Friday Open Thread

Friday is the new Thursday, this week.

Comments

[Sarcastr0]

Deep Dive part 7/7: Partisanship.
In the final episode of Deep Dive, Will and Adam discuss the partisan politics of originalism. They discuss hot-button topics like: academic freedom, gun rights and the Second Amendment, marijuana regulation, same-sex marriage, and once again the Affordable Care Act.

[Sarcastr0]

2. Will the real originalism please stand up?

But this political tool to attack regulation, antidiscrimination laws, health and safety laws, does not look much like the originalism we have seen in this deep dive - the originalism that is more a skepticism of swift change and unsupported precedent than an attack on modernity.

With an activist conservative Supreme Court, we may see a flip, with the left becoming the originalists. Baude argues that have been lots of flips over the years, before Originalism had the Federalist anti-Warren Court branding it does today. Lochner was anti-originalist, and so was the post-reconstruction stepping back from enforcement of federal law against the states. What era you are nostalgic for helps define your originalism.

[Sarcastr0]

3. Political originalism and academia
So originalism started as a Republican Party front - so what should an originalist academic do?
Baude thinks that despite its origins, originalism has a pretty strong there there. Is there a requirement academics like him police the party? To work within?

Adam argues that academic freedom doesn't mean you can't be criticized if what you work on isn't useful. You can't get fired, but it is worth thinking about the consequences of what you're doing. If in the end what you are doing is credential-washing a political movement, do you support the movement, and are you okay with you work being used like that?

Baude counters that even if he doesn't like a movement that's using his scholarship, if they're that bad, their policies won't change based on anything he can do. So he's contributing to their success but not to their choices, and others may use his scholarship for good. We shouldn't think overmuch about short term consequences, but rather longer-term contributions to knowledge whose upshot is unclear. [This argument by Baude did not hold together for me at all. Social science and law are not physics research - their effects are pretty weighted in the present].

[Kazinski]

"Baude counters that even if he doesn’t like a movement that’s using his scholarship, if they’re that bad, their policies won’t change based on anything he can do. So he’s contributing to their success but not to their choices, and others may use his scholarship for good. We shouldn’t think overmuch about short term consequences, but rather longer-term contributions to knowledge whose upshot is unclear. [This argument by Baude did not hold together for me at all. Social science and law are not physics research – their effects are pretty weighted in the present]."

What happened to you?

Firat of all you are wrong about research in physics being longer term than the law, how many physics revolutions have we had in the last 200 years, Franklin made groundbreaking research in physics, but it's just a quaint tale for schoolchildren now, while we are still parsing the same text word by word that Franklin helped create in the Declaration of Independence and Constitution.

Second it's obvious you disagree with originalism, but surely you aren't going to say it's wrong are you? Your criticism is you think current utilitarianism should trump original intent, and the only reason you likely can come up with is changing the law via amendment or legislation is too hard.

Maybe physics is too hard for you too.

[Sarcastr0]

4. The GOP loves theory, the Dems don't.
There is no specific requirement that a political coalition needs a theory that ties it together. See the diversity of jurisprudence on the Dem side. They see no reason to pull everything together under one doctrine they all agree on. But the GOP makes a lot of hay about the respectability of their goals due to being allowed by their theory of choice [and also as an collateral attack on Dem goals as not being allowed by their theory of choice, for certain decades out of date definitions of their theory of choice - Sarc].

The reason for this asymmetry, Adam posits, is popularity of what each side wants the Courts to do. (He clarifies popularity as being within the elite social sets the Court lives in). Dems want popular things, and so don't need a doctrine to hide behind. Republicans want unpopular things, and so need a doctrine to allow public explanations for why they do what they do.

Case and point - gay marriage. There was absolutely sea-change in precedential continuity, from Lawrence to Ogberfell. But also there were underlying changes in society, with clerks being out of the closet, and thus right there for Justices to see as they were making rulings about the dignity of these people. And you saw retreats of conservatives behind originalism as 'I personally want gay marriage, but I cannot allow this method to get it.'

Adam says that there is good political science that the Court tends to come down consistently with the current politics of the country.
And lawyers' opinions are extra important in their subtle influence - they are big donors and wield public influence. Even Trump, who did a bunch of anti-elite stuff, did not buck the elite conservative lawyers.

Even Thomas, who is an originalist and pretty hated by elites, would be much more so if he cited the Bible as his legal doctrine over originalism. It is still providing him cover. Breyer doesn't need this, since what he wants people are generally cool with [VC comentariat aside -Sarc]. But the conservative justices need to explain why what they want is not something people are cool with [I think the point about partisan lawyers having outside influence is at war with this thesis, but this thesis is still very strong -Sarc]

Gun control and attacks on the ACA are counterexamples...conservative justices public policy preferences are not a liability, so they don't need originalism - but there may be a reason for this. Recently, elite circles have begun to polarize to a level they were not in the 80s and 90s. Back in the day you could misidentify the ideology of a judge or Justice, like Souter and Stevens and Webber[?], and Kennedy, and O'Conner, and White. That's not true anymore, partially because the social circles are no longer so open, and thus public influence more and more curated.
So the utility of originalism is not what it once was. There's an ideological and branding tie now, but eventually those will become inconvenient to the GOP. What will happen then?
Baude sees some conservatives saying originalism ran it's course, but thinks such pivots will fail, at least in the short run.

[Brett Bellmore]

"The reason for this asymmetry, Adam posits, is popularity of what each side wants the Courts to do. (He clarifies popularity as being within the elite social sets the Court lives in). Dems want popular things, and so don’t need a doctrine to hide behind. Republicans want unpopular things, and so need a doctrine to allow public explanations for why they do what they do."

...

"Gun control and attacks on the ACA are counterexamples…conservative justices public policy preferences are not a liability, so they don’t need originalism"

Conservative positions on gun control and the ACA are certainly not popular in that elite circle.

I think this gets it wrong: The justices, (And not just the conservatives.) try to look like they're practicing originalism, when a case is likely to be looked at by the wider public, not just the elites.

Look at Stephens' Heller dissent, for instance. He made a great effort to appear to be practicing originalism, so did Scalia. (Just appear, in both cases.) Why did he bother, if he was only concerned with elite opinion? Elite opinion is pretty firmly in favor of gun control, after all.

Because he was attacking a right that was popular with the general population, not the elite, and needed cover for that.

[Sarcastr0]

It’s not individual cases, it’s collectively.

If you generally need cover more often, you will want to have a doctrine to point to.

And in cases you don’t need it, you still want to follow it because it is your doctrine.

Something being incentivized doesn’t mean it’s not sincerely adopted.

[Brett Bellmore]

As you say, "He clarifies popularity as being within the elite social sets the Court lives in."

Both sides need cover, they just need it from different directions, at different times.

[Sebastian Cremmington]

Stevens’ Heller dissent is the perfect originalist/strict constructionist opinion….unless one believes the RKBA was limited to citizens in DC and federal territories. Scalia’s opinion is an example of liberal constructionism because his judicial philosophy didn’t allow him to simply incorporate Cruikshank.

[Kazinski]

Bull.

Read Miller v. US. Where the court made plain that the RKBA already applied to the states because the prefatory clause of the 2nd amendment referred to the militia clause of Article 1, and congresses responsibility to arm the militia.

US v Miller 1939, which is still good law, paragraphs 6 and 8:
"6. The Constitution as originally adopted granted to the Congress power—'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, § 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view....
8. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

There is no way Stevens opinion is consistent with either the 2nd Amendment or Miller, while Scalia's opinion is consistent with both.

[Sarcastr0]

5. Originalist politicians ain’t so originalist
So all this thing with judges is fun, but what about your Cruz, Cottons, Hawleys (and state AGs, state SGs, etc.), who are Supreme Court or otherwise judicial clerks, who need to argue for stuff that their base wants. And they just straight-up lie about what originalism requires.
E.g. Hawley saying having his publishing contract cancelled is an assault on the First Amendment. He knows better.
E.g. the TX Ag brief to overturn the election in PA. Cruz and the like were in favor of that embarrassment, for originalist branding more than an actual originalist arguments. They know better.

Baude says the issue here is clearly not enough originalism. [Not sure if this is a joke, but it does ignore the conflation between brand and scholarship - Sarc]

Originalism is more and more becoming a brand, and no longer a coherent interpretive methodology. A conveyor belt to power for young originalists that ties the scholarship to the brand.

Baude says the way to fight this is having originalist public scholars repudiating this kind of nonsense. Though if those scholars want to be judges, they may keep their mouths shut...but see originalists against Trump. Which did not much, but did certainly cost a bunch of prominent legal scholars some judgeships.

[Sarcastr0]

6. The triumph of originalism
The Warren Court's idea of judges following some first principles of justice unmoored from the Constitution - that judges should do what justice demands full stop - that is done and dusted. While that pendulum would always have swung, there is no doubt it was pushed by the rise of originalism. And despite what some on the right argue, even the most liberal of Justices no longer explicitly abide by a philosophy unmoored from the Constitution. History as a starting point is agreed upon by the vast majority. Theories of justice out, James Madison in.
Originalism has shifted the terrain. And with the current Court (including Kagan!) the terrain will shift yet more.
It'll be interesting to see the philosophy of a Biden justice. There's a decent chance they'll be a Kagan-esque liberal originalist.

[Sarcastr0]

7. Conclusion
[That concludes this deep dive.
This was really interesting. Because the usual reactionary parts of originalism are largely stripped out by Baude here, and he makes a strong partisan-agnostic case for originalism as a maintenance of our national power structure throughout our nation's lifetime, as well as a limit on judicial radicalism.
My issues are in the end, quite minor, and twofold.
One, this limit on judicial radicalism looks a lot like its practical upshot, for all his content-neutral protestations and examples of previous originalist eras, manifests today entirely as an attack on Warren Court precedents. Many of which I think have become vital to the fabric of our polity.
Two, his take on originalism is not in any way what originalism currently is. It's funny, because Baude says he's a legal realist, yet he doesn't see that a theory that provides no lasting political benefit to any coalition is DOA. I don't think his scholarship will matter in the long run politically. Originalism as a way to call the libs as lying and evil will out sexy his positive turn any day.
I don’t think Baude has properly grappled with the practical implications of his scholarship – he acknowledges that the current political climate around originalism is toxic, but lightly gestures towards the idea that he can scholarship his way out.
But that doesn't mean I don't think it's important! I may be wrong, and if I am his deep thinking and indeed creating a new subfield on the subject ripe for future scholarship is going to be really important.
And he's given me some great ammo to go after originalists on this VC about, on the commerce clause, and judicial review, and the administrative state, and indeed precedents that depart from the Founders' intended meaning.
After all this, I remain a Unitarian-type in my theory of interpretation - I don't need just one; I want to have a toolbox and pick what is suitable. This seems accepted in Free Speech jurisprudence - Forum analysis here, utilitarian analysis there, with some exceptions sprinkled throughout. Similarly, I like some modern public meaning, some purposivism, and some common law constitutionalism (which turns out to have been originalist all along!) Baude's carefully considered system here is not a tool I will leave to the side when looking at constitutional questions, even if it won't be my only tool, meaning I can't be part of the uncool kids club.]

[Sarcastr0]

8. Coming attractions.
[I've got 2 more of these I want to do from favorite 'normal' episodes of Baude's Dissenting Opinions podcast.

1. UChicago law professor Genevieve Lakier discussing how unlike most law profs she likes about Virginia State Board v. Virginia Consumer Council as a First Amendment case. This touches on whether money is speech, and how we could regulate political speech and lies.

2. For the law dorks, University of Wisconsin law professor Nina Varsava on how to make sense of fractured Supreme Court opinions in light of Marks v. United States, or how to maybe do better than that mess.]

[Sarcastr0]

[This one seems to be stuck in moderation for reasons I cannot understand]

1. Why is originalism so much a part of the GOP?
Not all Republicans are originalists (see: Alito), but all originalists are Republicans. Why is that?

Incorporation arguments had an originalist tinge, and the liberals were the ones in favor of it. So it's not strictly obvious that originalist outcomes are conservative outcomes.

Starting in the mid-1970s, conservatives wanted a coherent theory to attack the Court. Something with more punch than just attacking individual opinions. So where can you get a theory that says Roe, affirmative action, property regulations, are all wrong? Originalism provided just this vehicle. Even though originalism properly understood may not actually call all those opinions wrong, it was a new paradigm broad enough to provide cover for attacking any new opinion.
At the same time, you have a discussion about what courts should be - how much they should be taking social or economic goals into account. Again, originalism is a great way to say this is a bad discussion to have (though conservatives do like them some law and economics).

