|The Whatcom Excavator||
Whittle's explanation of the differences between the pragmatic nature of conservatism versus progressivism begins at about minute ten and a half. Couple of minutes of true clarity, WE think.
The boot has come down so quickly onto (or into?) shifting sands during these last two months that WE haven't posted anything about "the COVID crisis," for lack of facts as much as anything. The Excavators seek truth, and facts have been so hard to nail down that WE have been stunned by the devastation we've seen - no, not caused by the disease - but authority run amok. VDH nails the situation in this piece.
The Thin Façade of Authority
by Victor Davis Hansen
American Greatness, April 14 2020
As we continue to debate about numerators and denominators in determining the real impact of this virus, one common denominator remains certain about the elites advising, crafting, and developing our response: they aren’t touched by the impact of their decisions.
The virus will teach us many things, but one lesson has already been relearned by the American people: there are two, quite different, types of wisdom.
One, and the most renowned, is a specialization in education that results in titled degrees and presumed authority. That ensuing prestige, in turn, dictates the decisions of most politicians, the media, and public officials—who for the most part share the values and confidence of the credentialed elite.
The other wisdom is not, as commonly caricatured, know-nothingism. Indeed, Americans have always believed in self-improvement and the advantages of higher education, a trust that explained broad public 19th-century support for mandatory elementary and secondary schooling and, during the postwar era, the G.I. Bill.
But the other wisdom also puts a much higher premium on pragmatism and experience, values instilled by fighting nature daily and mixing it up with those who must master the physical world.
The result is the sort of humility that arises when daily drivers test their skills and cunning in a semi-truck barreling along the freeway to make a delivery deadline with a cylinder misfiring up on the high pass, while plagued by worries whether there will be enough deliveries this month to pay the mortgage.
An appreciation of practical knowledge accrues from watching central-heating mechanics come out in the evening to troubleshoot the unit on the roof, battling the roof grade, the ice, and the dark while pitting their own acquired knowledge in a war with the latest computerized wiring board of the new heating exchange unit that proves far more unreliable than the 20-year-old model it replaced.
Humility is key to learning, but it is found more easily from a wealth of diverse existential experiences on the margins. It is less a dividend of the struggle for great success versus greater success still, but one of survival versus utter failure.
So far in this crisis, our elite have let us down in a manner the muscularly wise have never done.
Botched Models, Bad Advice
Take any contentious issue—travel bans, the advantages of masks, the Chinese compromising of WHO, the entire industry of grievance politics infecting criticism of China’s despicable behavior, delayed testing by the Centers for Disease Control and FDA, modeling, the efficacy of antimalarial drugs—and our elite seem unable to admit they were wrong, and wrong with a great deal of costly arrogance.
It is no exaggeration to say that most models that the best and brightest offered the public, from the imported Imperial College in London to those from the University of Washington and many more besides, were not just inaccurate, but quite mistaken in two tragic ways: First, they were accepted as gospel by governments and thus their flawed assumptions became the basis for policies that in many cases may prove counterproductive. Second, the modelers themselves either did not promptly correct their warped inputs, or were not completely forthcoming about their data and methodologies, or blamed their flawed assumptions on others or circumstances beyond imagination, or claimed that their mistakes were in fact salutary—if not sorta, kinda planned—in galvanizing a presumably infantile public to accept draconian measures that it otherwise would not.
I know a plumber and an electrician, both skilled in the pragmatic engineering of pipes and wires, who would not dare to think they could offer a model of plumbing or electrical prediction if they had no idea of the real size of the denominator and were likewise unsure that the numerator was widely accepted as accurate and clearly defined.
If I called my car mechanic and explained that I had a bad knock in my engine in the middle of night in the middle of nowhere, he likely would tell me ways to risk driving home, even if possibly hurting the engine, given the lose-lose proposition of spending the night in an unsafe area—in a way our media class seemed to have little clue that hydroxychloroquine for those who cannot breathe need not be certified as 100 percent efficacious in their effort to inhale one more day.
On March 12, Governor DeWine of Ohio, flanked by his state health director, told the 11 million residents of Ohio that based on models he knew that 100,000 “had” active cases of the disease. That was a caseload that his experts further warned would double every six days. In other words, at the then roughly 2 percent lethality rate of the known actively infected—his medical team all but frightened the state with the certainty that in 24 days there could be 1.6 million infected Ohioans and an assumed 40,000 dead.
In fact, about a week ago, on April 6, there were fewer than 5,000 known cases and less than 200 Ohioans who had succumbed to COVID-19. Even with far more unknown cases than known and the efficacy of slowing viral transmission via mass sheltering, the data was not just flawed but perhaps even preposterous. State officials could have offered some official explanations for their misinformation other than the subtext that such fright was medicinal in persuading a public to do something they supposed the public did not know was good for it to do.
When California Governor Gavin Newsom warned that 25.5 million Californians “will” get the virus in the eight weeks following March 18, albeit without his shelter-in-place orders, he was also essentially stating that, at a then 2.6 percent lethality rate for Californians known to have the active virus, about 1 million would die. As I write, 24 days out from his prediction and nearing the half-way point to Doomsday, about 23,000 Californians have tested positive, and either are fighting the disease or have recovered. Since late January, about 650 of 40 million Californians have died from the disease, in a state where well over 700 people die from some cause every day.
If 10 times that number of known positive tests are now actively infected, we legitimately could assume at least 222,000 residents are now active or past carriers. Those who advised Newsom to shut down the world’s sixth-largest economy, including universities like Cal Tech, UC Berkeley, and Stanford, Silicon Valley, and the commerce and livelihoods of 40 million residents, apparently did not factor into their models some possible collective immunity among thousands of Californians who, for months, were on the front lines of arriving flights from China.
Nor did modelers seem to factor in the ability of people to social distance even before the shutdown was ordered, or the fact that a virus that does not kill 95.5 percent of those who are infected, but not frontline health workers or over 60 years old, may be deemed by the public manageable in a way that does not require having multigenerational small businesses ruined, or careers destroyed, or retirement savings accounts wrecked, or key appointments with doctors postponed or canceled.
Repeating Past Mistakes
Practical wisdom might warn that one also does not erode the Constitution because of a mysterious virus, in the sense one does not arrest ministers preaching in parking lots, or those walking hand in hand alongside the road.
