"In the end, we will remember not the words of our enemies, but the silence of our friends."—MLK

Sunday, October 23, 2016

"Camelot Can Wait—Fact-Check the Coconuts"

No less than King Arthur himself (in Monty Python's telling, that is) was subjected to ruthless, disinterested -- nay, uninterested -- fact-checkers, even in a cause so great as the quest for the Holy Grail: 

ARTHUR: We have ridden since the snows of winter covered this
land, through the kingdom of Mercea, through--
GUARD #1: Where'd you get the coconut?
ARTHUR: We found them.
GUARD #1: Found them? In Mercea? The coconut's tropical!
ARTHUR: What do you mean?
GUARD #1: Well, this is a temperate zone.
ARTHUR: The swallow may fly south with the sun or the house martin
or the plumber may seek warmer climes in winter yet these are not
strangers to our land.
GUARD #1: Are you suggesting coconuts migrate?
ARTHUR: Not at all, they could be carried.
GUARD #1: What -- a swallow carrying a coconut?
ARTHUR: It could grip it by the husk!
GUARD #1: It's not a question of where he grips it! It's a simple
question of weight ratios! A five ounce bird could not carry a 1 pound
Needless to say, Arthur's invitation to join his Court at Camelot never made it to the fact-checkers' master.

Monty Python's Quest for the Holy Grail was farce, of course, but today's improbably serious fact-checkers blur the distinction to near seamlessness.

Mark Twain said "If you don't read the newspaper, you are uninformed; if you do read the newspaper, you are misinformed." Left out, however, was misdirected. The press, observed Bernard Cohen in 1963, "may not be successful much of the time in telling people what to think, but it is stunningly successful in telling its readers what to think about." Cohen was echoing a similar sentiment expressed in the 1922 classic Public Opinion by Walter Lippman, co-founder with Herbert Croly of The New Republic.

The problem is a sort of inverse of the "don't think of an elephant" trick: Do think of an elephant. Think of a whole herd of wild, aggressive elephants. And they're stampeding their way toward a populated area. Now think of the journalists covering the discussion of what is to be done:
Candidate X says "swift action must be taken to defend against the mammoth beasts, as the populations in harm's way lack the necessary resources and equipment to divert or repel them on their own."
But fact-checking Candidate X's claims reveals the animals in question are in fact not "mammoths" at all, but a species of African bush elephant. The extinct mammoth line is actually most closely related to the Asian elephant. We rate Candidate X's claim partly false. 
This kind of "journalism" about elephants does not bear the slightest relevance to the elephant story at hand: to the reader concerned for his family's orchards the journalist talks only about the elephant's family tree. It is not the connection the elephant's tusks have with the mammoth that troubles the reader, but the connection the tusks are about to have with him.

That example is hypothetical. But it is not exaggeration:

Were you curious about the Democratic nominee's participation in the professional-grade wiping of the same server she claimed hosted only yoga and wedding-planning emails? I.e., why was the server wiped, and was Clinton involved? Did this "journalism" satisfy? After parsing it, do you even remember the question?

Were you confused -- do you know anybody who was confused -- was even capable of being confused -- about whether there is some kind of meaningful distinction between a "red line" and a "line in the sand"?

Meanwhile, the elephants are upon us. And thus the first question an intelligent people will ask of their journalists is: what is their motive? For a disinterested journalist is less than worthless -- is positively harmful -- if he has become also uninterested in the things the public values. As in the case of John Harwood, whose thumb is putatively so squarely on the pulse of the American public he was chosen to moderate one of the Republican debates, yet confessed he found it "[a]mazing...that some people still think it's worth burning so much interview time with [the] person most likely to be [the] next president on her emails."

"Granted that he states only facts," said G.K. Chesterton, "it is still essential to know what are his emotions, what is his motive. It may be that twelve hundred men in Tottenham are down with smallpox; but we want to know whether this is stated by some great philosopher who wants to curse the gods, or only by some common clergyman who wants to help the men."

Or by some fact-checker mooching for coconuts.

Thursday, October 20, 2016

What's the foundation of national pride? Pres. John Adams gives us an answer!

"If national pride is ever justifiable or excusable it is when it springs, not from power or riches, grandeur or glory, but from conviction of national innocence, information, and benevolence."

Inaugural Address (March 4, 1797). 

Wednesday, October 19, 2016

On Writing Law Review Articles for the Marketplace of Ideas: Leaders' Questions in the Irish Parliament

Micheál Martin (Leader of the Opposition; Cork South Central, Party: Fianna Fail) 

Dáil debates, Kildare Street (Oct. 18, 2016, 2:05 P.M.), 
https://www.kildarestreet.com/debates/?id=2016-10-18a.5, https://tinyurl.com/jm4lbzs

"The Court of Appeal backlog could take over a decade to clear. That is not my assessment but that of Mr. Seth Barrett Tillman, law lecturer at Maynooth University. I understand--perhaps the Taoiseach will confirm if this has happened--that the Chief Justice and the President of the High Court have approached the Government with a view to having more judges appointed to the Court of Appeal. Either that has happened or it has not." 

