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Refusing to Unilaterally Disarm Is Not Hypocrisy

[ 86 ] April 19, 2016 |


Jim Geraghty rolls out a particularly well-worn chestnut:

Bernie Sanders released his 2014 tax return this weekend, revealing that he and his wife took $60,208 in deductions from their taxable income. These deductions are all perfectly legal and permitted under the U.S. tax code, but they present a morally inconvenient, if delicious, irony: The Democratic socialist from Vermont, a man who rages against high earners paying a lower effective tax rate than blue-collar workers, saved himself thousands using many of the tricks that would be banned under his own tax plan.

This is the equally asinine flipside to Megan McArdle’s “if you think taxes should be higher, why don’t you just send extra money to the government?” argument. If Bernie Sanders opposed ending tax deductions because they benefited him personally, that would be hypocrisy. Arguing that such deductions should be ended but taking advantage of them while the laws remain on the books is not hypocrisy. These silly gotcha arguments fail to understand not just what hypocrisy means but the fact that political action is only meaningful if it’s collective.

As Drum puts it:

If you don’t like the designated hitter rule in baseball, does that mean you should send your pitcher to the plate just to prove how sincere you are? Of course not. You play by the rules, whatever those rules are.

I favor universal, government-funded health care. Does that mean I should virtuously refuse MoJo’s employer health care? Does anyone on the planet think that makes any sense at all?


Voting as a Self-Affirming Consumer Choice, An Ongoing Series

[ 169 ] April 19, 2016 |


Three guesses as to who published an essay with this punchline, and the first two don’t count:

In a truly democratic system, we’d have more competent, diverse candidates. Voting no longer provides me the indulgence and satisfaction it once did. I feel it does more harm than good with our current political climate. If I vote for Clinton as a rejection of Trump, or vote for Sanders to dodge a Clinton vote, what duty am I actually performing? When I vote for a president I don’t support, I support a flawed political system. I refuse that system.

I suppose this is all self-refuting, but:

  • Just as I wish more people on the right endorsed the idea that vanity candidates were the optimal way of bully pulpiting the Overton Window on steroids, I wish more people on the right believed that not voting was a threat to the system and didn’t put so much effort into things like Shelby County, vote suppression efforts, and so on. Unfortunately, in this respect movement conservatives generally know what they’re doing.
  • I can understand preferring an electoral system that incentivizes multiple parties over one that incentivizes a two-party system. I do not understand the assumption that putting together coalitions ex ante rather than ex post is somehow antidemocratic.
  • On a related point, putting together coalitions ex post doesn’t in any meaningful sense solve the “lesser evil” problem. You might be able to vote for a candidate closer to your preferences, but to accomplish anything they would still have to formally or informally collaborate with the Lieberman For Connecticut For America Party. Adding an additional step to the process of coalition formation doesn’t somehow give you cleaner hands, although if you’re the kind of person who thinks that shopping at thrift stores is striking a major blow on behalf of Bangladeshi textile workers you might like to pretend otherwise.
  • The idea that not voting brings us closer to an electoral system in which you always get to vote for a viable candidate who agrees with all of your views is…missing many causal links. On the other hand, progressives not voting leads to horrible material consequences for many people.

I’ll outsource the rest to Schoenkopf.

Worthwhile Canadian Decisions

[ 30 ] April 19, 2016 |


The Supreme Court of Canada is making sense:

L was convicted of possession of drugs for the purpose of trafficking. [Less than 10g worth — ed.] Because he had a recent prior conviction for a similar offence, he was subject to a mandatory minimum sentence of one year of imprisonment, pursuant to s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act (“CDSA”). Section 5(3)(a)(i)(D) provides a minimum sentence of one year of imprisonment for trafficking or possession for the purpose of trafficking in a Schedule I or II drug, where the offender has been convicted of any drug offence (except possession) within the previous 10 years.


the mandatory minimum sentence provision covers a wide range of potential conduct. As a result, it catches not only the serious drug trafficking that is its proper aim, but conduct that is much less blameworthy. This renders it constitutionally vulnerable.

