He Seems Nice
By 
As Paul implied yesterday, even by Bill Kristol standards his proposed third party candidate is a joke that definitively proves #NeverTrump has failed:
Kristol’s candidate would have stood no chance of actually winning even if it were a well-known figure like Nebraska senator Ben Sasse or even Romney. Still, a national-level Republican running as an independent might have attracted the funds and publicity to leave some measurable imprint on the race — higher conservative turnout that might impact down-ballot races, or sapping enough votes from Trump in swing states to all but ensure victory for Clinton. And no offense to French, who is arguably one of the ten best bloggers currently writing for National Review Online, but “impressive” and “real chance” are not terms the non-Kristol world would apply to his candidacy.
Trump has virtually consolidated the support of regular Republican voters. It is fitting that the candidate of anti-Trump Republicans would be a professional pundit, since most anti-Trump Republicans seem to be pundits themselves.
Still, the choice of French, of all the pundits on the American right, is in its own way fascinating. Some of his writing is just bog-standard wrong, like the perennial argument that saying “penumbras and emanations” is some kind of devastating rejoinder to Griswold.* Some of his other beliefs are more unique. For example,he demanded that his wife have no non-commercial conversations with other men while he was deployed abroad:
Before David left for Iraq, he and Nancy put together rules, in a painfully honest conversation about human frailty. There would be no drinking during the year of separation. Nancy would not “have phone conversations with men, or meaningful e-mail exchanges about politics or any other subject.” Nor would she be on Facebook, where “the ghosts of boyfriends past” could contact her. When Nancy innocently started e-mailing about faith with a man associated with a radio show she was on, she told David about it, and he asked her to end the relationship. David knew, with his “stomach clenching,” that “the most intimate conversations a person has are about life and faith” — and that “spiritual and emotional intimacy frequently leads to physical intimacy.”
So the angle is that French will appeal to voters who hate Hillary Clinton but find Donald Trump’s gender politics too egalitarian? Or perhaps the idea is that French will appeal to voters who hate Hillary Clinton but find Donald Trump’s stance towards Muslims too friendly?
Many more of French’s greatest hits here.
*Since it’s evidently quoted much less, here are the “foregoing cases” Douglas cites for his argument that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance”:
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183, 195) — indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
In NAACP v. Alabama, 357 U.S. 449, 462 we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid
as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.
Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430-431. In Schware v. Board of Bar Examiners, 353 U.S. 232, we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man’s “association with that Party” was not shown to be “anything more than a political faith in a political party” (id. at 244), and was not action of a kind proving bad moral character. Id. at 245-246.
Those cases involved more than the “right of assembly” — a right that extends to all, irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353. The right of “association,” like the right of belief (Board of Education v. Barnette, 319 U.S. 624), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion, and, while it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.
The point Douglas was making — the specific guarantees of the Bill of Rights imply the existence of other rights without which the specific rights would be severely undermined — is, far from some radical new innovation of constitutional law, banal. The Supreme Court’s holding 1958 holding that the 1st Amendment implicitly protects a “right to association” was 9-0 and as far as I can tell no Supreme Court justice has ever suggested that it was wrongly decided. You can, of course, argue that while the concept of implied rights is fine it’s wrong as applied to the specific context of Griswold (although I think Douglas is correct that bans on the use of contraception violate the implicit zone of privacy created by various provisions of the Bill of Rights.) But the “durr, he said ‘penumbras,’ durr” argument isn’t about the application of the concept; it’s saying that the concept itself is not only wrong but self-evidently wrong. This critique is, in itself, self-evidently wrong, the number of people who seem to think that it’s the height of sophisticated constitutional argument to assert otherwise notwithstanding.