Given past misadventures in times of crisis from Woodrow Wilson’s wartime de facto suspension of the First Amendment to FDR’s internment of Japanese-Americans, one should not advocate instituting a national register of the infected and recovered, as some sort of super citizenry and then entrust such knowledge to what we know of the civil liberty sensitivities of Silicon Valley—all because a Bill Gates or Anthony Fauci believe their expertise leads them to think it may be a good idea.
Sometime in the late 19th century, the wide-scale growth of graduate education, professional schooling, and the formal granting of a M.D., Ph.D., or J.D. were necessary antidotes to quackery and the dangers of autodidactic expertise masquerading as the product of the scientific method. But in the last two centuries, that notion of argument from authority has metamorphosed into a religion, a faith-based discipline.
No one at Harvard Medical School or the World Health Organization can guarantee exact science in the sense of something completely right and absolutely wrong, any more than stomach ulcers were supposedly only due to stress and aspirin in 1960s, and then also to H. Pylori and Advil in the 21st century and then also to a mixture of all that and also something no doubt undiscovered today.
The former gold standard of cobalt radiation (“the cobalt bomb”) to treat cancer may soon seem a little barbaric, in the manner that our present chemotherapy regimens likely will appear medieval to doctors a half entry from now. Science is evolutionary. On occasion, yesterday’s certainty is today’s skepticism and tomorrow’s ridiculousness.
In other words, common sense, indeed humility as well, as a corrective to scientific arrogance was often lost in this crisis. One day the Imperial College in London was lauded as Einsteinian, the next it appeared Vegas-like.
Warped Arguments Wrapped in Authority
The result of scientific arrogance, without practical audit, presents as something like the surreal online “world meter” data on the hourly progress of the virus. Such sites offer superficially impressively precise, but ultimately flawed, information on COVID-19 cases, mortality, and lethality and infection—without label warnings that neither the number of actual active or past infectious cases, nor the percentage of those who die from, rather than with, can yet be accurate. Much less are we informed by such electronic meters of the absolute unreliability of statistics from China and other authoritarian countries.
Our modelers constantly downsize their bleak prognostications as “data changes” as if one should ever publish such Armageddon scenarios when they had insufficient information. More worrisome, are post facto claims that such mistakes might have been salutary.
Perhaps a mechanic could rejoin that he warned the driver never to venture 5 miles beyond his home given tiny fissures in the driver’s cylinder block, and when his diagnosis is revealed to be erroneous and quite costly to his client, offered, “Well, at least I saved him gas money, wear and tear on the car, and a possible traffic death.”
Degrees no longer necessarily reflect merit, at least as it once was calibrated by a university’s or a public agency’s own standards. Over 20 years ago, one could read any scholarly journal in the social sciences or humanities—and today even their scientific counterparts—and learn how social justice, identity politics, and political activism had warped science and data-driven analyses. The erosion infected everything from studies of global warming to illegal immigration to the role of the “Other” in ancient societies. It was as if letters behind one’s name allowed authors to massage data and argumentation for the higher purposes of egalitarianism and contemporary social justice.
Every young scholar is now faced with the dilemma of writing the truth as the evidence compels him to do, or venturing into weaponized speculation that is far more likely to win him peer approbation and career enhancement, even as it insidiously bankrupts his discipline.
Elite wisdom, which in its allegiance to the scientific method eventually is likely to find an antidote and vaccination against the virus, still fails us in so many other ways in which it should not, in part also because its high priests rarely face the consequences of their own ideological and scientific pronouncements.
Whatever the end result of this crisis, few at the WHO, CDC or the state health directors are going to lose their jobs in a way the small restaurateurs and Uber drivers most certainly will.
When the corporate lawyer, under 65 and not a health-care worker, rails that the know-nothings wish to endanger him by restarting the economy, despite a 5-in-1,000 chance of dying if infected, his argument is not based on existential need, nor is it part of the lose-lose landscape of his supposed social inferiors who are willing to risk a small chance of severe infection to prevent a very likely chance of going broke and ruining an entire family.
That is, elites who make policy do not necessarily immediately need to plug back into a normal economy to survive. An Ezekiel Emanuel—brother of Rahm (of “never let a crisis go to waste” infamy), advisor to Joe Biden, and of greater infamy for his prior callous pronouncements that those over 75 (e.g., like Joe Biden) more or less are society’s unproductive and enfeebled sponges—claims that we might need to be shut down America for up to another 18 months (but then why not two or three years?).
The subtext of Emanuel’s warning is that even after 72 weeks of such exhausting punditry from a university billet, he will emerge more or less financially secure, maybe our national health czar in a new administration, and without much worry that millions of others will not—or in fact will die or sicken trying to remain solvent.
"Bless me, Gaia, for I have sinned.” "This from NBC News is amazing. Climate change is some kind of religion -- all eschatology, minus the redemption." In other words, you're always guilty but you can never be saved."
WE wonder how this NBC confession thing has been going since it launched in September.
Do you ever get the feeling that climate change is a cult? Does it ever seem like its adherents are immune to reason as they vindictively lash out at anyone who questions their beliefs? Wouldn't it be nice if they just left you alone and let you live your life?
Well, too bad. You live in 2019 and you use modern technology and conveniences. You eat food that actually tastes good. You're guilty and you need to confess. Repent, sinner!
Blast the AC? Cook a steak once a week? Where do you fall short in preventing climate change? Tell us with Climate Confessions.
That's right, NBC "News" has put up a page for what they're literally calling Climate Confessions.
Even those who care deeply about the planet's future can slip up now and then. Tell us: Where do you fall short in preventing climate change? Do you blast the A/C? Throw out half your lunch? Grill a steak every week? Share your anonymous confession with NBC News.
Bless me, Gaia, for I have sinned.
Apparently, there are all sorts of ways you can sin against the planet. NBC breaks it down into six categories:
I submitted my own confession: "I work in an air-conditioned newsroom at NBC." They haven't published it yet, but I feel better already.
Hat tip to Mark Hemingway, who notes: "This from NBC News is amazing. Climate change is some kind of religion -- all eschatology, minus the redemption." In other words, you're always guilty but you can never be saved.
There's a lot of that going around lately:
Today in chapel, we confessed to plants. Together, we held our grief, joy, regret, hope, guilt and sorrow in prayer; offering them to the beings who sustain us but whose gift we too often fail to honor.