As originalism is growing in utility to conservative pushback on the 1960s Court, the Federalist Society grows up, and begins to provide an organizational backbone specifically for originalists unseen for other legal doctrines. And then Reagan's AG, for reasons ideological or simply thinking originalism was right, gets on board and you have a lot of structural push for what was not long ago a dead doctrine.

[Brett Bellmore]

"Incorporation arguments had an originalist tinge, and the liberals were the ones in favor of it. So it’s not strictly obvious that originalist outcomes are conservative outcomes."

I think the problem is that, while originalism gets you to incorporation, it also gets you to a federal government that possesses only delegated powers, and those quite limited. And that's something the left gave up on some time in the 1930's. While not all originalist outcomes are conservative, too many of them are for the left to be willing to embrace it.

They weren't willing to give up the Leviathan, the power to do at the federal level things that originalism said could only be done at the state level, or perhaps not at all.

[Sarcastr0]

Will would disagree with you that originalism means very limited government powers.

Scholarship is finding the instrumentalist arguments of the 80s were not super robust, even if they were enticingly simple.

[Brett Bellmore]

"Very limited" only relative to today's leviathan.

[Krayt]

Humanity has millenia of miserable experiance with dictatorship, and revolution into new dictatorship. But we now have examples of forming new levels of government. The politicians there will seek to expand their control, and do so to muck about and see their fortunes mysteriously go up and up and up.

I recommended against the EU having any teeth. And Montreal separating, as you'd just introduce a new boss, same as the old boss.

It's tiring these discussions cavalierly leap the reasons for restrictions on this power growth, as if the game of smoke and mirrors covering the corruption has anything to do with it.

What we see: Should government have this or that power?

What politicians see: Cool, imagine all the "donations" I can get with it. And all I have to do is use it sometimes in a populist way for show.

[Sarcastr0]

You are making policy arguments in a jurisprudence discussion.

I agree with you - practical effects should be part of Constitutional analysis!
Dunno if you would like the result though.

[Gandydancer]

If you think you have eschewed attention to policy in your so-called "jurisprudence discussion" you are deeply un-self-aware.

[Sarcastr0]

Wickard and Mcculloch both have originality underpinnings.

As I said in my Part 7, the only real area of current jurisprudence Will’s originalism seems to take issue with are the Warren Court’s muscular Bill of Rights.

Gideon is particularly not originalist.

And I’d bet he takes issue with the Slaughterhouse Cases, though we might be in a realm of Constitutional Liquidation there.

[Brett Bellmore]

"Wickard and Mcculloch both have originality underpinnings."

Perhaps we can agree that 'originalism' has evolved to the point where it's not much more than a rhetorical pose anymore. Originalism with teeth declares too many things that are unfixable to be wrong, and many legal theorists are uncomfortable with keeping in their head both "This can't be changed" AND "This is clearly wrong", and so in time give up on the latter.

The changes you have to make to originalism to stop making these decisions that are untouchable as a practical matter "wrong" gut the whole approach to law. Originalism that declares decisions like Wickard legitimate isn't an originalism that has any remaining point in existing.

[Sarcastr0]

What you are arguing is the rhetorical pose.

You're stuck in the 1980s where originalism started as an actual rhetorical pose. It's teeth were just outcome-oriented thinking by those hostile to the Warren Court.

Nowadays it's not mere rhetoric, there's actual historical research. And it's showing that a lot of the things the right inveighs against as Constitutional monstrosities, the legal public at the time of the Founders understood and were fine with.

You want it to have teeth, but the actual facts undergirding
this especially evidence-based approach to law turns out to not give you what you want.

Also Gideon is right, as LTG said. Besides being ahistorical, your 1980s originalists will need to grapple with that as well.

[LawTalkingGuy]

Gideon is not particularly originalist but also undoubtedly correct.

Although when I was doing research for a paper in college, there was a piracy trial in 1704(?) where counsel was appointed for the defendant, Captain John Quelch. Although the entire vice-admiralty trial process was kind of a rigged game of political theater, it was notable that they bothered to appoint counsel.

Not sure what this says other than: the idea that someone needs counsel appointed for them was not completely unknown to the colonial era.

[Gandydancer]

"Although the entire vice-admiralty trial process was kind of a rigged game of political theater, it was notable that they bothered to appoint counsel."

Yes, "notable". But maybe not significant.

"Belgian social democratic leader Émile Vandervelde was admitted to the trial as a defense attorney for the Socialist Revolutionary defendants." https://en.wikipedia.org/wiki/Trial_of_the_Socialist_Revolutionaries

[bernard11]

Why is originalism so much a part of the GOP?

A cynical response:

Originalism is a part of conservatism. Once upon a time conservatives talked about "strict construction." This was, basically, a way to attack the Warren Court, especially its civil rights decisions, without saying anything explicitly racist. It pretty much didn't fool anyone, so the term gradually was replaced by the more benign-sounding "originalism."

This is similar to "federalism" replacing "states' rights."

[Sebastian Cremmington]

Republicans are the party of the status quo because rich white people already have money and power. So for Republicans less is always more…the Bush family’s political philosophy is—be only as liberal as necessary to stay in power and that philosophy is also shared by the Bush loyalists on the Supreme Court—Roberts, ACB, and Kavanaugh. The Bush family is very similar to Franco in Spain…except Franco and his loyalists were competent. So Franco represented traditional Spanish values and maintaining the status quo and that is what the Americans that vote Republican generally want.

[LawTalkingGuy]

“But all originalists are Republicans.”

Is this necessarily true? What do you do with the Balkins and Amars of the world?

[Brett Bellmore]

After following him for a long while, I've concluded that Balkin is a Fabian originalist. He just calls himself one, (Actually, a "Living Originalist") as part of a conscious effort to deprive the term of meaning, to deprive real originalists of the use of it. In much the same way as the left stole the term "liberal" in the early 1900's, so that now actual liberals have to call themselves "classical" liberals to distinguish themselves from leftists.

[Gandydancer]

Out them as liars.

[Sarcastr0]

2. Will the real originalism please stand up?

But this political tool to attack regulation, antidiscrimination laws, health and safety laws, does not look much like the originalism we have seen in this deep dive - the originalism that is more a skepticism of swift change and unsupported precedent than an attack on modernity.

With an activist conservative Supreme Court, we may see a flip, with the left becoming the originalists. Baude argues that have been lots of flips over the years, before Originalism had the Federalist anti-Warren Court branding it does today. Lochner was anti-originalist, and so was the post-reconstruction stepping back from enforcement of federal law against the states. What era you are nostalgic for helps define your originalism.

[apedad]

Progressive law firms are funneling millions from state consumer lawsuits into liberal campaigns, experts warn

"Attorney General Knudsen initiated a review of outside counsel contracts at the outset of his term to ensure Montana taxpayers are getting the best bang for their buck," Knudsen’s office said in a statement to Fox News. "We found that it was common practice for previous administrations to hand out millions to their liberal trial lawyer buddies, who then turn around and help fund left-wing political groups that Montanans oppose."

"When they get profits out of a state contract, they then turn around and funnel that money into an aggressive level of political donations, almost all of which goes to liberal causes," Skinner said. "It ends up going to liberal political campaigns, it goes to trial lawyer political action committees that give to groups run by … or affiliated with Chuck Schumer, Nancy Pelosi, Eric Holder, David Brock – it's what you would expect from very hyper-partisan political givers."

So.....Montana is now going to start vetting companies for their political affiliations/actions?!?

Cons are so anti-American.

[apedad]

https://www.foxbusiness.com/politics/progressive-law-firms-send-profits-state-based-suits-liberal-campaigns

[Brett Bellmore]

It's a problem with laundering tax money to political parties by arranging to over-pay partisan supporters for some service, with the understanding that some of the payment will be donated back to the party.

You also see that in some of the "sue and settle" cases, where the settlement includes payment of damages to the suing group, that end up laundered back to political donations.

[loki13]

No, that's not it at all, Brett.

A lot of the time governments (local and state) have to hire outside counsel to deal with certain issues- sometime because it's outside of their expertise, for example. I can speak from experience on this issue. Not just "big publicity" law suits, but all sorts of things. Usually, they will negotiate a discounted rate from the firm's usual rates.

This is nothing more than a public shakedown. "Either the people in your lawfirm donate to our candidates, or we will stop sending you contracts."

That's exactly what is happening.

And, by the way, this has nothing to do with your other cause du jour, "sue and settle".

[TwelveInchPianist]

Sounds like you and Brett are describing basically the same thing.

[apedad]

Laundering tax money?!?

The law firms have city/state APPROVED contracts where the govt PAYS the firms IAW the terms.

The firms are allowed to do WHATEVER they want with their earnings.

Well except in Montana now where you have to meet a political criteria.

[Brett Bellmore]

Money laundering always looks outwardly like a legitimate transaction, that's kind of the point of it.

[apedad]

Political donations = money laundering?

You're losing bud....

[Brett Bellmore]

Political donations are laundered money, if you got the government money in the first place in order that you could make the donations.

[Sebastian Cremmington]

Trump’s AC casinos were huge money laundering operations. Condos in Miami are also money laundering operations.

[bernard11]

But the government - at all levels - is always buying things. Think defense contractors, road-building, etc. Probably legal services is tiny by comparison.

And guess what. Those vendors make political contributions, and their execs support various cause.

If you're going to make an issue of this - and I wouldn't disagree if you did - don't limit yourself to liberal lawyers, because that sort of suggests, doesn't it, that you are really not being wholly honest about your motivations.

[Michael P]

Federal government contractors, at least, are generally prohibited from donating to political parties or federal candidates: https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/who-can-and-cant-contribute/

[bernard11]

But,

A campaign may, however, accept contributions from PACs established by corporations, labor organizations, incorporated membership organizations, trade associations and national banks. Moreover, the Act permits corporations, labor organizations, incorporated membership organizations, trade associations and national banks to use their treasury funds for certain election-related activities that benefit candidates.

[Michael P]

Yes, that's also illegal for federal contractors, although the FEC has been criticized for not enforcing the law.

[Nelson]

Wait, the FEC is a completely dysfunctional and intentionally ineffective organization? I'm shocked.

[Gandydancer]

These firms were already being vetted for their political affiliations/actions. You just want a monopoly on doing that.

[Kazinski]

Heh, I guess you aren't so shameless to claim that the people who selected the progressive law firms weren't vetting them politically before the got the gig, are you?

[not guilty]

A question for originalists. Was Bolling v. Sharpe, which in 1954 interpreted the Fifth Amendment Due Process to include a guaranty of equal protection applicable to the federal government, wrongly decided?

[Brett Bellmore]

The real problem here is that the Fifth amendment doesn't HAVE an equal protection clause. Warren just invented one out of thin air. So, you can't really say that the means were originalist. That doesn't mean an originalist wouldn't have arrived at the same result by different means.

Bolling v. Sharpe came after the adoption of the 14th amendment, which does have an equal protection clause. Which, yes, specifically was applied to the states.

But Bolling v. Sharpe had to do with the federal government's activities in DC, where the federal government governs as though it were itself a state. So it's not unreasonable that in DC it would be subject to restrictions placed upon states. Even if it wouldn't be so otherwise.

[loki13]

None of this has to do with the question presented, but thank you for explaining this? On a law blog?

From a textualist and originalist perspective, the EPC presents a unique issue with regard to the federal government. In fact, there have been a few outlier cases that have raised the issue despite Bolling.

So the question becomes- if you are a person of principle, do you believe that equal protection applies to the federal government?

[Brett Bellmore]

I don't think the EPC of the 14th amendment, specifically, applies to the federal government, outside places like DC, where the federal government is engaged in state-like activities. Nor do I think that the 5th amendment contains an implied EPC.

This isn't to say that you couldn't derive something vaguely similar in effect from other provisions of the Constitution that unambiguously do apply to the federal government, such as the general welfare clause, or the "proper" part of the N&P clause.

But, why would you expect the Constitution to have originally had an EPC? This isn't the sort of thing the people writing it would have considered to be a concern. It's understandable that by the Civil war it had become a major issue, but it just wasn't an issue at the founding.

[loki13]

None of this is about what I expect. It's about jurisprudential philosophy.

A purely textual or "originalist" (ugh) reading of the Constitution doesn't have an EPC. Just like a purely textualist reading of the Constitution doesn't have a right of association.

And yet, most approaches at understanding the Constitution would acknowledge them. Understanding why you do, or don't, helps a person understand their own approach.

[Brett Bellmore]

Obviously the basis for saying it didn't have one is textual: The words simply aren't there. I'm just saying you shouldn't be shocked that the Constitution didn't have an EPC until the 14th amendment was ratified. Why would it have had one?