At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.


Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter.

To move mouth of the border, here is how the great legal sage Antonin Scalia, joined by five colleagues, adjudicated a similar constitutional claim in a case in which someone convicted of possessing 672 grams of cocaine was sentenced to a mandatory term of life in prison without possibility of parole:

Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.

But I’m sure American residents feel much safer now! I would also assume that, 25 years later, the War on (Some Classes of People Who Use Some) Drugs has long been won.

The Donald’s Campaign Manager: The Mark Penn of the Further Right

[ 20 ] April 18, 2016 |


Just in case you were wondering, there’s no way in hell Donald Trump is winning a second ballot given the quality of his campaign team.

To be Scrupulously Fair, though, if you need a prosecutor hounded out of office for running a fantasy league he’s your man.

Why “Originalism” Doesn’t Work, Clarence Thomas v. The Warren Court Edition

[ 188 ] April 18, 2016 |


As we’ve discussed, earlier in this month Clarence Thomas has said explicitly that the Warren Court’s “one person, one vote” decisions were wrongly decided and strongly implied that Gideon v. Wainwright was wrongly decided. Either way, it shows why originalism doesn’t work as a grand theory:

In Gideon v. Wainwright, the Supreme Court in 1963 held that the Sixth Amendment right “to have the assistance of counsel” means that states must provide counsel to defendants facing criminal charges if they cannot afford their own. Anthony Lewis told the story of that case in his bestselling book Gideon’s Trumpet, which was in turn made into a 1980 movie starring Peter Fonda.

In his Luis concurrence, however, Thomas based his Sixth Amendment reading not on Gideon but on Betts v. Brady, the case Gideon overruled. The Sixth Amendment, according to Thomas, “abolished the rule prohibiting representation in felony cases, but was ‘not aimed to compel the State to provide counsel for a defendant.’” While he does not say so explicitly, he seems to be claiming that Gideon was wrong, according to the Constitution’s original meaning, and hence originalists should want it overruled. The state, according to Thomas, may throw people in jail without offering them access to a lawyer—something most criminal defendants cannot afford on their own.

Thomas does not, however, explicitly call for this outcome. Is there any way Gideon can be salvaged under originalism? Perhaps, but this can only be done by draining originalist theory of any meaningful content.

An originalist might respond like this: The Sixth Amendment, as originally understood, protected a negative right to counsel (that is, the state cannot interfere with someone hiring a lawyer of their choice) but not a positive one (the state is not required to provide counsel to anyone who cannot afford one). However, the growing cost of legal representation and the increasing complexity of criminal procedures mean that in 2016 it is not possible for a criminal defendant to receive a fair trial without counsel, even if it were possible in 1789. Therefore, the Sixth Amendment’s right to counsel and/or the 5th and 14th Amendment’s guarantee of the “due process of law” requires the state to provide counsel to criminal defendants who cannot afford one now, even if this was not the case when the amendments were ratified. So the outcome in Gideon, if not its reasoning, can be reconciled with the original understanding. This is how many originalists have concluded that Brown v. Board is consistent with the original understanding, even though most of the framers and ratifiers of the 14th Amendment did not think it forbade school segregation.

This argument is not wrong, precisely. But the problem is that once the “original meaning” of the Constitution is defined at such a high level of abstraction, there’s no meaningful difference between “originalists” and the “living constitutionalists” they deride. History loses any bite, and originalists wind up just doing what everybody else does: applying a broadly worded constitutional principle to the particular circumstances of today.

Thomas’s recent opinions, then, illustrate a fundamental problem with originalism. Either the theory produces unacceptable results that subvert the constitutional principles it purports to uphold, or history loses relevance because abstract principles are applied to contemporary circumstances unknown at the time the relevant provisions were ratified. Either way, originalism doesn’t work. Let’s hope the post-Scalia Court doesn’t end up turning in that direction.

