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Is there a Carrier Gap?

[ 78 ] July 8, 2015 | photo essay 080508-N-0483B-011.jpg

USS Essex (LHD-2)  U.S. Navy photo by Seaman Kari R. Bergman -Licensed under Public Domain via Wikimedia Commons.

I was on a panel yesterday on the “carrier gap” in the Middle East:

“Carrier demand has exceeded supply for many years,” said retired VADM Peter Daly, chief executive officer of the U.S. Naval Institute, speaking to an audience at a Washington seminar sponsored by the Navy League’s America’s Strength campaign and moderated by Bryan McGrath of the Hudson Institute. Also speaking were retired ADM Mark Fitzgerald, and Dr. Robert Farley of the University of Kentucky’s Patterson School of Diplomacy and International Commerce.

The Navy, obligated by law to field a force of 11 CVNs, is authorized by Congress to operate only 10 carriers until the next CVN, Gerald Ford, is commissioned in 2016.

New Attack on Protecting Interns

[ 33 ] July 8, 2015 |


I’m not at all shocked that a bunch of elite judges don’t understand the world of internships and how corporations use them to create pools of free labor. But that’s not going to stop them from undermining protections for interns. Ross Perlin:

The judge, William H. Pauley III, found that Fox Searchlight had failed to meet this test. Sadly, on Thursday, a three-judge panel of the United States Court of Appeals for the Second Circuit eviscerated the six-factor checklist and replaced it with, in essence, a new legal theory of what internships are all about.

The appeals judges found, among other things, that an internship can be legal even if it doesn’t meet the traditional six-prong test, especially if it is tied to the receipt of school credit and helps the student fulfill academic commitments.

Even worse, the judges declared that “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” They ignored the legal standard and ethical principle that work merits pay.

The judges stressed that internships may be legal merely because they are supposedly being overseen by the interns’ schools. But these very same institutions have been complicit in the internship boom by ignoring abuses, requiring internships for graduation and charging students for academic credit when they go off campus to do unpaid work.

The “primary beneficiary” approach leads to the atomizing result that interns cannot unite to protect themselves. The judges write that “the question of an intern’s employment status is a highly individualized inquiry,” ignoring the low or nonexistent pay and shabby work conditions common to interns in many offices and industries. Thursday’s ruling all but destroys the basis for collective action through class-action lawsuits.

At oral arguments in January — I had filed an amicus brief on behalf of the plaintiffs — it was evident that the three judges had no firsthand experience of what they call “the modern internship.” Focusing on “what the intern receives in exchange for his work,” the judges completely ignore the significant benefits that employers derive from their interns.

Supreme Court Polarization and the Death Penalty

[ 95 ] July 8, 2015 |


Breyer and Ginsburg’s dissent in Glossip doesn’t indicate that the current Supreme Court will rule the death penalty unconstitutional. But it does indicate that a future Supreme Court with a Democratic median vote might:

It is thus vanishingly unlikely that this court will hold the death penalty unconstitutional. The interesting question is what might happen should a justice nominated by a Democrat become the median vote of the court. In a recent paper, the University of Maryland legal scholar Mark Graber suggests that we are about to see a much more polarized Supreme Court that, rather than hewing towards centrist opinions, swings well to the left or right depending on who has the fifth vote.

The death penalty is one area where this may be most evident. Unless popular opinion shifts strongly in favor of the death penalty, Breyer’s opinion may very well reflect the default position of Democratic nominees, even the most conservative ones. If President Hillary Clinton can replace one of the Republican nominees on the court, we could ultimately see a decision declaring that the death penalty violates the Eight Amendment’s ban on cruel and unusual punishments.

But there’s a dark side to the polarized court from the perspective of death penalty opponents. If President Scott Walker or Marco Rubio replaces Justice Ginsburg and/or Breyer, states might aggressively expand the death penalty to encompass homicides committed by minors or the sexual assault of children — and these laws would likely be upheld.

Breyer’s dissent does not reflect a court that is going to rule the death penalty unconstitutional in the short term. But it does suggest that it is a medium-term possibility — and that the stakes of future presidential elections are about to get even higher, with control of the median vote of the Supreme Court accruing a greater policy impact than it’s ever had.

