Home / General / He Seems Nice

He Seems Nice

Comments
/
/
/
507 Views

bill-kristol-fns-obama

As Paul implied yesterday, even by Bill Kristol standards his proposed third party candidate is a joke that definitively proves #NeverTrump has failed:

Kristol’s candidate would have stood no chance of actually winning even if it were a well-known figure like Nebraska senator Ben Sasse or even Romney. Still, a national-level Republican running as an independent might have attracted the funds and publicity to leave some measurable imprint on the race — higher conservative turnout that might impact down-ballot races, or sapping enough votes from Trump in swing states to all but ensure victory for Clinton. And no offense to French, who is arguably one of the ten best bloggers currently writing for National Review Online, but “impressive” and “real chance” are not terms the non-Kristol world would apply to his candidacy.

Trump has virtually consolidated the support of regular Republican voters. It is fitting that the candidate of anti-Trump Republicans would be a professional pundit, since most anti-Trump Republicans seem to be pundits themselves.

Still, the choice of French, of all the pundits on the American right, is in its own way fascinating. Some of his writing is just bog-standard wrong, like the perennial argument that saying “penumbras and emanations” is some kind of devastating rejoinder to Griswold.* Some of his other beliefs are more unique. For example,he demanded that his wife have no non-commercial conversations with other men while he was deployed abroad:

Before David left for Iraq, he and Nancy put together rules, in a painfully honest conversation about human frailty. There would be no drinking during the year of separation. Nancy would not “have phone conversations with men, or meaningful e-mail exchanges about politics or any other subject.” Nor would she be on Facebook, where “the ghosts of boyfriends past” could contact her. When Nancy innocently started e-mailing about faith with a man associated with a radio show she was on, she told David about it, and he asked her to end the relationship. David knew, with his “stomach clenching,” that “the most intimate conversations a person has are about life and faith” — and that “spiritual and emotional intimacy frequently leads to physical intimacy.”

So the angle is that French will appeal to voters who hate Hillary Clinton but find Donald Trump’s gender politics too egalitarian? Or perhaps the idea is that French will appeal to voters who hate Hillary Clinton but find Donald Trump’s stance towards Muslims too friendly?

Many more of French’s greatest hits here.

*Since it’s evidently quoted much less, here are the “foregoing cases” Douglas cites for his argument that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance”:

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183, 195) — indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

In NAACP v. Alabama, 357 U.S. 449, 462 we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid

as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.

Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430-431. In Schware v. Board of Bar Examiners, 353 U.S. 232, we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man’s “association with that Party” was not shown to be “anything more than a political faith in a political party” (id. at 244), and was not action of a kind proving bad moral character. Id. at 245-246.

Those cases involved more than the “right of assembly” — a right that extends to all, irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353. The right of “association,” like the right of belief (Board of Education v. Barnette, 319 U.S. 624), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion, and, while it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.

The point Douglas was making — the specific guarantees of the Bill of Rights imply the existence of other rights without which the specific rights would be severely undermined — is, far from some radical new innovation of constitutional law, banal. The Supreme Court’s holding 1958 holding that the 1st Amendment implicitly protects a “right to association” was 9-0 and as far as I can tell no Supreme Court justice has ever suggested that it was wrongly decided. You can, of course, argue that while the concept of implied rights is fine it’s wrong as applied to the specific context of Griswold (although I think Douglas is correct that bans on the use of contraception violate the implicit zone of privacy created by various provisions of the Bill of Rights.) But the “durr, he said ‘penumbras,’ durr” argument isn’t about the application of the concept; it’s saying that the concept itself is not only wrong but self-evidently wrong. This critique is, in itself, self-evidently wrong, the number of people who seem to think that it’s the height of sophisticated constitutional argument to assert otherwise notwithstanding.

FacebookTwitterGoogle+Share
  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • rea

    Mr. French will be totally eclipsed.

    • Mike G

      You mean David Freedom.

  • Denverite

    +1 for the Dilan trolling.

    Also, to be fair, with French out of the country, his wife’s need to be constantly drunk (i.e., “pulling a Denverite”) is greatly reduced, so that ask isn’t as unreasonable as it might seem.

    • Dilan Esper

      It is straw man trolling, because I don’t reject the concept of unenumerated rights. I just think Douglas was a hack and an idiot about it (not even the penumbras of the Third Amendment have anything to do with contraception). And you can tell that by reading the concurrences (which contain better grounds for the decision) and by the fact that not even cases that directly followed from Griswold like Eisenstadt, Roe, or Casey applied Douglas’ reasoning.

      Still, the fact that Scott repeatedly beats this drum is a great compliment- he knows it’s an argument he has to refute.