What do you confess to the plants in your life? pic.twitter.com/tEs3Vm8oU4
— Union Seminary (@UnionSeminary) September 17, 2019
Confession to my plants: I've been stalking you.
WE can't think of much to add to what Somin points out below.
November 7 as Victims of Communism Day
While I have long advocated using May 1 for this purpose, November 7 is a worthy alternative candidate, if it can attract a broader consensus.
ILYA SOMIN |THE VOLOKH CONSPIRACY | 11.7.2019 10:20 AM
Since 2007, I have advocated designating May 1 as an international Victims of Communism Day. The May 1 date was not my original idea, but I have probably devoted more time and effort to it than any other commentator. In my view, May 1 is the best possible date for this purpose because it is the day that communists themselves used to celebrate their ideology, and because it is associated with communism as a global phenomenon, not with any particular communist regime, such as that of the USSR or China. However, I have also long recognized that it might make sense to adapt another date for Victims of Communism Day, if it turns out that some other date can attract a broader consensus behind it. The best should not be the enemy of the good.
As detailed in my May 1 post this year, November 7 is probably the best such alternative, and in recent years it has begun to attract considerable support. Unlike May 1, this choice is unlikely to be contested by trade unionists and other devotees of the pre-communist May 1 holiday. While I remain unpersuaded by their objections on substantive grounds, pragmatic considerations suggest that an alternative date is worth considering, if it can sidestep this debate, and thereby attract broader support.
For that reason, I am doing a Victims of Communism Day post today, in addition to the one I did on May 1. If November 7 continues to attract more support, I may eventually switch to that date exclusively. But I reserve the options of returning to an exclusive focus on May 1, doing annual posts on both days, or switching to some third possibility should there be an other date that attracts a broader consensus than either May 1 or November 7.
In addition to its growing popularity, November 7 is a worthy alternative because it is the anniversary of the day that the very first communist regime was established in Russia. All subsequent communist regimes were at least in large part inspired by it, and modeled many of their institutions and policies on the Soviet precedent.
The Soviet Union did not have the highest death toll of any communist regime. That dubious distinction belongs to the People's Republic of China. North Korea probably surpassed the USSR in the sheer extent of totalitarian control over everyday life. Pol Pot's Cambodia may have surpassed it in terms of the degree of sadistic cruelty and torture practiced by the regime, though this is admittedly a very difficult thing to measure. But all of these tyrannies—and more – were at least in part variations on the Soviet original.
Having explained why November 7 is worthy of consideration as an alternative date, it only remains to remind readers of the more general case for having a Victims of Communism Day. The following is adopted from this year's May 1 Victims of Communism Day post, and some of its predecessors:
The Black Book of Communism estimates the total number of victims of communist regimes at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny.
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had equally horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why most of the horrors perpetrated by communist regimes were intrinsic elements of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. The latter probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is probably inevitable in a socialist economic system in which the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's socialist policies have resulted in political repression, the starvation of children, and a massive refugee crisis—the biggest in the history of the Western hemisphere. The regime continues to hold on to power by means of repression, despite growing international and domestic opposition.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
In sum, we need Victims of Communism Day because we have never given sufficient recognition to the victims of the modern world's most murderous ideology or come close to fully appreciating the lessons of this awful era in world history. In addition, that ideology, and variants thereof, still have a substantial number of adherents in many parts of the world, and still retains considerable intellectual respectability even among many who do not actually endorse it. Just as Holocaust Memorial Day serves as a bulwark against the reemergence of fascism, so this day of observance can help guard against the return to favor of the only ideology with an even greater number of victims.
Did y'all catch the democrat presidential debates this last week? Jonah Goldberg, a writer who used to be with National Review but has now bolted-out to write independently along with Steve Hayes, just published this commentary worth a quick read. (Dose of reality, anyone? You may want to follow their work.)
August 3, 2019
Dear Reader (including all of the retiring Republican congressmen who got tired of all the winning),
There’s an old joke that goes something like this:
An engineer and an economist are on a hike in the forest. They fall down a deep hole. The engineer, looking at the sheer walls and the distant opening way above, says: “We’re going to die down here. We can’t climb out and there’s no one to hear us cry for help.”
“We’ll be fine,” the economist confidently replies, calmly brushing the dirt from his pants. There’s an easy way out. First, assume a ladder.”
Hey, I didn’t say it was a good joke. But I have seen D.C. wonks bend over with laughter at it.
I bring this up because the Democrats have become a “First, assume a ladder” party. (This is not to say that the Republican Party is firmly planted in reality these days either. More on that in a bit.)
Pundits across the ideological spectrum praised the debate for dealing with “substance.” Fine, fine. Wonky substance is good, I guess. But it was a conversation wildly detached from the reality of the moment. I’m not trying to go all Flight 93 on you, but imagine if you’re in a life raft and everyone is debating how to signal for help and the bulk of the conversation were dedicated to the question of how to build a shortwave radio you have no parts for.
“No, no, the vacuum tube diodes won’t work! We need solid state diodes!”
“I for one will not sit here and let you besmirch the value of vacuum diodes!”
During the first debate, Rep. John Delaney made the monstrous suggestion that Democrats should try to do possible things. “Democrats win when we run on real solutions, not impossible promises, when we run on things that are workable, not fairy tale economics.”
Warren responded: “I don’t understand why anybody goes to all the trouble of running for president of the United States just to talk about what we really can’t do and shouldn’t fight for.”
It was like Delaney was in the life raft saying, “Maybe we can find a signal flare,” and Warren, Sanders, and co. were saying, “Don’t you understand how much better it would be if we used a shortwave radio?”
Warren’s rejoinder was greeted by the audience and much of the progressive punditocracy as if it were the rhetorical equivalent of the Five Point Palm Exploding Heart Technique. “Poor Delaney doesn’t even realize he’s already dead!”
Never mind that this was deeply unfair to Delaney, who actually wants to do all sorts of ambitious things. He just has this weird fetish for doing possible things and not destroying capitalism.
The whole debate was premised on three pernicious fictions: one mathematical, one political, and one philosophical. Let’s take them in order.
Math, Horrible Math
Now, we have a rule in this “news”letter to keep math—or, as the British creepily say, “maths”—to a minimum. So if you want the Walter White Blue Sky meth of wonkiness, you can read Brian Riedl on all of these plans (or listen to our recent conversation).
