brace for lengthy standoff on Capitol Hill amid active bomb threat.

https://www.politico.com/news/2021/08/19/hill-office-buildings-evacuated-bomb-threat-506246

[Brett Bellmore]

Sounds like a real idiot. I wonder how long it will be before we find out the FBI had an eye on him already, and were stringing him along just waiting for the right moment?

[Sarcastr0]

Sometimes an idiot is just an idiot.

Anyhow, he's in custody.

[Brett Bellmore]

Oh, I'm sure he's an idiot. It's just that it seems like a large proportion of such idiots are strung along by the FBI, given enough rope to hang themselves with.

Sometimes the FBI screws up and they hang somebody else with that rope.

Which reminds me; Has the FBI ever identified the source of those really hokey looking 'bombs' that were left at the DNC and RNC headquarters in Washington?

[Sarcastr0]

The FBI absolutely does that, it's absolutely for PR reasons, and it's absolutely awful.

But I don't think that means we assume every nut is being manipulated by the FBI.

For one thing, no way are that competent.

[Sarcastr0]

Haven't heard anything about that bomber, but I'm also not dismissing the bombs as hokey and not real.

[wreckinball]

They never will. planted bombs are always duds and they are planted so "oops we can't find them"

[James Pollock]

Sounds like a real idiot. I wonder how long it will be before we find out the FBI had an eye on him already, and were stringing him along just waiting for the right moment?"

When I was in law school, the local United States Attorney was an adjunct. He came to class one day, right after the big story on the evening news was the arrest of the "Christmas Tree bomber". The guy wanted to set a bomb to go off at the big public tree lighting right after Thanksgiving in downtown Portland. The FBI had gotten a tip on the fellow from people at his mosque and they found out he was looking for help obtaining or making a bomb.
well, it isn't a crime to want to make an explosive, or even talk about setting off an explosion in a crowded public place unless someone actually tries to set off a bomb in a crowded public place, in which case you got the would-be bomber for attempted murder AND anyone who helped them for conspiracy. this guy was a total loner, so the FBI had to set him up with a fake bomb maker. They took him out to the beach and let him set off a big bomb there, then they gave him a fake bomb with a fake detonator, and scooped him up with he tried to use his "detonator" to set off his "bomb". They got him a lengthy stay in the federal pokey even though he never had a real weapon anywhere near any real people. He sure thought it was real when he pushed the real button on the not-real detonator.

[OtisAH]

The yokel down in DC who alleges he’s prepared to die for his cause still hasn’t died for his cause. Which reminds me, this guy is a lot like commenters here. Long on threats and big talk, short on substance and action. So who among the regulars is absent today?

[Bob from Ohio]

Kirkland

[Mr. Hook]

"Dr" Ed hasn't checked in yet to declare this guy antifa/BLM, bussed in by Soros. Joe Sixpack can only be pushed so far. It's just like Weimar Germany and a second civil war is around the corner.

[James Pollock]

Special Ed seems like the best bet so far.

[James Pollock]

You don't win the war by dying for your country. You win the war by making that other SOB die for HIS country.

[DaveM]

/stands on soapbox/

The longer you let the judicial branch stew on a legal theory, the more risk-averse its interpretation becomes. It's like a physical law: all legal opinions tend to a state of maximum protectiveness as time progresses.

Laws and regulations build layer upon layer of cruft, cementing themselves in place. It takes a seismic political event such as a war to shake them loose. It doesn't happen on its own.

The Woke Cultural moment we're going through is, at root, an attempt to instigate such a seismic event. These attacks on the icons and shibboleths of culture are not about "justice", they're about disruption. They aren't directed at schools for failing to teach inner city kids, for example, they but at statues put up in the 1920s. The icons are the target.

The judicial system is especially vulnerable to being disrupted in this way because first, it is absolutely an icon of Western culture, but secondly, because it has become so risk-averse (at least in the US.) It is unable to distinguish between what is truly existential and what is superficial. It is unable to truly defend itself. If "logic" and "reason" are racist, it's but a short step until laws are racist, too.

Then what?

/stands down/

[M L]

Large study on vaccine hesitancy says:

"The association between hesitancy and education level followed a U-shaped curve with the lowest hesitancy among those with a master’s degree (RR=0.75 [95% CI 0.72-0.78] and the highest hesitancy among those with a PhD (RR=2.16 [95%CI 2.05-2.28]) or ≤high school education(RR=1.88 [95%CI 1.83-1.93]) versus a bachelor’s degree...