      • Joe_JP

        I read the concurrences and Harlan’s longer argument — now accepted as authoritative (see, e.g., quote in Casey). For instance, in his dissent in Poe, Harlan argued:

        That aspect of liberty which embraces the concept of the privacy of the home receives explicit constitutional protection at two places only. These are the Third Amendment, relating to the quartering of soldiers, and the Fourth Amendment, prohibiting unreasonable searches and seizures.

        Harlan emphasizes the 4A and the broad “privacy” protections it was deemed to recognize. But, the 3A is also in place to protect the privacy of the home, not even a warrant allowable here to override it. Privacy of family life (paraphrasing Harlan) was a main principle of the 3A along with the importance of civil power being supreme over the military.

        Privacy of the home — including keeping the government without special justification out of the bedroom — does have something to do with the 3A. Along with other constitutional provisions, privacy is important to give true protection to the literal text, like a fence around a home.

        I do agree with Scott that Douglas provides a fuller argument elsewhere, including his Poe dissent and his concurrence in Doe v. Bolton.

        • Scott Lemieux

          The idea that the due process is somehow a more unassailable location for the right to privacy than the implicit penumbras of the Bill of Rights is bizarre. What difference does it make where you locate an unenumerated right anyway? There’s isn’t a penny’s worth of difference between the Harlan and Douglas opinions, and seeing their Griswold opinions properly in the fuller light of the Ullman opinions make this even more obvious.

          • Joe_JP

            Dilan seems to think citing the 3A is somehow particularly stupid though if it was the ONLY thing cited might help a tad more.

            But, both Harlan and Douglas cited the 3A, which actually does have something to do with privacy, particularly over the home and family life. If anything, maybe even more so than the 1A in some ways.

            • Scott Lemieux

              Right. He claims that Douglas was an idiot for citing marriage and family, while ignoring that Harlan’s SDP analysis if anything relies more on them. He basically seems to have gotten the idea that William Douglas was an imbecile, and his analysis of the case just proceeds from this basic error while ignoring the text of the actual opinions.

    • Scott Lemieux

      This is not actually Dilan trolling per se. I’ve been making this argument for longer than he’s been commenting here, and also Dilan’s argument is not based on the “penumbras” language, but 1)on his misunderstanding of Douglas’s argument, and 2)his laughably ignorant belief that Douglas was stupid.

      • Dilan Esper

        I am smarter than Bill Douglas. I am also a better lawyer.

        And there are actually very few Supreme Court justices in history I would say that about.

        The notion that I can’t understand Douglas’ sophisticated jurisprudence is a howler. That’s like saying I can’t understand Sarah Palin’s political brilliance.

        • Scott Lemieux

          Again, this is hilariously ignorant. Absolutely nobody who knows anything about the history of the Supreme Court would say that Douglas was one of the dumbest people ever to serve on the Court. Almost every lawyer who knew him considered him brilliant even though almost nobody liked him because he was also one of the biggest assholes ever to serve on the Court. Brennan was a more effective justice, but Brennan himself would concede that Douglas had more raw brainpower. Warren was a better man than Douglas but intellectually wasn’t on the same planet.

          As for whether you understand Griswold, the proof of the pudding is in the eating. You’ve tried multiple times and have yet to describe it correctly.

  • Murc

    Good ol’ Butcher’s Bill. Keep fucking that chicken, my friend.

    My usual rejoinder to the penumbras and emanations crowd is “so you’re saying the Air Force is unconstitutional?” That brings about 90% of them up short and at least makes them think, although often their response will be openly mendacious, which means I can stop taking them seriously.

    The other 10% will actually reply with something along the lines of “You’re goddamn right the Air Force is unconstitutional.” I’m often genuinely unsure how to proceed with them, but at least they’re owning their lunacy.

    • Lurker

      You can actually make a solid argument that the Constitution requires that there are only two branches of armed services. Not having an Air Force does not mean not having any air assests. You could quite well have the Army Air Corps instead of Air Force (or have a Naval Air Service).

      • DrS

        I can’t believe someone is posting this sort of nonsense on this website.

        • Redacre

          Next thing you know we’ll be talking about battleships.

          • Woodrowfan

            or posting morbid stuff like dead horses and gravesites..

  • J. Otto Pohl

    Good Lord what a control freak. If you can’t trust your wife not to cheat on you while in Iraq then maybe you shouldn’t be married. I wonder if he banned her from masturbating while he was overseas as well?

    • D.N. Nation

      Women don’t masturbate, silly. Or at least it wasn’t covered in sex “ed” class when Lil’ French was going to Six Flags Over Jesus Megachurch Bible Skool.

      • evodevo

        He grew up in Georgetown, Ky, a Baptist town if there ever was one. Back then it was dry and Georgetown College (baptist, of course) was a big employer (before Toyota moved in in 1986) – his father taught there. Fundie Xtian to the bone.

