WE just discovered this brand new video about "the rights retained by the people" - the 9th Amendment.  Here, some stellar law professors explain how a series of landmark opinions by past Supreme Courts have made a mess of this essential (and actually VERY clasically liberal) constitutional principle.

The video's kinda long, but super timely.  WE have absolutely no idea how faithful Trump's appointee will or will not be to The 9th, but maybe she will be.

And, readers - weigh-in below!   This IS a blog.  Use whatever 'Spartacus' handle you please.  This is a forum for ideas, not egos, so debate has always been welcomed by the excavators (and we're all excavators).

The passing of Supreme Court Justice Ruth Bader Ginsburg is the hot-hot-hottest topic in the news.  As WE write, partisan zealots and most punditry exhibit a woeful lack of knowledge and understanding of SCOTUS's history and constitutional function.  Why is there so much breast-beating going on, with fanatics tearing out their hair and gnashing their teeth?  They fear the next judge won't lean the way they want (screw doctrine, objectivity, facts, and the law - we want our x,y,z and we're not going to get it any other way).

WE dredged-up a scholarly piece written last fall that's not only instructional but prophetic.  Ilya Shapiro is a uniquely qualified legal scholar; and this explains that Supreme Court appointments have always been contentious, since the founding.  But more, he describes the REAL crisis, that "The third branch of government has become the source of our greatest political contention because it isn’t doing its job."  This is long, but there's plenty to reflect on.

Crisis at the Supreme Court
 The third branch of government has become the source of our greatest political contention because it isn’t doing its job
by Ilya Shapiro

When Justice Charles Evans Whittaker retired in March 1962 after just over five years on the Supreme Court—he had suffered a nervous breakdown and was famously paralyzed with indecision—John F. Kennedy had his first opportunity to shape the high court. The youthful president selected a man of his own generation, Byron White. White had met JFK in England while on a Rhodes Scholarship—after having been runner-up for the Heisman Trophy and spending a year as the highest-paid player in the NFL—and the two became fast friends.
 
White was a vigorous 45 and serving as the deputy attorney general under Robert F. Kennedy. Kennedy formally nominated him on April 3, 1962. Eight days later, White had his confirmation hearing, a quick 90 minutes including introductions and supporting testimony from various bar-association officials (during which the nominee doodled on his notepad). What questioning there was largely concerned the nominee’s storied football career. The Judiciary Committee unanimously approved him, and later that day so did the Senate as a whole, on a voice vote. My, how times have changed.
 
The battle to confirm Brett Kavanaugh reminded us yet again that the Supreme Court is under the same toxic cloud that has enveloped all of the nation’s public discourse. Ironically, Kavanaugh was nominated in part because he was thought to be a safe pick, more easily confirmable than other short-listers and with a long public career that had been vetted numerous times. Despite attempts to portray him as extreme, he was firmly part of the legal establishment, specifically its conservative mainstream—and had displayed a political caginess that made some on the right worried that he would be more akin to Chief Justice John Roberts than Justices Antonin Scalia or Clarence Thomas. As it turned out, of course, 11th-hour sexual-assault allegations transformed what was already a contentious process into a partisan Rorschach test. All told, Kavanaugh faced a smear campaign unlike any seen since at least Robert Bork more than 30 years ago.
 
In 1987, Senate Democrats had warned President Ronald Reagan that nominating Bork—then a judge on the U.S. Court of Appeals for the D.C. Circuit after having had a storied career as an academic and government lawyer—would provoke an unprecedented fight. On July 1, 1987, the very day that Reagan announced this pick, Senator Edward Kennedy went to the Senate floor to denounce “Robert Bork’s America,” a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.” It went downhill from there, as Bork refused to adopt the now well-worn strategy of talking a lot without saying much. The Senate rejected him.
 
Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on judicial nominations until 1916—and that innovation was driven by the unusual circumstances of 1) the resignation of a justice (Charles Evans Hughes) to run against a sitting president (Woodrow Wilson) and 2) the first Jewish nominee (Louis Brandeis). It wouldn’t be until 1938, with (also Jewish) Felix Frankfurter, that a Supreme Court nominee actually testified at his own hearing. A quarter century later came Byron White, whose testimony lasted 15 minutes and largely had to do with his football record.

That said, judicial nominations have always been political footballs. For the republic’s first century or so, close confirmation battles and unsuccessful nominees were a fairly regular occurrence—including withdrawn and postponed nominations, or those upon which the Senate deliberately failed to act.
​
George Washington had a chief-justice nominee rejected by the Senate. James Madison, the fourth president, also had a nominee bounced. And John Quincy Adams, who himself had declined a nomination from Madison, had a nominee “postponed indefinitely” during the lame-duck period after Andrew Jackson had stopped his bid for reelection.
 
President Jackson was then thwarted in appointing Roger Taney to the Court, but a change in Senate composition allowed Taney to become chief justice a year later (and eventually author of the worst decision in American history, Dred Scott). John Tyler, who assumed the presidency in 1841 after the one-month presidency of William Henry Harrison, never lived down his nickname of “His Accidency.” Congressional Whigs disputed his legitimacy, and their policy disagreements extended to judicial nominations: The Senate rejected or declined to act on four Tyler nominees (three of them twice) before finally confirming one.
 
Wait, there’s more. Millard Fillmore was prevented from filling a vacancy that arose during his tenure, as was James Buchanan. Congressional elimination of Supreme Court seats stopped Andrew Johnson from replacing the two justices who died during his presidency. For various reasons, it took Ulysses S. Grant seven nominations to fill three seats. Grover Cleveland ran into senatorial traditions regarding seats reserved for certain states, at the discretion of that state’s senators—which he overcame only by nominating a sitting senator (whereby courtesy trumped tradition).
 