[loki13]

I don't even understand what you're saying, Brett. Who cares if someone is, or isn't, shocked? Anyone with half a brain knows that the EPC was put in with the 14th Amendment, and applies to the states. THAT'S WHY THE PERSON ASKED THE QUESTION ABOUT BOLLING.

Why is this so hard for you? EPC- does it apply do the federal government? Is there a right to association? Does the 11th Amendment do anything more than correct Chisolm?

Simple things.

[Brett Bellmore]

I'm not sure why you don't understand.

I answered not guilty's question: From an originalist viewpoint Bolling v. Sharpe was decided correctly in terms of outcome, but the reasoning was wrong.

Then you asked me if I thought EP applied to the federal government. I answered that the 14th amendment's EPC would apply to the federal government in places like DC, but not otherwise, but that you could derive something similar to EP from some other clauses of the Constitution.

If you like, call my comment that one shouldn't be surprised that the Constitution lacked an EPC "dicta".

[loki13]

"I’m not sure why you don’t understand."

Then you are a bigger fool than I thought.

....hmmm....

How many more times do I have to say this- this isn't just about DC (read the full case analysis), it's about the federal government.

Which is the question- does it apply to the federal government? Not the federal government "acting like a state" (???), or "in DC," but THE FEDERAL GOVERNMENT, since that's Bolling.

[ducksalad]

Seems to me he's precisely and exactly answered your question not once but twice, but you're upset that he added words. He did not answer only about DC, he also answered the question about the federal government as whole, and he carefully distinguished the two, making your complaint invalid.

Here is it without anything to confuse you:

No, under a strictly textualist interpretation, the 14th Amendment EPC does not in general apply to the federal government as a whole.

[Gandydancer]

You must think us all pretty dim to think you can convince us that Bellmore hasn't clearly answered you: "[T]he 14th amendment’s EPC would apply to the federal government in places like DC, but not otherwise."

[Bob from Ohio]

"A question for originalists. Was Bolling v. Sharpe, which in 1954 interpreted the Fifth Amendment Due Process to include a guaranty of equal protection applicable to the federal government, wrongly decided?"

Yes. The words in the 5th do not include "equal" or "protection".

As an aside, nor does it include the word "substantive".

[Textulist here, not originalist.]

[Krychek_2]

Does your textualism include the idea that the Seventh Amendment means anyone with a $20 dispute gets a jury trial?

[Brett Bellmore]

A textualist would say, "yes", an original public meaning originalist would say how much depends on the current value of an ounce of silver, since a "dollar" was just a common silver coin of the era weighing a 20th of an ounce of fine silver, or would adjust for inflation, depending on how textually inclined they were.

Neither would say a judge gets to pull an arbitrary decision out of their rear, but would actually put some teeth in the number.

[Leo Marvin]

A dollar was closer to an ounce of silver, or a 20th of an ounce of gold.

[Gandydancer]

Either way, ignoring the text is indefensible.

[Bob from Ohio]

"Does your textualism include the idea that the Seventh Amendment means anyone with a $20 dispute gets a jury trial?"

Yes, of course. $20 means $20.

[Krychek_2]

And "idiotic public policy" means "idiotic public policy."

[Bob from Ohio]

Amend it then.

Stupid contracts are written ever day, courts still enforce them according to their terms.

The Framers should have anticipated inflation but the text is what it is.

[Krychek_2]

Why go to the trouble when there's a perfectly fine alternative method of simply adopting a different interpretation of the text that doesn't produce a stupid result? If a text has multiple possible interpretations, go with the one that doesn't get you laughed at.

[LawTalkingGuy]

Amend it is also useless advice for things that that are commonly understood one way but not necessarily understood the same in 1791 but can be expressed in the exact same words. Like there’s no point in re-ratifying the exact same words of the 8th amendment to get a modern understanding of cruelty.*

*in any event you know that even if that was done, judges would just say Congress knew it was a common law term of art that reflects the sensibilities of 1791 so that’s what needs to be applied.

[Bob from Ohio]

The value of $20 may be different, the term is the same.

[Krychek_2]

The definition of "gay" may be different -- in 1789 it meant light-hearted and in 2021 it means attracted to the same sex -- but the term is the same.

Bob, over the years, the meaning of words changes. At best, you're being highly selective about which terms are meant as they were in 1789.

Besides which, if there's a perfectly good way to use a modern interpretation that doesn't give us a stupid result, why would you want to use the interpretation that does give us the stupid result?

[LawTalkingGuy]

So you agree with the evolving standards of decency test?

[Bob from Ohio]

A dollar means the same thing as it did, it hasn't evolved in meaning at all.

[bernard11]

But the dollar was defined, in 1792, as 371.25 grains of silver, worth $17.35 today. This was based on the value of the Spanish dollar in use at the time.

Does that definition apply today?

[Gandydancer]

"And “idiotic public policy” means “idiotic public policy.”"

Exactly the way I feel about misinterpretations of the Citizenship Clause that dismiss the promises made in the debates surrounding its adoption.

[David Nieporent]

But "$20 means $20" is stupid. It obviously doesn't. Canadians call their currency dollars, too. Does it mean $20 Canadian? How about Australia or Liberia or Jamaica or Fiji dollars? Obviously not. Because $20 doesn't simply mean $20. That's the approach Scalia derided:

"I am not a strict constructionist, and no one ought to be-though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

[Bob from Ohio]

Its an American constitution so its American dollars.

None of those other countries even existed in 1789 so what they call money now could not be what the term meant then.

I'm not Scalia, a text says what it says. If its ambiguous one can interpret it, $20 is not ambiguous.

[David Nieporent]

None of those other countries even existed in 1789 so what they call money now could not be what the term meant then.

Ah, so you agree that what matters is what $20 meant in 1789 — not what it means now.

I’m not Scalia, a text says what it says. If its ambiguous one can interpret it, $20 is not ambiguous.

$20 is indeed ambiguous. $20 in 1789 is not equal to $20 in 2021. Did it mean constant dollars or real dollars? If we changed our currency to the Washington in 1800 to honor the recently deceased father of our country, would that have meant that nobody was constitutionally entitled to a jury trial ever again because the lawsuit would be denominated in a word other than dollars?

[ducksalad]

" If we changed our currency to the Washington in 1800 to honor the recently deceased father of our country, would that have meant that nobody was constitutionally entitled to a jury trial ever again because the lawsuit would be denominated in a word other than dollars?"

In that case I would argue the $20 limit is *still on* if the complaint is literally denominated in dollars. If the complaint is denominated in Washingtons then someone has to decide the conversion.

And it's not about the word itself. If there had been a specific time at which the government declared "new dollars equal two old dollars, and debts originating prior to this date are doubled" then I'd say the constitutional limit is $40 new dollar. But again, that *didn't* happen.

I don't buy the inflation argument. If we open a will written in 1970 and it says give me $10000, I'm not entitled to $10000 adjusted for inflation, unless the will said that.

Here's how I see it: suppose we changed our national language to modern Spanish, but retained the old constitution. Yes, there will be a need to map new words to old words. But that would not encompass changing "two" senators to "a number reflecting modern understanding of what is fair". Nor does it encompass changing "$20" to "what the judge thinks is a serious amount of money".

[ducksalad]

Oops....meant "two new dollars equal one old dollar".

[Bob from Ohio]

"so you agree that what matters is what $20 meant in 1789"

Duh, of course. Good gotcha.

A dollar means and meant a piece of money, a US dollar. Congress in 1792 [year of the 7th Amendment adoption] used the term in its first coinage act.

Its ability to purchase X amount goods or services [i.e. value] will vary and does not matter in interpreting the words in the Constitution.

[bernard11]

Congress in 1792 [year of the 7th Amendment adoption] used the term in its first coinage act.

And said it was worth 371.25 grains of silver.

[Don Nico]

"$20 is indeed ambiguous."
Of course not.
The plain meaning is current or as spent dollars and we we write about a past or future expenditure or project a cost we say modify the phrase $20 to specify the how the dollars are reckoned and what inflation or discount rates are used

[ducksalad]

I don't know about that, DN. I suppose one could argue that something like going to greenbacks, or changing from silver certificates to federal reserve notes, means we're on a new currency system. But I'm not really convinced since in each case there was a general public understanding that the new dollars were (ostensibly at least) equivalent to the older ones.

Certainly if we changed our currency from dollars to shillings to indicate a clean break, then we'd need to come with a new shilling limit. But that did not happen, so if it were up to me, there should still still be a hard constitutional limit at $20 in current dollars for federal cases. And any time wasted on absurd cases is worth it to reinforce the idea that we're serious about following the constitution even when it's not convenient.

None of the above means it's a core liberty that gets incorporated against the states. Neither the text nor the intent of the 14th amendment was to enforce a $20 limit in state courts.

[bernard11]

Of course we are on a different currency system.

We continue to use the word "dollar" as a matter of habit and convenience,

[Don Nico]

"Of course we are on a different currency system."
Only in the sense that you may not receive gold or silver "on demand" for your greenbacks.

[bernard11]

In the sense that the dollar is not defined in terms of specified weight of precious metal.

It's not so much that you can't demand the metal as that metal is not part of the definition.

That's a different system.

[Stephen Lathrop]

. . . so if it were up to me, there should still still be a hard constitutional limit at $20 in current dollars for federal cases. And any time wasted on absurd cases is worth it to reinforce the idea that we’re serious about following the constitution even when it’s not convenient.

ducksalad, your method does not in any way diminish the ambiguity inherent in, "$20." It does insist on stubborn adherence to antique meanings.

For more insight, consider the alternative—to adjust $20 for changes in real value through time. The first challenge would be to somehow create a formula that matched purchasing power of the adjusted value today, with the founding era purchasing power of $20—and to convince yourself and any bystanders that someone living in the founding era would agree that your formula delivered a match. Good luck with that.

But that barely scratches the surface. Because you would never have confidence that same formula, if applied to every moment in history during the interval between the founding era and today, would satisfy likewise. From that you could also deduce that the formula you arrived at was bound to fall apart in the future. So no conceivable such formula would serve as a durable guide for legal reasoning to be applied in the present, about the comparative value of money during the distant past.

At this point, I suppose you may be wondering why that does not confirm your suggestion—to use unmodified the numerical value from the founding era, while conceding that a mismatch is inevitable, and living with it. The reason it does not is because we are actually talking about a much larger interpretive problem, for which the $20 problem is merely a token shorthand.

The larger problem—the contextual meaning of words—although subject to stresses and distortions over time similar to those affecting the value of money—is far harder to reckon with. It will not do to say with regard to words, "We will just use the value they had at the time."

Why not? Because in a manner similar to the value-of-money problem, the value words had in context at that time is the problem you are trying to solve. But unlike the value-of-money problem, you tacitly, and probably heedlessly, apply today's contextual meaning to those words throughout your analysis. Someone who knows only today's linguistic meanings and contexts has no choice except to project those into a past which knew nothing of them.

Return to your formula for tracking the value of money over time. Is it not apparent that the value of money at former times affects continuously the value of money at later times? So the value of today's money is indeed linked in some fantastically chaotic way to the value of money at every point in the past. But that thread is so tangled that no one could ever hope to set it straight.

Just so with the words-in-context problem. If your method of analysis is to start with word meanings in today's context, and look backward to analyze antique meanings by reference to today's values, the failure of that method is even more certain than the problem of a backward-looking analysis of the value of money. Too much intervening experience during the interval between the founding era and today goes into the contextual meaning of today's language—and not a bit of that experience affected founding era usage at all, because at that time all that experience lay in the unknowable future. To suppose that knowledge of today's English provides useful insight to enable legal analysis of the meaning in context of founding-era English, is as full of folly as to suppose an unknowable formula to reckon the value of money throughout time.

Does that mean that knowledge of founding era contextual meaning is forever beyond reach? It does not. It just means those who seek that insight must use a different method. It is the method the founders used themselves. Simply read what they read—from every source of every kind which predates or adjoins the founding era. Learn the language of their time the way they learned it. By living with it, broadly, in formal contexts, informal contexts and practical contexts. Do that long enough, for as many years as it takes, and the utter novelty of founding era context—novelty judged in comparison to present usage, of course—will gradually reveal itself.

Study of that sort will disclose not only what kinds of meanings founding era usage could convey, but also, and crucially, what kinds of meanings that language neither expressed nor implied, ever. Predicate experience necessary to those meanings, and available to us, was locked away in their inaccessible future.

The method I describe is, of course, the one relied upon by academic historians. With few if any exceptions, lawyers and judges never practice it. Their business lies elsewhere. The result is that when legal figures judge contextual meanings from founding era sources, they almost invariably get them wrong—typically by heedlessly projecting modern contextual interpretations into a past when those interpretations were literally impossible.