    • “While he was overseas”? I think that is already a blanket ban, my friend.

      • kped

        A literal blanket ban actually. He saw those moving in the night years back and decided he needed to be sure no self loving was going on. She now sleeps in a full 1920’s 1 piece bathing suit. There will be no hidden touching in the French household.

        • J. Otto Pohl

          It is a very poor vibrator that can’t do better than this French guy.

    • Brad Nailer

      Or she, him. Works both ways, y’know.

  • N__B

    David knew, with his “stomach clenching,” that “the most intimate conversations a person has are about life and faith” — and that “spiritual and emotional intimacy frequently leads to physical intimacy.”

    The statues of the saints are so high up on church facades to make sure that the parishioners can’t have sex with them. Fact.

    • The statues of the saints are so high up on church facades to make sure that the parishioners can’t have sex with them.

      It’s a good way to create niche market.

      • N__B

        I can’t believe you said that stone-faced.

    • tsam

      parishioners can’t have sex with them. Fact.

      CHALLENGE ACCEPTED MOTHERFUCKERS

      • N__B

        Video or it didn’t happen.

        • tsam

          I have yet to complete this challenge, as it was just brought to my attention. Now booking a flight to Florence. Me and David have some business to discuss.

          • NonyNony

            Let’s be clear here – N__B said “parishioners”. So you can’t just fly to Florence and copulate with a statue – you have to move to Florence and live in that parish before you make the attempt. Nobody said that keeping the statues that high up would have any impact on the tourists…

            • I think I’ve mentioned the occasion on which I nimbly avoided detection by security at the Guggenheim and managed first to snaffle, then to eat, one chunk of rock-salt from the outermost margins of a Joseph Beuys installation (consisting entirely of spilled rock-salt).

              But it never occurred to me until just now that while doing so I might have been having (oral) sex with Lot’s wife! … She’s a saint, right? Right?

            • tsam

              tsam cares not for your “rules” and such.

          • DrS

            You know, for a 15 foot guy with big hands, I found lil Davey to be a bit of a disappointment. How do you say “Grower not shower” in Italian?

  • Rob in CT

    I know an uberChristian couple that has rules like this. The wife isn’t allowed to so much as go out to lunch with someone from work (if that coworker is a man). It’s completely ridiculous. I have no idea if the husband is similarly constrained (I doubt it, for obvious reasons, but you never know I guess).

    I’m like… if your trust level in your spouse is that low, why did you marry them?

    • Murc

      These sort of people don’t trust anyone. They think humans are, basically, sociopathic monsters with a tiny handful of saints sprinkled amongst them, and that only the iron laws of God are what’s keeping us from betraying and murdering each other. Their trust in their spouses is not necessarily lower than their trust for anyone else, but nor is it that much higher.

      It’s a sad way to live.

      • so-in-so

        Right, recall all the “good Christians” like the Duck Dynasty patriarch who are POSITIVE that without the fear of God every man is a serial rapist/murder?

        • postmodulator

          You’ll remember that the original thing that brought him infamy and got the show briefly suspended was him saying “I thought of a reason for a man not to have sex with a man.” Phil, straight men don’t sit around and think of reasons not to have sex with men, because that’s valuable think-of-a-way-to-have-sex-with-a-woman time.

          Point being that I guarantee that guy has watched the Top Gun volleyball scene in a dark room by himself before.

          • so-in-so

            Recall also the horrifyingly detailed scenario he spun for how an atheist couldn’t complain while someone raped, tortured and killed his family? Phil spent way to much time thinking about the details of that.

            Not so much the logical failings of the argument, just the sadistic details.

          • John F

            “I thought of a reason for a man not to have sex with a man.”

            ummm, because one of them doesn’t want to?

      • Rob in CT

        And yet, as a group, they seem to be some of the most gullible people on the planet.

        • tsam

          Right. Stick a Jesus fish on your business card they’ll practically hand you their bank login info. Or go on TV and say stuff about God and ask for money. You’ll have a fleet of Bentleys in no time.

          • N__B

            “My old man tried to tell me that I’d be better off starting a church and letting Jesus pay for the mortgage in this sorry-ass backwards state. I wouldn’t listen. Instead I put my faith in naked women and hand jobs.”

      • delazeur

        This is what scares me the most about fundies. The implicit message seems to be that if it weren’t for their faith they would be raping and murdering everyone in sight.

        • Redacre

          I have a friend who loves to attempt needling me with “how can you say something is wrong if you don’t believe in God”. This weekend, he went on a long rant about how bombing Hiroshima and Nagasaki was immoral. When asked why, he said because of the slaughtering of women and children. I asked repeatedly, but he was never able to tell me what basis he had for saying that’s wrong (as God commanded his followers to do it multiple times).