The basic point you need to keep in mind is that, even if we put Bane in the White House and he and his minions literally confiscated all—I mean all—of the top one percent’s wealth, relegating Bezos, Buffett, and Gates to living under a highway fighting over the wet detritus in a cat food tin, it still wouldn’t come close to paying for the Green New Deal or Medicare for All. (The one-percenters have about $25 trillion; the bidding for these programs starts at $32 trillion.) And this all assumes that rich people don’t react to confiscatory taxes, that socialized medicine works great, and that the Democrats have the expertise to eliminate fossil fuels, retrofit every building in America, and within twelve years, solve every climate problem save for cow farts. It also works on the assumption that the American people want what they’re selling. (All of this stuff polls terribly. Most people are happy with their healthcare.) It also assumes that it all can get through Congress. But I’m getting ahead of myself.
My point is: What the Hell are we talking about? It’s like everyone on the life raft agrees to assume all of the diodes into existence, but there’s still the problem of having no place to plug in the damn radio—which, again, doesn’t exist.
Parliamentary America, Again
I know I’ve been hammering this nail until the wood is mush, but we don’t live in a parliamentary system, but a presidential one. That doesn’t mean the president is—or should be--
more powerful. It just means that the president is elected by the people, and he or she executes the laws passed by Congress, a separate branch. In parliamentary systems, the people elect a party, and the party elects a prime minister to lead the effort of enacting their agenda into law. The problem is that everyone—voters, politicians, journalists—is increasingly acting as if we do live in a parliamentary system.
Look, I take no offense when people say they prefer the parliamentary system, in much the same way I take no offense when the economist at the bottom of the pit says he prefers to assume an aluminum ladder rather than a wood one. But the fact remains: The economist at the bottom of the hole doesn’t have a ladder, and we don’t have a parliamentary system. So could everyone please stop acting like we do?
Yes, yes, I understand that presidents have long run on a legislative agenda. But I also know that that the actual legislative agenda gets written by—wait for it!--the legislature. And Congress ain’t doing this stuff. Put aside the fact that when I hear these candidates get super specific about the details of the Warren plan versus the Sanders plan, I feel like I’m watching the exhumation and desecration of Friedrich Hayek’s corpse. None of these finer points matters. Electing a president doesn’t put any of this crap into effect. In the first NBC debate, Elizabeth Warren was asked how she would deal with a Mitch McConnell and a Republican Senate. She said something like “Well, he will have to respect the will of the people?” He will? Why? Moreover, because we don’t live in a parliamentary system, if he wins reelection promising to thwart the Democrats and socialism, he would be respecting the will of the people—in Kentucky.
I ask again, What the Hell are we talking about?
What’s a President For?
Saying “Marianne Williamson is right” feels as weird to me as saying “Ronald McDonald has an interesting idea about cold fusion,” but that’s where we are in this strange timeline. And she did get to an important truth.
Williamson said: “If you think any of this wonkiness is going to deal with this dark psychic force of the collectivized hatred that this president is bringing up in this country, then I’m afraid that the Democrats are going to see some very dark days.”
Now, I’m not referring to the stuff about Dark Psychic Forces (which I think must be capitalized), though she does have a point there. I’m referring to the fact that, even though the presidency was never intended to be an avatar for our metaphysical aspirations, that’s what it’s become. I lament it, deeply, but on both the left and the right, the Oval Office is the throne the various culture war factions crave. We have monarchical expectations of the job, not merely in our belief that the president ‘runs the society the way a father runs a family’—as traditional monarchists might put it – but as an expression of who we are.
Williamson sees this more clearly than Warren and to a lesser extent Sanders, who says he will also be a Mobilizer-in-Chief. I don’t know if Trump understands this intellectually, but he gets it emotionally. Make America Great Again was not a policy program; it was an emotionally-charged marketing slogan. The problem for Warren is that she is so besotted by scientism that she invests a kind of theological importance to planning. She’s a deacon in the Church of Technocracy.
That’s the philosophical underpinning of Warren’s comeback to Delaney. For her, the only legitimate reason to run for president is to do huge things. And she’s hardly alone. Progressives—and a great many conservatives these days—think the job of president is to transform the country.
This points to the weird overlap behind some of the new nationalists on the right and the New Agey politics of meaning crowd on the left. They’re descendants of Thomas Paine, not Edmund Burke. In the Burkean formulation, the state serves to protect the liberty of the people and their institutions to find their own way. In Paine’s view, the people are a collective entity that must be molded and moved in a specific direction. One side wants more traditional understandings of “social cohesion” and morality. The other side wants a more secular “spiritual but not religious” vision. But they both want everyone to swallow their vision—good and hard. And they think the president is the guy to get the pill down our throats.
I know it’s a Remnanty thing to say, but that’s not what I’m looking for in a president.
Calvin Coolidge—praise be upon him—came to national office, first as Vice President, then as President, riding the tide of a return to normalcy. Woodrow Wilson [insert spitting sound] wanted to fundamentally transform the United States of America. And he succeeded, to some extent. In the process, he threw dissidents in jail, created a propaganda agency, censored magazines and newspapers, and generally treated the Constitution like toilet paper. Americans, sick of the food rationing, the gestapo tactics, and “war socialism,” threw the Democrats out.
At the end of his presidency, Coolidge said, “perhaps one of the most important accomplishments of my administration has been minding my own business.”
Now, that’s my kind of president.
I’m not saying America doesn’t have problems or that government doesn’t have any role in addressing them. But the desire to fundamentally transform the country has always struck me as a fundamentally unpatriotic desire. If patriotism is defined simply as loving your country, wanting to fundamentally transform it isn’t an act of love. As I used to say during the Obama years, try telling your wife or husband, “Look I love you, I just want to fundamentally transform you into something very different.”
The presidential oath of office has a job description built right into it:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That’s good enough for me.
Various & Sundry
My column today is on the ongoing unpersoning of Barack Obama in the Democratic primaries. It really is one of the most amazing political stories—the phenomenon, not my column—of recent times. Obama perfectly captured the point I was making above about the president being an avatar of the culture war and the desire for social transformation, and until very recently he was seen as a success by the left. Now he’s like the guy no one invited to the party—even though he remains generally popular.