I’m not sure the #slatepitch arguing that Kennedy might be prepared to vote against the death penalty needs further rebuttal, but I would add one additional point.  Kennedy has made some thoughtful comments decrying mass incarceration.  And yet, given the chance to do something about it given an particularly extreme set of facts — someone given 25 to life for stealing golf clubs, a theft the prosecutors could have charged as a misdemeanor — he did nothing.  Which is also what he did when faced with someone given life without parole for possession of 672 grams of cocaine.  He did refuse to join Scalia and Thomas in holding that the Eight Amendment never forbids disproportionate sentences, but it some ways that makes it worse — at least the latter have a coherent reason for upholding grossly disproportionate sentences.  (He’s done something similar with respect to affirmative action, holding out the possibility that a program could be constitutional in theory while never finding one to be in practice.)   Does this sound like a justice willing to hold the death penalty categorically unconstitutional to you?

The Jacksonian Democratic Party Could not be Revived Even if it was Desirable, Which it Most Certainly Isn’t

[ 175 ] July 8, 2015 |


Ed Kilgore has a smart intervention on the question of the Jacksonian tradition in the Democratic Party.  Let us acknowledge the one major progressive achievement of Jackson’s presidency — staring down Calhoun on nullification — before moving on to this point:

So the idea that today’s parties are simply the reverse of those of the Age of Jackson, while useful, isn’t entirely accurate. Just as we pause at Jefferson’s views on church-state separation before labeling him the father of “constitutional conservatism,” there are discontinuities in both the major party traditions after him.

There’s no question that trying to map partisan disputes and coalitions from the antebellum era onto 21st century ones is inherently problematic, and whether it has much value at all is questionable. But I would say that if we have to pick one contemporary party that’s the heir of the Jacksonian tradition, it would certainly be the Republicans, although such an answer is unnecessarily simplified.

This conclusion is beautifully put:

Still, the idea there is some distinctively Jacksonian Democracy out there waiting to be harvested by—let’s face it, this is what some anti-Obama writers implicitly suggest—a national Democratic leader of the right race or the right “populist” ideology is quixotic at best and offensive at worst. You can call it the Party of Obama now as Chait does, if you wish, but it’s really the party formed by Americans who unambiguously view the federal government as the instrument of equality and opportunity and prosperity built on the work and talents of every citizen, who in an old-fashioned Jacksonian sense deserve the full fruits of their labor.

Both the “quixotic” and “offensive” points are crucial. Evidently, Wilentz’s version of the argument puts the matter in the most offensive way possible. It’s one thing to say that it’s in the strategic interests of the Democratic Party to pursue culturally conservative border state whites; it’s another thing to say that the Democratic Party belongs to this faction, and a different Democratic coalition represents a usurpation. But particularly with Obama having established that a Democratic victory doesn’t need West Virginia or Kentucky, even more superficially benign forms of the argument carry the same implication. To be obsessed with Scots-Irish white men retaining their permanent place in the Democratic fold implies that they are primus inter pares. They aren’t, and prettifying Jacksonianism to make this argument is intellectually bankrupt on every level.

But even if it was desirable to restore this element of the 19th century Democratic Party, it’s not something that can just be done by running the right candidate or making some marginal changes. Coalitions drive leaders, not vice versa. There’s nothing Hillary Clinton could do to make Kentucky or West Virginia competitive, any more than running Mitt Romney could make Massachusetts competitive for the Republican Party. (Dana Houle is very good on this point starting here.)

Jacksonian nostalgia is as much a dead end electorally as it is intellectually. If you don’t believe me, look at how Jim Webb does in the Democratic primaries.

It’s Time For Everyone’s Favorite End of Term Activity, Supreme Court Mad Libs

[ 68 ] July 7, 2015 |


How many bad analogies and metaphors and cliches can be crammed into a blog post? Can we learn something from bad arguments about the Supreme Court? Let’s find out!

I wrote in a book review once that the basic distinction between Right and Left when it comes to the Constitution is “rules vs. tools”: Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect. And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.

It’s amazing at this late date that people can write such utter crap with a straight face. Where is the clear “rule” mandating that “the equal sovereign dignitude of the states trumps the powers explicitly granted to Congress under the 15th Amendment“? Where does it say that “states must use uniform vote counting methods if not doing so might result in the election of a Democratic president in 2000 but not in any other case?” When was the text of the Eleventh Amendment changed from “another State” to “any State?” Where exactly is the “anti-commandeering” clause of the Constitution? I could go on like this but you get the idea.

This principle turns the 14th Amendment into a Swiss Army knife and the Commerce Clause into a roll of duct tape.