On the premise that founding era contextual interpretation can be done usefully by legal figures who literally do not understand the limitations of their method, so-called originalist textual interpretation as a method of legal analysis is doomed to failure.

Whether a more historically conscious kind of originalism could be made useful is an uncertain question. So many occurrences since that time contribute to defining the questions to which we seek answers. It may be unlikely that even a fully-historical investigation of the past would turn up much that seemed directly relevant to most legal cases. To understand historically an antique age separated by centuries from our own is to become aware that the intellectual disconnect between our own era and its predecessors is much greater than most people suppose.

[Gandydancer]

Any interpretation of the phrase that imagines it might refer to Canadian or Australian or Liberian currency has abandoned reasonableness, and even you know this.

[Noscitur a sociis]

Uh... what do you think it actually means instead?

[Gandydancer]

He adopts the Tweedledum doctrine: Any verbiage in the US Constitution can mean whatever he and his pals want it to mean, as convenient.

[Kazinski]

A living constitutionalist would say that there is an implicit consumer price deflater in the constitution so right to a jury trials in a civil suit kicks in at about $700.

An originalist would say that states are masters of their own courts, that was the case at the founding and is still the case today, and can and do set their own procedures for civil jury trials. And there would have to be some evidence that at the enactment of the 14th amendment the right to a jury in a civil trial for 20$ was considered one of the privileges and immunities of citizens.

[Sarcastr0]

Incorporation via the 14A is originalist. 14A framer Rep. John Bingham said as much. At least for the 1-8A.

[Sarcastr0]

Will would disagree with you that originalism means very limited government powers.

Scholarship is finding the instrumentalist arguments of the 80s were not super robust, even if they were enticingly simple.

[jb]

Remember when a month ago our local Stop the Steal mouthpieces were saying that we were FINALLY going to get a proper audit in Maricopa County and that then we'd see how Biden actually lost?

Turns out Biden actually won by a bigger margin after the audit, and initial claims about, e.g., voting machine databases being deleted are being walked back:

https://www.fox10phoenix.com/news/draft-election-audit-report-joe-biden-won-in-maricopa-county-by-more-votes-than-originally-tallied

[Brett Bellmore]

Reportedly it's not as simple as that. It's more like a bankrupt firm that claims they went bankrupt due to embezzlement undergoing an audit, and the auditors come back with the conclusion that "No, you're legitimately bankrupt. We found embezzlement, but you'd have been bankrupt even without it."

The audit reportedly did find major irregularities, but Biden would have won without them.

[David Nieporent]

No, it's as simple as that.

[Brett Bellmore]

"Reportedly". I'm saying what the rumors I'm hearing say.

We should know today, because the actual report is being presented today. But Senate audit liaison Ken Bennett has publicly stated that they did identify ways in which Maricopa County failed to obey state election laws.

[OtisAH]

And who is whispering these rumors to you, Brett?

[Brett Bellmore]

Here's a quick interview with the guy who will be presenting the audit results. He probably has at least some idea what they are.

[OtisAH]

Yeah, that or he’s trying to fluff up the results that show no fraud and no significant “irregularities” before the results release.

[Brett Bellmore]

Again, I said "reportedly".

[Krychek_2]

Reportedly, Elvis has recently been seen with Jackie Kennedy smoking pot with Bigfoot. Brett, give it up.

[Brett Bellmore]

It's reported by the guy presenting the report later today. I'm not sure what your basis is for arguing that he's wrong about the contents of a report which he has read, and you haven't.

[Krychek_2]

This is also *the guy who has been Trump's mouthpiece during the entire audit*, no?

[Brett Bellmore]

I'm not saying you have to believe the report, I'm just saying that he's probably a reliable source for what's in it, under the circumstances.

[Krychek_2]

Biblical quotation of the day: "Who has believed our report?" Isaiah 53:1.

[Rev. Arthur L. Kirkland]

This is beginning to resemble the 'good old days' of birtherism at this "academic" blog.

[David Nieporent]

they did identify ways in which Maricopa County failed to obey state election laws.

Are Cyber Ninjas judges as well as expert bamboo detectors and tabulators?

[Harvey Mosley]

So only judges get to say that someone failed to follow the law? I guess I was wrong about Nixon then. I was sure he had broken the law.

[Alpheus W Drinkwater]

Anyone can say anything. But the only people we should listen to about election law are people who actually know and understand election law.

As for breaking election law, I've been involved in elections for over 30 years, and I can assure you that there are always mistakes made by polling place workers, some of which are violations of election law. I've no doubt there were violations in Maricopa County, and probably everywhere else in Arizona and the US. Whether any of them were done with the intent of affecting the outcome, or actually did affect the outcome, is the real question.

[Harvey Mosley]

And on a more relevant note there were judges who said that voting laws were broken in some places during the election (not Maricopa County as far as I remember). Those same judges said that it was okay to break the law because reasons.

[David Nieporent]

Are you taking dictation from Brett? No judge said that it was okay to break any law.

[loki13]

Shorter Brett- whatever evidence there is, my beliefs are unfalsifiable.

[Moderation4ever]

"The audit reportedly did find major irregularities, but Biden would have won without them."

Maybe this is the point. Irregularities occur as does real fraud, but in the end they are not significant to change the outcomes. The idea that both irregularities and low level fraud occurred in Maricopa and no where else is absurd. If you took looked at any random counties in the country, some on by the former President and some won by President Biden you would likely find irregularities and thing like double voting. And the thing is you want to minimize this but you can never eliminate it. In the end trying too hard to eliminate it could like result in more of both. Unnecessary paperwork and procedure are as likely to make things worse as a goal is to make things better.

[Brett Bellmore]

You can't totally eliminate irregularities, but, IMO, the idea that election officials are actually entitled to violate state election laws is something that has to be stomped, hard. And this was happening on a systematic basis in some parts of the country last year, not merely incidentally or inadvertently.

It was done deliberately, because the local officials thought they had better ideas on how to operate elections than the legislature, and were entitled to act on them.

[OtisAH]

Typical “conservative.” Always stomping out imaginary problems like the imaginary problem of election officials believing they are “entitled to violate state election laws,” which is not something seen anywhere except Brett’s fertile and malicious imagination.

[Brett Bellmore]

"Who are you going to believe, me or your lying eyes?"

[LawTalkingGuy]

Neither. I'm going to believe the people who actually know elections law.

[David Nieporent]

Look, just because a state Supreme Court is filled with justices who went to law school and spent years practicing law in that state and read all the briefs submitted by the parties doesn't mean that they know more than Brett about the law.

[LawTalkingGuy]

Courts get it wrong all the time. It’d be more credible if Brett was like: this particular decision was bad.

But his position is that elections administration all over the country in states and counties with different laws, constitutions, snd systems and constitutions were all lawless. Which is nuts. Especially when he can’t even grasp some of the basics. For instance, last year he kept insisting that the Texas AG could give a “lawful order” to halt drive thru voting in Texas when the Texas AG has no such power and his guidance isn’t binding on anyone.

[David Nieporent]

Oh, I remember that discussion.

But Brett has no trouble identifying particular decisions he doesn't like. He just doesn't show any understanding of those decisions or what they're based on, and cannot comprehend a court interpreting a statute or an executive branch official administering it as anything other than 'violating' the law.

In every election in the history of ever, random polling places are ordered to stay open longer than statutorily mandated poll closing times because a power failure or a lack of blank ballots or poll workers not showing up kept people from voting. This was never a problem — not a single person suggested this was "illegal" (let alone "unconstitutional") — until 2020, when these sorts of decisions were perceived as helping Democrats. (Not by allowing fraudulent ballots, but simply by facilitating their casting ballots at all).

So Brett seized upon a fringe theory never accepted by the courts that Trumpkins were pushing this year: the plenary legislative theory, which claims that the U.S. constitution completely sub silentio rewrote every state's constitutional structure to cut every entity except state legislatures out of the legal process.

[grb]

David Nieporent : "In every election in the history of ever, random polling places are ordered to stay open longer than statutorily mandated poll closing times because a power failure or a lack of blank ballots or poll workers not showing up kept people from voting. This was never a problem — not a single person suggested this was “illegal” (let alone “unconstitutional”) — until 2020"

Thank you. I've made this point at least a half-dozen times directly to Brett. Twice I've provided him a link to a website that listed scores of court cases stretching back a quarter-century that adjusted election procedures. I've ask him if he hadn't seen the exact sort of thing in every election over his entire life. Why the hysterics now? It's pretty simple:

(1) Brett needs an excuse for Trump's loss, preferably one with conspiratorial undertones.

(2) Brett wants to hang with his "Stop the Steal" allies, but doesn't want the baggage of their grotesque lunacy.

(3) His fixation on "violated state election laws" is just Brett's safe space to posture, preen, and pretend.

[Ridgeway]

"So Brett seized upon a fringe theory never accepted by the courts that Trumpkins were pushing this year: the plenary legislative theory, which claims that the U.S. constitution completely sub silentio rewrote every state’s constitutional structure to cut every entity except state legislatures out of the legal process."

That argument always seemed flaky to me. One question I never saw answered by its proponents: Do state election laws have to be passed by the legislature and signed by the Governor, like other laws, or do they simply need to be passed by the legislature? If the latter, how do you determine if something passes? The regular rules are all out the window already.

[Brett Bellmore]

To be clear, I think there's an argument for exclusive state legislature authority in the case of Presidential elections, and ONLY Presidential elections, because the Constitution so specifically says that the electors shall be appointed in the manner specified by the state legislature.

In the case of the other office, it's just a matter of legislative supremacy and the rule of law.

[David Nieporent]

That argument always seemed flaky to me. One question I never saw answered by its proponents: Do state election laws have to be passed by the legislature and signed by the Governor, like other laws, or do they simply need to be passed by the legislature? If the latter, how do you determine if something passes? The regular rules are all out the window already.

Not only that, but the same Trumpkins making that argument were also arguing that the Pennsylvania GOP legislature's 2019 statutory expansion of VBM in that state was somehow unlawful.

[OtisAH]

Grb, I think the Why of Brett is more basic:

He’s only here for the argument, which is why he can’t be pinned down on anything. He argues for the sake of arguing. If you counter one argument he’s ready to shift the posts as if what he next argues was the discussion the entire time.

[David Nieporent]

He’s only here for the argument, which is why he can’t be pinned down on anything. He argues for the sake of arguing. If you counter one argument he’s ready to shift the posts as if what he next argues was the discussion the entire time.

No, that's not fair. Brett has strongly held ignorant views, but he's not a troll. He may not listen or accept what people who know more than him tell him, but I have never seen him argue insincerely or To Own the Libs or anything like that.

[Kazinski]

So maybe it wasn't a power of the AG to order the end of drive thru voting in Harris County, but drive thru voting was contrary to Texas law,but the county elections officials thought it was a good idea anyway.

The solution, which I think Arizona implemented, is to make it a criminal offense for state or local elections officials to violate state election law.

If it never happens then there should be no objections.

[Nelson]

They had to make a new law to say breaking the law is against the law? What sort of doublespeak nonsense is that?

[loki13]

No. You really have to stop spreading this foolishness.

Do you know the supervisor of elections (or similar title) in your locality? Do you know the election workers? Or are they just some unidentifiable "them" to you?

Because we have a lot of good and hard-working people that endeavor, year after year, election after election, to do the right thing.

And then there are the conspiracy-mongers and the "just-asking-question-ers" that repeat the conspiracies and spread them about, all of whom don't have any experience or knowledge about how this is done, repeating the same nonsense over and over and over again.

The problem isn't our elections; it's the same people that have made it a mission to undermine our civic values who, for the most part, have never so much as bothered to participate in the actual local election process. In addition, they like to have their heads filled with kraken-adjacent nonsense, and keep spouting it despite the fact that it has been repeatedly shot down.

And it's tiring. It's tiring defending the good people who work in our electoral system. It's tiring pointing out, for the 5 millionth time, that the affidavit being shot around by M L (or someone else) was pointed out to be false or mistaken. It's tiring pointing out that people don't understand election law.

Because none of it matters- it's rinse and repeat, like Groundhog day.

[Moderation4ever]

Thank you. I hate the attempts by some Trump submissives to demonize election workers. These are your neighbors and they work hard to deliver fair elections. They deserve better and should not be sacrificed in appeasing the vanity of a former President.

[Brett Bellmore]

I wouldn't demonize election workers, but I see no reason to confer sainthood on them, either. They're human, as fallible and corruptible as anybody else.

[LawTalkingGuy]

No one is asking you to confer sainthood, just a recognition that as a group, they know way more than you about how to lawfully administer elections.

