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A World of Hurt

[ 27 ] May 17, 2015 |

This compilation of reactions to the list that destroyed American liberalism is highly amusing and, in its own way, instructive. The amount of defensive whining generated by an instance of mild observational humor can help to explain a world in which the Weekly Standard can publish a cover story in which an affluent white guy asserts that the mere fact of an African-American or woman president proves that affirmative action and Victim Politics are killing the country while simultaneously complaining about people criticizing his public writing. I would have to say that I remain unconvinced that white men with too much time on their hands constitute a subaltern class.

Conference Championship Picks

[ 17 ] May 16, 2015 |

I’ll do this quickly after a perfect division round, and will add Berube picks if/when I get them:

Rangers v. Tampa Bay Part of me can easily see the Rangers as the ’93 Canadiens, not really a great team but grinding out overtime and 1-goal wins in front of a Hall of Fame goaltender.  And the Lightning, who would have been my pick to get to the finals, have been curiously unimpressive in the playoffs so far, actually getting beaten up pretty badly possession-wise by the Habs despite what might have appeared to be an easyish win.  Still, I’ll take the 82-game sample over the 13-game one, and I think Tampa’s greater skill depth will allow them to sneak by King Henrik.  For Michael’s sake I hope I’m wrong, but LIGHTNING IN 7. 

Chicago v. Anaheim You have to respect Anaheim, and as a Flames fan I certainly — they’ve big, they’re well coached, they have two killer lines.  But I don’t think they’re quite ready to beat the Hawks — they might not have many more big runs in them, but I think they’ll make this one count.  BLACK HAWKS IN 6. 


The Blog Post That Destroyed Free Speech in America

[ 82 ] May 15, 2015 |


Mr. Seth Lipsky wishes to register a complaint about the death of political discourse in the United States of America:

To the list of questions the left has sought to place off limits to open debate—global warming, same-sex marriage, campaign finance, abortion—add a startling new topic: monetary reform. And what a scalp has just been claimed.

Alan Greenspan, who was chairman of the Federal Reserve for nearly two decades, has pulled out of a conference this summer on monetary reform. He did so May 8, two days after the New York Times published a blog post by Paul Krugman labeling Mr. Greenspan the Fed’s “worst ex-chairman ever.”

Sadly, this is actually Lipsky’s argument — Paul Krugman’s four-paragraph blog post (accurately) summarizing Alan Greenspan’s dismal post-Chairman career has now ended debate about monetary policy in America. Fascinating. It’s almost reassuring to know that the free speech theories of the Sage of Wasilla retain such currency in certain quarters. With notably rare exceptions the arguments that proceed from the premise are always compelling.

Next, I assume Krugman will end debate about supply-side economics by quoting Greenspan’s argument that if we don’t immediately pass huge upper-class tax cuts the national debt will be paid down to quickly. No form of speech, we all know, is more vicious than accurately describing the views of conservatives.

Who Can Forget the Fugitive Heterosexual Act?

[ 52 ] May 15, 2015 |

Takes just don’t get much more scorching hot than this. Even Maggie Gallagher isn’t sounding this desperate these days…

B.B. King

[ 21 ] May 15, 2015 |

One of the really great ones. R.I.P.

“It is hardly lack of due process for the Government to regulate that which it subsidizes”: The Ballad of Roscoe Filburn

[ 119 ] May 14, 2015 |


Recently, Bijan reminded me in comments that I’ve never quoted some of my favorite passages from the United States Reports here. These quotes from Robert Jackson’s opinion in Wickard v. Filburn aren’t well known because they come from the section dismissing the particularly frivolous due process claim. But they sum up the case and the having-it-all-ways faux libertarianism the case has come to represent in many quarters perfectly:

It is agreed that, as the result of the wheat programs, he is able to market his wheat at a price “far above any world price based on the natural reaction of supply and demand.” We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee’s burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes.


Only when he threshed, and thereby made it a part of the bulk of wheat overhanging the market, did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty, Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that, if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law.

