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The Problem is Also the Maximums

[ 16 ] October 9, 2014 |

Andrea Jones has an excellent piece on The War On (Some People Who Use Some) Drugs and mass incarceration. I do have one quibble: the framing suggesting defining the problem with draconian drug laws as “mandatory minimums.” Now, to be clear, the mandatory minimums for drug offenses should be reduced, and as the Supreme Court observed in the context of the death penalty they don’t even really reduce arbitrariness so much as transfer it from judges to the less accountable prosecutor’s office. Nevertheless, reducing mandatory minimums is far from sufficient. Maintaining the judicial discretion to impose lengthy maximum sentences for drug possession will lie around like a loaded weapon, leaving far too many people in prison. The problem with mandatory minimums isn’t the restriction on judicial discretion per se; it’s that people end up in prison who shouldn’t be there. This problem needs to be attacked from both ends.

Don’t Call It Hazing. Call It Sexual Assault.

[ 139 ] October 8, 2014 |

Where a “boys will be boys” mentality leads you:

It came without warning.

It would start with a howling noise from a senior football player at Sayreville War Memorial High School, and then the locker room lights were abruptly shut off.

In the darkness, a freshman football player would be pinned to the locker-room floor, his arms and feet held down by multiple upperclassmen. Then, the victim would be lifted to his feet while a finger was forced into his rectum. Sometimes, the same finger was then shoved into the freshman player’s mouth.

This disturbing hazing within the storied Sayreville football program, as told to NJ Advance Media on Wednesday by the parent of a player in the program, happened almost every day in the locker room this fall, he said.

Is the Supreme Court Refusing to Grant Cert in The Same-Sex Marriage Cases Like Dred Scott? (SPOILER: No.)

[ 81 ] October 8, 2014 |

Matthew Franck offers many reasons for his comparison.  You will be surprised to learn that they are all terrible. Let’s start:

Like Dred Scott, judicial decisions in favor of same-sex marriage needlessly divide the country on an important moral issue about which people differ, and could otherwise debate their differences in the democratic process, on the pretext that there is a genuine constitutional issue in the cases.

Same-sex marriage will an issue that “will divide the country,” at least in the short term, whether the Court intervenes or not. (A Supreme Court ruling that bans on same-sex marriage are constitutional would also be divisive.) Also note that this proves too much, as one could say the same thing about Brown v. Board. Judicial review is a part of the American democratic process, and the same-sex marriage cases present a genuine constitutional issue.

Like Dred Scott, such decisions rest on transparently fallacious legal reasoning with no connection to the Constitution’s words, historic meaning, or underlying principles.

This is absurd, but we’ll return to this in a second.

Like Dred Scott, these decisions rely, in part, on the conflation of the due process clause with a constitutionally ungrounded and so far unexplained power of the judiciary to decide what is “arbitrary” or “reasonable” or “just” in legislation, known by the laughable oxymoron “substantive due process.”

On a minor point, while substantive due process might sound like an oxymoron, it is in fact deeply embedded within American constitutionalism. (Note that McLean, dissenting in Dred Scott, accepted the premise that people had a 5th Amendment right to take their property into the territories; he dissented from the holding that the Missouri Compromise was unconstitutional because “a slave is not property beyond the operation of the local law which makes him such.”) This doesn’t make it inherently correct, but the idea that the concept of “due process of law” guaranteed more than fair procedures was not an opportunistic invention of the slave power (although the application of the principle by the slave power was certainly opportunistic.)

But this argument is misleading in a much more important sense. It’s true that, because of the Windsor holding, the circuit court rulings that state bans on same-sex marriage generally did cite the due process clause. But Windsor was a due process case because of reverse incorporation — that is, the well-settled holding that the equal protection clause of the 14th Amendment binds the federal government through the due process clause of the 5th Amendment just was the due process clause makes most of the Bill of Rights applicable to the states. It is much more accurate, although inconvenient for Franck’s silly Dred Scott analogy, to describe these cases as equal protection cases, not substantive due process cases.

At this point, the absurdity of Franck’s assertion that the circuit court holdings have “no connection to the Constitution’s words” becomes readily apparent. If a state classification that excludes a group of persons who have historically been subject to invidious discrimination has “no connection” to the explicit constitutional requirement that states shall not deny anyone the “equal protection of the laws,” it’s not clear what content the equal protection clause is supposed to have.

Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges. In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise. In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.

This is obviously offensive for the reasons explained in the original Millhiser post. In addition, Franck’s assertion that same-sex marriage is a “false idea” will be useful to those who need an example of what “begging the question” means.

Skipping some pure gibberish about how the decisions will impair the ability of people to do something called “living the truth” about same-sex marriage (that apparently goes beyond merely being free to choose not to marry a same-sex partner and to state your views that same-sex marriages are morally objectionable), we get this:

Like Dred Scott, same-sex marriage rulings, for all the reasons above, amount to a comprehensive threat to republican government, raising the question Lincoln asked in his First Inaugural Address, whether the American people are entitled to govern themselves, or must surrender to government by an “eminent tribunal” of judicial despots.

Republican government, as it exists in the United States, permits legislative enactments to be reviewed by the judiciary. One can fairly argue about whether this is a good thing, but it is not obviously inconsistent with democratic government. And, of course, Franck does not believe this either; after all, he “agree[d] with the dissenters” in NFIB v. Sebelius, making him by his own lights an enemy of democracy and the contemporary equivalent of Roger Taney.

If Franck wants a recent decision that actually uses Dred Scott‘s constitutional reasoning (as opposed to being like Dred Scott because every exercise of judicial review one doesn’t like is like Dred Scott), I have one for him


[ 76 ] October 8, 2014 |

For all the abuse Yost got for the wildcard game, what Matt Williams did tonight was indeed far worse. In fairness, nobody could have predicted that a managerial protege of Kirk Gibson would turn out to be shaky.

And now we have a Giants/Cardinals NLCS, which for neutral observers must be by far the most dreary matchup. Well, you can take the Expos out of Montreal but…

It’s Like, How Much More Ron Fournier Could This Be?

[ 53 ] October 7, 2014 |

We will never reach peak High Broderism:

Bipartisanship is here…if you want it! Should we get two houses of Republican overlords in January, their failure to cooperate with the White House will be because of Barack Obama’s failure to lead, with leadership. One day we will get a president truly willing to Bully Pulpit the Overton Window Under the Bus.


This Has Been Straightforward Answers To Idiotic Questions

[ 313 ] October 7, 2014 |

Via Jeb, a HOT TAKE from Tim Teeman:

But my most immediate thought was: Why take pictures of yourselves having sex, or naked, in the first place, which you then choose to share electronically? In doing those things, haven’t you already compromised your privacy long before a pervy hacker has figured out a way to get their grubby mitts on your pictures?


Being naked in your home does not constitute consent for people outside your home to look at you. Storing nude pictures on a home computer or password protected cloud does not constitute consent for other people to look at them. Appearing in revealing clothing onstage does not constitute consent for people to look at you offstage. Walking around on the street with a wallet does not constitute consent for someone to take your money. The fact that the last point is not in dispute but the first three are might just have something to do with the gender makeup of the typical targets, doncha think?

If there’s anything worse than a transparently dumb argument, it’s a transparently dumb argument that Ann Althouse already made nearly a decade ago.

consent, how does it work?

“Things Are Going To Hell Faster Than When That Son-of-a-bitch Roosevelt Was In Charge.”

[ 96 ] October 7, 2014 |

Syndicated columnist William F. George is very excited about a Republican hack about to be trounced in a Senate election. Why? His exciting old ideas:

Because Bell speaks incessantly about the dangers of fiat money and the wisdom of the gold standard, some people dismiss him as a one-issue candidate whose issue is an anachronism. He calls this “chronological snobbery”: The gold standard is a bad idea because it is an old idea and because the economics profession opposes it. Besides, his supposed single issue (actually, he has many) is the declining value of money, which affects everything.

His audiences, he says, are not just disgusted by today’s feeble economy, they are puzzled by it. So he explains that Wall Street “has been having a party” paid for by near-zero interest rates, which have had their intended effect of driving liquidity into stocks in search of higher yields, a bonanza for the 10 percent of Americans who own 80 percent of the directly owned stocks. This “wealth effect” is supposed to prompt spending and investing that will trickle down to the 90 percent. Meanwhile, near-zero interest rates punish savers.

Bell wants to alert the nation before the government again has to pay 4 percent interest on its borrowing, thereby adding, he estimates, $400 billion to the deficit. He is running because “something substantive ought to be offered before the 2016 cycle.”