Fianna Fail Leader Micheál Martin was quoting from my: Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34 Irish Law Times 210 (2016), http://ssrn.com/abstract=2816458 (also available on Westlaw.ie). 


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Modern Scholars Who and Prior Courts which Understood Ex parte Merryman, The New Reform Club (Oct. 9, 2016, 4:59 AM), [Here

Counterfactual Wiki: The Jungle

The Jungle                                                                          

Not From Wikipedia, the free encyclopedia 

     For other uses, see Jungle (disambiguation).

The Jungle is a novel written by the American journalist and novelist Upton Sinclair.[1] Sinclair wrote the novel to portray the harsh conditions and exploited lives of working- and middle-class Americans in the United States.[2] The book also was a window into the American sausage-making industry, exposing rampant violations and unsavory practices and leading a large and vocal contingent to call for reforms.[3]

However, most readers regarded the book as essentially divisive and ideological. A Meat Inspection Act was proposed, but a Congress insulated by strong political parties ultimately voted it down after industry advocates condemned it. Politicians rebuffed questions about the putrid conditions in the sausage factories as short sighted and issue-centric, rather than pragmatic and coalition-building legislation more typical of Congress's work. As one Congress member put it: “In the regular party, conferences on issues are regarded as women’s work.”[4]

Even as support continued to grow for meaningful reform to curb the abuses in the sausage factories, politicians and intellectuals refused to reconsider the Act. Defending national leadership against widespread claims of back-scratching and logrolling, many academics explained them as signs of a healthy political system, not a corrupt one: “To demand high standards of democratic deliberation . . . is to potentially slow, dampen, or even deny the ability of energetic leadership to play its mobilizing function and enact effective policies in a timely way."[5]

The Jungle also depicts struggling working class conditions, failing social supports, deteriorating living conditions, and a hopelessness and isolation among many Americans. These elements are contrasted with the deeply rooted corruption of people in power. Critics, however, denounced Sinclair's themes as "a tail-chasing, tree-munching, all-consuming, ever expanding, and by now entirely counterproductive war on corruption. Perhaps the hardest of all default assumptions to reset is the idea that most of America’s political and governmental ills are the result of some version of corruption and that the remedy involves some version of amateurism."[6]

Reaction to Sinclair's Morals and Character                    

Though initially boasting strong sales, The Jungle went out of circulation after its second printing. A suspected anti-Semite and Socialist, and a sexual-abstinence advocate who nonetheless left his first wife following an adulterous affair, Sinclair's character was simply too fraught and outside the mainstream for a widespread paperback readership. 

Sinclair's initial support among writers and artists, with his interest in occult phenomena and experimentation with telepathy, also waned. Science-fiction author Robert A. Heinlein deeply supported Sinclair's ideas, although he attempted to distance himself later in his life.[7] 

In his novel, Mammonart, he suggested that Christianity was a religion that favored the rich and promoted a drop of standards. He was against it.[9]


1. The Jungle: Upton Sinclair's Roar Is Even Louder to Animal Advocates Today, Humane Society of the United States, March 10, 2006, archived from the original on January 6, 2010, retrieved June 10, 2010. 

2. "Upton Sinclair", Press in America, PB works.

3. Fox Election HQ, "Krauthammer: WikiLeaks Dump 'The Camera in the Sausage Factory'". 

4. Daniel Patrick Moynihan, "'Bosses' and 'Reformers': A Profile of the New York Democrats," Commentary, June 1, 1961. 

5. Thad Williamson, The Tangled Relationship of Democracy, Leadership, and Justice in Urban America: A View from Richmond (2014). 

6. Jonathan Rauch, Political Realism: How Hacks, Machines, Big Money, and Back-Room Deals Can Strengthen American Democracy (2015).

Tuesday, October 18, 2016

Bleating at Sheep

PBS: "Trump overwhelmingly leads rivals in support from less educated Americans"

The Washington Post: "Donald Trump’s surge is all about less-educated Americans"

"Historians Against Trump" in "An Open Letter to the American People":
 As historians, we consider diverse viewpoints while acknowledging our own limitations and subjectivity. Our profession reminds us to look for the humanity in everyone as we examine the ideas, interests and movements that shape world events. We interrogate and take responsibility for our sources and ground our arguments in context and evidence. Donald Trump’s record of speeches, policies and social media is an archive of know-nothingism and blinding self-regard. Donald Trump’s presidential campaign is a campaign of violence: violence against individuals and groups; against memory and accountability; against historical analysis and fact.

