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The Futility of Determining the “Original Meaning” Of the 14th Amendment

[ 33 ] April 6, 2016 |

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Justice Alito said something rather interesting in his concurrence in this week’s voting rights case:

The opinion of the Court suggests that the rejection of Stevens’ proposal signified the adoption of the theory that representatives are properly understood to represent all of the residents of their districts, whether or not they are eligible to vote. As was the case in 1787, however, it was power politics, not democratic theory, that carried the day.

[…]

The list could go on. The bottom line is that in the leadup to the Fourteenth Amendment, claims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the National Government.

This is, in fact, accurate. I would strongly recommend Mark Graber’s recent paper, which shows that the framers of the 14th Amendment were largely uninterested in the precise wording of Section 1, and were almost exclusively focused on Section 2. I’ll have more on the implications of his argument later, but it’s relevant here. Their belief, essentially, was that in light of Dred Scott it didn’t really matter how you worded federal civil rights protections if people opposed to civil rights controlled the Supreme Court. If, for example, people like John Roberts and Sam Alito were pivotal Supreme Court votes, no matter how explicit you made congressional authority to prevent racial discrimination in voting in the 15th Amendment, it wouldn’t matter. You have to say they were prescient.

Trying to determine the “original meaning” of the Equal Protection clause, then, is essentially pointless, because the framers recognized that its meaning would depend on court personnel.

This doesn’t make Alito’s conclusion valid, however. If he consistently believed that because the 14th Amendment was the product of power politics and written by people who were not naive legal formalists that the Supreme Court should simply not act to enforce it, that would be one thing, but as we’ve seen he doesn’t. So the Supreme Court should try as best they can to protect the democratic equality that was the central purpose of the 14th Amendment. And this means when state legislatures change the denominator in order to dilute minority representation, it’s unconstitutional.

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Deep Thoughts By Sarah Palin

[ 185 ] April 5, 2016 |

Now that she no longer has any discernible relevance or influence, Sarah Palin’s non-sequitur theater is a source of mild amusement:

The entire speech, which you can watch in its entirety above, ran 18 minutes. Palin got applause three times: 1. When she was introduced 2. When she mentioned Hillary Clinton and Benghazi and 3. When she finished. Here are a select few of my favorite lines — in the order in which Palin said them.

* “Getting off the airplane … Seeing all the green and gold and the green and gold until I’m dead and cold paraphernalia everywhere.”

* “This awesome awakening, the shifting and sifting and the exposing of this rabid bite for them to hang on to any kind of relevancy and to hang on to their gravy train.”

* On immigrants: “Inducing and seducing them with gift baskets … ‘Come on over the border and here’s a gift basket of teddy bears and soccer balls.’ ”

* “In order to work, to produce, to strive and to thrive, and to really be alive in the greatest country on earth.”

* “Trashin’ our economy, shippin’ out jobs, lettin’ us foot the bill, palin’ around with the same old politicos and insiders.”

* “And we won’t retreat, we’ll reload. We’ll reload.”

Sarah Palin was the Republican vice presidential candidate in 2008. She was not an idiosyncratic choice by a presidential candidate with a personal connection, but was carefully cultivated by influential Republican power brokers who all but foisted her on McCain. The choice of Palin was widely praised at the time by many mainstream Republican pundits, sometimes in embarrassing ways.

In conclusion, Donald Trump becoming the Republican frontrunner is completely inexplicable.

Woe Unto the Uniquely Beleaguered Mets Fan

[ 134 ] April 5, 2016 |

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Sherm makes a great point in re: the New York provincialism I mentioned yesterday:

With two world championships and five world series appearances, the Mets just might be the most successful expansion franchise. Not sure why the media and many Mets fans refuse to acknowledge this reality.