Shorter Jeff Bell: “After a period of extended unemployment, government policy should make unemployment worse while punishing debtors. We therefore need interest rates to go up before interest rates go up — it’s totally going to happen any year now — and add to the deficit. GOLD!!!!!!!!! I am not a crackpot.”

Kramer: “Hmm! Oh! Yeah. I’ll tell you who is an attractive man; George Will.”

Jerry: “Really!”

Kramer: “Yeah! He has clean looks, scrubbed and shampooed and….”

Elaine: “He’s smart….”

Kramer: “No, no I don’t find him all that bright.”

Deciding to Let Others Decide on SSM

[ 73 ] October 6, 2014 |

If you choose not to decide, a Canadian philosopher once observed, you still have made a choice. When it comes to the Supreme Court and same-sex marriage, it’s at least a second-best-case scenario.

…Lithwick is right on what the Court should have done.

Pujols? Trout? That Kind of Luxe Just Ain’t For Us. We Crave a Different Kind of Buzz.

[ 75 ] October 5, 2014 |


Sweeep! If the Mariners couldn’t be involved, an Orioles-Royals ALCS is certainly my second-best scenario.

There was a recent discussion in comments about the recently modified wildcard system. I feel more strongly than ever that if there must be a wildcards, the two-wildcard sudden-death format that preserves much of the value of a division title is vastly preferable to the status quo ante. But the very worst argument against it one game is just a random crapshoot, so there should be at least a 3 game play-in series. The rather obvious problem is that a 3-game playoff would for all intents and purposes be just as much of a random crapshoot. The fact that a 5-game series that was easily the biggest mismatch on paper resulted in a sweep by the underdog should make pretty clear that if you disapprove of playoff formats in which the best team doesn’t reliably win, you’re just against the concept of MLB playoffs altogether.

“I Heartily Endorse This Event or Product.”

[ 48 ] October 5, 2014 |

There’s phoning it in, there’s not being able to muster up the energy it would take to dial a number, and then there’s whatever it is that Samuel L. Jackson is doing here:


“That’s the real question isn’t it: why? The how and the who is just scenery for the public.”

[ 175 ] October 5, 2014 |

Shorter Verbatim Naomi Wolf: “A Pakistani lawyer who is a fourth-generation scion of a major Pakistani political family explained what I keep hearing from many parts of the plugged in educated elite of the Middle East: ISIS, he said, is grassroots Wahabism – the extreme and brutal “version” of Islam (many moderates say it bears no likeness to Islam.) But these grassroots, uneducated, extremist people are funded heavily by a) Saudi Arabia b) Israel (!) and c) America.”

And don’t kid yourself, that American funding must be comeing from the evil feds, not our benevolent local overlords. And surely Ed Snowden is involved somehow.

…I should also say, for those who haven’t seen it, that I’m sort of burying the lede here: Wolf has strongly implied that the ISIS beheadings were staged and both the victims (“just happened to go into humantarian work?”) and their parents are actors.

#Yosted: An Epitath

[ 99 ] October 4, 2014 |

Sometimes one needs to be reminded that Charlie is a national treasure:

So, on Tuesday, we had a sprawling mess of a German opera that nonetheless turned into a classic game between the Royals and the Athletics. Once, Bill Lee memorably said of his manager in Boston, Darrell Johnson, that Johnson spent the season falling out of trees and landing on his feet. Well, on Wednesday, Kansas City’s Ned Yost fell out of a tree and, on the way down, Yost hit every branch, was mauled by a passing turkey buzzard, was nibbled upon by squirrels, was briefly impaled on thorns, performed a double backflip and then a two-and-a-half in the pike position, and still landed on his feet. Yost’s unique managerial style was what people talked about the next day. The game got terrific ratings. And then, on Wednesday, in Pittsburgh, there was a quiet masterpiece, and that’s more than all right, too.

Somewhere, Grady Little must have been wistfully staring at the screen, pondering the contingent impact of ghastly managing. Little’s performance in Game 7 of the 2003 ALCS was absolutely a firable offense — any idiot could see that Pedro was completely gassed even in the seventh. And yet, he absolutely could have gotten away with it — Nixon could have caught the Jeter single double, and the tying Posada double wasn’t exactly crushed. Sometimes bad game managers get what they deserve, and sometimes teams win in spite of them.

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