I’ll be on ABC’s “This Week” this Sunday.
The latest Remnant is out. My friend and business partner Steve Hayes, finally returned from Spain, came on to update folks on what he’s been up to—and what we’re up to.
WE just had to share this dazzling statement made by Nebraska's U.S. Senator Ben Sasse, which is oh, oh so right, in every way.
On the first day of the Senate Judiciary Committee’s hearing on the nomination of Judge Brett Kavanaugh to be an Associate Justice of the U.S. Supreme Court, U.S. Senator Ben Sasse delivered the following opening statement:
Senator Klobuchar, you did Madison, Lin-Manuel Miranda, the Magna Carta and your Dad taking you to court. Well done. I had all that on my BINGO card.
I have little kids and I've taken my two little girls to court a few times too, mostly to juvie just to scare them straight not to turn them into attorneys. There's wisdom in Minnesota.
Congratulations, Judge, on your nomination. Ashley, congratulations, and condolences. This process has to stink. I'm glad your daughters could get out of the room and I hope they still get the free day from school.
Let's do some good news bad news.
The bad news first, Judge: Since your nomination in July, you've been accused of hating women, hating children, hating clean air, wanting dirty water. You've been declared an existential threat to our nation. Alumni of Yale Law School, incensed that faculty members at your alma mater praised your selection, wrote a public letter to the school saying quote, "People will die if Brett Kavanaugh is confirmed."
This drivel is patently absurd and I worry that we're going to hear more of it over the next few days. But the good news is, it is absurd and the American people don't believe any of it.
This stuff isn't about Brett Kavanaugh when screamers say this stuff for cable TV news. The people who know you better, not those who are trying to get on TV, they tell a completely different story about who Brett Kavanaugh is. You've earned high praise from the many lawyers, both right and left, who've appeared before you during your 12 years on the D.C. Circuit. And those who've had you as a professor at Yale Law and Harvard Law, people in legal circles invariably applaud your mind, your work, your temperament, your collegiality.
That's who Brett Kavanaugh is.
And to quote Lisa Blatt, a Supreme Court attorney from the left who has known you for a decade, "Sometimes, a superstar is just a superstar and that's the case with this Judge. The Senate should confirm him."
It's pretty obvious to most people going about their work today, that the deranged comments don't actually have anything to do with you. So, we should figure out: why do we talk like this about Supreme Court nominations now. There's a bunch that's atypical in the last 19-20 months in America.
Senator Klobuchar's right, the comments from the White House yesterday about trying to politicize the Department of Justices, they were wrong and they should be condemned and my guess is that Brett Kavanaugh would condemn them.
But really, the reason these hearings don't work is not because of Donald Trump... It's not because of anything these last 20 months... These confirmation hearings haven't worked for 31 years in America. People are going to pretend that Americans have no historical memory and supposedly there haven't been screaming protestors saying, "Women are going to die" at every hearing for decades. But this has been happening since Robert Bork. This is a 31-year tradition. There's nothing really new the last 18 months.
So, the fact that the hysteria has nothing to do with you means that we should ask, what's the hysteria coming from? The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now.
Our political commentary talks about the Supreme Court like they are people wearing red and blue jerseys. That's a really dangerous thing and, by the way, if they have red and blue jerseys, I would welcome my colleagues to introduce legislation that ends lifetime tenure for the judiciary. Because if they're just politicians, then the people should have power and they shouldn't have lifetime appointments.
So, until you introduce that legislation. I don't believe you really want the Supreme Court to be a politicized body. Though that's the way we constantly talk about it now.
We can and we should do better than this. It's predictable now that every confirmation hearing is going to be an overblown, politicized circus. And it's because we've accepted a bad new theory about how our three branches of government should work -- and in particular about how the Judiciary should work.
What Supreme Court confirmation hearings should be about, is an opportunity to go back and do School House Rock civics for our kids. We should be talking about how a bill becomes a law, and what the job of Article II is, and what the job of Article III is.
So, let's try just a little bit. How did we get here and how do we fix it? I want to make just four brief points.
Number one: In our system, the legislative branch is supposed to be the center of our politics.
Number two: it's not. Why not? Because for the last century, and increasing by the decade right now, more and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent. The legislature is weak. And most people here want their jobs more than they really want to do legislative work. And so they punt most of the work to the next branch.
The third consequence is that this transfer of power means that people yearn for a place where politics can actually be done. And when we don't do a lot of big actual political debating here, we transfer it to the Supreme Court. And that's why the Supreme Court is increasingly a substitute political battleground. It is not healthy, but it is what happens and it's something our founders wouldn't be able to make any sense of.
And fourth and finally: we badly need to restore the proper duties and the balance of power from our constitutional system.
So point one: the legislative branch is supposed to by the locus of our politics properly understood. Since we're here in this room today, because this is a Supreme Court confirmation hearing, we're tempting to start with Article III. But really we need Article III as the part of the Constitution that sets up the judiciary. We really should be starting with Article I, which is us. What is the legislature's job?
The Constitution's drafters began with the legislature. These are equal branches, but Article I comes first for a reason and that is because policymaking is supposed to be done in the body that makes laws. That means that this is supposed to be the institution dedicated to political fights. If we see lots and lots of protests, in front of the Supreme Court, that's a pretty good litmus test barometer of the fact that our republic isn't healthy. Because people shouldn't be thinking they ought to be protesting in front of the Supreme Court. They should be protesting in front of this body.
The legislature is designed to be controversial, noisy, sometimes even rowdy because making laws means we have to hash out that we don't all agree.
Government is about power. Government is not just another word for things we do together. The reason we have limited government in America is because we believe in freedom. We believe in souls. We believe in persuasion. We believe in love. And those things aren't done by power. But the government acts by power. And since the government acts by power, we should be reticent to use power. And so it means when you differ about power, you have to have a debate. And this institution is supposed to be dedicated to debate and should be based on the premise that we know since we don't all agree, we should try to constrain that power just a little bit, but then we should fight about it and have a vote in front of the American people. And then what happens? The people get to decide if they want to hire us or fire us. They don't have to hire us again.
This body is the political branch where policymaking fights should happen. And if we are the easiest people to fire, it means the only way the people can maintain power in our system is if all the politicized decisions happen here. Not in Article II or Article III.