Filburn was not a hobbyist growing a little food for his family. (If he was, there would have been no case; the quotas didn’t apply to farms growing less than 15 acres of wheat.) He was someone with a commercial farm who not only wanted to sell substantial amounts of wheat but wanted to take advantage of federal price supports that allowed him to sell the wheat for more than twice the price it would command on the world market. While he wanted to take advantage of the federal guarantees, however, he wasn’t willing to comply with the federal regulations, which included a production quota that was a crucial element in the price supports. Filburn’s opposition federal regulation of the interstate wheat market applying to him was highly selective.

The only reason to be the slightest bit concerned about the Court’s obviously correct holding in Filburn is the slippery slope. Without it, as one commenter [mds!] astutely noted, you’re left with an argument that the congressional regulation of commercial wheat production is fine, but actually applying the regulation to a commercial entity involved in wheat production just goes too far. But when the facts are no longer carefully sanitized, it’s pretty hard to argue that there’s a direct path between Wickard and JACK BOOTED FEDERAL THUGS seizing the broccoli from your home garden while simultaneously requiring you to purchase it from Big Broccoli. Article I gives the federal government the authority to regulate interstate commodity markets, and doing so requires the federal government to regulate individual commercial entities, even if not everything these entities grow will be sold on interstate markets. It’s really not a complicated question, and Wickard is not a slippery slope to unlimited federal power.

Idiotic Invasions Cannot Fail, They Can Only Be Failed

[ 59 ] May 14, 2015 |

Shorter Quin Hillyer: The Iraq War would have worked out great if it wasn’t for that meddling Barack Obama.

For old time’s sake, I can’t resist quoting this particular line of bullshit:

Second, he still did have traces of weapons of mass murder (WMM — a better term than WMD). And he had maintained the capability to rapidly rebuild his stocks.

Saddam didn’t actually have WMDs. But he had “traces” of them, which we can pretend means something. And we cannot in theory rule out the possibility that he could have acquired more. Let’s give them a scarier name. And what threat would these WEAPONS OF MASS MURDER have posed to American civilians? Look — it’s the new Thomas Jefferson, Ahmed Chalabi! Let’s spend trillions of dollars to kill hundreds of thousands of people.

The List That Destroyed America

[ 274 ] May 13, 2015 |

Freddie de Boer’s new piece seems to be getting a lot of attention. What I see is a pretty familiar argument with some familiar problems.

To start with a point of agreement, it is very bad and very stupid to compare critics of Obama’s position on TPP to Emmett Till’s lynchers. The problem is assuming that this random guy is representative of anything. Drawing broad conclusions from the dumb tweets of someone who formerly held a leadership position in the Sacramento Democratic party makes about as much sense as generalizing about “the left” based on Salon letter-writers or the “St. Petersburg Democratic Club.” (Or, to pick another entirely random example, asserting that all liberals really support torture because Alan Dershowitz.) If you find yourself using rhetorical techniques beloved by Glenn Reynolds, it may be time for some re-evaluation.

The basic idea here, which we’ve seen before, is to conflate various objections to Freddie’s arguments so he only has to engage with the weakest one. The idea that Democrats shouldn’t be criticized is, indeed, very dumb. Not very common, but dumb, and if you see the assistant treasurer of the Des Moines Young Democrats saying it feel free to call it out if it floats your boat. The idea that there’s no real difference between Republicans and Democrats because Democrats are bad on issue x, however, is much more problematic. The idea that vote-splitting on the left is a sound tactic for pushing Democrats to the left is equally bad. Pretending that all of the disagreement is over point one conveniently relieves from having to defend the indefensible, i.e. points two and three. And, sorry, noting the fact that the most disadvantaged bear the brunt of the large differences between having Democrats and Republicans in charge of the federal government is fair game.