..Those with professional degrees (e.g., JD, MBA) and PhDs were the only education groups without a decrease in hesitancy, and by May, those with PhDs had the highest hesitancy. To our knowledge, no other study has evaluated education with this level of granularity, which was possible due to our unusually large sample size (>10,000 participants 240 with PhDs). Further investigation into hesitancy among those with a PhD is warranted."

https://www.medrxiv.org/content/10.1101/2021.07.20.21260795v1.full.pdf

[Don Nico]

Thanks for the link

[Don Nico]

"Asian participants, identified a remarkably lower prevalence of hesitancy in this race/ethnicity group versus all others."

That must explain why Harvard discriminates against Asians.

[Don Nico]

"January-May, there was a dose-response relationship between relative degree of local Trump support in the 2020 presidential election and hesitancy, that grew slightly over time such that by May those living in counties in the top quartile were 42% more at risk for being hesitant..."

Showing the hesitancy is a Trumpista characteristic.

[James Pollock]

According to the Lt. Gov. of Texas, vaccine hesitancy is related to melanin content of the skin.

[Toranth]

A self-selected online survey is not a 'study' worth the paper it will never be published on.

[dwb68]

Pentagon: doesnt know how many Americans are in Afghanistan

Also Pentagon: cant explain why British troops are leaving Kabul airport to rescue Brits, but American troops are not doing the same.

Who the tf is in charge of this C.F.

[TwelveInchPianist]

Seems like Zywicki was given a medical exemption from the GMU policy.

[F.D. Wolf]

I was reading an article about Joe Biden and the 25th Amendment recently. Putting aside the extreme unlikelihood of that vehicle being used against Biden any time soon, the gist of the article was that Democrats would be hesitant to that (among other obvious reasons), because upon elevating Kamala Harris to the presidency, they would lose her tie-braking vote in the Senate, and the 50 GOP senators would block any vice-presidential nominee of hers.

I found that a dubious proposition. Both Gerald Ford and Nelson Rockefeller were confirmed by Congresses with Democrat majorities in both houses, and those Democrats were virulently hostile to the GOP administrations, certainly more hostile than institutionalists like McConnell would be.

[Jimmy the Dane]

I just love how shocked the media pretended to be shocked when a GOP rep said maybe it is time to 25th Amendment Biden. That must have taken some good acting to look outraged over the suggestion after SPENDING FOUR YEARS SERIOUSLY ADVOCATING FOR IT TO BE USED AGAINST TRUMP.

[James Pollock]

That's the difference between advocating that something should be done when it was obviously needed and advocating that it should b done as payback for talking about it when it was "our" guy.

[Brett Bellmore]

With the latter having been OK as recently as a year ago, and the former an outrage now?

[James Pollock]

YOUR guy showed actual signs of dissociation from reality.

[Voize of Reazon]

Section 1 of the 25th says that if the President leaves office, the Vice President becomes President.
But section 4 doesn't remove the President, it suspends his authority and temporarily vests it in the Vice President as Acting President. I take it the article assumed that she would no longer be Vice President (or President of the Senate) in that case? I think a more reasonable view is that she would remain Vice President for the duration of the President's incapacity.
Remember that the rest of section 4 provides for how the President can "resume the powers and duties of his office", he wouldn't be able to if he no longer had an office.

[James Pollock]

A substantial minority of US citizens believes that a President can be "reinstated" after losing an election. worrying about coming back from incapacity is trivial in the face of that kind of misinformation.

[F.D. Wolf]

That is well said, and an interesting point I had not considered. Would the Vice President, in her capacity as Acting President, still be the President of the Senate and retain her tie-breaking vote in the Senate? I tend to agree with you that the answer would be "yes", but I can see contrary arguments. After all, it seems anomalous for someone who cast a (deciding) vote to pass legislation also was the person who signed the legislation to make it a law.