We have a professional obligation as historians to share an understanding of the past upon which a better future may be built. This means equipping the public with historical skills [skills to do what? -tk] and narratives that are “factual, accurate, comprehensible [to whom?--are we to presume Trump and his supporters are unable to comprehend "narratives that are factual and accurate," or that such narratives would not interest them? -tk], meaningful [whose meaning?--are we to presume this follows the project of "acknowledging our own subjectivity? -tk], useful [toward what "use"? -tk], and resistant to cynical manipulators who sell snake oil as historical truth.” [But one person's "meaningful," "useful" "narrative" is truth, just as much as it is "snake oil" to another. -tk] When Donald Trump accepts the Republican nomination on July 21st, a Grand Old Party born out of the struggle for abolition and justice will have succumbed to snake oil. We are here to say, “No more.” Join us in standing up to Trump—for our history, for our future, and for each other.

Historians Against Trump Organizing Committee:
Brian Dolber
Amy Harth
Caroline Luce
David Schlitt
Jonathan Zimmerman: "Why I’m Not Joining ‘Historians Against Trump’":

… I won’t join Historians Against Trump, which indulges in some of the same polarized, overheated rhetoric used by Trump himself....

What were Washington's views of religion and civic life? His Circular Letter provides the answer!

George Washington's pronouncements regarding civic religion were usually couched in general language. He rarely referred to God in specific confessional terms, for example, but rather used generalized language that reflects often common 18th century rational theistic terminology. This use of generalized language was often paired with terminology designed to appeal to religious believers of a more orthodox Christian persuasion. It is this pairing that more often than not leads, I think, to a good deal of the confusion regarding Washington's own religious beliefs and his view of faith in public life.

A good example of Washington's use of language in this regard can been seen in one of his more significant public pronouncements, the Circular Letter to the Governors of All the States regarding the disbanding of the Continental Army in 1783. In that letter, Washington seeks to reinforce the stability of the early American Republic as the Continentals returned home after winning independence.

Washington makes two particularly important points regarding the role of religion in civil life. The first is that for a variety of reasons, including divine "Revelation," human society is improving:
The free cultivation of letters, the unbounded extension of commerce, the progressive refinement of manners, the growing liberality of sentiment, and, above all, the pure and benign light of Revelation, have a meliorating influence on mankind, and increased the blessings of society. 
Note that Washington, while listing many human accomplishments in this process of improvement, he attaches priority to "the pure and benign light of Revelation." Washington does not specifically identify where God's Revelation is found, but in traditional Christian theology Revelation is found in both scripture and the natural world. To his audience, the leaders and citizens of the newly independent American nation, the use of the term "Revelation" would have carried the resonances of biblical religion and an understanding of the natural world known through reason.

And for Washington it was divine Revelation that was most to account for the progressive improvement in human society. Not a dry and cramped secularism or a humanism operating in a universe where God is simply an inattentive watchmaker, but Revelation proceeding from an active God who was communicating with human beings, moving them constantly forward toward a better future. Washington argues that because of these many advantages -- both human and revelatory -- the happiness of the citizens of the United States as "a Nation" (and Washington uses both the singular indefinite article and a capital "N") is for the taking. If happiness and freedom do not result, "the fault with be entirely" our own.

Washington's second point reinforces the importance of God's action in human events by commending the state governors and their respective states to divine care. "I now make it my earnest prayer," he writes, "that God would have you and the State over which you preside, in his holy protection[.]" Washington hopes that God would move the citizens of the country to "cultivate" a host of proper civic virtues: obedience to governmental authorities, fellow-feeling for each other -- both fellow citizens and particularly for the returning veterans of the Continental Army -- and, most interesting, to emulate those virtues "which were the characteristics of the Divine Author of our blessed religion[.]" (Italics in the original.) After including a brief and common list of those virtues, Washington states that without "an humble imitation" of the example of the Divine Author, "we can never hope to be a happy nation."

What one sees in Washington's Circular Letter is language used that is confessionally non-specific, but which takes for granted certain key religious ideas: 1) God is active in human affairs, moving human beings towards greater goodness and social solidarity; 2) because of the advantages they benefit from, the citizens of the United States are responsible for their freedom and happiness; and 3) human beings are called to imitate the attributes of God as He has Revealed them.

Washington's Circular Letter is not a fully developed treatise in civic theology, but it does manifest the key points of Washington's own views about the role of religion in human society. And Washington's vision in that regard was one that viewed religion as a positive force in human life and civic affairs. It is not, to say the least, a vision of civic life that is hostile to religious faith. While couched in language that is not expressly orthodox, it is couched in language that is amenable to orthodox interpretation. Far from religion ruining everything, to borrow a phrase from the late Christopher Hitchens, for Washington religious faith stands as the well-spring for civic virtue and human happiness.

Something to keep in mind in election season 2016.