Twentieth-century Presidents Warren Harding, Herbert Hoover, Dwight Eisenhower, Lyndon Johnson, Richard Nixon, and Reagan all had nominees rejected—although Harding and Ike got their picks confirmed after resubmitting their names. FDR never had anyone rejected, but his court-packing plan was, both in Congress and at the polls. And LBJ’s proposed elevation of Justice Abe Fortas led to what is the first and only successful filibuster of a Supreme Court nominee; Fortas never even gained majority support after both parties’ senators raised ethical objections. Douglas Ginsburg withdrew before President Reagan could formally send his name to the Senate—for having smoked marijuana with his Harvard law students—and became the Drug War’s last public casualty. (Has the career of any other official in the past 30 years been hurt by revelations of drug use?)
 
Then of course there is Merrick Garland, President Obama’s nominee to fill Antonin Scalia’s seat and the first nominee on whom the Senate took no action since President Rutherford B. Hayes’s nomination of Stanley Matthews in 1881. Very soon after Scalia died, Senate Majority Leader Mitch McConnell announced that his caucus would not hold any hearings or votes on a replacement nominee until after the election. Obama announced Garland’s nomination a month later, and there was no question he was qualified. This wasn’t about qualifications: It was a political argument that this significant vacancy shouldn’t be filled until voters—who had handed the Senate back to the GOP two years earlier, after having reelected Obama two years before that—had their say.
 
This seemed like unprecedented obstructionism, but, as we’ve seen, plenty of nominees have never gotten hearings or votes—and the last time a Senate confirmed a nomination made by a president of the opposing party to a high-court vacancy arising during a presidential-election year was in 1888. Just like the Senate could decline to take up a bill passed by the House, or a treaty signed by the president, it could surely decide how to exercise its constitutional power of “advice and consent.” Democratic senators had said as much; both then–Judiciary Committee Chairman Joe Biden in 1992 and now–Minority Leader Chuck Schumer in 2007 had argued that a Republican president shouldn’t get to appoint justices in the last year of his term.
 
As we know now, McConnell’s gambit worked: Not only did it not hurt vulnerable senators running for reelection—Judiciary Committee Chairman Charles Grassley won by nearly 25 points in supposedly swing-state Iowa—but the Supreme Court vacancy held the Republicans together and provided the margin for Donald Trump in key states. Trump rewarded that part of his electoral coalition with the nomination of Neil Gorsuch.
 
Justice Gorsuch ended up being confirmed 54–45, but only after the Senate decided, on a party-line vote, to exercise the “nuclear option” and remove filibusters for Supreme Court nominations. That returned Senate procedures to what they were 15 years earlier. A Senate majority can still stall a nomination—we could see more Garlands—but not a minority.
 
The elimination of the filibuster for Supreme Court nominees was the culmination of a tit-for-tat escalation by both parties, with partisan disagreements over when it all began. The Gorsuch denouement was retaliation for the Garland blockade, which in turn followed Harry Reid’s nuking of filibusters for lower-court and executive-branch nominees in 2013. That came a decade after Reid used the tactic to block George W. Bush’s nominations—most notably Miguel Estrada, whom Democrats didn’t want to see in position to become the first Hispanic justice (not counting Benjamin Cardozo, whose ancestors were Sephardic Jews from Portugal).
 
More significant, by filibustering Gorsuch, Democrats destroyed their leverage over future, more consequential vacancies. It’s not at all clear that moderate Republican senators would’ve gone for a “nuclear option” to seat Brett Kavanaugh in place of Anthony Kennedy—I think it’s pretty clear they wouldn’t have—but they didn’t face that dilemma. What’s more, they won’t face it if President Trump gets the chance to replace Justices Ginsburg (86 years old) or Stephen Breyer (81), which would represent an even bigger jurisprudential shift.
 
Given the battle we saw over Gorsuch and Kavanaugh, too many people now think of the justices in partisan terms. That’s too bad, but not a surprise when contrasting methods of constitutional and statutory interpretation now largely track identification with parties that are more ideologically coherent than ever. And confirmation hearings will continue to be kabuki theater, educational about legal doctrine but not illuminating the nominee’s judicial philosophy.
 
Why is all this such a big deal? Why all the focus on one office, however high? Sure, 2016 and 2018 were election years, but it’s not like either governance or politics grinds to a halt. If Secretary of State John Kerry had died or resigned in the last year of the Obama presidency, it certainly would’ve been an important political moment—with Republicans grilling his would-be successor on President Obama’s foreign-policy record—but there’s no doubt that the slot would have been filled if someone with generally appropriate credentials were nominated. Even a vacancy in the vice presidency wouldn’t have lasted unduly long, though Republicans would’ve jockeyed to extract concessions for not having Speaker Paul Ryan be first in the presidential line of succession.
 
But executive appointments expire at the end of a president’s term in office, while judicial appointments long outlast any presidency. A president has few, if any, constitutional powers more important—at least in domestic policy—than making judicial appointments. Justice Scalia served nearly 30 years on the Supreme Court, giving President Reagan’s legal-policy agenda a bridge well into the 21st century. An important ruling on nonprofit-donor disclosures was made in April 2016 by a district judge appointed by President Johnson (Lyndon, not Andrew).
 
Pundits always argue that judicial nominations should be among voters’ primary considerations when choosing a president. But the Supreme Court’s future truly did hang in the balance in 2016. The election was so consequential in part because people knew that its winner would have the first chance in more than 25 years to shift the Court’s ideological balance, either strengthening the conservative majority or tilting it to the left. Indeed, the Court now stands starkly split 5-4 on many issues: campaign finance, the Second Amendment, religious liberty, and regulatory power, to name just a few. If Hillary Clinton had been able to appoint a progressive jurist—even a “moderate” one—jurisprudence in these areas would be headed in a substantially different direction.
 
And that goes just as much or more for the lower courts, which decide 50,000 cases annually even as the Supreme Court decides fewer and fewer. Every four-year term, the president appoints about a fifth of the judiciary. Last Inauguration Day, there were already 105 vacancies—and that has risen to about 150. When Obama took office, only one of the 13 appellate circuit courts had majorities appointed by Democratic presidents; when he left, nine did. Donald Trump has now begun to reverse that, with one circuit (the Philadelphia-based Third) having flipped and others on the brink. Indeed, this administration set a record with 30 circuit judges confirmed in its first two years—about the same as Bush and Obama combined at that point in their presidencies.
 