There’s really no “might be” about it. Only 3 other expansion franchises — the Blue Jays, the Marlins, and now the Royals — have two World Series titles, and the three franchises have one additional World Series appearance between them. Note as well that before they hired Bobby Cox the Blue Jays were as almost as much of a train wreck as the Stengel Mets and they have suffered their share of horrible regular season and postseason collapses, the Marlins had their two championship teams stripped to the studs virtually overnight by two different awful owners, and the Royals were in meaningful contention once between 1995 and 2012. And then there’s the Rangers, who have more epic postseason losses with no titles to show for it, the Mariners and Expos/Nationals who have never been to a World Series, the been-but-not-won Padres and Brewers and Astros and Rockies and Rays…you get the idea. Mets fans have seen considerably more than their share of success, not less. And yes, you’re right, Game 7 in 2006 was hard to watch and the defensive and managerial meltdowns in World Series last year were painful and 200 and 2008 were awful. But there are, surprising as it may seem, fans of non-New York teams and pretty much all of them have similar stories unless their team never made it to those spots in the first place.

But, of course, being a Knicks fan is as hopeless and important as the Middle Eastern peace process…

Today In Sexist Condescension

[ 70 ] April 5, 2016 |

Many of you are familiar with Robert George, the moral sage who has uncovered the eternal truth that the Natural Law is by miraculous coincidence always perfectly consistent with the most recent platform of the Texas Republican Party. He has emerged to explain that Donald Trump, for a very brief period, took nominal “pro-life” principles too seriously to be an actual “pro-lifer”:

In fact, Mr. Trump seems to have stumbled onto the best possible way of signaling to true pro-lifers that he is not one of them. He has inadvertantly embraced an idea that is falsely attributed to pro-life citizens by their opponents to weaken the pro-life cause by tarring pro-lifers as punitive, vindictive people who would send women, many of whom are desperate and frightened, and some of whom are acting under pressure or even coercion in seeking abortions, to prison.

Mr. Trump evidently wants to show us how genuine his conversion is by depicting himself as severely pro-life. But pro-lifers are compassionate, seeking the good of unborn children and their mothers, never pitting them or their interests against each other. We are interested in saving babies, not punishing mothers. And we know that we don’t need to punish mothers to save babies.

So to be clear, women who allegedly kill “babies” should not be punished, because they are not rational moral agents, but rather must have been coerced into acting irrationally if they decide to obtain an abortion. Treating women as children is “compassion.” As always, I ask: if pro-lifers don’t take their own principles seriously, or can only defend them by deploying anachronistic conceptions of women being legally incapable of making rational decisions, why should I?

Via Edroso, who has many more examples.

2016 MLB Preview

[ 115 ] April 4, 2016 |

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Happy Opening Day II! Speaking of New York provincialism, I was amused to see Will Lietch talking about the “Mets or the Cubs — the two most beleaguered major-market franchises in sports.” What the hell? The Cubs, OK, and may this continue unto eternity. But the Mets? Even before last year, the Mets have had two World Championships (one a famous miracle team, the other a juggernaut that won one of the most famous World Series games ever,) a World Series appearance in the last 15 years and a playoff series win in the previous decade. Even granting the two recent pennant race collapses the idea that Mets fans are uniquely hard done by is absurd. It would seem to imply that for example the Rangers (4th largest media market in the U.S.), Eagles (7th), Lions (14th) and Mariners (15th) do not play in “major markets.” And even if we grant the provincial premise that there are only 3 “major markets” in the U.S., how are Mets fans more “beleaguered” than fans of the Knicks or Jets? Or even the White Sox? Really, Mets fans aren’t even close to the bottom insofar as suffering is concerned.

NL East: 1. NYM 2. WASH (*) 3. FLA 4. PHI 5. ATL I have some concerns about the Mets lineup — not only is not clear whether Wright will be able to stay in the lineup, it’s unclear if he can hit anymore — but their rotation should carry them to the division. There’s still a lot of talent in Washington, and Dusty Baker has a good record working with talented veterans (and just by being a professional manager has to be a major upgrade over Matt Williams.) I rate the also-rans based on the quantity of their young talent that figures to actually be on the field.

NL Central: 1. CHI 2. STL 3. PIT 4. CIN 5. MIL  Like the East only with 3 good teams instead of two. I wish I could argue against the Cubs, but they probably have the best roster in the league, and they’re guided by first-rate field and upper management. Ick. I’ll be rooting for the Pirates to get one of the wildcards again but I think the Cards might be slightly better. The Reds and Brewers…they’d struggle to compete in a division a lot less stacked at the top than this one.