Monday, October 17, 2016

"If You Like Your Doctor's Advice, You Can Keep Your Doctor's Advice": A New State Challenge to "Medical Judgment"

California enacted a controversial law last year, known as SB277, that abolished the religious and personal-belief exemptions to state-mandated child vaccinations. One remaining exemption, however, is at the heart of the law: the physician exemption. Under that exemption, if your child is contraindicated (that is, medical circumstances suggest your child is more likely to suffer adverse reactions), then your physician still may exempt the child from certain vaccines.

In 2014, Dr. Bob Sears wrote an exemption for a two-year-old who suffered adverse reactions to prior immunizations. Sears is an outspoken supporter of both vaccines and vaccine choice. He is respected by opponents of SB277 for his even-handedness on the fraught subject. The California Medical Board is now accusing Sears of "gross negligence" related to the 2014 exemption. The Board alleges Sears failed to get written medical history concerning the child's prior adverse reactions.* "If the board finds Sears negligent," the Orange County Register reports, "he could face discipline ranging from a public reprimand to revocation of his medical license."

This is unusual to the point of unique. From a legal perspective, that is. From a policy perspective, the chill down the spine should feel familiar; more anon. But the law to date has steered well clear of the physician's prerogative to advise his patient. For example, in Doe v. Bolton, the 1973 companion case to Roe v. Wade, the Supreme Court described a physician's "medical judgment" as follows: 
"medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient." 

Over three decades later in 2005, the LA Times remarked that this broad standard meant that, in effect, "any abortion could be justified.”

And so it went. In fact, only in the cases of serial killers has the law found the physician's time-honored discretion to have been exceeded. Ramesh Ponnuru:
How would a prosecutor be able to overcome a defense rooted in the abortionist’s claim that a late-term abortion was needed to protect the mother’s emotional health? Is there any evidence that abortionists have been prosecuted or lost their medical licenses in this way? (I have read of only two successful prosecutions for illegal late-term abortions since Roe: those of the “Butcher of Avenue A” in New York in the early 1990s and of Kermit Gosnell in 2013, both of whom were also convicted of many other counts.)
Nothing on the face of California's SB277 suggests it means to cabin physicians' advice concerning your children or immunizations. Where the law is codified in the Health and Safety Code (at section 120370), it contemplates physicians will consider all "medical circumstances," echoing the practically limitless "medical judgment" language of Doe v. Bolton. More than 40 years after Doe, in other words, scrutinizing physicians' judgments advising abortion is simply unheard of. And yet less than a year after SB277, California is targeting a well-known physician for offering a patient his medical judgment.

As mentioned above, the attentive will find this familiar. The state's intimidation strategy is taken from the same page as the EPA -- that is, "how the Romans used to...find the first five guys they saw and they'd crucify them," as described in a 2010 presentation of one of its officials, Al Armendariz:
“I was in a meeting once and I gave an analogy to my staff about my philosophy of enforcement, and I think it was probably a little crude and maybe not appropriate for the meeting, but I’ll go ahead and tell you what I said:

“It was kind of like how the Romans used to, you know, conquer villages in the Mediterranean.  They’d go in to a little Turkish town somewhere, they’d find the first five guys they saw and they’d crucify them.

“Then, you know, that town was really easy to manage for the next few years.”
So even if Sears survives, it would be cold comfort to say "the system worked." By design, the process is the punishment: downstream pediatricians less prepared than Sears for litigation and negative publicity will have to strongly consider preemptively changing their medical counsel.

The state sees vaccines as a generally-applicable policy for the entire public. But until now, a conscientious, patient-centered physician would treat vaccines just like anything else: an independently-considered choice for each individual patient. To learn if this holds much longer, watch this space. 

So if you like your doctor's advice, you can keep your doctor's advice -- until, that is, the state threatens your doctor's medical license, in the service of a policy objective. In that case, it's more likely either your doctor will change his advice, or he'll stop being your doctor. Or anybody else's.

*From personal experience and research, I can relate that many pediatricians are loathe to entertain the possibility that any symptoms are caused by vaccines -- even symptoms explicitly stated on the label -- and thus are unlikely to document them as anything but routine ailments.

Sunday, October 16, 2016

Election got you stressed? Listen to Epictetus!

According to this story, lots of Americans are suffering stress in anticipation of the upcoming election. If you are one of those folks, some wisdom from the Enchridion of the Stoic philosopher Epictetus might provide some relief:
Of things some are in our power, and others are not. In our power are opinion, movement toward a thing, desire, aversion (turning from a thing); and in a word, whatever are our own acts: not in our power are the body, property, reputation, offices (magisterial power), and in a word, whatever are not our own acts. And the things in our power are by nature free, not subject to restraint nor hindrance: but the things not in our power are weak, slavish, subject to restraint, in the power of others. Remember then that if you think the things which are by nature slavish to be free, and the things which are in the power of others to be your own, you will be hindered, you will lament, you will be disturbed, you will blame both gods and men: but if you think that only which is your own to be your own, and if you think that what is another’s, as it really is, belongs to another, no man will ever compel you, no man will hinder you, you will never blame any man, you will accuse no man, you will do nothing involuntarily (against your will), no man will harm you, you will have no enemy, for you will not suffer any harm.
Know what's in your power, and what isn't in your power. Worry about what you can fix, not what you can't.