Senatorial brinksmanship over judges and justices is symptomatic of a much larger problem that began long before Kavanaugh, Gorsuch, Garland, Clarence Thomas, or even Bork: the Supreme Court’s own self-corruption, aiding and abetting the warping of federal power by Congress and the executive branch. The judiciary now affects public policy more than it ever did—and those decisions increasingly turn on the party of the president who nominated the judge or justice.
 
Even if politics has always been part of the process, and even if more judges were rejected in our country’s first century than its second, we still feel that something is different now. Confirmation hearings are the only time that judges go toe-to-toe with politicians—and that’s definitely a different gauntlet than even President Tyler’s nominees ran. Is it all about TV and Twitter, the 24-hour news cycle and the viral video? Is it that legal issues have become more ideologically divisive? No, it’s not that there’s been a perversion of the nomination process, more demagogic political rhetoric, or even the novel use of filibusters. Those are consequences of a larger phenomenon: As government has expanded, so has the importance of the judiciary.
 
Under the Constitution by which the country lived its first 150 years, the Supreme Court hardly ever had to strike down a law; congressional debates forestalled most unconstitutional measures. But as the Court has allowed the federal government to grow, so has the Court’s own power to police the federal programs its own jurisprudence enabled. For example, the idea that the General Welfare Clause justifies any legislation that gains a congressional majority—as opposed to limiting federal reach to truly national issues—emerged in the Progressive era. After 1937’s so-called switch in time that saved nine—when the Court began approving grandiose legislation of the sort it had previously rejected, perhaps in order to forestall FDR’s court-packing scheme—no federal legislation would be struck down until 1995.
 
It was the Court that thus politicized the Constitution, and the confirmation process, by laying the foundation for judicial mischief of every stripe—particularly by letting laws sail through that should be struck down. As the Court has let both the legislative and executive branches swell beyond their authorized powers, so have the laws and regulations that it now interprets. Competing theories battle for control of both the U.S. Code and Federal Register, as well as determining—often at the whim of one “swing vote”—what rights will be recognized. So of course judicial confirmations are going to be fraught.

​At the same time, courts are reactive institutions: Even the most “activist” need a case or controversy, rather than reaching out to make rulings out of thin air. It’s Congress that’s the aggressor, both daring the courts to strike down significant pieces of legislation and passing broad legislation that leaves it to the administrative state to produce the legal rules by which people live their daily lives.
 
Senator Ben Sasse gave a pithy summary of this dynamic in his opening statement at the Kavanaugh hearings:
 
     “For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch. The consequence of this transfer of power is that people yearn for a place where politics can actually be done. When we don’t do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that’s why the court is increasingly a substitute political battleground. We badly need to restore the proper duties and the balance of power to our constitutional system.”
 
In other words, Congress doesn’t complete its work; rather, it passes the political buck to a faceless bureaucracy and to a court system that has to determine whether whatever federal agencies devise is within spitting distance of what the Constitution allows. What’s supposed to be the most democratically accountable branch has been surrendering its responsibilities and avoiding hard political choices since long before the current polarization.
 
Indeed, the “gridlock” of the last decade is a feature of a legislative process that’s meant to be difficult by design, but it’s been compounded of late by citizens of all political views being fed up with a situation whereby nothing changes regardless of which party is elected. Washington has become a perpetual-motion machine. The courts are the only actors who can throw in a monkey wrench from time to time, a deus ex machina correcting an otherwise unholy system. That’s why people are so concerned about the views of judicial nominees—and why there are more protests in front of the Supreme Court than in Congress.
 
It’s also why the judicial nomination and confirmation processes are going to be more cognizant of partisan considerations. This wasn’t a problem when partisanship mainly meant rewarding your cronies. But it’s a modern phenomenon for our parties to be so ideologically polarized, and therefore for judges nominated by presidents from different parties to have notably different views on constitutional interpretation.
 
How Do We Fix It?
 
Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, changing the size of the Court, setting new rules for the confirmation process, and more.
 
The most frequent suggestion is to institute term limits, which has the advantage of 1) predictable vacancies rather than the current randomness and 2) each nomination being “worth” less because the justice would serve fewer than the 25 or 30 years to which we’ve become accustomed. If justices had staggered 18-year terms, for example, we could have vacancies every two years and each presidential term appointing two justices. That sounds pretty good, but it would almost certainly take a constitutional amendment to accomplish. Moreover, it turns out that 18-year term limits are unlikely to have really changed the ideological balance of the Court over the past 50 years or so. It may not even have decreased the justices’ average age, because people in their 60s would start being considered again. Still, if it would increase public confidence in the Court, it’s worth contemplating.
 
Next we come to expanding the size of the Supreme Court. The idea is identified with left-wing activists sore about the Kavanaugh confirmation, as well as historical baggage from FDR’s day, but the concept has no inherent partisan slant. Indeed, presidents of both parties would continue nominating however many justices there are. In addition to issues of judicial administration—the Court could hear more cases and more efficiently process certiorari petitions if it had more members—there would logically be less significance to each of, say, 19 seats than nine (and presumably fewer 10–9 decisions than 5–4 ones now). We could also set an even number of justices, as some countries do, which would require at least a two-vote margin to take any action. And no constitutional amendment is required to adjust the Court’s size; we’ve had as few as six and as many as 10.
 
The problem comes in getting to the new number, whatever it is. If we were designing a judiciary from scratch, we could depart from the current Supreme Court structure in all sorts of ways. But we’re not, so how do you get to an expansion of any kind that won’t result in a similar expansion the next time the opposing party is in power? Even if today’s court-packing Democrats were to offer a deal whereby each party gets to pick nominees, the GOP would turn it down because a 5–4 ratio is better than a 7–6 one. Presumably you would need a transition period, such that the additional seats only open up far enough into the future that we don’t know who’ll be in the White House. Politicos tend to be risk-averse, so I’m not sure that 10 years or, say, 12 (three presidential terms) would be enough. And even if one of these “delayed expansion” plans went through, wouldn’t the same sort of natural attrition that ultimately benefited FDR—by the end of 1941, only two of the justices he inherited in 1933 remained—also work its magic to change the Court’s balance to reflect long-term political developments? So we’re back to simple (and nakedly partisan) tit-for-tat escalations.
 