John Kasich, SUPERGENIUS Explains It All To You

[ 176 ] April 15, 2016 |
Republican U.S. presidential candidate and Ohio Governor John Kasich arrives on stage to formally announce his campaign for the 2016 Republican presidential nomination during a kickoff rally in Columbus, Ohio July 21, 2015.   REUTERS/Aaron P. Bernstein (TPX IMAGES OF THE DAY)

Republican U.S. presidential candidate and Ohio Governor John Kasich arrives on stage to formally announce his campaign for the 2016 Republican presidential nomination during a kickoff rally in Columbus, Ohio July 21, 2015. REUTERS/Aaron P. Bernstein (TPX IMAGES OF THE DAY)

After some mansplaining to yeshiva students, John Kasich returns to his even more natural role of mansplaining to women:

“I have two 16-year-old daughters, and I don’t even like to think about it,” Kasich said. Incidentally, neither do women. “It’s sad, but it’s something that I have to worry about,” the student responded.

“I’d also give you one bit of advice,” Kasich went on. “Don’t go to parties where there’s a lot of alcohol.” The crowd applauded him.

Kasich’s viewpoint is a cynical, victim-blaming, finger-wagging perspective. Former Dear Prudence columnist Emily Yoffe once made a similar argument to Kasich’s in the pages of Slate, when she wrote that “the rise of female binge drinking has made campuses a prey-rich environment.” If women didn’t get drunk, the thinking goes, they would be able to resist the advances of men waiting in dark corners, ready to prey on easy, intoxicated targets. And if they just stayed away from men who can’t control their alcohol-amplified sexual impulses, they wouldn’t become the victim of such heinous crimes.

I was going to say that he should think more about his 16-year-old daughters when he thinks about his heinous reproductive policies, only the problem is that it’s not his daughters who won’t be able to obtain a safe abortion.

The Real Motivation of the Pain Caucus

[ 187 ] April 15, 2016 |

time_magazine_cover.jpg.CROP.promovar-mediumlargeAbove: Publication Appearing in 3 Weeks At Your Dentist’s Office Insults Your Intelligence

Time Magazine made the smart decision to put its dumb cover story about the national debt behind a paywall. The premise — the national debt is like household debt and should be considered as if it’s apportioned equally to every U.S. resident — is stupid on its face. But Matt O’Brien has read the thing because nobody else will, and it’s even worse than its premise:

The government can borrow for 10 years at 1.77 percent, for 20 years at 2.16 percent, and for 30 years at 2.58 percent. It’d be hard for those to get any lower. And that’s what makes Grant’s debt doom-mongering not just wrong, but world-historically so. Think about it like this. The reason we care about the debt is that lenders might. In other words, if the debt got to be too big a share of the economy, then investors might demand tougher terms to make up for the fact that we looked a little riskier. Reducing the debt, then, is about reducing interest rates. Indeed, that was the rationale behind Bill Clinton’s big deficit-reduction package in 1993. But that’s impossible when interest rates are already as low as they can go, like they are now. So what would be the point of cutting the debt?

Easy: cutting the government. That, more than the debt, is what Grant really cares about. You can tell by the fact that his solution to what he thinks is too much red ink is … a big, fat tax cut? Actually, yes. “Are we quite sure,” he asks, that “we want no part of the flat-tax idea?” What he doesn’t say, though, is that if you’re going to cut taxes by, say, $8 trillion over 10 years—that’s how much Ted Cruz’s flat tax would cost—then you’re going to have to get rid of a lot of the government to bring the debt down. So goodbye Social Security, goodbye Medicare, goodbye Medicaid, goodbye Obamacare, and probably goodbye food stamps and unemployment insurance, too. (The actual debt is $19 trillion, but that includes obligations we owe ourselves, like Social Security.)

When you’re considering a flat tax, it’s not because you care about the national debt, it’s because you think wealth needs to be massively redistributed upwards, with the debt as the tissue-thin pretext.

…as Warren Terra notes, the Sultan of Shrill has more, and it’s outstanding.