The Journals Clause

This is a cross-post from: Seth Barrett Tillman, The Journals Clause, The Originalism Blog (Oct. 16, 2016, 6:56 AM), http://tinyurl.com/jy596mt

Perhaps you might know that I have had occasion to write on the Constitution’s usage in regard to office and officer. Recently, I let it be known that I hoped other scholars might allow me to pass to them the intellectual baton, and we would see where they go with it. So I was pleased (albeit surprised) when an academic wrote me:

[Y]ou mentioned in your response that you’d encourage students looking for research projects to dive into the office/officer debates. Quite a few of the new members of the [law review] are indeed looking for research projects and some have asked for advice. Do you have any specific points of research or questions you’d recommend? I understand if you’re hoarding all of the good ones for yourself, but thought I would ask.

What struck me about this question was: (1) the somewhat disappointing realization that no one had asked me this question before; and (2) the writer’s expectation that I (and perhaps others) might be hoarding “good” ideas.

So it got me thinking: Do I “hoard” ideas? I don’t think I do. But that’s a low bar. The test ought to be: Do I actively promote interesting ideas?

So in the interest of promoting interesting ideas, I am going to put one forward here.

I have had the itch to write a paper on the Journals Clause for many years. But it was always near the bottom of the list, and if it began to rise to the top, some intervening event or publication by another required (I thought) my more immediate attention. After all these years, I would still like to find time to write that paper, but if the past is prelude, I expect I will not find that time (particularly, as I am increasingly pressed to write more on Irish law).

So what is the idea? The Journals Clause (a/k/a Article I, Section 5, Clause 3) states:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

The key word in the clause is “keep”. The standard view is that it means “maintain” or something akin to “maintain”. There is not a lot of post-ratification discussion of the clause—except for the debate on the Senate Expunging Resolution from circa 1837. As to preratification, the consensus view is that the clause was grounded in norms relating to accountability & responsibility, and publicity & transparency. See, e.g., David F. Forte, House Journal, in The Heritage Guide to the Constitution (2d ed. 2014), http://www.heritage.org/constitution#!/articles/1/essays/23/house-journal. That’s the standard narrative.

The problem with the standard narrative’s interpretation of the Journals Clause (as with so many other constitutional provisions) is that it is a very poor fit against the actual language and original meaning of the clause. To see that, you first have to understand what a parliamentary journal is. A parliamentary journal is the legislative equivalent of a judicial docket: it is a barebones record of motion practice before the body, and it records decisions (i.e., legislative orders) taken by the body. But just as judicial orders do not customarily record judicial reasoning (in extensio), parliamentary journals do not customarily record debate (in extensio). This functional equivalence between parliamentary journals and court dockets should not be surprising: the 18th century houses of the British parliament were courts of record, as were many of the colonial parliamentary houses. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) (explaining long-established Connecticut practices). As to achieving some semblance of political responsibility by publishing the “Yeas and Nays,” that could be undone by simple majority action—i.e., by committing the contested portions of the journal to “secrecy”.

Let me now suggest a wholly different view of the clause. It is a view I am attracted to, but I admit I cannot prove it (at least not today, while I am in Ireland). Still I suspect a dedicated researcher might find materials supporting my thesis. But a note of caution: there are some risks here too. If my position is entirely wrong, you could spend a lot of time, and find nothing for all your efforts. And that will not make much of a paper.

I suggest “keep” does not mean maintain. Perhaps “keep” means “control,” “own,” or “possess”. Without the Journals Clause, it might be argued that a House or Senate journal is property of the United States to which the Executive Branch might lay claim, particularly between breaks between biannual Congresses and also during (proper parliamentary) recesses between sessions (as opposed to mere adjournments within a single parliamentary session). The effect of the Journals Clause is to vest each house of Congress with something akin to a property right and also to command each house to “possess” its Journal, not against the public, but against the President and his minions. In a sense, the Journals Clause is an analogue to the House Officers Clause and Senate Officers Clause, which exclude the President from participating in the selection of House and Senate officers. See Article I, Section 2, Clause 5 (House Officers Clause); Article I, Section 3, Clause 5 (Senate Officers Clause). The irony here is rich. The ever-expanding and progressive chronological additions to each house’s official journal (along with other congressional records) have been regularly archived with the National Archives and Records Administration—which is exactly what Congress was commanded not to do (assuming my hypothesis is correct).