          • Hercules Grytpype-Thynne

            IOKIYAD (“It’s okay if you’re a deity”)

          • NonyNony

            That’s weird – the easy way out is to just say that God didn’t tell Truman to bomb the Japanese but he did tell Joshua to slaughter the Canaanites. It says so right in the Bible!

            That’s such an easy out I’d call it a “gimme”. I think I first heard that excuse when I was in High School.

      • tsam

        These sort of people don’t trust anyone.

        Well, that’s probably true, but I still think things like this stem from the Christian view of women–well shit, this goes back as far as Homer (and probably farther). They see women as provocative temptresses that weaken the judgement of men. Since we all know that taking responsibility for one’s own perviness is a no-no in the Christian tradition, it naturally follows that a man must put restrictions on his wife or daughter or all the women in the city because they’re whores and can’t help their whory behavior and civilization is likely to crumble if we don’t keep the whores locked away.

        • Weak-willed provocative temptresses.
          (a temp-tress? Isn’t that a toupee?)

    • so-in-so

      Because nobody else would?

      Because the trust level would be the same with any other woman?

      Because that’s how they see the world, and they can’t imagine any other way that makes sense to them?

      Probably too, because if they are ‘friends’ with any other woman, they immediately start planning their infidelity.

      • sonamib

        It’s projection all the way down.

    • pianomover

      Rules of this type foster sin which brings about the opportunity to ask for forgiveness which leads to salvation and heavenly release. Therefore rules are made to be broken.

      • DAS

        Romans 7:7-7:11

      • tsam

        I’ll just uh… run that by my wife. If you don’t hear from me after tomorrow, look in the library for a candlestick.

        • look in the library for a candlestick

          Just tell the guys in the Emergency Ward that you slipped in the shower and fell on it.

          • tsam

            I already tried that story on them. I don’t think they’re buying it this time either.

    • Scott Lemieux

      I have no idea if the husband is similarly constrained (I doubt it, for obvious reasons, but you never know I guess).

      As I said at Roy’s place, in response to the defense of some winger pundits that the agreement was mutual, it’s telling that 1)all of the restrictions applied to her behavior and 2)French had to “request” that his wife stop comminications she obviously thought were fine under their “agreement.”

      • Denverite

        I dunno. Looking at pictures of French, he might have just (accurately) determined that no such precautions were necessary on his part. Why bother locking a 1991 Ford Taurus?

        Note: I owned a 1991 Ford Taurus well into 2006.

    • billcoop4

      Sounds like Sharia Law to me.

      The spirit of the Taliban isn’t restricted to Afghanistan.

      WMC

      • Scott Lemieux

        Yeah, I wonder if there were stipulations on what clothes she was allowed to wear.

      • Warren Terra

        It is funny that he was going off to fight Islamist Radicals, and imposing upon his wife a ban on alcohol, a ban on communications with men she’s not related to … what rules other than the complete covering of her person did he fail to reproduce?

    • LeeEsq

      UberChristian? Does that mean you can summon them with an app?

      • Hercules Grytpype-Thynne

        I’m looking for the app to make them stay away.

    • DAS

      Yep. That was my response also.

      BTW, what’s the deal with “no drinking”? What about as part of enjoying the Sabbath (Sabbath observance being one of the “10 commandments” after all)? I guess Christians don’t do the whole “have a bit of wine and/or a bit of booze after religious services” thing that we Jews do after praying on Saturday?

      • tsam

        If there’s something crazy or wildly inconsistent with logic, reason or common sense, count on a Christian to do it and post a condescending note about it on Facebook.

      • Jesus turned water into Fre. http://www.frewines.com/

      • Redwood Rhiadra

        Jesus said some negative things about drinking to excess. Some of his followers decided that meant *any* drinking. They founded the Temperance/Prohibition movement, and Welch invented grape juice so he wouldn’t have to drink wine even during Communion.

        Most fundie churches still ban alcohol. Even the ones that don’t still tend to use Wonder Bread and Welch’s for their Communion ceremonies.

        • Warren Terra

          I thought this was arguably true for Islam and LDS, too? That at least some people are claiming what’s forbidden is not alcohol but intoxication?

          • Redwood Rhiadra

            The difference, I think, is that in the Bible you also have Jesus treating wine as perfectly ordinary or even in a positive manner. The Wedding at Cana, for instance, or the Last Supper. The prohibitionists really stretch to justify these, claiming that the Bible is talking about some sort of non-alcoholic wine in these instances. But there’s no textual justification for that, and there was no such thing as non-alcoholic wine or grape juice at the time (there’s a reason it wasn’t invented until Welch – you *have* to pasteurize the grapes to prevent fermentation). And the negative mentions are fairly explicitly about excess – one should not be “addicted to much wine” or “slaves to drink”.