But I believe the focus of the article (or at least mine) was Section 2 of the 25th Amendment, whereby the President nominates a Vice President in event of a vacancy in the vice presidency. I think the situation imagined is the Democrats "forcing" (suggesting, cajoling, whatever) Biden to resign. Harris would, of course, become President, and, per the 25th Amendment nominate a new vice president. The article suggests the 50 GOP Senators could block any nominee to deny the Democrats a tie-breaking vote, thereby blocking any legislation. Indeed, they theoretically COULD do do that, but I seriously doubt that they would do that.

[VT Samizdat]

Just because it amuses me; the "Public Safety Committee" (worryingly close to "Committee on Public Safety") in Burlington, VT has refused to release a report they paid a consultant to write regarding police reform because people might "misunderstand" it. (https://vtdigger.org/2021/08/04/consulting-firms-assessment-of-burlington-police-has-major-omissions-and-errors-analyst-says/)

So they decided to "summarize" to help people "understand".
(http://go.boarddocs.com/vt/burlingtonvt/Board.nsf/goto?open&id=C5QKAN50E3F7) . My favorite line from their summary has to be: "...the Joint Committee asked Talitha (the consultants) to weigh the data so as to make the aggregate results more representative of community views."

[dwb68]

All: if you have not submitted comments on the AFT gun control rule 2021R-05, do it now. Due today.

[Jason Cavanaugh]

Done. Thank you for the notice.

Not that I think it matters what we have to say.

[JasonT20]

In election fraud news:

Former state senator in Florida, Frank Artiles, is facing trial on several felony counts related to allegedly recruiting and paying Alexis Pedro Rodriguez nearly $45,000 to run as a no-party candidate in Senate District 37. Rodriguez is expected to enter into a plea agreement Tuesday, and testify against Artiles as a witness in the state’s case.

Alexis Rodriguez ran as a NPA candidate against a Democrat incumbent in the Miami-area district, Jose Rodriguez. The GOP candidate, Ileana Garcia won by 32 votes. Alexis Rodriguez got 6000 votes despite not doing any campaigning and ducking media requests. There was, however, a dark money group sending out mailers talking up Alexis Rodriguez using language clearly intended to appeal to left-leaning voters.

Two other such 'ghost candidates' ran in state senate races won by Republicans. Jason Bordeur won his seat by a little more than what the ghost candidate got, but it was close. (Jason Brodeur (R) - 141,544, Patricia Sigman (D) 133,900, Jestine Ianotti (NF) 5,787. Oh, and Jestine Ianotti moved to Sweden. Now, that isn't actually suggestive that she fled to Sweden in order to avoid questions. It appears that she had filed a request for residency in Sweden before she filed the paperwork to be a candidate in Florida.

In another interesting tidbit about her candidacy: "...independent mail advertisements paid for by a dark money group, which is not required to reveal its donors, included a photo of a Black woman and read, “Jestine’s got our back.”

However, the flyer sparked controversy at the time because the image used was a stock photo and Iannotti is white."

I look forward to Republicans opening investigations into these obviously devious tactics to fool voters using money that no one can find out the sources of. After all, Republicans are the ones that want to fight election fraud. I'll even hold my breath.

[Brett Bellmore]

I'm a bit unclear about how paying somebody to run for an office without intending to win can actually be a crime. The $45K is an illegally large donation?

[Voize of Reazon]

From the CNN article:

Artiles and Rodriguez face identical charges: making or receiving two or more campaign contributions over or in excess of the limits; conspiracy to make or receive two or more campaign contributions over or in excess of the limits and false swearing in connection with voting or elections.

Under Florida law a single excessive contribution is a misdemeanor, but two or more is a felony.

[JasonT20]

So, Voize of Reason points out that they are alleged to have committed crimes that are on the books. Let's think a bit more deeply about why "paying somebody to run for an office without intending to win" can be a crime.

First, it wasn't just that Alexis Rodriguez didn't intend to win. People run for office without any expectation or real intention to win all the time. Sometimes they just want their views to be part of the conversation. What happened was that Alexis Rodriguez being on the ballot was intended to deceive voters that would otherwise be likely to vote for the Democrat, giving the Republican a better chance of winning. Which is what happened, by the way. Kind of hard to doubt that when the Republican wins by 32 votes and the 'ghost candidate' with the same last name as the Democrat gets over 6000 votes.