So, that brings us to a second point. How do we get to a place where the legislature decided to give away its power? We've been doing it for a long time. Over the course of the last century, but especially since the 1930s and then ramping up since the 1960s, a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government or don't know about their government are the places where most actual policymaking, kind of in a way, lawmaking is happening right now.
This is not what Schoolhouse Rock says. There's no verse of Schoolhouse Rock that says give a whole bunch of power to the alphabet soup agencies and let them decide what the governance decisions should be for the people because the people don't have any way to fire the bureaucrats.
And so, what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the Secretary or the administrator of bureaucracy X, Y, or Z to make law-like regulations. That's mostly what we do here. We go home and pretend that we make laws... No, we don't. We write giant pieces of legislation -- 1,200 pages, 1,500 pages long that people haven't read. Filled with all of these terms that are undefined and we say the Secretary of such and such shall promulgate rules that do the rest of our dang jobs.
That's why there are so many fights about the executive branch and about the judiciary because this body rarely finishes its work -- and the House is even worse... I don't really believe that... it just seemed like... you needed to unite us in some way.
So, I admit, that there are rational arguments that one could make for this new system. The Congress can't manage all the nitty-gritty details of everything about modern government and this system tries to give power and control to experts in their fields where most of us in Congress don't know much of anything -- about technical matters, for sure -- but you can also impugn our wisdom if you want. But when you're talking about technical, complicated matters, it's true that the Congress would have a hard time sorting out every dot and tittle about every detail.
But the real reason, at the end of the day, that this institution punts most of its power to executive branch agencies is because it is a convenient way for legislators to have... to be able to avoid taking responsibility for controversial and often unpopular decisions. If people want to get reelected over and over again -- and that's your highest goal -- if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy... it's not a good life but it's a pretty good strategy for incumbency.
And so, at the end of the day, a lot of the power delegation that happens from this branch is because the Congress has decided to self-neuter. Well, guess what? The important thing isn't whether or not the Congress has lame jobs... the important thing is that when the Congress neuters itself and gives power to an unaccountable fourth branch of government, it means that people are cut out of the process.
There's nobody in Nebraska... there's nobody in Minnesota or Delaware who elected the Deputy Assistant Administrator of Plant Quarantine at the USDA. And yet, if the Deputy Assistant Administrator of Plant Quarantine does something that makes Nebraskans' lives really difficult -- which happens to farmers and ranchers in Nebraska -- who do they protest too? Where do they go? How do they navigate the complexity and the thicket of all the lobbyists in this town to do executive agency lobbying? They can't.
And so, what happens is that they don't have any ability to speak out and to fire people through an election. And so, ultimately, when the Congress is neutered... when the administrative state grows... when there is this fourth branch of government, it makes it harder and harder for the concerns of citizens to be represented and articulated by people that the people know they have power over.
All the power right now... or almost all the power right now happens offstage. And that leaves a lot of people wondering who is looking out for me.
And that brings us to the third point, the Supreme Court becomes our substitute political battleground. It's only nine people. You can know 'em. You can demonize 'em. You can try to make 'em messiahs. But ultimately, because people can't navigate their way through the bureaucracy they turn to the Supreme Court looking for politics.
And knowing that our elected officials no longer care enough to do the hard work of reasoning through the places where we differ and deciding to shroud our power at times, it means that we look for nine Justices to be super-legislators. We look for nine justices to try to right the wrongs from other places in the process.
When people talk about wanting to have empathy from their justices, this is what they're talking about. They're talking about trying to make the justices do something that the Congress refuses to do as it constantly abdicates its responsibility. The hyperventilating that we see in this process and the way that today's hearing started with 90 minutes of theatrics that are pre-planned with certain members of the other side here, it shows us a system that is wildly out of whack.
And thus, a fourth and final point. The solution here is not to try to find judges who will be policy makers. The solution is not to try to turn the Supreme Court into an election battle for TV. The solution is to restore a proper constitutional order with the balance of powers. We need Schoolhouse Rock back. We need a Congress that writes laws and then stands before the people and suffers the consequences and gets to back to our own Mount Vernon, if that's what the electors decide. We need an executive branch that has a humble view of its job as enforcing the law, not trying to write laws in the Congress’ absence. And, we need a judiciary that tries to apply written laws to facts in cases that are actually before it.
This is the elegant and the fair process that the founders created. It's the process where the people who are elected two and six years in this institution, four years in the executive branch can be fired because the justices and the judges, the men and women who serve America's people by wearing black robes -- they’re insulated from politics. This is why we talk about an independent judiciary. This is why they wear robes. This is why we shouldn't talk about Republican and Democratic judges and justices. This is why we say justice is blind. This is why we give judges lifetime tenure. And, this is why this is the last job interview Brett Kavanaugh will ever have. Because he's going to a job where he's not supposed to be a super legislator.
So, the question before us today is not what did Brett Kavanaugh think 11 years ago on some policy matter, the question before us is whether or not he has the temperament and the character to take his policy views and his political preferences and put them in a box marked irrelevant and set it aside every morning when he puts on the black robe.
The question is, does he have the character and temperament to do that. If you don’t think he does, vote no. But, if you think he does, stop the charades. Because at the end of the day I think all of us know that Brett Kavanaugh understands his job isn’t to re-write laws as he wishes they were. He understands that he's not being interviewed to be a super legislator. He understands that his job isn't to seek popularity. His job is to be fair and dispassionate. It is not to exercise empathy. It is to follow written laws.
Contrary to the Onion-like smears that we hear outside, Judge Kavanaugh doesn’t hate women and children. Judge Kavanaugh doesn’t lust after dirty water and stinky air.
No, looking at his record, it seems to me that what he actually dislikes are legislators that are too lazy and too risk-averse to do our actual jobs. It seems to me that if you read his 300+ opinions, what his opinions reveal to me is a dissatisfaction, I think he would argue a constitutionally compelled dissatisfaction with power-hungry executive branch bureaucrats doing our job when we failed to do it.
And in this view, I think he's aligned with the founders. For our constitution places power, not in the hands of this city's bureaucracy -- which can't be fired -- but our constitution places the policy-making power in the 535 of our hands because the voters can hire and fire us. And, if the voters are going to retain their power, they need a legislature that's responsive to politics, not a judiciary that's responsive to politics. It seems to me that Judge Kavanaugh is ready to do his job, the question for us is whether we're ready to do our job.