            Wine doesn’t seem to serve the same positive role in the Koran, so far as I know, and the prohibitions are much clearer.

            Can’t really answer for the LDS stance.

            • tsam

              Having once been a member, I can tell you that Mormons are strictly against any alcohol consumption. Anything with caffeine too, for some reason.

          • Anna in PDX

            In Islam the alcohol Prohibition is a case of “abrogation,” in which later verses of the Quran contradict and supersede earlier ones (earlier verses say that alcohol has some benefits; later verses say that the bad outweighs the good so it is forbidden). Although we are a huge and diverse religion for sure, the vast majority of jurists and laity would agree that the alcohol prohibition is total.

            Interestingly, I believe there is more controversy about tobacco and mind altering drugs such as hashish and opium, with probably most Muslims agreeing that mind altering drugs are prohibited but tobacco is not, for some reason. Personally I don’t see why drugs are bad but tobacco is fine; it seems like a completely destructive habit with no benefits at all.

    • Warren Terra

      I’m like… if your trust level in your spouse is that low, why did you marry them?

      Also: if there’s one person in the world whom you’ve chosen as your life partner and with whom you’ve made a sacred pact, and you can’t even trust them to email old friends without daily supervision … you are supposed to delegate the running of the country how exactly?

  • D.N. Nation

    spiritual and emotional intimacy frequently leads to physical intimacy

    Shorter French: I know I suck in bed but want desperately to pretend that she doesn’t know.

    • Shorter French: I know I suck in bed

      Oh, I really doubt that.

      • kped

        Strictly the ol’ in-an-out for Mr French.

    • Dilan Esper

      In addition to everything else, this is probably counterproductive to his goal. If you think cheating is this horrible thing, which spouse is more likely to do it- one who has a lot of healthy outside friendships and a happy, independent existence, or one who is prohibited from having an outside life by a controlling spouse?

      • D.N. Nation

        Fundies like French would starve to death in a Chinese finger trap.

        “Sex is dangerous and dark and exciting and you should absolutely stop thinking about it forever.”

        • galanx

          Nor would she be on Facebook, where “the ghosts of boyfriends past” could contact her.

          Soounds like at certain intimate moments Mrs. F. moaned out the wrong name(s) a few too many times.

  • Hells Littlest Angel

    ” … arguably one of the ten best bloggers currently writing for National Review Online …”

    Very nicely done. How many bloggers does NRO currently have? Eleven?

    • Thrax

      The “arguably” was a nice touch.

      • kped

        That arguably makes the joke.

    • Warren Terra

      I tried to look for a list on their site and gave up. Though I maybe didn’t try very hard.

  • Joe_JP

    But, Justice Douglas used funny sounding words and cited — ha ha! — the 3A! Shortly before Griswold, Brennan phrased it this way:

    It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.

    Goldberg and Harlan agreed with him. I think Griswold v. Connecticut holds up. My only real complaint really is that the matter probably deserved a bit more effort — it is such laziness, not lack of intelligence or basically being right, that often was Douglas’ problem.

    [As to privacy, e.g., instead of just providing a string cite, he could have cited his own past opinions on how, e.g., the right to remain silent is in basic part a means to protect privacy. There is also a rich history regarding the Third Amendment. But, he did show some work regarding the 1A and 4A.]

    • Scott Lemieux

      My only real complaint really is that the matter probably deserved a bit more effort — it is such laziness, not lack of intelligence or basically being right, that often was Douglas’ problem.

      This is fair, although I think you have to read Griswold in light of the arguments already made in much more detail in Poe v. Ullman. Harlan’s concurrence in Griswold was similarly cursory, and I don’t think anyone would accuse him of not being a careful legal craftsperson.

      • Joe_JP

        Harlan was originally going to just say “I concur, see Poe,” but then said a few more words. He wasn’t writing the opinion of the Court. So, I wouldn’t really treat that the same.

        Douglas’ Poe dissent is from my reading a broader one. First, he provides a separate free speech argument that Griswold basically ignores. Second, he doesn’t just rely on the “penumbra” approach. He (and Goldberg quotes this part) also argues in effect a structural argument that privacy is necessary for a free society. “The regime of a free society needs room for vast experimentation.” etc.

        I do think you should read the two opinions together, but not sure you can rely on an opinion of the court and a broader earlier dissent by one justice being the same thing though.

        • Scott Lemieux

          Right, it’s more an explanation than a defense. I assume Douglas would have brought in a lot more of his Ullman argument had he known how many people would confuse “haha he said ‘penumbra’!” with a serious argument going forward.

          • Dilan Esper

            Douglas didn’t have much to bring, Scott. He was a very dim bulb, which you can also see in his First Amendment jurisprudence.