NL West: 1. SF 2. LAD(*) 3. ARI 4. SD 5. COL Should be a great race; I’ll pick the Giants by a nose not because of the even-year pattern but because of Bochy. The Diamondbacks are more interesting than the Padres and Rockies, but I don’t see them pushing the big boys barring a serious run of injuries.

AL East: 1. BOS 2. TOR (*) 3. NYY 4. TB 5. BAL I’ll reluctantly pick the Red Sox; I like the Blue Jays more when they’re playing their best lineup but I wouldn’t bet on 300 games from Tulowitski and Joey Bats and it could be a lot less, and Toronto’s rotation doesn’t leave them a lot of margin for error. The Yankees are a high variance-team; the bullpen is great, the rotation OK but a lot of health concerns, the offense likely to decline but who knows by how much. Since Howard is picking them in our annual charity bet, I’ll pick them to hang in but ultimately miss the playoffs. The projection systems like the Rays a lot but I see the worst lineup in the division and a rotation that’s good but not in the class of the Mets or Indians. The Orioles aren’t terrible but I don’t see them in the playoffs.

Al Central: 1. KC 2. CLE 3. DET 4. CHI 5. MIN As with the Rays, projection systems love the Indians, and they could certainly ride their great rotation to the division, but their lineup remains unimpressive (with the outfield in particular a train wreck); I’ll go with the more balanced Royals to beat the projections again. The Tigers are again a stars-and-scrubs team that can certainly win if they get healthy and good years from the former. The White Sox have probably the best pitcher in the league and one if its best young players and best closers and…that’s pretty much that (plus how can they survive without Drake LaRoche’s clubhouse leadership?) I see the Plexiglass Principle hitting the Twins hard, especially since they weren’t as good last year as their record.

Al West: 1. HOU 2. TEX(*) 3. SEA 4. LAA 5. OAK Interesting division. You have to pick Houston first, as they were both the youngest and best team in the division last year. The Mariners are the poor man’s Nationals; there’s more talent here than last year’s record reflects, and Cano seems likely to bounce back (and Christ, is Andy “He’s a real Character Guy not like that uppity Barry Bonds!” Van Slyke ever an asshole), but I’m not sure the lineup has enough depth to beat the Rangers. The Angels are somewhere between the Tigers and White Sox on the stars-and-scrubs continuum. It’s risky to underestimate the A’s, but I don’t see a lot there, and the Donaldson trade makes me wonder if it isn’t time for Beane to move on.

 

 

One Person, One Vote and the Supreme Court

[ 68 ] April 4, 2016 |

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Today, the Supreme Court unanimously held that states were not required to use voters rather than total population as the denominator when apportioning legislatures. But a big question — whether states can apportion by voters, and hence substantially dilute minority representation — remains outstanding. Meanwhile, Clarence Thomas explicitly argues that Baker v. Carr and its progeny — which Earl Warren considered his Court’s most important decisions, Brown included — were wrongly decided:

Samuel Alito, the preeminent strategic mind among the conservatives on the Supreme Court, drew a handy road map for any state legislatures that are so inclined. In a concurring opinion, Alito rejected the argument advanced by the Obama administration that the “one person, one vote” standard requires the drawing of legislative districts that are roughly equal in population. Alito called the argument “meretricious.” He claimed that the decision of the framers of the Fourteenth Amendment to apportion the House of Representatives by total population was merely power politics that did not reflect any broader theory of representation. He was quite clear that states should be free to apportion by either total population or voters.

Alito’s concurrence made it apparent that such states would have his support. But he did not go as far as Justice Clarence Thomas, who tackled the “one person, one vote” principle head-on in his own concurrence.

“The Constitution does not prescribe any one basis for apportionment within States,” argued Thomas. “It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.” According to Thomas, the “Court has never provided a sound basis for the one-person, one-vote principle.”