And then there are some truly radical possibilities. How about a “college of justices” whereby there are no permanent justices, but circuit judges who are randomly assigned to the Supreme Court for a set time period before returning to their previous courts? It’s an intriguing idea proposed by law professors Daniel Epps and Ganesh Sitaraman, but there would be less continuity on the Court—with jurisprudential zig zags that undermine the rule of law. And this would compel more nomination battles. For if all circuit judges who potential justices in an even more direct sense than they are now, then every circuit nomination will be marginally more fought over. Getting rid of permanent justices just shifts the political and media targeting instead of dispersing the toxic cloud.
 
Well, what about an expanded Court but one divided evenly among Republican appointees, Democratic appointees, and “neutral” justices who have to be picked by unanimous vote of the “partisan” justices? This is another Epps-Sitaraman proposal, which again gets points for creativity but loses many more for making things worse as far as Supreme Court politicization goes. After all, if two-thirds (or whatever portion) of the justices are explicitly designated with a partisan label, how does that help free the judiciary from political taint?
 
Setting aside Court structure, what about the confirmation process itself? Should we have rules for how many days after a nomination there must be a hearing and then a vote? Or maybe we should do away with hearings altogether, particularly given the nominees’ voluminous paper records these days? I’m not sure any of these formalistic changes would do anything given that it’s not so much a breakdown in “rules” that caused the poisonous atmosphere surrounding judicial nominations, but the other way around. Senators came to see judicial nominations as just as much or more important than legislation—correctly, in my view—so they started applying the same bare-knuckle political plays to them.
​
Outside-the-box thinking should be commended and proposals to ameliorate the confirmation process or reimagine the Court shouldn’t be discounted lightly, even if—particularly if—cosmetic or easy changes would enhance public confidence in the Supreme Court’s integrity. I’m willing to consider anything that would help show that there’s a difference between interpreting the law and making it, between judging and legislating.
 
In the end, all of this “reform” discussion boils down to rearranging the deck chairs on the Titanic. And this Titanic is not the judicial-appointment process, but the ship of government. The fundamental problem we face, and that the Supreme Court faces, is the politicization not of the process but of the product. The only way judicial confirmations will be detoxified, and the only way we reverse the trend whereby people increasingly see judges as “Trump judges” or “Obama judges,” is for the Supreme Court to restore our constitutional order. Jurist, heal thyself!
 
Yes, depoliticizing the judiciary and toning down our confirmation process is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backward to ratify the constitutional abuses of the other branches.
 
The judiciary needs to once again hold politicians’ — and bureaucrats’ — feet to the constitutional fire by rejecting overly broad legislation of dubious constitutional warrant, thus curbing administrative-agency overreach and putting the ball back in Congress’s court. And by returning power back to the states, and the people. After all, the separation of powers and federalism exist not as some dry exercise in Madisonian political theory but as a means to that singular end of protecting our freedom.
 
These structural protections are the framers’ best stab at answering the eternal question of how you empower government to secure liberty while also building internal controls for self-policing. Or, as Madison famously put it in Federalist 51: “In framing a government which is to be administered by men over men [because men aren’t angels], the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
 
The reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse, and pluralistic country. There’s no more reason that there needs to be a one-size-fits-all health-care system, for example, than that zoning laws must be uniform in every city. Let federal legislators make the hard calls about truly national issues such as defense or interstate commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas, California be California, and Ohio be Ohio. That’s ultimately the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.

WE just became aware of a brilliant effort, a new organization, that launched in London a few months ago, in early 2020 (launch video below).  WE so share the group's sentiments that we've added their logo and link to the 'Vator home page.

At launch, FSU's banners headlined George Orwell's critically important statement, "If liberty means anything at all it means the right to tell people what they do not want to hear.” (1918)

FSU's Toby Young wrote in The Spectator, "I hope the Union won’t just attract male, pale and stale conservatives, but liberals who’ve been judged insufficiently woke by their left-wing colleagues."

Trevor Phillips and others spoke at the launch, voicing concerns about 'speech apartheid.'   With the declaration of "racism" as a "health crisis" by the Public Health Department's advisory board (PHAB) and City of Bellingham, those who disagree about the cynicism of BLM and BIPOC find ourselves in real danger of being called a racist, losing our jobs, and being cancelled for free-speech and free thinking.  The chilling effect extends to other issues too:  COVID science and policy, climate change science and policy; all critique, however qualified, is lambasted.  Careers?  Cancelled.

Visit FSU's site, support them if you can.  It may well be that they'll gain a foothold in the USA soon.   A list of FSU articles (good reading!) is available at their Media Archives pages.  By the way, the motto audi alteram partem translates to "listen to the other side."  Tolerance and open-mindedness are the hallmarks of the marketplace of ideas and classical liberalism, and the policing of thought and speech are outrages that are a peril to enlightened and civil society.

"About the Free Speech Union
The Free Speech Union is a non-partisan, mass-membership public interest body that stands up for the speech rights of its members. How might we protect you?

• If you find yourself being targeted by a digital outrage mob on social media for having exercised your legal right to free speech, we may mobilise an army of supporters.
• If a petition is launched calling for you to be fired, when you’ve done nothing other than exercise your legal right to free speech, we may help you organise a counter-petition.
• If you’re no-platformed by a university—a feminist professor who challenges trans orthodoxy, for instance—we’ll encourage you to fight back and members of our advisory councils may be able to tell you what remedies are available to you.
• If you’re a student or an academic being investigated by your university for breaching a speech code, we may take up your case with the university.
• If you’re punished by your employer because you’ve exercised your lawful right to free speech, we’ll do our best to provide you with assistance or refer you to specialists who can help.