This is all familiar territory. Much odder is the attack on The Toast, a site as consistently smart and funny as anything on the intarwebs. Freddie alleges that it is “a website that has taken maximum advantage of this Teflon aspect of progressive argument.” I’m not entirely sure what this means, and again the evidence is threadbare. At issue is a quick list by Nicole Cliffe. Now, no writer bats 1.000 (including, God knows, this one), and just for myself I didn’t find it particularly funny. But using it as some kind of culture war totem is hilariously overwrought. In particular, one might want to look at the second tag, although it shouldn’t even be necessary. The list isn’t an attack on the books in question or on white men; it’s observational humor, a form of humor that depends on generalizations. Freddie might also want to consider the fact that many commenters praised in not because they feel pressure from the P.C. police but because they thought it was funny — what humor hits you where you live is going to, you know, vary. Obviously, not everything that Mallory Ortberg writes is pure gold — although there are very few writers with a higher success ratio — but one can disagree that “she’s in a ‘Radiohead recording themselves farting into a paper bag’ rut” without believing that she Should Not Be Criticized. Freddie, alas, is too busy preemptively asserting that nobody (who?) will allow him to criticize Ortberg to cite a single objectionable thing she’s written, let alone explaining why he finds it objectionable.

To return to another point of agreement, I agree that “[o]ne-liners don’t build a movement. Being clever doesn’t fix the world. Scoring points on Twitter doesn’t create justice. Jokes make nothing happen.” After reading all of the preceding paragraphs, however, I’m not sure who does believe this. What I am sure is that editors of The Toast “challenging their readers” in some unspecified way will not fix the world or create justice or make anything happen either, so they should probably keep doing what they’re doing.

The TPP Revolt

[ 53 ] May 12, 2015 |

Warren, Wyden et al. win round one:

In a stern rebuke to President Barack Obama, Senate Democrats rebelled against his trade initiative on Tuesday afternoon and voted against even opening debate on the bill.

Democrats have demanded additional worker protections before they would consider voting to approve fast-track trade powers for the president. Shortly ahead of the vote, Majority Leader Mitch McConnell (R-Ky.) rejected the demands, insisting he would not make any guarantees beyond a vote on the fast-track bill.

The ensuing Democratic filibuster sank the legislation on the Senate floor, 52-45, with 60 needed to pass. Trade proponents in both parties vowed to try to put the pieces back together, but with little more than a week before a Memorial Day recess and several expiring laws still to be addressed, the immediate future of Obama’s trade agenda is uncertain.

Plainly, Obama could have had fast-track — senators have no independent interests or ideological views — but he didn’t. even. try.

“Keep reading McCulloch till you understand it”: Why Wickard Was Obviously Correct

[ 107 ] May 12, 2015 |


In comments yesterday, we heard familiar arguments that Wickard v. Filburn was wrongly decided.  But it wasn’t, and attempting to place restrictions based on the federal commerce power based on the arguments raised in Wickard would be a incoherent fiasco, just like all previous attempts to arbitrarily limit the commerce power were.

The facts of Wickard are straightforward:

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien.

For the reasons I stated yesterday, this is really an easy case. The wheat market created collective action problems in an insterstate commodity market. Article I explicitly empowers Congress to address these problems. Quotas on wheat production are a reasonable means of addressing these problems. The act is therefore constitutional as applied to this case.

Critics of Wickard miss the boat because they come to the case as if it is an individual rights cases rather than a case about the scope of governmental power. (It’s not a coincidence that most critics of Wickard tend to oppose federal regulation of the economy; it’s also not a coincidence that Filburn also brought a Fifth Amendment claim. Most of these federalism cases are just libertarian economic arguments in thin disguise.) They focus on whether Filburn, when he grew some winter wheat he intended to consume himself (and some of which he sold, free riding on federal regulations he refused to abide by, and some of which he fed to his commercial livestock), was engaged in interstate commerce at this precise moment. But that’s not the right question. The right question is whether wheat quotas are a reasonable part of a program to regulate an interstate market. They are, and that ends the case in the government’s favor. The federal government has the power to regulate interstate commerce, and it has the powers necessary and proper to regulate interstate commerce. The claim that plenary federal powers to regulate an interstate market cannot be applied to individual cases necessary to make the regulation effective is nonsensical. As Jackson put it, “even if appellee’s activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

At this point, opponents of Wickard will turn to the slippery slope: “I can see the day coming when even your home garden is gonna be against the law!” But Wickard does not actually create an absolutely unlimited federal police power; Lopez did not overrule Wickard. Could Congress apply quotas to a small, noncommercial home garden? Maybe — if it could show that such a regulation was reasonably related to a broader regulatory scheme. Wickard doesn’t tell us, because the quotas were applied to commercial farms and Filburn was a commercial farmer. There’s not really much point in considering whether Congress can apply quotas to small noncommercial home gardens growing legal products, because 1)it’s not going to do this, and 2)in any extraordinary hypothetical circumstance where it would do this it’s likely that the regulation would be justified by a reasonable relationship to a broader regulation of interstate markets.