The California Constitution Does Not Enact Ms. Michelle Rhee’s TED Talks

[ 57 ] April 15, 2016 |


It’s good to see that the education “reform” equivalent of Lochner v. NY has been unanimously overturned by the California Court of Appeal.

Thursday Links

[ 154 ] April 14, 2016 |


The Negligible Impact of Vice Presidential Choices on Electoral Outcomes

[ 195 ] April 14, 2016 |


Always worth noting:

The underlying assumption is this: Vice presidential candidates add votes in their home state. The right VP pick can help carry a competitive state, the thinking goes, or put an uncompetitive state into play. Knowing that, a presidential candidate would be foolish not to use this strategic opportunity to try to pick up a key state in the Electoral College. At a minimum, the list of pros and cons for each vice presidential finalist must include his or her potential to deliver a home-state advantage.

Like all unquestioned shibboleths, it’s come to seem almost a law of nature by now. Analyzing news coverage between 2000 and 2012, we found that journalists invoked geographic strategy in about 50 percent of their profiles on potential veep candidates. But it’s wrong. According to our analysis of election and voter data over the course of a little more than the past century, a vice presidential candidate’s state of residence generally has no effect on how a presidential candidate performs in that state. The vice presidential home state advantage is, essentially, zero.

On a related note, I should say that it drives me crazy when people start talking about effective senators, like Elizabeth Warren or Jeff Merkley, being named as vice presidential candidates, and this obviously goes triple when it would turn a blue Senate seat red (as with Sherrod Brown.) Vice presidential picks are essentially irrelevant politically, and why would you want to downgrade an effective senator to vice president? I never understand why this is supposed to be a good idea.

NHL Playoff Preview 2016: Canada-Free Edition

[ 39 ] April 13, 2016 |


Where have you been, my blue-eyed son? It’s time. All my powers of expression, and thoughts so sublime, could never do it justice, in reason or rhyme: the NHL playoffs. I’m sure the ghosts of electricity are howling through the ghosts of your face as we speak. After going 11-4 last year and 13-2 the previous year, you can take these picks STRAIGHT TO THE BANK, just like my predictions about Republican primaries. As always, we will be favored with the Eastern Conference wisdom of celebrated author, sniper, and former Grand Poohbah of American Literatchoor Michael Berubue. One more cup of coffee for the road, and we shall go to the valley below:

#1 DAL v. WC2 MIN Admittedly, I have a vested interest in the Stars making it to the conference final. But I see a slow train coming up around the bend for Minnesota here. The Stars are one of the best even-strength possession teams in the league, while the Wild can be found with the likes of the Canucks and Blue Jackets well below average. One caveat: the Stars have impressive firepower and solid defense, but their goaltending is more frailer than the flowers. The Wild won’t have Zach Parise but they do have an excellent goaltender in Dubnyk (and how about the Oilers selling low on him, huh? They’re idiots, babe, it’s a wonder that they still know how to breathe. Please, NHL, how about we give then 5 #1 picks in 7 years! They could hire Sam Hinke and keep the chain going!) If you have better goaltending, you have a chance. Still, I’m guessing the Wild will be quickly headed back to the golf course, I do believe they will have seen enough. STARS IN 5

#2 STL v. #3 CHI The Blues are an excellent team that has been left standing in the doorway, crying, in the dark land of the early rounds because of the simple twist of fate that they happen to share a conference with two better ones. They have the Hall of Fame coach, they have excellent defense, they have the Hall of Fame-caliber coach, but they haven’t had the Towes, the Kopitar, the transcendant talent than can be the difference between the very good and the great. If Tarasenko isn’t in that class now he’s certainly very close, Brian Elliot had an excellent year, and the still-formidable Blackhawks did show some decline with their depth having thinned out a bit and an awful lot of wear on the tires. The Blues might continue to be the Show-Me State’s answer to the Sharks. But I think it will finally be time for the Windy City’s tears. BLUES IN 7.