 
The FSU will also have a research arm that publishes papers analysing why free speech is in jeopardy and makes policy proposals about how to protect it, such as the creation of a network of free speech champions in Britain’s universities with the same standing as gender equality champions and diversity tsars. And the FSU will have an educational arm that organises social events in pubs (“speakeasies”), encourages university students and sixth formers to set up free speech societies, and stages regular public debates where people with opposing views will demonstrate that it’s possible to disagree passionately with each other in a courteous and good-humoured way.
​
The Free Speech Union is not just for those who make a living through the expression of ideas, such as academics, intellectuals, columnists, pundits, novelists, poets, playwrights, screenwriters, songwriters, comedians and actors. Anyone who feels their speech rights are under threat, or who cares about free speech as an issue, is welcome to join. Regardless of your profession, or whether you’re a student or a retiree, we may come to your defence if you find yourself under attack for exercising your legal right to free speech, whether by the courts or the police, by your employer, by colleagues or activists, or by outrage mobs on social media and elsewhere."

Not here?  Not in Bellingham?  Whatcom County?   Hell if it isn't.  "BLM" is very-present locally, and the moves being made are serious.  The proverbial "march through the institutions," our public schools, the local colleges, now even county government, is essentially over.  You've got hell to pay if you're not pro-BLM (BIPOC).  Why, racism here is even a "health crisis" - so say county health officials.  Prepare to take a knee and submit to re-education.  WE think it's time to call this out, for what it is, and it ain't good.

The Racial Marxism of BLM
By Matthew J. Peterson
September 1 2020
 
The revolution is the point.
 
A history that should never have been forgotten has long since been lost. It is time to refresh our memories. Black Lives Matter (BLM) does not represent the old Civil Rights Movement. It does not seek equality under the law. And it does not intend to stop until it overthrows the very idea and structure of America as we’ve known it. Under increasing pressure to acknowledge the dawning reality to which Americans are increasingly waking up, Joe Biden has finally said that looting and arson are, in fact, bad. But Pandora’s box has already been opened. The Democrats’ Vice-Presidential nominee, Kamala Harris, put us on notice in June: “everyone beware—because they’re not gonna stop…everyone should take note of that…they’re not gonna let up, and they should not—and we should not.”
 
What has been forgotten—perhaps because it is often purposely hidden—is that Antifa and BLM both were born from a peculiarly American form of radical and violent Marxism. The actual word used to describe this ideology is in one sense not important: understanding how those who lead and fund these groups think is what matters. In fact, as soon as one uses the word “Marxism” today, the activists and intellectuals begin scoffing in disdain.
 
One of the oddities of our time is the staleness of our political rhetoric. This is likely due to the fact that America today includes a greater percentage of older people than it did at any previous time in history. Much of the political language of both Republicans and Democrats is drawn from the Cold War. But it has lost its salience, particularly for those under 50.The American Right has long charged the American Left with covert Marxism. The young yawn at this, but it is unclear if they know what the charge even means. The Very Sure People in the upper middle class now double down in denial or worse, contradicting in speech what we see with our own eyes happening across America. In oh-so-educated, scoffing tones they remark: “These protests are not led by violent radicals. Everyone knows the violence comes from white nationalists. Antifa doesn’t exist. BLM hardly exists as one united front. BLM is not Marxist—how silly. This is the modern-day Civil Rights Movement. Don’t be on the wrong side of history.”
 
Besides, says the conflict-averse objector in our heads, the average Democrat is not a Marxist—in fact, the Democratic Party is now the party of American oligarchs—and Marxism in America is generally a watered-down version of anything recognizably Soviet or CCP.
 
This is true as far as it goes. But not in the case of Black Lives Matter.
 
The big foundations in America have been funding violent leftist radicals for a long time, and they too are now doubling down—not in denial, like many well-meaning but ignorant or cowardly Americans are, but in their payments to those willing to foment civic unrest. Most Americans still do not realize that what is now occurring on American soil is not an organic civil rights movement, but an elite-funded effort to destabilize the American way of life as we’ve known it: the complete overhaul of the principles of our justice system to put group “identities” above equal individual rights, the erosion of private property and private education, and the destruction of traditional families and moral culture.
 
The American media—and many politicians on the American Right—have failed to point out to the American people that BLM was created and is led by radical Marxist racialists. Their heroes and teachers are the violent radicals of the 1960s and ’70s. As Murray Bessette points out in “Listen When They Tell You Who They Are“, we know this because they tell us so. They call themselves “trained Marxists.” This doesn’t mean that they merely propose left-leaning economic policies like free healthcare for all. Instead, as Bessette says, they want to destroy the family and abolish private education and private property along with the police.
 
Most Americans still have no idea what they actually stand for. Since America is not racist, most people support the idea that black lives matter, because they believe that in America, all lives matter. But their own lack of racism is being used as a weapon against them. BLM and its elite backers reject both the old civil rights movement and America itself.
 
Even their main public policy prescription, now written in towering letters on our city streets—”defund the police”—does not reflect the views of over 80% of Black America. Yet BLM and friends now have hundreds of millions of dollars at their command, if not more, and some polls this summer reveal they have become more popular than our major political parties. How did this happen?
 
The Old Left Raised BLM From Birth
 
The fact that versions of Marxism have tried to make inroads in America for over a century is a matter of history, not conspiracy theory. Socialism was making inroads in America in the early part of the last century; the success of presidential candidates like Eugene Debs turned the Democratic party leftward as Democratic party figures like Franklin Delano Roosevelt sought to corral their vote. In frustration, the hard Left worked for decades on new ways to radicalize America.
 
As Mike Gonzalez reveals in the selection he’s graciously allowed us to publish from his new book, The Plot to Change America: How Identity Politics is Dividing the Land of the Free, Marxist intellectuals made the shift from “Marxism based on economic classes (the worker v. the bourgeois) into one based on immutable characteristics such as race, ethnicity, sex, sexual orientation and even disability status” early in the last century. And they brought this version of Marxism to America; their leading intellectuals like Herbert Marcuse “personally tutored the Black Panther leader Angela Davis.” The same Angela Davis whom Edward Luttwak tells us in “The End of the Long March” he saw gladly “participating in a Soviet Cold War propaganda operation” in Finland in the 1960s. The same Angela Davis who owned the weapons used in acts of domestic terrorism in 1970 is a hero and mentor to the founders of BLM.
 