Thank you, Mr. Chairman.
At Volokh/Reason, and a truly fine "read." (Randy Evan Barnett (born February 5, 1952, in Chicago) is an American lawyer, law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and legal theory. He writes about the libertarian theory of law and contract theory, constitutional law, and jurisprudence.)
What the Declaration of Independence
Said and Meant
It formally identified the political theory of the United States: securing the individual rights of We the People
Randy Barnett|Jul. 4, 2018 9:21 am
The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.
Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. It was much relied upon by Abraham Lincoln. It had to be explained away by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People."
But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to "a long train of abuses and usurpations" and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
This first sentence is often forgotten. It asserts that Americans as a whole (and not as members of their respective colonies) are a distinct "people." To "dissolve the political bands" revokes the "social compact" that existed between the Americans and the rest of "the People" of the British commonwealth, reinstates the "state of nature" between Americans and the government of Great Britain, and makes "the Laws of Nature" the standard by which this dissolution and whatever government is to follow are judged. "Declare the causes" indicates they are publicly stating the reasons and justifying their actions rather than acting as thieves in the night. The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an "appeal to heaven"—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: "The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven." The reference to a "decent respect to the opinions of mankind" might be viewed as a kind of an international public opinion test. Or perhaps the emphasis is on the word "respect," recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. "
The most famous line of the Declaration. On the one hand, this will become a great embarrassment to a people who permitted slavery. On the other hand, making public claims like this has consequences—that's why people make them publicly. To be held to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration. And it forms the basis for Martin Luther King's metaphor of the civil rights movement as a promissory note that a later generation has come to collect.
Notice that the rights of "life," "liberty" and "the pursuit of happiness" are individual, not collective or group rights. They belong to "We the People"—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals.
What are "unalienable," or more commonly, "inalienable rights"? Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England's claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.
A standard trilogy throughout this period was "life, liberty, and property." For example, the Declaration and Resolves of the First Continental Congress (1774) read: "That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: Resolved, 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent." Or, as John Locke wrote, "no one ought to harm another in his life, health, liberty, or possessions."
When drafting the Declaration in June of 1776, Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia's provincial convention. Here is how Mason's draft read:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Notice how George Mason's oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have "certain . . . natural rights" of life, liberty, and property, but these rights cannot be taken away "by any compact." Again, these rights each belong to individuals. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment's reference to the "rights…retained by the people."
Interestingly, Mason's draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the officially adopted version read (with the modifications in italics):
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
This version is still in effect today.
According to historian Pauline Meier, by changing "are born equally free" to "are by nature equally free," and "inherent natural rights" to "inherent rights," and then by adding "when they enter into a state of society," defenders of slavery in the Virginia convention could contend that slaves were not covered because they "had never entered Virginia's society, which was confined to whites." Yet it was the language of Mason's radical draft—rather than either Virginia's final wording or Jefferson's more succinct formulation—that became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason's original references to "born equally free" and to "natural rights" into their declarations of rights while omitting the phrase "when they enter into a state of society." Indeed, it is remarkable that these states would have had Mason's draft language, rather than the version actually adopted by Virginia, from which to copy. Here is Massachusetts' version:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
Virginia slaveholders' concerns about Mason's formulation proved to be warranted. In 1783, the Massachusetts Supreme Judicial Court relied upon this more radical language to invalidate slavery in that state. And its influence continued. In 1823, it was incorporated into an influential circuit court opinion by Justice Bushrod Washington defining the "privileges and immunities" of citizens in the several states as "protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety."
Justice Washington's opinion in Corfield (to which we will return), with Mason's language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.
"That to secure these rights, Governments are instituted among Men.… "
Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Here, even more clearly than in Mason's draft, the Declaration stipulates that the ultimate end or purpose of republican governments is "to secure these" preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged. This language identifies what is perhaps the central underlying "republican" assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government.
"…deriving their just powers from the consent of the governed."
Today, there is a tendency to focus entirely on the second half of this sentence, referencing "the consent of the governed," to the exclusion of the first part, which refers to securing our natural rights. Then, by reading "the consent of the governed" as equivalent to "the will of the people," the second part of the sentence seems to support majoritarian rule by the people's "representatives." In this way, "consent of the governed" is read to mean "consent to majoritarian rule." Put another way, the people can consent to anything, including rule by a majority in the legislature who will then decide the scope of their rights as individuals.
But read carefully, one sees that in this passage the Declaration speaks of "just powers," suggesting that only some powers are "justly" held by government, while others are beyond its proper authority. And notice also that "the consent of the governed" assumes that the people do not themselves rule or govern, but are "governed" by those individual persons who make up the "governments" that "are instituted among men."
The Declaration stipulates that those who govern the people are supposed "to secure" their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered "by any compact." Therefore, the "consent of the governed," to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.
In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the "fundamental" or "human" rights of individuals and minorities.
If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the "consent of the governed" tells us which government gets to undertake the mission of "securing" the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.
"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this end.
"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
Affirms at least two propositions: On the one hand, long-established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution. All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance. Therefore, the very existence of this Declaration is evidence that things are very bad indeed.
"But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."
Revolution is justified only if there "is a long train of abuses and usurpations, pursuing invariably the same Object"—evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of "light and transient causes," that is, the more ordinary violations of rights by government.
"Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III—Eds.] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world."
What follows is a bill of indictment. Several of these items end up in the Bill of Rights. Others are addressed by the form of the government established—first by the Articles of Confederation, and ultimately by the Constitution.
The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: "First comes rights, then comes government." According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) the protection of these rights is the first duty of government; and (3) even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition; (4) at least some of these rights are so fundamental that they are "inalienable," meaning they are so intimately connected to one's nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.
At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration's claim that such rights "are endowed by their Creator," leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe this is a mistake.
Happy Independence Day!
Good stuff from Bill Whittle, Scott Ott and Stephen Green:
WE see that this video - and the movement - is going viral. A recent article described the movement thusly:
"The #Walkaway campaign has helped thousands of disillusioned Democrats regain their own voices and push back against “oppression” and incivility from the Left, the movement’s founder told RT in an interview.The #Walkaway hashtag went viral after New York-based stylist Brandon Straka, an openly gay man, created a short video explaining why he felt alienated by the Democratic Party and had to “walk away” – despite being a “lifelong liberal. ”Thousands of other wary Democrats have since joined Straka, posting videos explaining why they too felt compelled to leave the party."