#1. ANA v. WC1 NASH Having records that outpaced their possession for years, the Ducks overcame an unlucky start and some free agent defections and were an elite team in every respect this year. This should make for a good series with a fine Nashville team that isn’t spectacular but is solid two ways.
But I feel there will be buckets of rain over the Nashville skyline by the time Anaheim’s superior front-line talent causes the Predators to throw it all away. DUCKS IN 6.

#2 LA v. #3 SJ You know the Kings — they’ve got everything they need, they’re artists, they don’t look back. They have solid offense, great defensive talent coached by a defensive master, size, goaltending. They’re the neighborhood bully; around them the sun’s not yellow, it’s chicken. And unlike Chicago, if anything they’re getting better. For San Jose’s longtime core, meanwhile, if it’s not dark yet it’s getting there. Still, Peter DeBoer has done a nice job getting a bounceback season for the Sharks. For all the postseason frustration that seems to be written in every leaf that trembles and every grain of sand, Thornton and Marleau appear forever young, and Hertl makes them devastating up the middle. Who knows — perhaps San Jose will find that they were so much older then, and they’re younger than that now, and we’ll see a changing of the guard. But given the matchup I think the groom will still be waiting at the altar. KINGS IN 6.

And, now, we turn to Michael:

Well, LGM readers, it’s time to turn that heartbeat over again. Any major dude with half a heart….

No, wait. No. Not this year. I’m not going to offer my Eastern Conference playoff picks by lacing them with Steely Dan lyrics. Not because I want to give you a break, but because you don’t deserve the effort. Year after year Scott and I comb through the catalogue of the craftiest, most convoluted, involuted, and self-indulgent songwriters in 70s rock in order to bring you the only NHL playoff predictions that tell you not only who to watch for but also to be careful what you carry, and all you do is complain. “Steely Dan sucks,” you wittily retort, because you’ve been telling me you’re a genius since you were seventeen. I was going to punish you all this year by making my first-round picks by lacing them with Billy Joel lyrics instead, but in the end I just couldn’t do it. It would hurt me far more than it would hurt you. And besides, when will you realize that Vienna waits for you? Me, I’ve got the old man’s car, I’ve got a jazz guitar, I’ve got a tab at Zanzibar….

Besides, my picks this year are determined by the fact that I got to precisely one game all year, Ducks v. Islanders in the Barclay Center, in late December when the Ducks were last in the West and Montreal was burning it up in the East. What the hell happened since then? A mess of stuff, I suspect.

(Metropolitan 1) Washington v. (Wild Card 2) Philadelphia. Feh. An annoying, perpetually underachieving team faces off against demon spawn. I suppose I should be grateful to the Flyers’ Brayden Schenn for colliding with surprisingly talented Penguins backup goalie Matt Murphy in the final game of the season and knocking him out of the lineup, but I’m not, really I’m not. As for the Caps, they will go very far someday, if and when they realize it takes four games to win a series in the new “best of seven” format. They were formidable in the regular season. Impressive, even. That will get them through round one—fairly easily. I think the only question is whether the Flyers will be reduced to pleading for God’s sake, don’t shut me out. Capitals in five.

(Atlantic 1) Florida v. (Wild Card 1) New York Islanders.I spent at least half the Islanders game wondering what it will mean for the franchise to have moved to Brooklyn. Back in the day (1972-73), building an arena in Nassau County and ensuring that mass transit could get nowhere near it was an emphatic statement: this is the burbs. This is not New York. This is the Gisland. This is O’Reilly-and-Hannity Land. We revereBilly Joel here. Whereas half the Barclay Center that night, it seemed, consisted of Rangers fans looking for cheap tickets (I got mine on StubHub below face value) and checking out the likely first-round competition. Alas, because the Isles dropped their final game (to the Flyers, an otherwise meaningless makeup-because-snowstorm game), they get the Panthers and the ageless Jaromir Jagr, 68 years old (I think?) and still a force to be reckoned with. This series could go either way, but something tells me it will go south, and who knows? The Panthers could make a real run, as they did for no discernable reason in 1996. They say the playoffs are either sadness or euphoria, and these two franchises have been all about the sadness for many years.Panthers in six.