There are many such cases. The BLM movement and their ideas, as Luttwak explains, arise from “the Old Hard-Core Left, a.k.a. the ‘red diaper’ children and grandchildren and even great-grandchildren of the Stalinist stalwarts of the Communist Party of America, who had themselves been driven to hide below the rocks by the just-in-time McCarthy persecution that removed Communists from public life and the trade unions, making it possible for the United States to mobilize for the Cold War.” It wasn’t until “the late 1970s, when finally, at long last, Marxism could sell,” in part because  “the combined effects of globalization and structural change…started impoverishing the less educated half of the American population.”
 
During that time, as Luttwak describes, “a new generation of the Old Hard-Core Left had finally found the weak flank of American society which they could penetrate, subvert, and then dominate: the teaching staff of America’s colleges and universities.” Besides switching out class for race and other identities as the new framework of the Marxist revolution, they brought a new concept with them: “white privilege.”
 
As Kyle Shideler reveals in “The Communist Roots of ‘White Privilege’“, Communists Theodore “Ted” Allen and Noel Ignatiev, aka Noel Ignatin, invented and taught the concept because they thought that the “‘white working class’ would never be compelled to rebel as long as they accepted [their] ‘white-skin privilege.’” This novel idea was taken up by the radical violent Left, including the Weather Underground, perhaps the most famous leftist domestic terrorism group in living memory. Today this racialist concept and its accompanying “struggle sessions”—in which participants must renounce their evil “whiteness”—is mandated by government, education, and the corporate world throughout the United States.
 
These early groups from the ’60s and ’70s helped shape BLM and Antifa’s tactics on our streets today.
 
Many an academic has revealed to me their surprise at how tightly BLM and friends cling to Stokely Carmichael’s Black Power, written in 1967, which was one of the first books to set forth the poorly constructed ideology we are witnessing play out today. Carmichael, who famously broke with the Black Panthers for allying with white people, went to Africa soon after writing his manifesto and founded the All-African People’s Revolutionary Party.
 
Consider Assata Shakur, the Black Liberation Army fighter who escaped to Cuba from a life sentence for murder. Shakur is a hero to BLM activists, who have posted pictures of themselves wearing T-shirts that say “Assata Taught Me.” Such shirts are often sold by vendors who sell BLM-related merchandise, and BLM teaches its foot soldiers to chant Shakur’s words while protesting.
 
Convicted terrorist Susan Rosenberg, once a part of the Weather Underground, ended up on the Board of Directors for the fundraising arm of BLM. This was possible because Bill Clinton pardoned her, letting her out of prison after she served only 16 years of what was originally a 58-year sentence.
 
Even if figures like Davis, Allen, Ignatiev, and the unrepentant Weather Underground terrorist Bill Ayers were sometimes complicit in violence, they generally went unpunished. Instead, they taught rising generations of young minds. That’s right—instead of jail time, all of the above got tenure (Ignatiev, even taught for a time at Harvard). Instead of being ostracized from polite company, many of these domestic terrorists became friends with the likes of Barack Obama (as Ayers did) and were celebrated in elite circles. After the Soviet Union collapsed, they still made the occasional trek to countries like Venezuela, fêting dictators like Hugo Chavez.
 
Daniel Di Martino is a freedom fighter who grew up in Venezuela: as he says in “Venezuelan Socialists Come for America“, his country’s history is an “important story for Americans to know because…both peaceful and violent protests have been organized by groups whose intention is to impose socialism à la Venezuela in the United States.” As Martino notes, BLM and friends have met and praised Chavez’s successor, Nicolás Maduro; flush with cash, cultural cache, and elite protection, they are now implementing Chavez’s playbook on American streets today.
 
The central problem, however, for BLM and its parent organizations is an old one. Marxism could never quite take hold in America due to a recalcitrant middle class. The concept of “white privilege” is one way to deal with the problem. Kevin Portteus outlines another:
To ensure the success of their project, the contemporary Left has abandoned all pretense of concern for American sovereignty and the integrity of America’s international borders, and has embraced a policy of unlimited mass migration, combined with the demand that America accept countless refugee migrants from the undeveloped and developing world. Concerns about drug trafficking, human trafficking, infectious diseases, gang violence, and terrorism are swept aside with arguments that any attempt to limit entry into the United States is racist and un-American.
​
The result is an imported revolutionary class. And although to be sure, as Alberto M. Fernandez argues in “The Communist LARP”, this is a “developing mass movement,” it is nevertheless funded, led, staffed, and allowed by American elites and the institutions they control. American elites of both parties have forced mass immigration on the American people over and against the will of the voters for decades now. It is the single biggest issue for Trump supporters. But it is in the elite’s financial interest to import cheap and easily manipulated labor: waves of the desperate and impoverished, as well as higher-end workers, ensure they can pay American workers less. It is also in the political interest of the Democratic Party, which captures the vote of the impoverished, giving them increasing political dominance and creating one-party oligarchies, as in California.
 
But immigration also helps the racialist Marxists, who have grown exponentially in power over the last two decades. They have now achieved what their teachers and mentors could never dream of: a violent, destabilizing insurrection masquerading as a popular civil rights movement with the support of a major political party and nearly every major cultural institution in the nation. The establishment Left still thinks it can control the movement, but it is clear what will happen--to them—if they do not. There’s a reason protestors keep putting guillotines outside of Jeff Bezos’s house.
 
Racialist America
 
As Peter Myers explains, “The present ascendancy of the woke Left on race is no triumph for civil rights, nor for social justice or any sort of justice, nor for democratic government,” which this movement opposes. What BLM truly wants is a new America. An America ruled by a racial version of Marxism: “a confederation of identity groups—especially of racialized identity groups—where moral authority and its ensuing social advantages are apportioned according to the relative strength of group claims to past and present aggrievement.” Jim Crow, in other words, but in reverse.
 
The government, of course, will be in their hands and the laws will be ordered accordingly. BLM utterly rejects the notion of equality under the law: they wish to enact a system of law and culture in which people will be judged by their race and sexual identity, not insofar as they are equally human. As Myers points out, “the ruling principle is disintegration, not integration; discord, not harmony; war, not peace. To persist on this path is to push the republic ever closer to either dissolution or despotism.”
 