            I think the better explanation is that he really didn’t care if Griswold made any sense. If he did, you would have seen a Scalia style “the Court is right but the analysis is wrong” concurrence in Eisenstadt.

            • Scott Lemieux

              He was a very dim bulb

              You’re just embarrassing yourself here. You have absolutely no idea what you’re talking about.

              which you can also see in his First Amendment jurisprudence.

              His First Amendment jurisprudence was more than fine.

              I think the better explanation is that he really didn’t care if Griswold made any sense.

              Leaving aside that Griswold of course does make perfect sense, if this were true he wouldn’t have written the argument up in far more detail 4 years earlier in his Ullman dissent.

              • Dilan Esper

                Scott, being called unlearned in the law, with my legal career and accomplishments, by a non-lawyer embarasses you, not me.

                And it isn’t as though my view of Douglas’intellect isn’t widely shared by law professors and the Supreme Court bar. It is.

                • Scott Lemieux

                  Scott, being called unlearned in the law, with my legal career and accomplishments, by a non-lawyer embarasses you, not me.

                  Your arguments from authority in this context could not be more misplaced. You are not a scholar of Supreme Court history or of reproductive rights jurisprudence; I am. Your accomplishments as a practicioner are neither here nor there. Not, of course, that this matters if your arguments on the merits were good. But they are not. You have consistently misstated the argument in Griswold and seemed unaware of the existence of Poe v. Ullman entirely. You have never once, in these threads, stayed to defend your terrible arguments once someone has explained why they’re wrong; you just pop up, make your erroneous bare assertions, and run.

                  And it isn’t as though my view of Douglas’intellect isn’t widely shared by law professors and the Supreme Court bar. It is.

                  Again, you’re just flatly wrong. There are certainly many people who think that Douglas was sloppy and hackish. (Which has considerable truth, although I think people have greatly exaggerated the extent to which this applies to him as opposed to most Supreme Court justices.) Nobody who knows what they’re talking about thinks Douglas — who, starting with a BA from a small college in Walla Walla became one of the most prominent legal academics in the country and headed FDR’s SEC in his mid-30s — was a third-rate intellect like Kennedy or Vinson. This is not a controversial point among scholars of Supreme Court history. Indeed, his sloppiness has been singled out precisely because of the perception that he had the potential to be one of the greatest justices ever but wasn’t committed enough to the job.

                • Denverite

                  You have never once, in these threads, stayed to defend your terrible arguments once someone has explained why they’re wrong; you just pop up, make your erroneous bare assertions, and run.

                  Yeah, take it from me, it takes a lot of fortitude (or a moderate amount of vodka) to really beat your dead horse senseless when you’re mostly in the wrong.

                • Scott Lemieux

                  Yeah, take it from me, it takes a lot of fortitude (or a moderate amount of vodka) to really beat your dead horse senseless when you’re mostly in the wrong.

                  I’m also curious who these countless Supreme Court justices who have better First Amendment jurisprudence than Bill Douglas are. Yes, yes, “speech is constitutionally protected unless it’s brigaded with action” is excessively simplistic. But then, there was nothing sophisticated about the largely content-free balancing tests applied by Brennan or Frankfurter, and Douglas’s approach led to somewhat better votes than the former and vastly better votes than the latter. Works for me!

                • Denverite

                  I’m also curious who these countless Supreme Court justices who have better First Amendment jurisprudence than Bill Douglas are. Yes, yes, “speech is constitutionally protected unless it’s brigaded with action” is excessively simplistic.

                  For once, I’m going to say I don’t know a ton about the subject. Certainly not as much as Dilan. [ETA: Or you, Scott.]

                  (I’ve litigated a grand total of one First Amendment case in my career, have since forgotten most of what I learned doing it, and cannot even try to recall what I learned on the subject in law school.)

  • David Hunt

    I was blissfully unaware of who French was. So I did some quick internet searching and determined he was an NR writer, but wikipedia did not appear to have a page for him. At this point I discovered that Kristal had reached the Platonic ideal of wrongness. No one who is not prominent enough to have a Wikipedia page, no matter how gifted or intelligent has any chance of even shifting a single state in a presidential election, much less winning anything.

    Or maybe Kristal is trying to get a regular gig at NRO.

    • D.N. Nation

      Nah, Kristol already has a Would-Be-A-Total-Failure-Without-Wingnut-Welfare magazine of his very own, and its offices don’t come with that Jonah Goldberg smell, either.

    • Snarki, child of Loki

      “I was blissfully unaware of who French was. So I did some quick internet searching” and found him, demonstrating the superior skillz of the NRO crew.

  • DrS

    I found quite a few people who were upset that the interworkings of marriage were up for criticism. Who are we to say that what works for a couple, that sort of thing.

    Controlling behavior is abuse. It often leads to other kinds and more severe forms of abuse. This isn’t healthy relationship behavior and it should not be held as an example.