So, it turns out that re-stating the metaphor doesn’t make it any more coherent.

They devise new uses for dusty old buggy whips like the 13th Amendment,

What’s funny about this is that Schwarz almost certainly considers himself an “originalist.” And yet the new scholarship about the 13th Amendment is based on historical analysis. There is good evidence that the contemporary limitation of slavery to only chattel slavery does not reflect the understanding of many at the time of the founding, and there is also good evidence that 13th Amendment was read much more broadly in 1865 than it is 2015. I’m not an originialist or a believer in grand constitutional theory, so I don’t believe that these are knock-down arguments. But the fact that conservative originalists not only have no interest in this scholarship but feel free to contemptuously dismiss it should tell you something.

and even the forlorn Third Amendment was pulled out of the back of a drawer somewhere to be cited in Griswold v. Connecticut (and is now being invoked by the Left and the Right to oppose NSA surveillance).

This is the slightly more sophisticated sounding SCORCHING HOT TAKE on Griswold, used in lieu of the more famous one (“durr, he said ‘penumbras and emanations,’ durr.”) And, yet, if you read the citation of the 3rd Amendment in context in makes perfect sense:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully an particularly reserved to the people.”

Douglas’s perfectly straightforward point is that many of the individual protections in the Bill of Rights are based on the underlying principle that the state cannot be omnipresent in private homes and in individual lives. (It’s true that he does not defend this point extensively here, but this is because he already did so four years before, and cites this opinion at the end of the “penumbras” sentence. Both the Douglas and Harlan opinions in Griswold should be read as summaries of arguments they made in much more extensive detail in Poe v. Ullman.) This principle was obviously highly relevant to this case, concerning the constitutionality of a statute banning the private use of contraception. And the 3rd Amendment — forbidding the state from using private residences to house military personnel except with legislative authorization during wartime — is plainly relevant to this structural analysis. It wouldn’t make sense to say that the 3rd Amendment standing alone would make the Connecticut’s uncommonly silly law unconstitutional, but Douglas doesn’t say that it does. One can agree or disagree with the conclusions Douglas reaches, but this kind of structuralist argument is a widely-used form of constitutional interpretation, and only hacks think it can be dismissed by repeating a 3-word phrase or mischaracterizing its use of the 3rd Amendment.

And they think nothing of turning the strictest rules on their heads, so that “shall not discriminate on account of race” means “must discriminate on account of race”

I’m not sure what copy of the Constitution Schwarz is using; mine does not contain the former phrase. It does most assuredly guarantee the equal protection of the laws, but I see nothing in this phrase that specifically proscribes every affirmative action program. (Oh, and what I said about originalism.)

and “freedom of speech” requires restricting speech. What, you thought these provisions actually mean what they explicitly say?

Leaving aside all the question-begging, he has a point — I don’t recall the “bong hits 4 Jesus” or “but Islamic! 9/11!” exceptions to the First Amendment either. I wish conservatives would stop trying to turn the First Amendment from a cinder block into one of those cabinets of tools they sell at the Home Depot.

“She meets me back stage. I give her Quaaludes. We then have sex.”

[ 301 ] July 7, 2015 |

The payoffs, backscratching, and cover-ups that allow a famous serial rapist to get away with it.

I’ve mentioned this before, but the fact that a major, extensively promoted biography of Cosby could be published in 2014 that ignored the history of women accusing him of sexual assault and reviewers would barely mention or outright ignore this is highly instructive. It’s amazing what you can fail to find out if you really don’t want to know.

The Battleship Book

[ 15 ] July 7, 2015 |

819t0XM3kvLAs hinted on Saturday, The Battleship Book has become a reality. The book, which includes chapters on sixty-two battleships, plus several “interludes” and sidebars, stems largely from the Sunday Battleship Blogging series at Lawyers Guns and Money between 2005 and 2007. Most of the entries have been heavily revised and edited for inclusion in the book, so even long-term LGM readers will hopefully find something new. The Battleship Book is available in paperback through Amazon
, but Wildside Press has generously offered a coupon code (BATTLESHIP) for purchase of both the print version and the e-book through its own site. Note that the e-book and the print version will include different internal artwork, so it’s almost certainly worth your precious dollars to buy both. You can find an example of what the book will look like here (.pdf).

As you can imagine, there will be additional information available about the book in this space in advance of, and in the aftermath of, publication. And if you’re the sort of person who follows things on Pinterest, you can follow this board dedicated to the book.