This is for real - check out his (their) site after watching the vid - just over six minutes out of your life that will be amazing. Independence Day to open-minded D's, there surely must be many.
Because anthropogenic global climate whatever is a non-falsifiable hypothesis, with no means of objective proof, it belongs squarely in the realm of faith-based conjecture, like religion and origin of species. Heretic really is the correct word for this, although a true scientist would prefer to be called a skeptic. WE prefer heretic, because it tends to better cancel out the emotionally charged term, denier. This political discussion exited the realm of pure science decades ago.
Folks should note that Professor Mass does (has always) subscribed to the belief that climate is changing (getting warmer) - but he does seem to recognize that there are legitimate questions about the many "whys" of it - as a legitimate scientist should.
Why One Should Never Use the Term "Climate Denier"
Professor Cliff Mass, UW Atmospheric Sciences
May 28, 2018
Some terms are simultaneously hurtful, destructive, counter-productive and misleading.
Climate denier is a good example of such an inappropriate phrase, and one that is unfortunately in vogue among some climate activists and media outlets.
There are so many reasons that the term climate denier should never be used, but let me provide a few:
(1) It plays off the term "Holocaust denier". For most of the second half of the 20th century, the term holocaust denier was given to those who denied the reality of the holocaust--- bottom feeders such as neo-Nazis and those with strong anti-Semitic tendencies. The Holocaust is an historical fact in which 1/3 of the Jewish people were killed: an obscenity and a crime against humanity. It occurred.
But some "environmentalists" have decided to use adopt this term for folks that have a different view of climate change than they have, included those that agree that climate is changing and that mankind is making some contribution to it. Furthermore, while the Holocaust is history and a known fact, climate change, and particularly anthropogenically forced climate change is another story: there are still major uncertainties regarding climate change, including the magnitude of the human-forced warming and the local impacts. Our models are very clear than increasing greenhouse gases will warm the planet, how much and spatially varying impacts have a lot of uncertainty.
In short, using the term "climate denier cheapens the term "denier" in a way that is painful to many in the Jewish community.
(2) The terms "climate denier" or "climate change denier" is usually used for anyone who does not "believe" that virtually all of the change in Earth's climate over the past half-century was caused by human emission of greenhouse gases.
You are a climate change denier even if you accept that there has been climate change caused by natural processes, or if you believe that both natural variability and human forcing is behind the changes. Seems strange to call someone a climate change denier if they accept that there is climate change and mankind is contributing.
Many climate activists demand that folks agree with them that virtually all climate change is caused by humans--or they use the "D" word.
This is really silly because climate scientists can not show that humans are entirely to blame for what has happened during the past fifty years. We know that some modes of natural variability have had major impacts (like the Pacific Decadal Oscillation) and that the warming trend and sea level rise has been going on for over a hundred thirty years ago (since the Little Ice Age ended)--well before human emissions of greenhouse gases had a significant radiative effect (see sea level rise plot below)
From NASA Web Site
So many of my department, one of the leading research centers in atmospheric sciences of the country, should be considered climate change deniers. Go figure.
(3) Climate denier clearly is a pejorative, put-down term that does not win converts or friends. Folks are irritated when they called a denier and a less likely to listen to the findings of climate science. We need to build bridges to those who are doubtful about the impacts of increasing greenhouse gases, and calling them names can only push them away.
A number of leading climate communicators understand the dangers of the "D" word. Two weeks ago, Dr. Katherine Hayhoe of Texas Tech University, one of the current rock stars of the climate communication universe, spend a few days at my department. She explained why the denier terminology is bad and says she doesn't use it. Her favorite: climate dismissal.
To secure real action on human-forced climate change one needs to build a consensus of folks with varied political backgrounds. Calling names is not the way to do it.
Some of the most active name callers (folks who love the "D" word) ironically are some of the least informed and the most dramatic stretchers of the truth.
Bill Nye, for example, loves to call folks deniers, while he makes exaggerated claims about the impacts of anthropogenic greenhouse gas forcing on extreme events (like major cold waves being caused by global warming). He frequently makes serious technical errors (he is not a climate scientist by the way). Why does such a poorly informed individual represent science?
Al Gore also likes to sling around the "D" word and is constantly exaggerating the effects of greenhouse gases on extreme weather (yes, he also claims cold waves are caused by increasing CO2).
Ironically, many of these name slingers don't seem concerned about their carbon intensive life styles, for example, jetting around the nation and the world, and owning big houses (or several houses in the case of Al Gore). There is another letter for such behavior and is starts with "H" and it rhymes with "theocracy."
The ideas that the "deniers" are stopping progress on climate change is just nonsense. Some of the most knowledgeable, progressive people I know have the worst carbon footprints. Climate scientists are probably the worst of the bunch. Left-leaning politicians who enjoy traveling to unnecessary meetings (like a certain governor) are another. They know the truth, but they won't sacrifice in their own lives. See all the big cars being driven around Seattle these days?....those folks are not deniers. Most are good, card-carrying progressives.
In fact, I have found a strong correlation between heavy use of the phrase climate denier and NOT knowing much about climate. There are a few exceptions to this (like Professor Michael Mann of Penn. State), but most folks fixated on going after climate denial have very weak backgrounds in climate and atmospheric sciences.
Instead of using fact-based arguments, such fervid "anti-denialists" often use a near-religious use of authority, pushing a baseless "97% agreement" among scientists about global warming. John Cook of Skeptical Science and Naomi Oreskes of Harvard are the worst offenders.
The media has used the "climate denial" narrative as a crutch. Instead of spending the time on learning about the highly technical details of climate science, it is far easier to cover (and participate in) the name calling. In many ways, this reflects the hollowing out of science coverage in U.S. media and the reduction in science journalism.
The solutions to greenhouse gas emissions are not name calling or laying on guilt trips. The solutions will be technological, with new energy sources displacing fossil fuels. And eventually we will learn how to pull CO2 from the atmosphere on an industrial scale..
Putting down other people and calling names, might make some folks feel better, and perhaps represents "virtue signaling" in some quarters (such as with the staff at the Seattle Stranger tabloid), but it is counterproductive, without scientific basis, and hurtful.
Time to drop the "D" word.
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