The second issue is that giving a candidate money as a campaign contribution, when legal, means that the money must be spent on campaigning. Candidates don't get to keep any of that money or use it for their own personal benefit. There's plenty of shady ways on the margins that candidates will find to pad their travel or promote their own books by having the campaign buy a bunch of copies to give away. (*Looking at Ted Cruz - others on both sides do that, but the reports are that Cruz spent way more on this than is typical*) Giving a person money that they put into their own bank account isn't really a campaign contribution at all, in my mind, whatever the details of campaign finance law are. Especially not $45,000, which is far more than individual contribution limits anyway ($1000 for state legislative seats in Florida). Add to that how Alexis Rodriguez didn't do any campaigning, what would he have spent that $45k on? The deceptive mailers were arranged and paid for by some dark money group, not the ghost candidate himself.

Then there is the ethics of all of this. Trying to literally fool voters into wasting their votes so that your guy is more likely to win is something that you think is okay? You really seem to be going out of your way to excuse what these guys did because they are Republicans and it helped a Republican win. Just more hypocrisy and projection from the right, it seems. You believe every accusation against Democrats cheating in elections because that is what your side would do, and you are fine with it when it works for your side.

[Brett Bellmore]

I am not shocked they have no plans to appeal this insane ruling. I wonder if anyone else has standing to?

Federal judge rules felony deportation law is unconstitutional

"LAS VEGAS — In a court ruling with potentially broad implications for U.S. immigration cases, a federal judge in Nevada found that a criminal law that dates to 1929 and makes it a felony for a person who has been deported to return to the United States is unconstitutional.

U.S. District Judge Miranda Du in Reno, in an order issued Wednesday, found the law widely known as Section 1326 is based on “racist, nativist roots” and discriminates against Mexican and Latinx people in violation of the equal protection clause of the Fifth Amendment.

“Anybody who works in federal courts knows the statute,” Franny Forsman, retired longtime chief of the Federal Public Defender’s Office in Nevada, said Thursday. “There really are a large number of cases that have been brought over the years under that section. They’re mostly public defender cases.”

...

“Importantly, the government does not dispute that Section 1326 bears more heavily on Mexican and Latinx individuals,” the judge said in her 43-page order dismissing the June 2020 criminal indictment of Gustavo Carrillo-Lopez.

Carrillo-Lopez was arrested in Nevada in 2019 after having been deported in 1999 and again in 2012, according to prosecutors. His federal public defender, Lauren Gorman in Reno, did not immediately respond Thursday to an email.

The judge said she saw no publicly available data about the national origin of people prosecuted under Section 1326, but cited U.S. Border Patrol statistics showing that more than 97% of people apprehended at the border in 2000 were of Mexican decent, 86% in 2005, and 87% in 2010.

“The government argues that the stated impact is ‘a product of geography, not discrimination,’ and that the statistics are rather a feature of Mexico’s proximity to the United States, the history of Mexican employment patterns and the socio-political and economic factors that drive migration,” Du wrote. “The court is not persuaded.”"

[Toranth]

This is exactly the "disparate impact" idiocy that defenders of the concept claim doesn't exist.

[loki13]

No, it isn't. Disparate impact (in the way that people like to use it) is not the same as the Arlington Heights test under the EPC.

That's a three-prong test, the third of which does allow for an examination of disparate impact on a specific group by a facially neutral law provided there is a predicate- that the law was enacted with a discriminatory purpose. Which is, you know, a pretty massive bar. In other words, you have to have intent + impact for an EPC claim.

Here, the argument is that racial animus pervaded the passage of Section 1326. Which ... I mean, yeah, it did. The counter argument is that subsequent enactments cleansed that animus.

Anyway, I would bet a significant amount that this is overturned on appeal. Because EPC claims just don't last in this judiciary.

[David Nieporent]

Yes. But the answer to Brett's musing is: no. Nobody else besides the federal government has standing to challenge it. (But I don't know what his basis for claiming that the federal government wouldn't appeal it.)

[James Pollock]

" I don’t know what his basis for claiming that the federal government wouldn’t appeal it."

Yes, you do. He's assuming bad faith on the part of someone he disagrees with. Again. Still.

[jdgalt1]

The Biden administration has asked Facebook to turn over the names of vaccine skeptics. It seems to me this sort of request ought to be unconstitutional, even if the company agrees.
https://reclaimthenet.org/biden-administration-demands-facebook-hand-over-data-on-misinformation/