(Metropolitan 2) Pittsburgh v. (Metropolitan 3) New York Rangers. So instead of Rangers-Isles, my boys in blue get to face the hottest team in the league, a team that just happens to have beaten the Rangers three times in March alone, a franchise that is still seething from the Rangers’ 2014 comeback from 3-1 (which derailed the Pens badly) and last year’s embarrassing five-game first-round exit. But Evgeni Malkin will not play. Starting goalie Marc-Andre Fleury is out with a concussion. Backup Murphy (see above) has been given a head injury by demon spawn. The poor Pens are frantically calling up a 20-year-old from Wilkes-Barre, Tristan Jarry, to serve as backup behind the very inexperienced Jeff Zatkoff. Tristan Jarry combines the épater-le-bourgeois rebound control of Tristan Tzara with the ubu-roi butterfly style of Alfred Jarry, which is to say that I have never heard of him. Meanwhile, two of the Rangers’ best are questionable–captain Ryan McDonagh will not start and franchise goalie Henrik Lundqvist has been uncharacteristically erratic in recent weeks (including one memorable meltdown in Pittsburgh!). This one is going to depend on who fills their holes better, and my head tells me Pens in six. But I can’t root against my own pick and I don’t want to see the lights go out on Broadway, so Rangers in seven because reasons, and who knows, we might even see backup Antti Raanta in net at some point. Facing down the fearsome Tristan Jarry of Wilkes-Barre.

(Atlantic 2) Tampa Bay v. (Atlantic 3) Detroit. Please, if you feel the need to complain about the fact that the NHL has teams in Miami and Tampa Bay, do it on some other blog. I am just tired of that shit. It is like complaining about the new “best of seven” format. The Lightning are a good team, an exciting team. They dispatched the Red Wings last year, then the Canadiens, then the Rangers– taking that series by winning three games in Madison Square Garden, the last two by convincing 2-0 shutouts– before falling to the mighty Black Hawks. (The first team to meet four Original Six teams in one playoff year!) Meanwhile, the Red Wings have made the playoffs for the 25th straight year. Remember when the St. Louis Blues made the playoffs for 25 straight years? Yes, well, the Blues did that from 1979 to 2004, and for the first 15 years of that run, the NHL had 21 teams and a 16-team playoff, leading Dick Young to quip that if World War II had been conducted like the NHL, Poland would have made the playoffs. The Blues did not reach the finals once– and reached the conference finals only twice– in that span. Whereas the Red Wings have won four Cups and have lost in the finals twice. The point is that this is a real streak; they are always to be feared, even when Pavel Datsyuk is distracting his teammates with talk of retirement. The Blues knew this well, developing a fatal case of wingedwheelphobia in the 1990s that sucked all the strength from their limbs whenever they had to face Detroit. Still, you can linger too long in your dreams, right? Now the Wings are in the East and the Blues cannot beat the Hawks. But I will leave that to Scott, of course (Hawks in six). All I will do is wonder why Detroit is back in the East and why the East has sixteen teams to the West’s fourteen. Was this to give Calgary, Edmonton, Winnipeg, or Vancouver a chance? Because that’s not working out so well. Lightning in six.

[SL]: I’ll take the Caps, Panthers, Red Wings, and (sorry Michael) Penguins. And now, to make up for the lack of SD references, I bring you this seminal event in the history of American music:

Likely Republican Presidential Nominee Made Key Contribution to Epochal Constitutional Battle

[ 73 ] April 13, 2016 |

Prophets and intellectual giants on the order of Christine O’Donnell and Antonin Scalia have been warning us about this slippery slope for years. If the Supreme Court continues to recognize a so-called “right to privacy,” then perhaps the most sacred right exercised by state governments — the power to ban masturbation — might be threatened. Fortunately, Ted Cruz was there to help protect the ability of the state of Texas, in its Equalistic Sovereign Dignitude, to prevent its citizens from manipulating their genitals in a non-state approved manner.

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