The slippery slope most certainly does go the other way, however. If the criticisms of Wickard sounds familiar, it’s because they’re exactly like the arguments used to assert that the Affordable Care Act was unconstitutional. “People who do not buy health insurance are not, in doing so, engaged in interstate commerce.” And it’s true! True — and completely irrelevant. The health insurance exchanges are a concededly valid regulation of interstate commerce. Guaranteed issue without a mandate would cause the exchanges to fail. Therefore, the mandate is constitutional even though it does not directly regulate interstate commerce. Article I gives the federal government the powers reasonably thought to be necessary to address problems of interstate commerce. Wickard was correct; the Court’s holding on the mandate in Sebelius was wrong.

And the problems (if you’re not a libertarian, I mean) with the arguments made by Wickard critics don’t end there, and that goes double if you think that it would exceed the commerce power for the federal government to regulate abortion clinics. Having to show that every business was engaged in interstate commerce before occupational health and safety or environmental regulations could be applied would be a disaster. Forcing the federal government to, at a minimum, show that a business was more like Heart of Atlanta and less like McClung before civil rights laws apply would be a disaster. For most Wickard critics, of course, these outcomes would be features, not bugs. But there are a few liberals who would be happy to go down this conservertarian rabbit hole because medical marijuana in California. Thankfully, Stevens et al. were much smarter than that.

I will conclude by turning things over to Akhil Amar:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document, it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

Let’s Get Back to the Good Olde Days, When White Men Were Chosen Entirely on Merit

[ 89 ] May 12, 2015 |


You may remember Joseph Epstein as the purveyor of right-wing identity politics for people who consider Roger Kimball too nuanced and unrepetitive. You may also be aware of the conservative idea that there is only one objective standpoint, that of the white heterosexual straight male. So it may not surprise you to know that Epstein is the man to distill the latter idea into 180-proof self-parody:

Now have we come to the point where we elect presidents of the United States not on their intrinsic qualities but because of the accidents of their birth: because they are black, or women, or, one day doubtless, gay, or disabled—not, in other words, for themselves but for the causes they seem to embody or represent, for their status as members of a victim group?

This is the kind of thing that doesn’t really require refutation. Ditto his whining about the fact that people have the temerity to criticize an essay in which he wrote that “I have said that I think homosexuals curse, and I am afraid I mean this quite literally, in the medieval sense of having been struck by an unexplained injury, an extreme piece of evil luck, whose origin is so unclear as to be, finally, a mystery.” (It should go without saying that the essay is also larded with sub-Allan Bloom complaints about relativism on college campuses that Epstein, like so many others, has already written innumerable times.) But that doesn’t mean I don’t appreciate Chait stepping up to the pinata:

Yes, that’s right. America used to elect presidents on “intrinsic qualities” rather than “accidents of their birth.” And this process resulted in the election of forty-three consecutive white men, an outcome Epstein must regard as an extreme coincidence. The last president to be elected on the basis of intrinsic qualities rather than accidents of birth was George W. Bush, whose birth circumstances, Epstein apparently believes, had no bearing upon his career trajectory.


In a larger sense, of course, the very existence of Epstein’s piece serves to disprove its thesis. If it is still possible for a white man to write an incoherent farrago of self-pity whose only shred of evidence directly undercuts its thesis, and have such drivel thrown onto the cover of a national magazine, then white men are probably still doing okay.

Do Not Inappropriately Manipulate Your Balls

[ 196 ] May 11, 2015 |

Hmm, seems a little light for the greatest scandal there absolutely ever was in the history of history except steroids. Where is the vacated championship that is clearly the only just outcome?

…and, yes, excellent point by Magary:

Under his watch, the NFL has adopted the very American legal tradition of manufacturing crime out of crime. You can take a small crime—any crime, really—and you can inflate it by making the PROCESS of pursuing that crime utterly sacrosanct…

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