It’s worth considering the implications of this. When states were given a free hand to apportion legislatures by any method they saw fit, the result was the massive underrepresentation of minority voters. At the time Baker v. Carr was decided, for example, some state legislative districts in Tennessee had ten times the population (and hence, a tenth of the representation) of others. Such malapportionment was a major piece of the Jim Crow apartheid system.

To Thomas, this isn’t an issue. Many of the framers of the Constitution “viewed antidemocratic checks as indispensable to republican government,” Thomas asserted. “And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.” Thomas is not wrong in his characterization. But this doesn’t mean that we should be applying the democratic theories of political elites that preceded the Fourteenth Amendment by nearly a century when deciding a Fourteenth Amendment case in 2016.

Thomas’s concurrence is almost a perfect expression of the Republican Party circa 2016, as seen in Republican-controlled states like Wisconsin. Representing a dwindling share of the population, Republicans have the choice of trying to broaden their appeal or trying to suppress poor and minority voters. They have generally decided to do the latter, and if this is undemocratic at least two allies on the Supreme Court have said that’s perfectly OK.

BREAKING Merrick Garland News

[ 77 ] April 4, 2016 |

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His chances of being confirmed remain 0%. Don’t be fooled by the occasional Republican senator who decides to meet with him.

The Prejudice Against Late Sleepers Is Superstition

[ 105 ] April 4, 2016 |

Science confirms what we night owls have always known:

A couple of weeks ago, I reported on the science of chronobiology, which finds we all have an internal clock that keeps us on a consistent sleep and wake cycle. But the key finding is that everyone’s clock is not the same. Most people fall in the middle, preferring to sleep around 11 pm to 7 am. But many — perhaps 40 percent of the population — don’t naturally fit in this schedule.

There are night owls among us — whose whole circadian schedules are shifted later — and morning larks, who are shifted earlier. (If you’re curious, you can assess your chronotype with this quiz here.) These traits are determined by genetics and are extremely hard to change. What’s more, the research is finding that if we fight our chronotypes, our health may suffer.

But most striking to me wasn’t the health implications of messing with your clock. It was the stigma late sleepers feel in a society ruled by early risers. Simply put: These late sleepers are tired of being judged for a behavior they cannot easily control. If they can’t change their sleep patterns, maybe society should become more accepting of them.

Sunday Links

[ 72 ] April 3, 2016 |

Overdue Debts

[ 85 ] April 3, 2016 |

Some thank-yous are postmature:

  • Thanks to Denverite for his HISTORICALLY GREAT gift of the latest Dylan Bootleg Series set. As I am not the first to observe, the Blonde on Blonde material revved up to Highway 61 speed is the prize. But the rest of the alternate takes are worth hearing, and the fact that the intakes were generally better is its own fascination in comparison with Volumes 1-3, where the mysteries included how he could have left “Series of Dreams” off Oh Mercy or “Blind Willie McTell” off Infidels. The remaining mystery is why they’ve done a Self-Portrait outtakes set while the Blood on the Tracks sessions — the most tantalizing part of the first series — remain in the can.
  • Thanks to an anonymous reader Howard for Made In Chicago — excellent stuff as always from the people involved.
  • And thanks to Most Valuable Commenter Howard for the amazing Amina Claudine Myers playlist he sent me for the holidays. Unerring choices as always.

Remember, you too can have the eternal honor of a commendation on one of the most prestigious political blogs founded in 2004 and named after a Zevon song by sending something from my wishlist or from one of the ones from my colleagues accessible above!

Abortion and Punishment

[ 63 ] April 3, 2016 |

Katha Pollitt is, as usual, making sense:

DONALD J. TRUMP gave his primary opponents a gift when he said this week that if abortion is outlawed, “there has to be some form of punishment” for the woman. He let them look as if they cared about women.

Gov. John Kasich of Ohio responded to Mr. Trump’s comments by saying, “Of course women shouldn’t be punished.” Like his fellow Republican presidential candidate Mr. Trump, Mr. Kasich opposes legal abortion except in cases of rape and incest and to save the woman’s life. Mr. Kasich has signed 17 anti-abortion measures into law since he took office in 2011. Half the clinics in Ohio in operation at the beginning of his tenure have closed or stopped performing abortions.