Today in Sexism in Sports

[ 70 ] July 7, 2015 |


In the Women’s World Cup, the USA soccer team took the championship against Japan on Sunday—just not with their pocketbooks. In fact, they are being paid 40 times less than their male counterparts.

In a Politico piece, Mary Pilon points out that the National Women’s Soccer League salaries range from $6,000 to $30,000 and teams often have a salary cap of $200,000. The Men’s League Soccer league salary cap clocked in at $3.1 million last year, and the total payout for the women’s World Cup will be just $15 million compared to the men’s $576 million sum.

Given the ratings for the women’s World Cup, is there even that much evidence that attendance for a good women’s soccer league in the U.S. would be that much less than the men’s league? It’s also worth noting how sports payment disparities reflect gendered pay disparities throughout the American workforce.

Foreign Entanglements: Anti-Capitalist Crankery Edition

[ 0 ] July 7, 2015 |

I don’t think there’s any question that standards for guest invites at Foreign Entanglements have dropped dramatically:

Heritage and Hate

[ 34 ] July 7, 2015 |


The good people of Haralson County, Georgia defend their widespread use of the American swastika with the same tired arguments about heritage. And of course:

Just across the county line, the Georgia Peach Oyster Bar has operated as a scandalous open secret. Its website features two Confederate battle flags, the description, “The Original Klan, Klam & Oyster Bar,” and a stunningly virulent collection of racist signs. Patrons are confronted with a selection of crude cartoons and graffiti, and a menu that declares, on the appetizer page, “We cater to hangins’.”

Indeed they do. As the county’s 1902 lynching of Benjamin Brown after an accusation of attempted rape of a white woman may suggest.

Race in America

[ 11 ] July 7, 2015 |


TPM has a new feature called Primary Source, where historians present and interpret a primary source for the site’s readership. Josh Marshall, a historian in his previous life, has been opening his site up in recent months to more historical-based work. The latest entry is well worth your time. It’s a 1955 article in Ebony about a sheriff in Florida who decided to declare a family black, thus forcing all the children to be kicked out of the white school. N.D.B. Connolly provides a brief interpretation, not only of the event, but of how the complexities of race worked in the pages of Ebony itself:

Yet, the complexities of race and skin color went even further, reaching off the page and into the homes of Ebony’s black readership. Page three of the Platt’s story appears on the same page as Palmer’s “Skin Success” ointment and soap. In addition to helping with rashes and pimples, Palmer’s was well-known to “even” (i.e. lighten) the complexions of its black consumers. “You’ll forget,” the ad assures, “you ever had skin trouble.” One could only hope.

“He’s Right, Williamson Merkel.”

[ 140 ] July 7, 2015 |

Some #realtalk from Thomas Piketty:

But Piketty, who penned the blockbuster 2013 book on income inequality Capital in the Twenty-First Century, slammed conservatives who favor the economic austerity measures Germany and France are demanding of Greece, saying they demonstrate a “shocking ignorance” of European history.

“Look at the history of national debt: Great Britain, Germany, and France were all once in the situation of today’s Greece, and in fact had been far more indebted,” Piketty said. “The first lesson that we can take from the history of government debt is that we are not facing a brand new problem.”

Germany, Piketty continued, has “no standing” to lecture other nations about debt repayment, having never paid back its own debts after both World Wars.

“However, it has frequently made other nations pay up, such as after the Franco-Prussian War of 1870, when it demanded massive reparations from France and indeed received them,” Piketty said. “The French state suffered for decades under this debt. The history of public debt is full of irony. It rarely follows our ideas of order and justice.”

Piketty criticized the “infantile” moral uprightness of Germany, whose economic success upon reunification has led it to rebuke nations like Greece for being in similarly weakened financial states as Germany itself was in decades ago.

Piketty argued that the same debt relief accorded to Germany after World War II should be granted to Greece today.

“After large crises that created huge debt loads, at some point people need to look toward the future. We cannot demand that new generations must pay for decades for the mistakes of their parents,” Piketty said. “The Greeks have, without a doubt, made big mistakes. Until 2009, the government in Athens forged its books. But despite this, the younger generation of Greeks carries no more responsibility for the mistakes of its elders than the younger generation of Germans did in the 1950s and 1960s. We need to look ahead. Europe was founded on debt forgiveness and investment in the future. Not on the idea of endless penance. We need to remember this.”

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