And here we are. BLM and its associates, despite being the direct descendants of Marxist domestic terrorists, despite rejecting the principles of America itself, and despite holding views that are not even representative of the people they purport to represent, now have the resources and path they need to wreak the havoc they have been planning for years. They have already succeeded in causing more chaos than their intellectual parents. As ever, the Democratic Party refuses to oust or reject them from its ranks with vigor. Worse, outside of President Trump, many in the Republican Party are still too cowardly to denounce them—even as America burns.
 
Our failure to stop this movement decades ago is what led us to this moment. Now, we have no choice. It is time to stop pretending that BLM and Antifa are anything other than domestic terrorist groups led by radicals who seek to rip America apart.
 
Of course many if not most of those protesting today by simply marching in the streets have little understanding of the ideology driving the organizers and the worst of their trained foot soldiers. But that’s how revolutions work. BLM is what it claims to be: a racialist Marxist group that seeks to completely alter the American way of life. They have more power and resources now than any insurrectionary movement in American history. They will not stop until they are stopped.
 
This should not be a partisan issue. But if our political leaders on the Right and Left continue to refuse to specifically call them out for what they are and directly oppose them, America will continue to burn.
 
 
Matthew J. Peterson is Vice President of Education at the Claremont Institute and Editor of The American Mind. He directs Claremont’s annual fellowships and heads our initiative for a new center to support graduate level scholarship.

WE hear about it all the time, "fascism" in America, most particularly that Trump is "a fascist."  What does that mean, really?  The Whittle video below delves into the meaning of the word, its true meaning.   Spoiler:  Fascism is collectivist, requiring the control of everything.  Fascism denies individual liberty, and it falls on extreme left end of the political spectrum <-- totalitarian.  And that couldn't be farther from the "right end" of the spectrum --> where total freedom falls (no control, anarchy).  This is a very spirited short video, one well worth a couple of minutes.
​

​A Mostly Peaceful G-File
Jonah Goldberg
September 4, 2020
 
Dear Reader (Including the four anonymous sources who claim I’m writing a 10,000 page anti-technology manifesto),
 
I know, we need to talk about it, but let’s hold off on The Atlantic story for a minute and instead focus on the report that national protests are “93 percent” peaceful. The opening paragraph from the Washington Post:
 
About 93 percent of the racial-justice protests that swept the United States this summer remained peaceful and nondestructive, according to a report released Thursday, with the violence and property damage that has dominated political discourse constituting only a minute portion of the thousands of demonstrations that followed the killing of George Floyd in May.
 
For the people who think the protests have been unfairly maligned—not unreasonably—this is a mic-drop fact that confirms their views. 
 
But think about this for a second: In World War II, 16 million Americans served in uniform, but “only” 1 million saw combat. I was promised there would be no math, so I’m open to correction, but I think that means only 6.25 percent of American soldiers during World War II saw combat. Does that mean I can say that our participation in a globe-spanning deathmatch for the world’s soul was 93.75 percent peaceful? And keep in mind, the denominator here is uniformed military. If you make it the total number of Americans—about 144 million during the height of the war—then World War II was 99.31 percent peaceful. If that’s the case, then what was all the fuss about?
 
If Boeing came out with a new plane that only crashed 93 percent of the time, would that be something to brag about? 
 
Now, I’m not saying it’s insignificant that most protests were peaceful. And if I were one of the peaceful protesters, I’d be pretty pissed at the idiots who gave the protests a bad name.  
 
I also think the report makes a plausible case that, in at least some instances, the effort to dispel the protests had the unintended effect of escalating violence. But assuming such efforts were lawful, warranted, and professionally conducted, the moral blame for protests turning violent lays entirely on the people who refused to disperse and responded instead with violence. As a prudential matter, using state power might have been a mistake. If a lone cop goes into a biker bar without backup to break up a fight, he or she would be procedurally wrong. But if the cop is overpowered and beaten up or robbed, the cop is not morally culpable. 
 
Anyway, this “93 percent peaceful” thing strikes me as an escalation of an annoying trend in the media. It’s an attempt to argue with data what CNN tried to argue with a chyron. 
 
Last week, CNN’s aired a graphic from Kenosha that read, “FIERY BUT MOSTLY PEACEFUL PROTESTS AFTER POLICE SHOOTING." 

​This may have supplanted “Fake but accurate” as the perfect encapsulation of the media’s reluctance to report news it finds inconvenient. 
 
It doesn’t matter if it’s technically accurate in some sense. The message it conveys is that you shouldn’t really pay attention to the inferno behind the reporter, because that would be unfair to the protestors or Joe Biden. Think of it this way: how often do reporters covering local fires emphasize, “Most of the buildings in this city aren’t burning right now”? 
 
There are some 800,000 police officers in the United States. Way more than 93 percent of them have never unjustly shot a black person, or any person. And yet, how often has the media uncritically allowed politicians and activists to say some variant of “it’s open season” on black men in this country?  How often have they asserted it themselves?
 
Just this week, Japanese tennis pro Naomi Osaka (whose father is Haitian) said “Watching the continued genocide of black people at the hand of the police is honestly making me sick to my stomach.”
 
Genocide? Really? 
 
I’m not trying to minimize the problem of police abuse, but why is there no check—no modicum of journalistic truth-squadding and basic skepticism—when people say these kinds of things? Whenever right-wingers talk with such rhetorical ridiculousness, there’s plenty of pushback. When Donald Trump says, falsely, that Portland is “ablaze,” the fact checkers hie to their firepoles and slide down to correct the record. And that’s fine by me. He’s the president and therefore deserves more fact-checking than pretty much anyone else. But the sheer numbers of people who say wildly irresponsible and untrue things on the other side of the cultural and political divide adds up over time to collective malpractice that’s every bit as significant. 
 
All of these people taking pictures from peaceful parts of New York, Portland, Chicago, etc., to dunk on people concerned with rioting and looting aren’t nearly as clever as they think they are. It’s the visual equivalent of “93 percent nonviolent,” or “Fiery but mostly peaceful.” If I were to tweet a picture of a white cop peacefully talking to a black man and say, “What police abuse problem?” I’d be rightly dragged for it. If I take a picture of a nice part of Beirut, would that mean a giant explosion didn’t happen there? If I snap a photo of my fairly lean feet, do I get to say “I’m mostly skinny”?
 