    • so-in-so

      Not to mention, it isn’t like people violated his privacy to find the information. He wrote about it on his BLOG, at NRO!

      • Anna in PDX

        I think the article was written by Kathryn Lopez but he obviously agreed for her to write it and provided the info.

    • dr. fancypants

      It often leads to other kinds and more severe forms of abuse.

      I’m willing to bet those people would also be upset that their decision to inflict corporal punishment on their children is up for criticism.

      • DrS

        Absolutely.

        That in particular hasn’t even been sorted out on the left/liberal side either though. I know I’ve had a lot of people in these comments sections get quite upset regarding their “need” to hit kids.

  • Boots Day

    I’d prefer not to sink into the morass of NRO to find out for myself, but is there anyone in the world who is excited about the Kristol Party’s nominee for president? It seems like a real missed opportunity for the Dems, because if Kristol had roped in someone with anything close to Republican credentials – Dana Rohrabacher or Janice Rogers Brown or someone like that – that candidate might have actually helped get Clinton elected.

    But this guy – if this ripe suck actually get his name on some ballots, is he going to get more than about five votes?

    • Anna in PDX

      Roy quoted some other guy on Twitter named Quinn something. Other than that, I don’t know of anyone. Mostly what his NRO colleagues are doing seems to be reacting to the widespread “ick” reaction to his restrictive deal with his wife.

    • delazeur

      You have to wonder if Kristol realized that his #NeverTrump campaign could only ever help Clinton and found an exit strategy that upheld his promise to find an alternative candidate without actually threatening the Republican nominee.

      • Boots Day

        This makes a lot of sense. One wonders if French would go through the charade of actually mounting a “campaign” simply in order to save Bill Kristol a wee bit of embarrassment.

        • delazeur

          Well, Kristol is going to end up raising French’s national stature either way. If I was someone who made my living by telling other people what I thought about stuff, I would be down with doing some halfhearted quixotic campaigning in exchange for free publicity.

        • NonyNony

          actually mounting a “campaign” simply in order to save Bill Kristol a wee bit of embarrassment.

          Wait – you mean you think that having French mount a failing campaign that nobody thinks is serious would somehow be less embarrassing for Kristol than if Kristol just let the #NeverTrump hashtag die off?

          I mean, I guess there’s an argument to be made, but I’m not the person who can make it.

          (My guess is that there’s some money in here somewhere – maybe Kristol got some donors for his little hashtag revolution and has to put up a candidate or give back their money or something.)

          • Boots Day

            It is very, very hard to tell what would embarrass Bill Kristol at this point.

          • delazeur

            Wait – you mean you think that having French mount a failing campaign that nobody thinks is serious would somehow be less embarrassing for Kristol than if Kristol just let the #NeverTrump hashtag die off?

            I agree that there must be money changing hands, but I do think a French campaign is a decent exit strategy for Kristol. At this point he wouldn’t be taken seriously if he switched to supporting Trump, but French gives him a vehicle to express support for Trump’s ideology without attaching Trump’s name to it. Kristol is the low information voter’s wise man, so it’s not like his readers will see through it.

  • libarbarian

    #NeverTrump has failed:

    No it hasn’t. At least not until Trump wins the general election.

    Personally, I want to encourage Republicans to boycott Trump in the general. Mocking them seems ….. counterproductive.

    • Scott Lemieux

      Yes, I’m sure this blog has the capacity to swing the votes of many persuadable conservatives, who are surely our most dedicated readers.

      What is it with people who want this blog to be the left-wing equivalent of Hugh Hewitt? Even if you think the primary objective of political writing should be to advance the short-term partisan interests of the Democratic Party — an odd thing to believe in itself — who could possibly think that what’s written on this blog has any effect on electoral outcomes?

      • kped

        This is the 3rd or 4th poster making this same complaint against you recently…did someone drop a jar of stupid in the water somewhere? Such hack arguments. I’m trying to envision the hypothetical conservative, or Bernie supporter in the other case, stumbling on this blog and thinking “golly, I was about to vote Clinton, but that guy with a funny french last name hurted my feels”.

        It just doesn’t ring true to any real human I’ve ever met. And I’ve met at least a dozen real humans in my day.

        • so-in-so

          Scott stands in for all liberals mocking GOPers.

          Then again, logic and reason don’t seem to work with most of them, so…

          • tsam

            I have it on good authority that Professor Lemieux #JustDoesn’tGetIt.

        • DAS

          Were any of the real humans you’ve met Bernie Bros or conservatives?

      • libarbarian

        Isn’t that a tribute for how influential I believe you to be? :)

        I’m not taking you to task for failing in some mission I fostered on you. I’m just making a comment on a comment section.