In a statement, Senator Ted Cruz of Texas said, “Being pro-life is not simply about the unborn child, it’s also about the mother.” He would permit legal abortion only to save the woman’s life — no exception for rape and incest victims — and tried to shut down the government in his effort to defund Planned Parenthood. Virtually every anti-abortion group in the country quickly disavowed the notion of punishing women, many using words like compassion, love and healing. The movement’s hashtag is #lovethemboth.

Within hours, Mr. Trump retracted his “punishment” statement, saying that only the doctor or person who performed the abortion would be held legally responsible. That is the standard anti-abortion line, but face it, punishing the woman is logical.

If abortion is murder, as abortion opponents are always claiming it is, how can society let the woman off the hook? We take murder pretty seriously in this country, especially the murder of children, which is what the anti-abortion movement deems fertilized eggs, embryos and fetuses to be. True, punishing women sounds cruel and misogynist. But if ending a pregnancy is murder, how can we not treat it as such?

Abortion opponents answer this question by insisting that the woman is a victim, too — “broken and wounded,” in the words of Penny Nance, the president of Concerned Women for America. The woman is desperate, confused and alone. Someone pushed her into it — her parents, her boyfriend or husband, the “culture of death” that tells her an embryo is just a clump of cells, Planned Parenthood. Yes, somehow, the mere existence of a clinic forces her to enter its doors, even if she has to drive all day to get there, sleep in her car to fulfill a 24-, 48- or 72-hour waiting period, listen to a script full of anti-abortion propaganda and pay a month’s wages for the procedure.

If you consider how determined a woman has to be to get an abortion in much of the country these days and how much energy states expend trying to dissuade her, it’s hard to see her as a frail flower. If abortion is murder, the woman is less like a victim and more like someone who hires a hit man. In law, both parties are culpable.

Abortion opponents know full well that the public would not abide putting women in prison en masse.

You Can’t Spell “Reformicon” Without “No Republican Constituency”

[ 68 ] April 2, 2016 |

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Krugman has some fun with the end of any pretense that the “reformicon” movement could ever be a thing that matters:

Ross Douthat has a wonderfully written, heartfelt takedown of the WSJ editorial page, which is — surprise! — dead set against any deviation from the tax-cuts-for-the-rich agenda. Definitely worth reading. But my question is, did Republican reformers like Douthat really think there was any chance that their ideas would achieve headway within the party? If so, they were remarkably naive.

After all, what is the modern GOP? A simple model that accounts for just about everything you see is that it’s an engine designed to harness white resentment on behalf of higher incomes for the donor class.

What we call the Republican establishment is really a network of organizations that represent donor interests because they’re supported by donor money. These organizations impose ideological purity with a combination of carrots and sticks: assured support for politicians and pundits who toe the line, sanctions against anyone who veers from orthodoxy — excommunication if you’re an independent thinking pundit, a primary challenge from the Club for Growth if you’re an imperfectly reliable politician.

To a very casual observer, it may look as if this movement infrastructure engages in actual policy analysis and discussion, but that’s only a show put on for the media. Can you even imagine being unsure how a Heritage Foundation study on any significant issue will come out? The truth is that the right’s policy ideas haven’t changed in decades. Paul Ryan’s innovative idea on Medicare — let’s replace it with vouchers! — is the same proposal Newt Gingrich offered in 1995.

So why are we seeing a crackup of this system now? It’s not because events have called the orthodoxy into question; that has never mattered in the past. On the contrary, failed predictions have never caused even the slightest change in claims: the same people who predicted that Bill Clinton’s 1993 tax hike would kill jobs and that Obamacare would be an economic disaster are making confident predictions about the salutary effects of tax cuts now.

The problem, instead, seems to be demography — an increasingly diverse population means that the party needs to go beyond white resentment, but the resentful whites are having none of it. Oh, and the base never cared about the ideology.

All very true. And, yet, Krugman is somewhat burying the lede, because the competition for “the most indefensible thing Ross Douthat will write in 2016” has already ended:

So it’s good that they hired Zach Snyder instead!

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