In my first column this week, I wrote about how so much of national debate is really a contest of competing narratives that are both wild exaggerations. 
 
Here’s the problem. There’s a difference between an exaggeration and a lie. A lie is a total fabrication: Cats are vegans. Ducks are made of uranium. Basset hounds are the fastest land animal.
 
An exaggeration, like a caricature, takes a truth and amplifies and distorts it for effect—sometimes dishonestly, but sometimes simply in order to convey some larger truth: “This flan tastes like the contents of a zombie baby’s diaper,” is an exaggeration, but it communicates an important truth: “Don’t order the flan.” 
 
Donald Trump’s exaggerations are very often dishonest, but that doesn’t mean there isn’t a truth lurking beneath. 
 
No, Portland isn’t “ablaze,” but there have been blazes. If all of Cleveland hasn’t been taken over by cannibal warlords, but the Tremont neighborhood has been, you won’t get far with most normal people by heaping scorn on them for freaking out over it.
 
You know what a normal person thinks when they see buildings on fire behind a reporter who’s saying the protests are “mostly peaceful?”
 
“I’m being lied to.”
 
Confirmation bias and President Trump.
 
Human brains are weird things, and not just because they’re squishy. When we hear or see things that confirm what we already believe, we don’t grab our analytical tools to question it. When we’re presented with something that contradicts what we already believe, out come the microscopes, measuring tapes, and the rest. 
 
Here’s a series of numbers: 2, 4, 6, 8 … 
 
If I asked you to fill in the next three numbers, you would probably say, “10, 12, 14.” Because you think the rule is that the numbers increase by two. 
 
But that’s not necessarily the rule at work here. The rule could actually be that the numbers are just getting bigger. The next three numbers could be 9, 10, 4,012. But we look at the pattern in front of us and leap to a conclusion. We are pattern-recognizing creatures. But sometimes—actually, pretty often—we impose a pattern on the information that isn’t there. That’s how conspiracy theories are born. We cherry pick the facts (or “facts”) that fit what we want to believe is true and screen out the others. 
 
Right now, American politics is being driven by two very loud minorities of protagonists who are supremely confident in their patterns—or if you prefer, narratives. 
 
Which brings me to the Atlantic story about Donald Trump calling deceased members of the military “losers.” I find the allegations entirely believable. He has a deformed character and the evidence for this is overwhelming. There are also plenty of indications that he holds these kinds of attitudes about military service. 
 
However, just because I find the allegations believable doesn’t mean I believe them in all of their particulars. I certainly think that Jeffrey Goldberg (no relation) believes his sources and published what he believes to be a true story. But without anyone on the record—never mind the contradictory statements from John Bolton—it’s entirely possible that the sources have some details wrong for one reason or another. (Trump’s own denials count for nothing with me.
 
What is interesting—and at times infuriating—is how none of it really matters. For some, any account of Trump’s behavior that isn’t laudatory must be false. They think it all must be a lie because the “Fake News” got the Russia story wrong, therefore every other allegation must be wrong, too. For others, the allegations must be wrong because Trump can do no wrong. The latter is just the latest example of “Orange Man Good,” or pro-Trump Derangement Syndrome. 
 
Of course, we hear a lot more—at least on the right—about anti-Trump Derangement Syndrome. And don’t get me wrong, I think anti-Trump Derangement is a real thing. For some, any negative story about Trump has to be true, including the ones that contradict each other. He’s both a fascist mastermind bent on destroying democracy and a moron who can’t spell “fascist.” (There’s a growing version of this on the right about Biden, too. He’s both the architect of an anti-black crime bill in addition to being a racist who said nice things about segregationists and he’s a pawn of Black Lives Matter. He’s “Sleepy Joe” and a pawn of Antifa simultaneously.) 
 
As Matt Taibbi correctly observes: “The paradox ensnaring America since November, 2016 is that Trump never intended to govern, while his opponents never intended to let him try.”
 
Again, I don’t think there’s “both sides” symmetry here. The mere fact that this story is believable demonstrates that. 
 
But what gets lost in all the screaming is that most people don’t care. I think people should, but I don’t blame them for having bigger priorities during an economy-crushing pandemic that’s still turning peoples’ lives upside down—particularly the lives of parents as school starts. 
 
For my entire adult life, the most damning criticism of the left has boiled down to their approach to both politics and culture: “You will be made to care.” About 25 years ago, the left decided that tolerance was no longer good enough. You had to celebrate whatever they celebrated and hate whatever they hated. “If you’re not part of the solution, you’re part of the problem” is the single most totalitarian idea in wide circulation in American life. There are no safe harbors. No room for dissenting speech. No allowance for different passions, concerns, or pleasures. Compliance or Cancellation is the rule. That’s the fascistic spirit animating those jackwads demanding that people having a quiet dinner must raise their fist in solidarity with them. 
 
I still think the left is worse in this regard, in part because they’ve had so much more practice during their Gramscian march through the institutions. But the right is catching up. Donald Trump isn’t opposed to cancel culture, he’s opposed to the other team’s cancel culture. He loves getting people fired and un-personed, and so does his fan base. Trumpism isn’t a philosophy or ideology, it’s a story—an allegory really—that begins and ends with one man as the savior, not of America, but of “us,” the only real Americans (I got a fundraising email from the Trump campaign that began “It’s YOUR Country—Not THEIRS!” Really, the 60  to 70 or so million Americans who won’t vote for Trump don’t have ownership of this country, too? So much for nationalism.) 
 
We’re in a battle of narratives—narratives that don’t actually speak to the lives of most Americans—made all the more asinine by the fact that the combatants are utterly convinced that they are the sole legitimate representatives of all Americans. Actually, that’s not right. We’re not in that battle, most of us are just witnessing it. And in a healthier republic, the peaceful but mostly disgusted majority could either do something about it, or be allowed not to care.

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