[Brett Bellmore]

Yeah, and accountants know more about accounting than I do, but some of them still embezzle.

[loki13]

So? You regularly demonize these same people Brett, without any evidence, because humans are fallible?

You are part of the problem.

And you spread nonsense like Democrats are trying to end elections? Which you just did earlier in the thread?

Those who believe absurdities commit atrocities. You believe absurdities.

[Sarcastr0]

In order to function in society, you need to assume a level of professionalism in the anonymous people within the institutions and groups you deal with.

No one is trying to poison your food. No one on the highway is going to try and run you off the road. No one in elections is going to screw with the result.

Sometimes food is adulterated, sometimes there's a dangerous driver, sometimes there's some yahoo monkeying with the election process (in practice, generally GOP).
But if you assume that's everywhere, you will go mad.

[Kazinski]

I agree with most of that Loki, in fact my brother is a part time elections supervisor in his county, and although we disagree politically I know he is honest and unbiased in his duties.

However, there are also at least a few elections officials like this guy:
Former Philadelphia Judge of Elections Convicted of Conspiring to Violate Civil Rights and Bribery
A former Judge of Elections has been convicted for his role in accepting bribes to cast fraudulent ballots and certifying false voting results during the 2014, 2015, and 2016 primary elections in Philadelphia.

Domenick J. Demuro, 73, of Philadelphia, Pennsylvania, pleaded guilty during a sealed proceeding on March 16, 2020, before U.S. District Judge Paul S. Diamond to conspiring to deprive persons of civil rights, and using interstate facilities in aid of bribery. The court unsealed the matter today. Sentencing is scheduled for June 30, 2020.

During his guilty plea hearing, Demuro admitted that while serving as an elected municipal Judge of Elections, he accepted bribes in the form of money and other things of value in exchange for adding ballots to increase the vote totals for certain candidates on the voting machines in his jurisdiction and for certifying tallies of all the ballots, including the fraudulent ballots.

So having an occasional audit isn't a terrible idea.

[Sarcastr0]

https://reason.com/volokh/2021/09/24/friday-open-thread-2/#comment-9123397

[Nelson]

Occasional. If there's a reason to think something might be hinky. Not what the Trumpnotized lunatics are doing. I mean, Texas is going to order an audit of their election *almost a full year after the election*. For no reason except because a narcissistic gasbag said they should. For the love of God, stand up for your country! Tell Trump to go back to multi-mulligan golf in Florida and just stop.

[Davy C]

Because we have a lot of good and hard-working people that endeavor, year after year, election after election, to do the right thing.

And then we have people like the woman working where I voted in college, who told me I shouldn't vote in any local elections since I didn't know the area. Her intentions may have been good, and she may have been hard-working, but it's totally inappropriate (and probably illegal) for a poll worker to tell specific voters not to vote in certain elections.

[David Nieporent]

The idea that both irregularities and low level fraud occurred in Maricopa and no where else is absurd.

Yeah, but the Arizona loons solved that problem by simply not looking anywhere else.

An honest election "audit" would have involved checking the entire state. (Or at least a random sampling.) And every election in the state. Instead, they decided to only investigate one county where Democrats did well, and only the two elections where Democrats did well (Senate and President).

[Krayt]

This was one of the problems with Florida in 2000. It was known recounting a county would find more votes for all candidates, so if you recount two heavily Gore counties, you'd get more new votes proportionally for Gore in the statewide total. To be fair you'd have to recount everywhere so red counties gave their proportional bumps as well.

E.g. If Gore won 70% in that county, and they found 100 more votes, statisticay 70 would be for Gore and 30 for Bush, bringing Gore closer to Bush in the statewide total, which for a few hundred micro difference could change things.

[Armchair Lawyer]

Maricopa county has 62% of the state's population.

If you're going to check a county, that should be it.

[OtisAH]

No. If you’re seriously interested in searching for and rooting out FRAUD! you audit the entire system.

[Jason Cavanaugh]

"If you’re going to check a county, that should be it."

Your mistake here is as simple as it is obvious: they aren't checking a 'county.' They are checking to see if somehow Trump can be declared the winner, by 'auditing' where he lost.

If someone was interested in auditing the election system as a whole, you take random samplings from across the entire State. If all you're interested in is making Trump win, then you only count where he lost and hope to find evidence for the lies you've been spreading for over a year.

[Voize of Reazon]

"Biden would have won without them."

According to the Cyber Ninjas, by 360 more votes.

[bernard11]

The audit reportedly did find major irregularities,

The reports are wrong. They apparently found some things like more than one vote cast under some names.

Shocker: there are lots of cases of two people having the same name and being born the same year.

They also found out that some people moved, by checking some inaccurate commercial database.

Look these people are clowns and Trummpists. Apparently they couldn't find any way to claim the vote totals were off, so they took some time ginning up "irregularities," which Brett is swallowing hook, line and sinker.

[benji]

Audit the audit!

[Moderation4ever]

It seems the logical conclusion. When pressuring state officials didn't work, Trump tried lawsuits, when that didn't work it was an insurrection, when that failed it was audits, now that the audits didn't work what is left by audit of the audits.

[OtisAH]

Satire is dead…

https://mobile.twitter.com/patriottakes/status/1441409754690043905

[Voize of Reazon]

PDFs are available here:
https://kjzz.org/content/1719314/arizona-election-audit-confirms-bidens-win-maricopa-county-also-casts-doubts

[Krychek_2]

I would also add that for those who mockingly refer to Trump Derangement Syndrome and Orange Man bad, Trump is in fact uniquely awful in that we have never had a president spend months sowing distrust about our basic democratic institutions, spread lies and misinformation claiming election fraud, and encourage his followers to try to stop the count and certification by force, and lean on state election officials to commit actual election fraud on his behalf, all to remain in power after losing an election. Whatever one thinks of the rest of his presidency, his post election conduct falls to a level of despicableness never before seen in our history.

And don't forget, he was able to do it with the power of the presidency behind him only because the electoral college put him in power in the first place. So much for the claim that it protects us from dangerous demagogues.

[LawTalkingGuy]

"Orange Man Bad" as a retort to Trump criticism is a special kind of self own. Why would you want to remind everyone that he is in fact a bad person who uses so much spray tan he looks burnt orange?

[Don Nico]

I am glad that you agree that the Orange Clown is indeed a despicable person.

[TwelveInchPianist]

"I would also add that for those who mockingly refer to Trump Derangement Syndrome and Orange Man bad, Trump is in fact uniquely awful..."

That's certainly true, but those expressions generally refer to phenomena where people are eager to criticize Trump for anything, accurate or not, that the accurate criticism gets drowned out and looses credibility.

[Krychek_2]

Oh, I don't dispute that confirmation bias exists and, as with everything else, each criticism needs to be evaluated on its own merits. But even though the town pathological liar does occasionally tell the truth, he has no one to blame but himself when based on his past record, people are still skeptical.

[grb]

Krychek_2 : "and lean on state election officials to commit actual election fraud on his behalf"

A reminder : Those state officials - Republicans or Democrats - uniformly responded honorably. Although Trump asked multiple election officials to intervene & change the voter's choice, none did. They also refused Trump's demand for noise about "election irregularities" where none existed.

Which is why those state officials are seeing their power to manage elections taken from them in many of the voter harassment bills from the GOP. In the next presidential election a losing Republican like Trump (or himself) may be able to go to the GOP state legislature for more servile coup assistance.

Think how the Arizona state legislature has disgraced themselves with this farcical audit, then imagine them given new power to intervene between vote and certification. Can anyone be sure they wouldn't?

[Krychek_2]

Yup. One thing we learned from the 2020 election is the extent to which democracy depends on people being honest and doing their jobs. In a sense, we got lucky. Had hard-core Trumpists been in charge of elections in a handful of close states, things might have played out very differently. We might even be in the middle of a shooting war.

And, at the risk of sounding like a broken record, this is yet another reason to get rid of the electoral college. Trumpist shenanigans were only possible because of it. Trying to steal 7 million popular votes is a whole lot harder than stealing a few close states.

[Gandydancer]

I don't remember agreeing.

When they agreed not to check sigs I remember saying there was little chance of an important result.

After that it was an exercise akin to waiting for Durham.

[Moderation4ever]

The House Committee investigating the January 6th insurrection has subpoenaed four staff of the former administration. The former President has threatened to invoke "Executive Privilege'" against these subpoenas. Where does the power of EP now lay? Can former Presidents shield their conversations once they have left office or is that the prerogative of the current office holder? That is who can shield these staffer Trump or is it up to President Biden?

[OtisAH]

I believe only presidents have federal executive authority so only presidents can invoke executive privilege.

[LawTalkingGuy]

Yes, it's an institutional privilege. Current presidents generally don't want to break it for earlier presidents, to avoid setting a "bad" precedent and making their people wary of candid communications on sensitive topics.

But this probably presents the rare scenario where a President would break it. Presumably Biden doesn't want advisors convincing future presidents (or himself) to overturn elections and fomenting an insurrection, so there is really not an institutional advantage in shielding what they have on Trump communications.

[Brett Bellmore]

But that's a "repeated game" consideration, and I don't think Democrats are playing a repeated game anymore. They've move into an endgame mindset where final victory is the goal, and the long term consequences of pissing off the other side are no longer relevant, because the other side is anticipated to be rendered impotent in a fairly short timeframe.

[Moderation4ever]

The other side shrinks daily. The California recount is a case in point.

[Brett Bellmore]

The other side shrinks in California, anyway. But in any functional democracy, there is always going to be an "other side".

[LawTalkingGuy]

Wut?

[bernard11]

Once again, the claim that Democrats are trying to end elections.

Once again, you demonstrate that you really are delusional. No getting around it, Brett. Get some help.

[Brett Bellmore]

No, I think they're trying to end competitive elections.

[LawTalkingGuy]

By having more people vote?

[OtisAH]

Yes, because the gop does much better the fewer people who vote. Nine years ago they took a look at their 2012 efforts and found them wanting. They had a choice: evolve, or cheat. They binned the report and got hard to work at cheating.

[Rev. Arthur L. Kirkland]

Democrats are ending competitive elections -- at the national level, at least, and in our modern, successful, educated communities and advanced states.

By having better ideas and noting the deficiencies in Republican positions and conservative ideas.

At the practical level, this involves watching cranky old Republicans take their stale, ugly thinking to the grave and be replaced in our electorate by younger, better Americans. This has become the American way.

From a historical perspective, this may be traced to that fateful draft day when Republicans chose racism, gay-bashing, misogyny, superstition, ignorance, xenophobia, backwater religious schooling, can't-keep-up backwaters, and pining for illusory 'good old days' (in some cases trading up to ensure getting what they wanted), while Democrats selected reason, science, education, tolerance, progress, inclusiveness, modernity, successful cities, and our leading research, teaching, entertainment, and cultural institutions.

("Is Jimmy Johnson secretly advising the Democrats for this draft?" ESPN analysts repeated asked as the draft developed. "Or are the Republicans covertly relying on Mike Lynn for advice?" It can not be determined whether Mike Lynn and Mike Lindell are related or, perhaps, even the same person, before and after a grotesque, prolonged crack-and-meth binge.)

[Gandydancer]

Courts have been responsible for inventing it, I believe. Their arguments for doing so don't imply that only current officeholders can invoke it. In practice... well courts are easily "confused" into doing what they want.

[ThePublius]

"Where does the power of EP now lay?"

I believe that should be 'lie,' no 'lay.'

[Life of Brian]

It's not clear to me why EP should be any different than other privilege that exists to promote open and frank communications (attorney-client, marital, etc.). These generally can be invoked by either party to the communication at any point in the future, given that the privileged nature of the communication is based on the status of the parties at the time the communication occurred, not at the time the discovery is taken. To do otherwise would seem to frustrate the purpose of the privilege.

[David Nieporent]

It’s not clear to me why EP should be any different than other privilege that exists to promote open and frank communications (attorney-client, marital, etc.). These generally can be invoked by either party to the communication at any point in the future,

Of course, a-c privilege cannot be invoked by either party; only the client gets to decide whether to assert it or waive it. (I mean, of course an attorney who is compelled to testify will be the one to initially assert it — but on behalf of the client. It's the client's ultimate call.)

But in any case, your argument doesn’t address the issue: who is the party? It's the office of the presidency, not Donald Trump personally.

A corporate CEO's legal strategy discussions with the company's outside counsel are of course protected by a-c privilege. But the CEO doesn't take the privilege with him when he leaves the job, because it's not his privilege; it's the company's. The new CEO decides whether to waive it on behalf of the company.