So if you are a law student writing a research paper or student note, a student or fellow in some non-law programme, an academic, or just an aficionado of ideas, and if you should use this idea … then cite my Originalsm Blog post, for having had the germ of the original idea, in a footnote (and, perhaps, in the main text); send me a preliminary draft and a reprint when finalized; post your paper on SSRN and BEPRESS; and when next you are in Dublin, you are buying.


Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, Modern Scholars Who and Prior Courts which Understood Ex parte Merryman, The New Reform Club (Oct. 9, 2016, 4:59 AM). [Here

Saturday, October 15, 2016

Shiny-Penny People

Our conundrum, same as every four years, is we have to choose between two CANDIDACIES, via a proxy of two CANDIDATES. It’s not complicated. It’s just that, in practice, over many months, we slip into error, confusing candidacy with candidate; supporting the vision with validating the visionary.

The candidacies can be evaluated very straightforwardly — and thus this is just like every other election.

Except this time, the candidates are both nasty, both associated with accusations of immorality and criminality.

Usually the candidates’ pennies shine up pretty good, so you can just make the choice on vision and maybe, if you're a fussy sort, who you think has slightly better character.

The moralists in this election — and at the most amoral time in perhaps our whole history we’re suddenly all very fussy moralists — have made this election all about character. But like every election, there’s hardly any daylight between the candidates’ character — just instead of two shiny pennies we have two gum-smeared, diseased arcade tokens.

So in the end, this should be no different than any other election: make the choice on vision and maybe who you think has slightly less awful character.

The reason that isn’t happening is that it turns out we’re not really visionary people after all. We’re shiny-penny people. And GOPe sorts are the shiniest of them all — they won’t lend their vote even against the most ghoulish vision until they get their penny.

Friday, October 14, 2016

How Corporations Invented '"Special Student Snowflakes"

The complaints about college students acting like "special snowflakes", the accusation that they are acting in a completely infantile way, is a completely misunderstanding of what is actually happening. The college students are acting towards the university administration in exactly the same way corporations act towards the government. Today's college students merely imitate the actions of today's most successful corporate leaders. 

Modern American corporations don't like competition. At every possible turn, the corporations create lobby groups that write legislation, propose the legislation to lawmakers and subsequently get their own corporate ideas passed into state or federal law. Corporate lobby groups not only write laws, they subsidize the campaigns of state and federal legislators in order to make sure their laws go on the books. Without fail, the laws written by corporations and passed by their pet legislators favor the corporations that wrote them, these laws create barriers to entry for other businesses that might otherwise compete with the existing corporate structure and/or profits.

Most really successful corporations get themselves government subsidies - free money. They either get direct grants or tax-free zones, written into the law, passed as "earmarks". They restrict their employees speech, fire employees for any infraction of corporate rules, dump whistle-blowers into the street, regulate the market so no possible competition can arise. Many of these activities are backed by the power of the state. The state becomes the corporations' police force.

Corporations convince the government to require businesses to have licenses in order to do business. Most government licensing doesn't protect anyone but the corporations, it's just a barrier to market entry created by market actors who are already making their money and don't want competition, much like an interpretive dance major doesn't want to have to compete for jobs with an electrical engineer.

Think "cosmetology" for instance. Do we really need hair-dressers to have government licenses before they can wash someone's hair for money? Seriously? Actually, the de facto need to get a university degree before you can get hired is just one more artificial barrier to job market entry, it is a union card whose fees are dramatically higher than any previous union ever extracted from its members:
Universities became the new apprenticeships, replacing both the agrarian small-business apprenticeship model and the union card. Whereas the earlier systems placed an apprentice into a job according to biological nepotism, the new system places people according to intellectual nepotism – only those who think the right thoughts will move into positions of power. As a result, university professors have become the gatekeepers to society. The newest political party, the university, fills the empty slots in political, judicial and media positions.
These students are doing with university administration muscle EXACTLY what corporations do with government muscle - require certain credentials before you are allowed to speak/act, and entirely forbidding certain kinds of speech/action. Mizzou students want to regulate what speech products are permitted into the university marketplace in precisely the same way that corporations regulate what products are permitted to enter into the "free" marketplace. Students threaten to stop the flow of money to those administrators who don't go along, just as corporations implicitly and explicitly threaten the flow of money to state legislators who don't go along.

And as for "free speech" in a corporate environment... wait, I can't stop laughing. Please. My stomach hurts. Stop.
Question: How many Americans are completely muzzled inside of their corporate environment?
Answer: All of them.
Why should corporations that are universities be any different than corporations like IBM or Apple? No. Seriously. Why? Universities aren't built around education, they are built around credentialing and preparation for a job. What could be better preparation for the corporate work environment than learning to keep your head down and your mouth shut while your bosses lecture you about thought-crime?