        1) You were just wrong about the failure part, since the game ain’t over until the general is done. It ain’t over until it’s over. You act as if it was only about the primary. You are wrong. It happens to the best people.

        2) I am thankful for every #NeverTrump who hangs on and I think that if they help prevent his win in the general then they will have not failed. That’s just me sharing my opinion. Not an attack on you.

        • Hogan

          You were just wrong about the failure part, since the game ain’t over until the general is done.

          #NeverTrump was not about the general.

    • Anna in PDX

      I think right wingers like to sneer at liberals and yet we aren’t going to vote for trump out of spite. Why do we think they will?

      This is also an argument made on the Dem side, and I have the same reaction. Really, you will vote a certain way because someone on the Internet was sarcastic at you? What are you, 12? Is my reaction to these arguments.

      • so-in-so

        I do meet people for whom 12 would be a generous estimate.

      • kped

        Those people usually just have incredibly thin skin. Think jfl here, or if you’ve ever wanted to go into the real swamp of stupid, the various Bernie reddit’s. They’ll go and spam every DailyKos Hillary thread and whine that people in the comments aren’t doing enough to “earn” their votes, and now they will lose. Then they run back to reddit and ban anyone who says anything positive about Clinton.

        I’d wager 12 is probably the age of many of them.

        • Anna in PDX

          No, jfl is somewhat different. He likes incredibly arcane, involved, and bizarre debates on the Internet, it’s his hobby. I do not think he would vote for someone out of spite though.

          • kped

            True, he wouldn’t. I just meant he has incredibly thin skin, and will fight to the death on any minor topic, and whine endlessly that Scott’s not “helping” with his posts criticizing bad pro-Sanders arguments.

      • JMP

        Although the GOP actually nominated a guy who decided to run for President because Barack Obama was sarcastic at him at the White House Correspondents’ Dinner.

      • tsam

        Keep talking and I’ll vote for Gary Johnson. RESPECT MY BUCKETHEADED OPINIONS, ANNA.

        • Anna in PDX

          Oh no. Come back Tsam, all is forgiven.

        • N__B

          It’s been a while since I’ve seen Blazing Saddles. Which Johnson is Gary?

          • tsam

            Howard’s brother and father.

          • “Feel the Johnson”

            • Warren Terra

              I really do think he needs an inspiring hashtag. #GareItAll?

  • JMP

    But look, if the Bill of Rights had been meant to protect other rights than those listed, they would have said so, like passing an amendment that stated “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    In other words, if someone actually argues that Griswald was wrongly decided and there are no implied constitutional rights, then they are either one of the biggest idiots on Earth or know that that is wrong and just arguing in bad faith.

    • rea

      I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.–Robert Bork

  • DilbertSucks

    The pundit known as “Bill Kristol” is a work of performance art, a Kaufman-esque prank spanning decades. Take him seriously at your own peril.

  • K.

    why are you guys so opposed to a French president i don’t care if the president is french german mexican black chinaman or anything thing else. the rules that he has with his wife are none of my business same thing with clinton i don’t care anything about what they do in private i dont like clinton because she wants to take my guns. will this french guy take my guns why haven’t you talked about that instead of his race and his wife.

    • witlesschum

      Chinaman is not the preferred nomenclature, Dude.

    • JMP

      This joke was slightly funny once, and before you injected overt racism, abuse apologia and pro-murder agenda into it, not when repeated dozens of times. Find some new material.

  • DrS

    Cleanup needed on aisle 7, Naked Paranoia section.

    • so-in-so

      Oozing to the other post as well.

  • New Dawn

    David French is a Neocon Cuck who adopted a a ‘Groid baby from Africa, helping to displace his own race. No wonder Bill “Muh Sheckles” Kristol likes him.

  • tsam

    Oh fucking great. The Speckle Throated, Two Toed Derpasaurus is back.

    • The Dark God of Time

      Pancakes for dinner!

  • IM

    I have to give it to Kristol: He can still surprise me. A second rate Douthat…

    What’s next? Cenk Uygur challenging Clinton from the left?

  • By using David French as their stalking-horse, Kristol and Halperin brought him to the attention of a lot of people who had never heard of him and previously had no reason to despise him.

    J. Podhoretz and others are SPLUTTERING WITH OUTRAGE at the resulting French-related obloquy — which has sunk as low as quoting his actual words — because their battle-hardened Bronze Star Order-of-the-Spur gun-licking Military Veteran professional poo-flinger is such a delicate flower.
    https://twitter.com/MZHemingway/status/737806373619015685

    Everyone is to blame, it seems, apart from Kristol and Halperin.

  • Rusty SpikeFist

    For example,he demanded that his wife have no non-commercial conversations with other men

    Some pretty obvious perverse incentives there, not sure he really thought that one through.

It is main inner container footer text