[Brett Bellmore]

Actually, I agree with that. Trump stopped being able to assert executive privilege back in January.

[Life of Brian]

But in any case, your argument doesn’t address the issue: who is the party? It’s the office of the presidency, not Donald Trump personally.

That just turns waiver of EP into another selectively-enforced witch hunt tool for successive adverse administrations (oh, right -- basically like the situation before us).

I don't think your successive CEO example is really on point in the political realm. For example, fiduciary duties to the company provide some level of checks and balances that the new leader isn't going to blow up the company just to try to hurt her predecessor.

I don't know that there's any non-academic need to assign an overarching entity to hold EP, as opposed to the individuals involved. But if there must be one, it seems like each administration would need to be treated as its own distinct entity for EP to achieve its policy goals.

[David Nieporent]

I don’t think your successive CEO example is really on point in the political realm. For example, fiduciary duties to the company provide some level of checks and balances that the new leader isn’t going to blow up the company just to try to hurt her predecessor.

Institutional considerations provide some level of checks and balances that the new president isn't going to blow up the country just to try to hurt his/her predecessor.

But if there must be one, it seems like each administration would need to be treated as its own distinct entity for EP to achieve its policy goals.

Its policy goal is to protect the office of the presidency, not the reputation or legal status of the former president.

[Life of Brian]

Institutional considerations provide some level of checks and balances that the new president isn’t going to blow up the country just to try to hurt his/her predecessor.

Um, right. If you figure out what those "institutional considerations" were and where they went, let us know.

Its policy goal is to protect the office of the presidency

How deliciously squishy, subjective, and open to rank abuse by downstream actors. You're just reinforcing why the privilege should be scoped to the specific people that engaged in the specific communications, or at most the administration in which they served.

[David Nieporent]

Um, right. If you figure out what those “institutional considerations” were and where they went, let us know.

The institutional considerations are that the current president also wants to be able to have confidential discussions with aides.

How deliciously squishy, subjective, and open to rank abuse by downstream actors. You’re just reinforcing why the privilege should be scoped to the specific people that engaged in the specific communications, or at most the administration in which they served.

No. I'm explaining why that's entirely wrong. A former president has no interest whatsoever in the matter. He is not a king. Once out of office he's an ordinary person with no governmental standing of any sort. His only incentives are personal ones — to protect himself personally from embarrassment (or prosecution). But executive privilege is only about protecting the power of the office, allowing the current officeholder to obtain advice that might not be freely given otherwise.

[Life of Brian]

The institutional considerations are that the current president also wants to be able to have confidential discussions with aides.

To the extent Biden even comprehends the tension, that dynamic isn't stopping the current witch hunt so by definition it's inadequate.

A former president has no interest whatsoever in the matter . . .

Your entire argument presupposes your conclusion that the privilege applies to the office as a whole (whatever that is) as opposed to the individuals involved or the executive entity they collectively formed. I disagree for at least the reasons I've said several times now.

to protect himself personally from embarrassment (or prosecution)

And here you seem to be trying to precisely dial in the ability to assert a privilege in the first instance to carve out potential misuses, rather than just having exceptions for misuse such as crime-fraud in A-C. That's (1) unnecessary, and (2) creating another vector for political abuse by removing the burden a challenging party normally would have to show why the privilege shouldn't apply in a given circumstance.

[Voize of Reazon]

Life, would you apply the same rule to secrets? In your view, can a President declassify information that was classified during a previous administration?

[Gandydancer]

"...executive privilege is only about protecting the power of the office, allowing the current officeholder to obtain advice that might not be freely given otherwise."

Wrong. It is equally about future officeholders to obtain advice that might not be freely given otherwise. That is the plain meaning of the phrase "power of the office", which you misuse.

[Davy C]

But executive privilege is only about protecting the power of the office, allowing the current officeholder to obtain advice that might not be freely given otherwise.

Correct. But the issue is, will they still be able to get that advice if it is known that everything becomes unprivileged the second the current officeholder leaves office? Especially if we're dealing with, say, discussions with a lame-duck President two weeks before his term ends?

The privilege must not simply expire at the end of the term, for the sake of the current officeholder.

[David Nieporent]

Right, which is why nobody thinks the privilege expires at the end of the term. The issue is who can assert it.

[Bob from Ohio]

Its up to whomever is making the decisions that day in the current White House.

[Gandydancer]

That's your claim. It's just crosswise with the justifications offered for EP.

[Voize of Reazon]

Nixon v. GSA held that the privilege is available to former Presidents, but denied Nixon's attempt to use it to prevent the archival preservation of his records (especially "the tapes"). One factor was that neither Ford nor Carter supported his attempt, another that he tried to assert it against the very Executive Branch that it is intended to benefit.

[David Nieporent]

It kind of said that, but in a nonsensical way that made it sound more like it was arguing that the privileged nature of the communications doesn't terminate when the presidential term ends. And that makes sense. But holding that a former president can assert it against the wishes of current president makes no sense and is unworkable.

[Voize of Reazon]

The precise language was "We reject the argument that only an incumbent President may assert such claims and hold that appellant, as a former President, may also be heard to assert them." So it wasn't just that the privilege survives (which point was made elsewhere), but that the ex-President could attempt to assert it.
But to your point the Court also recognized the privilege was held by the office rather than the office-holder, and would likely have found that an explicit contradictory position taken by an incumbent would prevail, if that question had been before it.

[Gandydancer]

"...the Court also recognized the privilege was held by the office rather than the office-holder, and would likely have found that an explicit contradictory position taken by an incumbent would prevail..."

Your powers as a mind reader would be more impressive if they were convincing.

No, there is nothing in logic to indicate that the current office holder can extinguish the separate institutional interests of his office.

[Michael P]

"But holding that a former president can assert it against the wishes of current president makes no sense and is unworkable."

Not at all. The Supreme Court was pretty clear that Nixon would be able to do that: "Appellant's right to assert the [presidential confidentiality] privilege is specifically preserved by the Act." That was a significant part of why they disagreed that the Act facially violated the separation of powers.

[TwelveInchPianist]

The ACLU, commemorating renown [huma]nist Justice Ginsburg's death, put out a statement,

"The decision whether or not to bear a child is central to a [person's] life, to [their] well-being and dignity… When the government controls that decision for [them], [they are] being treated as less than a full adult human responsible for [their] own choices."

The actual quote, "The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices."

[Bob from Ohio]

It demotes her from the second woman to 96th person serving as an associate justice too.

[M L]

Question for the canons of construction experts.

Lease states:

". . . Tenant shall have the right to terminate the Lease effective at 11:59pm on January 31, 2027 by giving Landlord at least 90 days' prior written notice of Tenant's intention to terminate the Lease and [paying certain amounts] . . ."

Is this a one-time option to terminate on a specific date? Or an ongoing option to terminate after a certain date with 90d notice?

[loki13]

This is not binding advice, nor specific to an actual fact.

I would read that hypothetical language as:

Tenant must give at least 90 days notice prior to January 31, 2027.

The lease then terminates on January 31, 2027.

[M L]

I would too, but I'm having trouble articulating a single smack-down reason why that's the only reasonable reading and there's no real ambiguity (or is there?)

I thought, maybe the "last antecedent" rule helps, but I'm not sure that's on point.

[loki13]

I usually go with in pari materia, which means that I would need additional language and contractual terms.

It really depends on whether the surrounding terms indicate that this provision is supposed to be a single event, or if it is contemplated as a holdover provision (in other words, that the tenant will continue on after that date and be able to provide notice ... usually in contemplation of a new lease being negotiated).

Usually the penalty/payment provisions indicate which it is.

[Gandydancer]

It's badly written and there is real ambiguity, but there may be rules to more or less arbitrarily resolve it.

[Gandydancer]

...e.g., if the custom is to sign leases for an even number of years' tenancy then the argument that the ability to terminate with 90 days notice only matures on the x-year anniversary date becomes less persuasive. How has the property owner treated similar leases in the past? What is the language regarding the property owner's right to terminate. Etc.

Or there could be established rules for interpretation external to the document.

[Jimmy the Dane]

That is some poor lease writing. Any time I have seen such a clause the tenant has a window of time to give notice, usually at least a year before the tenant would vacate, not some sort of opened ended period to give notice.

You might want to check your jurisdiction's landlord tenant law though as sometimes any "notice to quit" right can be read independently. Although it does seem to say "one time" the construction of the clause is also not great. Depending on how much you feel like arguing and digging there might be something there.

[Bob from Ohio]

"Deep Dive part 7/7: "

Yeah!

"8. Coming attractions."

Sigh.

[LawTalkingGuy]

Don’t be a dick, dude.

[Bob from Ohio]

Oh dear, I once again disappointed you.

He spams up this whole thread every week with thousands of words.
He's allowed but I'm allowed to post my 2 words in response too.

[LawTalkingGuy]

Didn’t say you weren’t allowed to. Just that, well, you’re being a dick. And not for nothing, it seems like people are really interested in the recaps.

[Bob from Ohio]

"people are really interested in the recaps"

Its basically Brett and one or 2 others responding every week.

[OtisAH]

He should’ve said “don’t be a jealous bitch” instead.

I read it every week. I don’t comment because I have nothing to add to it. And sarcastro can handle Brett’s bullshit just fine.

[Rev. Arthur L. Kirkland]

I enjoy Sarcastr0's summaries -- either they inform me without having read the originals, or perhaps they will incline me to read the originals -- but I recognize I am not the average reader of this blog. (I have a law license, live in a modern community, rely on reason, and am not an obsolete, disaffected culture war casualty.)

[Gandydancer]

You are deluded about who you are. Rev. Object of Derision.

[Rev. Arthur L. Kirkland]

"Deluded," says the guy whose side claims to believe that fairy tales are true.

Get an education and choose reason, clingers.

[Bob from Ohio]

Jealous of what? The ability to write hundreds of words. I can do that too!

All the libs rallying around sarcasto, so heartwarming.

[Armchair Lawyer]

Seriously, Sarcy should get his own blog.

I skip through his boring deep dives every time, but it does get tedious to the point of abusive of the general comments section. To repeatedly have massive copy-pasted sections of what looks like his thesis or something.

[Brett Bellmore]

I don't think it's abusive. Remember, Baude can't be bothered to supply a transcript, so it's something of a public service.

[Brett Bellmore]

Though I'm going camping this weekend, I might download them to my phone, and listen while drowning worms.

[Alpheus W Drinkwater]

It might be too late, but Prof. Baude also does an excellent podcast with Prof. Dan Epps called "Divided Argument," which is also excellent. I actually like it better than his other one. At any rate, good luck with the fishing.

[Armchair Lawyer]

Asssuming it's accurate....

But perhaps if it was offered beneath Baude's posts, it would be more helpful as a transcript.

[Rev. Arthur L. Kirkland]

Hey, Sarcastr0 . . . you could avoid some of this criticism from the Volokh Conspiracy's core following by spicing your messages with some vile racial slurs, some old-timey gay bashing, and the occasional call for liberals to be gassed, shot in the face, placed face-down in landfills, or sent to Zyklon showers.

[OtisAH]

Tell me you’re not much of a reader without telling me “I’m not much of a reader.”

[Aaron]

This year, I was fortunate enough to adjunct at a local undergraduate college teaching a Philosophy of Law class. It was a lot of fun and I learned a lot from the experience. Next year, I am fortunate enough to adjunct at a local law school to teach a Philosophy of Crime and Punishment class. I am stoked for the experience, but, in the back of my head, I can't help shaking the concern.

If a law school can get away with paying an adjunct peanuts to even teach a theoretical class, what is the future for professional scholars? Worried about being part of the problem.

[LawTalkingGuy]

What material will you be using in your crime and punishment class? Touching on Foucault at all?

[Jimmy the Dane]

Curious about your experience with the uber PC culture on most college campuses. I know many adjuncts that have declined to teach classes, after doing so for many years, because they are getting tired of it all.

[TwelveInchPianist]

Shocked that the Rabbis forced AOC to vote in favor of Iron Dome funding. It's enough to make you cry:

"Minutes before the vote closed, Ms. Ocasio-Cortez tearfully huddled with her allies before switching her vote to “present.” The tableau underscored how wrenching the vote was for even outspoken progressives, who have been caught between their principles and the still powerful pro-Israel voices in their party, such as influential lobbyists and rabbis."

[Jimmy the Dane]

One thing the news fails to explore is why exactly does Israeli need a BILLION dollars from us? That is a lot of money, more than the traditional "foreign aid" checks we write every year.

[Brett Bellmore]

I guess they were sharing with us the resulting military technology, and benefits of extensive testing in the field.

[bernard11]

No doubt that is going on.

And testing weapons in actual live use is pretty valuable.