The student activists are regulating speech and action to prevent a competition of ideas in the university marketplace in exactly the same way that corporations already regulate speech and action to prevent a competition of products in the regional/national marketplace.

For universities, ideas are supposed to be their products. Students are treating the university administration in very much the same way that corporations treat the state and federal governments.

Is this good? Well, no, almost certainly not. But, when we really consider the situation, we cannot deny that Mizzou students are really just training to be American "free enterprise" corporate actors, and doing a very good job of it.

The Ministry of New Truth -- A Short Story

"I saw him again today."

Mehta, an exchange college student in New York, sat down across from his professor. Mehta has come to discuss his paper on early 21st century United States. The year is 2216.

"I am sure it was him. Last time I was not sure. I did not expect to find a chancellor where I am. Not a good part of town. I only saw him leaving last time so I wasn't sure. This time I waited. And when he came out, it was the chancellor."

Mehta was agitated. "How could a man of such honorable position come to such a low condition?"

The professor did not look up from his work. "He was convicted of fraud. And terminated, of course."

"But that is unusual, no?"

"Not at all," answered the professor, still turned away from Mehta. "The decision rates are very high."

"Not the decision," said Mehta breathlessly. He slowed down. He knew the story, of course, as did everyone at the university whose prior chancellor was found to have committed fraud. "There was not even any evidence. How could they decide without proof?"

The professor now stopped his work and looked up at Mehta, puzzled at first, and then realizing where he was from. He looked at the ceiling. It had been many years since students like Mehta bothered the professor with such questions. Mere liberals, they were called, from the developing world. Foreign students slowed to a trickle decades ago, and most were as content with the study of trivialities as the rest. The professor paused to call to mind the evolution to the modern way of settling truth.

"By 'evidence' and 'proof', I take it you mean facts. The old preoccupation with facts was swamped by their overwhelming accumulation. The preoccupation was useful for a time as they could justify any result one liked, and the sheer volume facts -- even though amounting to overwhelming proof of terrible wrongdoing -- could not be understood except by a distracted public. It was one of the great ironies of that age that distrust increased as more facts were published, creating a cycle of ever-accumulating facts sweeping over an ever-distrustful public.

"What the people wanted," the professor continued, "was not facts. Facts alone were empty. It was long thought the answer had to do with giving the people context or a narrative to help them understand the facts. But this proved naive. The flood of facts drowned everyone, narrative or no.

"In the end, facts were professionalized. It was no use bothering the public with an endless disbursement of facts. Someone had to prosecute them, and so reporters would gather the information and present them to a panel to render a decision. These began at newspaper companies, and decisions were issued by the editorial boards. In important cases, several newspapers' boards would make a joint decision. But relatively early on it became clear this would have to be a state function with its powers to subpoena and produce documents and testimony, which is why it is now carried on by the Reporting Bureau.

"Subjects of investigations realized early on they could avoid decisions against them by simply destroying evidence. For reasons we can scarcely now imagine, this greatly vexed the reporters. Probably residue of a culture obsessed with facts -- it simply did not occur to them how a decision could be drawn. But at last the reporters adopted the spoliation rule of long standing in the civil courts. Thereafter, the rule is as it is today: where a subject has cause to know a fact, destroying potential sources of the fact is punished by deeming the fact established. The subject confesses a fact by suppressing it.

"Your former chancellor was found duly guilty of falsifying records and attempting to upset the university's ideology quotas. It was an infraction only -- he would have resumed his duties within a matter of months. But he destroyed evidence, proving his guilt not only, but the aggravating anti-knowledge count. For that -- for denying mankind the truth of what really happened -- he was sent to rehabilitation and banished from the academic class."

"But what if it was an innocent misunderstanding?" asked Mehta. "It wouldn't be fair to condemn the subject then!"

"Why enable such a choice?" the professor calmly responded. "It is a moral fiction.  Instead, we make the spoliation equal to the crime. But let us put aside jailable offenses as they arouse the emotions that leave less room for clear thought.  And we provide more elaborate exceptions besides.  It was in everyday civil life that the 'presumption of innocence' was misapplied and caused mischief.

"An early version of the Universal Evidence Code stated, 'A person subject to a civil charge who destroys, conceals, or otherwise refuses to provide related information confesses the charge.' But the word 'refuse' was later amended to 'fails to provide.' Do you know why?"

Mehta started to respond.

"'Refuse,' the professor went on, not looking at Mehta, "suggests the information need not be provided until a request is made. But that, we know, would encourage more injustice, more concealing information in hopes it will not be requested. Instead, if it is discovered a person failed to volunteer it, that is enough for condemnation.

"But in either event," the professor continued, "your neighbor the former chancellor simply destroyed the evidence. The decision was easy, and the public was not disturbed with burdensome explanations and competing narratives. The rule was followed. The decision was made. Confidence was restored. And the people are free to resume their leisure activities."