[Armchair Lawyer]

It's cheaper than invading the middle east to ensure Israel's survival and avoiding another genocide.

[Toranth]

Weapon systems aren't cheap, but yeah, that does seem like a lot. Let's see what the public numbers show.

There are some complications in the funding, as the bill just casually makes reference back to previous agreements, but it's $1 billion over 3 years, and technically it's a maximum (as if any would go unused).
Some of those previous agreements specify that 50% or more of the funding would be spent in the US.
The bill (and no agreement I could find) specifies exactly what this funding can be used for. Equipment (batteries/missiles) for sure, but what about maintenance or staffing? Does part of this cover the salaries of soldier manning the systems? How about facilities costs for the deployments?

As for equipment costs, the US purchased two batteries for almost $200 million each. Building new ones seems to be expensive, and Israel is constantly expanding to cover more areas (including being mounter on ships).

Israeli usage costs, well, remember this past May? During the Gaza firework show, Israel spent something like $50 million during just over a week knocking down rockets. That was much higher activity than normal, but even normal rates have been a few hundred a year over the past 20 years.

Still, even if you assume a generous $100 million for missiles over three years, and 2 new batteries of launchers, there's still another 50% - $500 million - in the appropriation.
Now I too am wondering what, exactly, they're spending it on.

[Gandydancer]

$100M for missiles over 3 years when "generous" if Israel expended "$50 million during just over a week knocking down rockets"?

It's fair to argue that we shouldn't lay arming them on the US taxpayer's dime (or, more accurately, add the amount to the deficit), but I'm not seeing the accuracy of your characterization.

[Toranth]

Earlier this May, there was a major attack by Hamas on Israel, which included almost 5000 missiles and rockets launched over that just over a week.
This sort of thing is uncommon, and happens less than once every three years. Normal behavior over the long term is for 200 to 300 per year.

[Gandydancer]

"...why exactly does Israeli need a BILLION dollars from us?"

Could have something to do with defending themselves from the far larger amount gifted to the Taliban.

[David Nieporent]

And then in response to criticism the NYT quietly edited that to remove the bizarre anti-semitic reference to "rabbis."

[Gandydancer]

Aha! So THAT was the reason for using the Archive,com version. I thought it was just to get it out from behind the paywall. But the "the Rabbis forced AOC to vote" bit did set off my JDS detector. Thanks,

[Bob from Ohio]

"their principles"

Getting Jews killed is a principle now?

[Krayt]

Why is providing protection from military attacks by a nascent dictatorship a tearful and sad thing?

[Bob from Ohio]

You know why.

[Gandydancer]

I don't. Spit it out.

[Gandydancer]

"Rabbis" appears once in the article but twice in your post about it.

Do they have names?

[LSchnapf]

anyone have any ideas good pieces discussing implied right of private actions under federal statutes?

[Gandydancer]

Can you name any? Isn't is usually, maybe invariably, explicit?

[Krayt]

Looking further afield, as science extends lifespan, the need to have term limits for positions of power will skyrocket, to prevent the powerful from eternally lodging themselves in government power.

[LawTalkingGuy]

Or age.

[Michael P]

In the future, everyone will be President for 15 minutes.

[ducksalad]

You one of those guys that thinks we're going to get a major increase in lifespan?

I'm not. Almost all the increase in life expectancy has been due to knocking out various causes of early death, rather than addressing aging. Aging hasn't been slowed down much at all, if 70 year olds on average look a little better than they did a century ago it's due to lack of brute outdoor labor that literally wore people out. We've now gone clear past the optimum on physical labor.

Note that the record for oldest person ever was set more than 24 years ago. We're not setting new age records the same way we are setting new records on other human activities.

Shorter version: Don't worry about Schumer *or* McConnell hanging around to ruin your grandkids' adult lives, and no need to rethink that 20 year burn rate you planned for your retirement account.

[Krayt]

Oh I am well aware of all that you said. Life extension, like flying cars, house robots, and fusion, is perpetually 40 years in the future.

Still, someday. And in any case, a number of science fiction universes have life extension, but it is reserved for war or other heroes, like being knighted. Apparently the masses are content to vote for politicians to continue sending them to their graves.

[Gandydancer]

Your need for Breyer to die may skyrocket when Biden looks like he will be replaced but Breyer may not feel the need to oblige you.

[apedad]

Texas limits business with Ben & Jerry's over Israel move

GOOD!

Texas was sued once over this and was going to lose in court but then they changed their law to companies with over 500 employees, so the case went moot.

B&J has over 1,000 employees so they can also now sue and WILL WIN.

Hey Prof. Volokh, let's see you talk your way out of this one.

[apedad]

https://thehill.com/homenews/state-watch/573813-texas-limits-business-with-ben-jerrys-over-israel-move

[Gandydancer]

2019: https://www.greencarreports.com/news/1126086_california-is-boycotting-automakers-that-don-t-side-with-state-on-emissions

That's from a quick search, not anything I know about. Do you assert that EV is "hiding from that, too? And why would he do that?

[apedad]

After a Year Off, the Monaco Yacht Show Returns With Record Demand for Yachts

“At this moment in time, there are 2,755 billionaires in the world," he said at the builder’s press conference. “Stock markets are soaring, the GDP economy is expected to move up six percent this year…and some of that wealth is being used in the superyacht industry, meaning in yachting, the demand supply curve has changed.”

Brouwer said that sales have returned to pre-pandemic levels and he sees strong demand in larger superyachts. Heesen will continue to “advocate for sustainability,” as a focus for its design and build process.

Benetti Yachts, the world’s largest superyacht builder by volume, also noted its commitment to electric-diesel propulsion, saying it was implementing hybrid options across its range, from its smallest 121-foot B.Yond motoryacht to the recently launched gigayacht, 353-foot Luminosity.

Dear God, I know I'm kinda down on you a lot but if you give me a boat I promise I'll spread YOUR word around the world (on the boat of course!).

Your humble servernt,

apedad

PS. A BIG boat, ok!

a.

https://robbreport.com/motors/marine/monaco-yacht-show-record-demand-1234637630/

[Aunt Teefah]

The left-wing plan to trick Trumpist boomers into self-genociding via a preventable disease by . . . getting a vaccine and suggesting they do the same . . . appears to be working to perfection. From Breitbart:

"The organized left is deliberately putting unvaccinated Trump supporters in an impossible position where they can either NOT get a life-saving vaccine or CAN feel like cucks caving to the ugliest, smuggest bullies in the world.

In other words, I sincerely believe the organized left is doing everything in its power to convince Trump supporters NOT to get the life-saving Trump vaccine."

Choking out on a ventilator to own the libs - or rather, to avoid being owned by the libs. Amazing.

[Brett Bellmore]

The plan is somewhat compromised, though, by the fact that Covid has such a low fatality rate.

[Alpheus W Drinkwater]

The most insidious part of the plan is that Trump supporters continually express opinions that increase the plan's efficacy.

[grb]

Aunt Teefah : Choking out on a ventilator to own the libs – or rather, to avoid being owned by the libs. Amazing.

Oh, that's not the half of it. There was a story a few weeks back about some hard-Right guy in Texas who had fought every pandemic measure or precaution. He led one of these groups with "Freedom" in their title, because one thing today's Right likes to do is cheapen and debase that word to the level of childish snit.

So, he gets the disease but refused to go to the doctor. Why? His widow says he didn't want to add to the covid statistics. Apparently you can "own the libs" these days by not seeking medical attention.

Eventually he be driven to the hospital, but for too long self-medicated with vitamin C, zinc, and horse dewormer. Why? He couldn't pass up the chance to "own the libs" by refusing vaccination, but trusted a treatment that had nowhere-near the same amount of documented trials and studies.

I swear if Covid suddenly sprouted arms, legs and a voice, the first thing it would do is thank today's Right for all their pro-disease efforts. They've labored hard to make themselves the pro-sickness-party.....

[Voize of Reazon]

What nonsense.

The real story is that COVID-19 was engineered in Wuhan with funding from the Trump administration and deliberately spread in the US to reduce federal spending by killing off a half million Social Security recipients.

You read it here first!

[Armchair Lawyer]

"The left-wing plan to trick Trumpist boomers into self-genociding via...."

Having the Biden Administration Cut access to monoclonial antibodies as a treatment....

[grb]

The Biden Administration hasn't "cut monoclonial antibodies as a treatment". Apparently your handlers fed you another reeking pile of bullshit lies and you're dumbass gullible-enough to swallow every last bite.

What they are doing is rationing an effective covid treatment so the sickest people nationwide have access to it. And why is this necessary? Because seven southern states were consuming 70% of the federal government’s supply of the antibody drug, creating a national shortage

And why was that? Because those same states have some of the lowest vaccination rates. So they throw their little child-like snit against common sense, adult responsibility & civic duty, assuming this high-cost, hospital-filling and medical-labor intensive treatment will absolves them of consequences. If you think they give the slightest damn about people dying from the shortage they created, you know nothing about today's Right-winger. They care nothing about their fellow Americans.

[Gandydancer]

Very strange. Right wingers are supposedly owning the libs by refusing the jab and simultaneously depleting jab supplies by taking too much of it.

I think you're going to have to pick one story or the other.

[grb]

And I think you're going to have to find a working brain somewhere, Gandydancer, because you're pretty damn clueless on this subject. We are talking about two separate things:

(A) The vaccines cost twenty dollars a shot, are free to anyone who wants them, are delivered in mere seconds by medical staff, and are available in overabundance. They prevent people from getting covid by large margins, prevent the spread of the disease by reducing person-to-person transmission, and are by far the best tool to suppress the pandemic.

(2) Monoclonial antibodies are an effective approved treatment after you get the disease. It does little to prevent the spread of covid or end the pandemic. The cost is well over 2k and it must be administered in a hospital by IV, with its use monitored by medical staff. It is available in limited supplies and there is currently a nationwide shortage. Monoclonial treatment does provides limited protection against covid afterwards, but much less so & for a shorter period than vaccines.

Can you possibly be so misinformed as to confuse those two things, Gandydancer? Perhaps like Armchair you get all your information from handlers who consider you a dupe & fool. People dying from covid across the country might live with Monoclonial antibody treatment. Meanwhile, a handful of states in the South were consuming 70% of the limited supply just to "own the libs" by refusing vaccination.

There was a story recently about some jackass who refused vaccination, got sick and was treated with antibodies. He said his doctor still recommended get vaccinated but why bother? If he got sick again he could just get more monoclonial treatment. Do you think that guy cares people are dying for want of a drug in short supply? Not a bit. He's a Right-winger and doesn't give a shit about his fellow Americans.

The Biden Administration did the correct thing given the shortage.

[Armchair Lawyer]

So, a "Red" state which actually requires more of the treatment, due to having more cases, has its shipments from the federal supply suddenly cut. Hmm...

Call me crazy, but I think if a state actually needs more, then you send them more.

In the beginning of this Pandemic, New York alone got more than that 50% of the National Stockpile's supply of ventilators. Why? Because they had more cases then.

But now that Florida needs more of a certain treatment, Biden is suddenly slashing the amount they get.

[Sarcastr0]

The issue is that allowing the States to compete with one another in the open market was not equitable.

This is absolutely a place where the Feds should set up a needs-based system. Which is what the government says it's doing.

Your not believing them isn't proof they're lying.

[David Nieporent]

New York wasn't intentionally causing people to get covid, thus creating their need for ventilators. These red states, in contrast, are. They are doing everything they can to spread the disease — not just by not taking steps themselves, but by hindering private preventive efforts — for the sole purpose of Pwning the Libs.

[OtisAH]

Our double-agent Flynn has been integral in these efforts. This week he told the world we’re putting vaccines in salad dressing, which should force MAGA to eat nothing but meat. But in actuality we’re putting the vaccines in beef, pork and chicken! Flynn will receive the CMH for his work in getting people vaccinated when all this is done.

[grb]

It's worth remembering that Trump appointed this freakish basket-case to one of the top two or three national security positions in the country. He did so despite Obama privately warning him that Flynn was unstable. Why? To "own the libs", of course.

This was back when "owning the libs" didn't mean being the Pro-Pandemic Party, but it was equally stupid & mindless all the same.

[Jimmy the Dane]

Celebrating the death of people, your neighbors, friends, co-workers, colleagues, and countrymen, is pretty sick and despicable.

[grb]

You want sick? A hard-Right Breitbart commenter is talking about gawdforsaken Howard Stern and says this:

"If I wanted to use reverse psychology to convince people not to get a life-saving vaccination, I would do exactly what Stern and the left are doing … I would bully and taunt and mock and ridicule you for not getting vaccinated, knowing the human response would be, Hey, fuck you, I’m never getting vaccinated! …"

Apparently he thinks your ideological tribe, Jimmy, is so mentally ill they make important healthcare decisions based a shock-jock's rants. That they willingly cut off their own nose to spite their face; that they do so just to "own the libs". And you know what, JtD? I bet he's right. After all, you guys gave us a sleazy huckster buffoon as president for no better reason.

But that not the sickest thing. Your side, Jimmy, made a focused & concerted effort to reinvent itself as the pro-covid party. Before this pandemic, anti-vaxx nonsense was distributed evenly across the ideological spectrum. It took coordinated and disciplined messaging to put today's conservative movement on a war footing against common sense itself.

It started with claims the pandemic didn't exist, its effects were exaggerated, the statistics were lies, every measure against the disease was tyranny, the medical experts were Bond-grade villains, and every quack-cure was a miracle being hidden from us.

Trump and his copycats tried their hand at all that pro-covid agitprop, and were soon joined by the Right's pet media and hive-mind propaganda system. No wonder the same message was then turned against the vaccines Trump helped to create.

Not that Trump himself is willing to speak forcefully to his supporters on the vaccines. Isn't it strange how the Breitbart commenter above blames Howard Stern for the Right's vaccination rates, but doesn't notice the deafening silence from that tribe's own day-glo orange demi-god?

[Aunt Teefah]

You misunderstand my comment. I am certainly not celebrating anyone’s death. I want everyone - including people who hold despicable views - to get vaccinated and stay alive. I am merely mocking the cultish death-drive that is preventing that from happening.

[bernard11]

Celebrating the death of people, your neighbors, friends, co-workers, colleagues, and countrymen, is pretty sick and despicable.

Fuck you, Jimmy. What about encouraging those deaths with a bunch of anti-vax BS and lies?

You want to criticize someone? Aim it at people like DeSantis and Tucker Carlson. There's nobody on the left trying to persuade people they shouldn't get vaccinated.

I'm not unsympathetic, but I'm not going to break down in tears over the deaths of jackasses who listen to RW bullshit.

Lots of your guys are, effectively, murderers, so STFU.

[Toranth]

There's a lot of BlueAnon bullshit about DeSantis, but considering he has explicitly and repeatedly encouraged people to get vaccinated, you have to be pretty stupid to say something like this.

Additionally, there are plenty of anti-vaxers on the Left, and always has been. You've got celebrities talking about inflamed balls or Tuskagee, you've got political celebs like RFK Jr, and you've got activists like the Colorado NAACP or NY BLM leadership.
Of course you also had major Democrats spending months telling everyone not to trust any "Trump vaccine". Sure, many of them backpedaled after the election, and claimed that when they said "can't trust a vaccine approved by the Trump FDA" they really meant "can totally trust it because the exact same people in the exact same administration I was telling you not to trust before approved it."

Trying to pretend these people don't exist is just as stupid as pretending all the film of DeSantis promoting vaccination doesn't it exist - it's all your BlueAnon anti-reality beliefs.

[David Nieporent]

There’s a lot of BlueAnon bullshit about DeSantis, but considering he has explicitly and repeatedly encouraged people to get vaccinated,

I think you misspelled "rarely and perfunctorily."

And it's hard to see how forbidding private businesses from asking for proof of vaccination could be said to "encourage" people to get vaccinated.

Of course you also had major Democrats spending months telling everyone not to trust any “Trump vaccine”. Sure, many of them backpedaled after the election, and claimed that when they said “can’t trust a vaccine approved by the Trump FDA” they really meant “can totally trust it because the exact same people in the exact same administration I was telling you not to trust before approved it.”

You're lying, which is why you're not quoting any of them. What they actually said was that they would be skeptical of a hypothetical vaccine rushed out by Trump before the election, but that if the scientists and public health experts said it was good, she'd take it.

[David Nieporent]

Sorry, the "she" in that last sentence refers specifically to Kamala Harris, because she's the one this talking point of Toranth always refers to.

[Toranth]

The one I'm "always" referring to? When did I last refer to Harris or any of her comments? I think I mentioned her back talking about her working to fund bail for violent rioters, but that had nothing to do with vaccines.

Please, provide a cite - unless you are making up bullshit again, like you often do.

[Toranth]

Look at how quickly those goalposts fly! From "persuading people they shouldn't get vaccinated" to not doing what you consider enough is just 0.3 seconds! By the way, since you know it's been "rarely and perfunctorily", I'm sure you can tell me how often he's done it and what he's said each time, right? Because if you couldn't, then you would be lying when you said you knew it was rare and not sincere...

As for the anti-vaxers, I can't help but notice you are ignoring everyone except one person I didn't even name in order to falsely spin their comments. But since you singled out Harris, rather than Biden or Pelosi or Cuomo, remember that she was attacking a vaccine for being 'rushed' by Trump, but then accepted the exact same vaccine when it approved by the exact same people in the Trump administration just days later. In fact, if Pfizer and Moderna had not deliberrately asked the FDA to delay the paperwork a little, they would have been approved before the election - exactly the circumstances she was explicitly saying she would not trust!

And also, if you are capable of the slightest bit of introspection, can you see the insane hypocrisy in your post? You are attacking DeSantis, and defending claims of him encouraging people not to get vaccinated and "effectively" a murderer, all because his pro-vaccination response has been "rare and perfunctory" - but you are defending Harris (and probably would all other Democrats) for their explicitly encouraging the distrust of any vaccine developed under the Trump administration or pushed by Trump?

I mean, there's the usual levels of dishonesty from folks like bernard or Pollock, but it is remarkable that you would put such a blatant display on here.

[grb]

Try remembering back : The Pfizer vaccine was faced a last formal review scheduled for a specific date, and it was reported across the media approval was certain. Two days before, Trump made a loud show proclaiming if it wasn't approved, he'd personally intervene to change the decision.

To anyone who reads the newspaper daily, this was just more Trump buffoonery - trying to claim "credit" for a foregone conclusion. After all, it was no different than his behavior throughout the pandemic, when any given statement was only a moment's whim and never more than politics alone. His medical experts might be Trump's favorite barbie dolls one day, with him enjoying playing with them during a presser (and bragging about his TV ratings). Next day they'd morph into deep state agents of evil; you never knew from one minute to the next.

See, the details of healthcare emergency planning & people dying simply bored Trump. The covid crisis held his interest only when it was about Trump. If he spotted some way to make the pandemic about him he'd perk-up and start running his mouth. Drivel was always the result.

Now : Imagine you're a multinational pharmaceutical giant who invested scores of millions in a vaccine and hoped to make hundreds of millions back in profit. The very last thing you'd want is this bungling asshat clown marring your product with his bullshit nonsense.

Or imagine you're a Democrat or normal person with basic common sense (the two categories mostly overlap). Nothing from Trump's mouth can be trusted given he's a compulsive liar and imbecile. You need to hear directly from the experts; Trump's word is worthless.

Does that explain things, Toranth?

[Toranth]

A very verbose reply, that contains no substance - but plenty of mind-reading and projection.

Trump did not approve the vaccines, the FDA did. And they were the exact same people at the FDA, still under the Trump administration, when they approved the vaccines as they were when there were Democrat leaders spreading FUD.

If you say you cannot trust a vaccine "rushed" under the Trump administration, then you cannot honestly say you never opposed the vaccines that were approved under the Trump administration just a few weeks later.
This is obvious to everyone with more than half a brain (a group Democrats are rarely included in).

Do you understand now, grb?

[Gandydancer]

Lefty "cleverness" in action, eh?

But genocide would require a disease more fatal than COVID.

[Gasman]

Yet strangely the anti-vax, anti-mask crowd has complete acceptance of, gasp, monoclonal antibody therapy. We need to convince them to reject this therapy also.

Monoclonal antibody manufacture is ultimately pretty much the same in the lab(industrial manufacture of antibodies) as it is to let each human make their own(vaccination). When humans make their own antibodies through vaccination they create their own polyclonal antibody mix, unique to their own immune system.
Antibodies from drug companies gets you someone else's antibody, optimized for for binding spike protein in the lab, not in any particular individual.

How to make monoclonal antibodies, simplified:
-start with an immortal cell line of human lymphocytes, or alternatively rabbit or mouse lymphocytes. Origin of human lymphocytes often undefined, might be aborted fetus.
-expose lymphocytes to the spike proteins, or vaccinate them with mRNA. Either way works to get the lymphocytes to begin antibody production
-place individual cells into microscopic wells, sample the antibody production from each, select the cell or cells that produce the best functioning antibodies.
-grow the chosen cell by generations into trillions of cells living in giant vats
-collect and purify the produced antibodies
-send antibodies to be infused to folks who lack their own immunity to Covid. Gosh, if only there were a way to become immune to Covid in advance...

[apedad]

Associate Attorney General Vanita Gupta Delivers Remarks to the National Farmers Union

During the pandemic, processors in several agricultural markets, such as poultry, beef and hogs, have generated record profits. American farmers have seen just the opposite. While consumers are paying more, farmers are making less. The gap between the price at auction and the price at the grocery store has left many farmers with serious questions about the power of these processors.

It also underscores the problem of a market structure where one or just a few buyers have the power to effectively set prices for the goods family farmers sell. When buyers have the ability to dictate terms to their workers or suppliers, like farmers, they can squeeze them for lower wages or lower prices without passing any savings on to consumers.

These problems go beyond cattle, poultry or hogs. As President Biden recently recognized in an executive order urging a whole-of-government approach to combatting consolidation, “[c]onsolidation in the agricultural industry is making it too hard for small family farms to survive.” As a result, fewer and fewer companies control the production of fruits, vegetables, dairy and other essentials.

1. It is HILARIOUS that a guy named Vanita Gupta is addressing the National Farmers Union.
2. I'm glad middle America (the land so beloved by DaivdBehar), is firmly against big govt. Or, um, wait a minute:

“National Farmers Union is relieved that our legislators are finally paying attention to this crisis. The INVEST in America Act ($1.2T) will help modernize our antiquated infrastructure, bolstering rural economies and preparing them for the challenges ahead. More specifically, we are pleased with the inclusion of provisions that would address the affordability of broadband, expand disaster relief and emergency assistance for extreme weather events, improve the resilience of watersheds, and update hours-of-service exemptions for agricultural and livestock haulers.

https://www.justice.gov/opa/speech/associate-attorney-general-vanita-gupta-delivers-remarks-national-farmers-union

[Bob from Ohio]

"The election of Barack Obama in November 2008 was largely seen as a win for NFU, who had graded each of the candidates based on their policies. Obama received a perfect 100 percent rating, based on his support of the 2008 Farm Bill and a renewable fuel standard. On the other hand, the organization gave John McCain a grade of zero percent, in part because he was in favor of reducing subsidies for ethanol and food products. The NFU typically supports liberal policies, such as increased government and environmental regulation, anti-trust activities, and social safety net programs.[18][19]" wikipedia

Left wing org backs left wing policies. This is shocking to me.

[Voize of Reazon]

Apedad, I'm mildly curious why you think Vanita Gupta is a guy, but more curious why an Associate AG is addressing farmers about agriculture markets and infrastructure programs. Do they just randomly pick senior staff from any old department to give these talks?

[Michael P]

Who better to talk to farmers than the privileged lawyer offspring of a manufacturing tycoon?

[ducksalad]

Apedad, I think your mistake is believing the "National Farmers Union" represents farmers in general, much less "middle America".

It's about like saying "Proud Boys" represents young American males.

[apedad]

You saying the Proud Boys DON’T represent our sons?!?

[Gandydancer]

Who is the "we" in this "our"?

Given that mental instability is inheritable I assume your sons are living in cardboard boxes somewhere.

[tennvol]

Federal judge legislates a mask mandate for local school system whose school board voted against implementing a mandate: https://www.knoxnews.com/story/news/education/2021/09/24/federal-judge-orders-knox-county-schools-mask-mandate/8362874002/

[apedad]

Federal judge legislates

[apedad]

Federal judge legislates…

Perhaps you don’t understand what’s happening.

[Michael P]

You are the one who does not understand that leftist judges are exercising line-by-line veto power over laws, at least until higher courts step in to correct their errors. For example, https://apnews.com/article/immigration-race-and-ethnicity-florida-ron-desantis-bills-b62a5b39cdc711bb8cbc178acae8f262

[tennvol]

I understand perfectly well. A judge ordered a mask mandate for an entire school system where one did not exist.

[Alpheus W Drinkwater]

Or to put it another way, the federal judge is enforcing federal law which mandates that school districts make reasonable accommodations for its disabled students. Like making sure they are safe from infectious diseases to which they are more susceptible.