Upon returning home, Mehta knocked on the ex-chancellor's door, and meekly accepted his invitation to come in. Mehta asked: "If you knew the consequences, why did you destroy the evidence?" The ex-chancellor explained:

"People are squeamish to believe claims that do not interest them. Tell them their mooching neighbor is a thief and they will believe you. Tell them a stranger across town is a thief and all they know is either he's a thief or you're a liar, and if you're a stranger the case is in equipoise. This is still so, even under the new rules. So although people understand that suppression, deception, or spoliation are dispositive of reasonable charges, reporters simply heightened the standard for bringing charges in the first place. So under the old way, charges were commonplace, but none met the heightened proof standard.  Now, we readily understand how to prove a charge, yet we rarely bring them.

"Human beings desire leadership more than truth, and so naturally they seek out ways to suppress the truth. People are quite willing accomplices, so long as they are excused from active participation. So various commissions and boards and committees were installed to investigate and discover 'truth,' and people acquiesced in the premise that truth can be had by no other means. Seeking truth is not a human endeavor, but an official one.

"In fact," the ex-chancellor explained, "the new epistemology was designed by one such commission to address historic low levels of confidence in officials. It was decided that a periodic sea change in epistemology would restore structural confidence and satisfy the people's desire to periodically assert their will, however impotent."

An impatient Mehta finally broke in. "But what was your sin?"

"Oh, I committed the most subversive act of all. I destroyed evidence of my own innocence. Confidence was manipulated from end to end.

"I was an honest man unconcerned about proving his own honesty. Such a possibility is not allowed under the new way. Guilt or innocence themselves are of little interest. What damage, after all, can one dishonest man do? Of what benefit is confirmation of a solitary act of innocence when the store of facts is already overflowing? A modern epistemology, like a modern economy, has its value not in producing facts themselves -- idle trinkets are they, no use beyond momentary amusement -- but in propping up a satisfaction that truth, and value, are within our means, should we arouse the desire.

"But the new prosecutor -- the reporter of truth -- he is the man who holds us in his hands: and his power is absolute. He alone presents the evidence. Guilt or innocence? An audience does not judge a performance by whether the magician produces a rabbit or a dove, so long as the trick comes off.

"Ah, but if the trick does not come off? If he cannot produce a result, human knowledge is at an end.

"A man, it is said, has an interest in proving his own innocence. But why should this be so? To pursue truth? We have abolished truth! To escape shame? We have abolished shame! To escape the stocks? They are replaced with rehabilitation, which is not at all so noxious as our universities.

"The prosecutor who lacks the fiber to prosecute the man who destroys evidence of guilt is easily humiliated by the man who destroys evidence of his innocence. Such a prosecutor is a coward, and a fool."

Mehta stood, shaking his head, and walked slowly to the door. He thanked the ex-chancellor, and left. He felt homesick. 

Wednesday, October 12, 2016

Bye-Bye Miss American Pie

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.

"Keep, ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"


"Oh, screw that. Put up a wall, and send us only your very best, the ones who can really help turn a buck for us. You keep the wretched refuse on your teeming shore, we'll skim the cream off the top."

America... I don't know you anymore.... 

Trump and the problem with the Trolley Problem

When all you have is a hammer…

Via Chris Gertz' The Pietist Schoolman, Adam Johnson, a "moral psychologist" [which seems to be some brew of science and philosophy], goes after the Trump Tape and also a Christian academic named Wayne Grudem, who previously defended voting for Trump on moral grounds.

I suppose I could get into the particulars of the argument, but weaponizing one’s professional expertise in service of one’s politics should be fraught with a concern for its risibility, although as we know from Philip Tetlock’s work, experts are seldom held accountable for being wrong [perhaps wrong even most of the time].

In this case, any attempt to psychologize Trump or especially Wayne Grudem lies in dangerous proximity to violating the Goldwater Rule, which forbids psychologists from pronouncing on people whom they've not personally interviewed, as many infamously did in sliming Goldwater in 1964. For Trump to argue that Bill Clinton has done far worse doesn’t require a GED let alone a PhD to explain, and as for Dr. Grudem, he may be putting things on hold waiting for more shoes to drop, but his argument was defensible based on the information available at that time.

And perhaps still is. As pioneering conservative evangelical Dr. James Dobson of the Focus on the Family empire put it

“Mr. Trump promises to support religious liberty and the dignity of the unborn. Mrs. Clinton promises she will not.”

This is where Dr. Johnson’s invocation of the Trolley Problem

“one person dies, but five survive”

is a false premise–nobody died from Trump’s actions, but many [unborn] will die from Hillary’s—especially if she succeeds in repealing the Hyde Amendment, which will put the US government in the business of subsidizing abortions. For many, the moral calculus remains a simple matter of arithmetic.