Our problems remain epistemological.

Thursday, December 24, 2020

Merry Christmas from the Moon

 

It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:


Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...



"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."


Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."


Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."


And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."



It is good. God bless us, every one.

Sunday, December 20, 2020

A Decent Respect

A person close to me has a taste for modern art, especially non-representational art. The kind of art that is all vague shapes and colors. The kind that defies description. I can relate them to you no better than could my nine-year-old: red and black paint on a really big canvas, is all I can say of one; red and yellow and green and black paint, with scattered blobs piled up with a trowel, and part of a boot-print in one corner, is my best stab at another. 
 
There was a time I scoffed at this kind of thing as non-art. Whatever could be said for these works – interior decor, perhaps, or an alternative to wallpaper, maybe – they were not art. Anyone who thought they were art was deluded. There was no point in discussing the matter. The very point of view was beneath argument. 

As I said, this is a person close to me, so I did my scoffing in silence, for the sake of friendship. But over time, to my surprise, I began to wonder that there was, perhaps, something more to the works than mere paint and boot-prints and trowel-marks. They began to capture my interest, and to spark my imagination, and to make me think about unexpected things. This non-art began, in a word, to act upon me in the ways that only art can. I was forced to conclude it was pointless to dismiss them as non-art. They may fall short of great art, or even of good art. But these evaluations would have to be made on the merits. Mere scoffing would not do. 

I realized I had come to the same conclusion as the critic Roger Kimball, who, responding to Ayn Rand's rigid aesthetic, confessed that he, too, did not like much modern art, but that instead of getting mired in formal objections over whether a work "qualifies as art," we should move on to the real question of whether it is any good. The charmless but rigorous aesthetic of a Rand, who rejected such work as non-art, "just doesn't get us anywhere," said Kimball. "What we need," he concluded, "is not definitional ostracism but informed and robust criticism." 
 
Definitional ostracism. That is a phrase that comes to mind often when taking in today's political news. It doesn't get us anywhere in art, and it doesn't get us anywhere in politics, either.
 
Take the 2020 presidential election, for example, whose results indicate the Democratic candidate, Joe Biden, narrowly defeated the Republican incumbent, Donald Trump. The elections results are a kind of modern art: little where it was meant to be, much where it was meant not to be. Bellwether states and counties pointing opposite the presumptive winner. Strange announcements that vote counts would be stopped in the middle of the night, with Republican watchers exited from the facilities, followed by vote dumps and a seeming reversal of count trends. Major changes to mail-in voting norms in many states short months before the election, including allowing votes cast potentially after election day, many of which changes were subject to truncated or still pending legal challenges. The Democratic nominee underperforming his 2016 predecessor in every urban county in the country, yet outperforming the much more historically popular Barack Obama by some 15 million votes. Strong Republican electoral wins overall. Much recent – as in, up to at least 2019 – bipartisan criticism of the reliability of voting equipment, suddenly becoming unipartisan. And a history – a very long history – of grassroots voter fraud throughout the country (as in, for instance, over 300,000 dead people on voter rolls, and the number of putative registered voters exceeding actual eligible voting-age citizens in 352 counties across 29 states – not by a little, but by a lot: about 1.8 million total). Indeed many precincts reported historic turnout, some over 100%, a result counter-indicated both by the low enthusiasm of Biden's base, and by mathematics. And then there is the influence of social media giants who heavily support Biden, and the election-season media blackout on negative Biden press, which is now being confirmed only after the election. And against all this, a result featuring exceptionally close margins, in several states measuring in the low tens of thousands. 

A great electoral heist? Or the cleanest election ever? Both of these extremes are mere scoffing or boasting. None of these circumstances, either alone or together, self-evidently establish targeted voter fraud. But they do arouse a desire for explanation. And the ongoing lack of explanation impairs, in the person with normal functioning curiosity, the formation of belief that the outcome was on the level. 

Yet where explanation is looked for, only scoffing is to be found. When I expressed my desire for an explanation of Biden's apparent win in light of these extraordinary circumstances, a friend of mine, a neocon – or a neoliberal; who can tell the difference these days? – offered no explanation at hand. Instead, he took to the internet. To search for an explanation? No: he Amazoned me a roll of tin foil, and instructions to make a hat. It is said if you want to make a man laugh, you have to tell him a joke. Did it not occur to my friend that if you want to make a man understand you have to tell him an explanation? 

To man's search for understanding, the standard political discourse only tells jokes, jokes which produce neither understanding nor laughter.
 
A more chilling and mirthless response to American's curiosity about the 2020 election came from the largest information service in the world. In December, Google announced it will censor any inquiry on its YouTube platform. So if you are dissatisfied with the quality of explanation offered by approved news readers, do not bother searching out other explanations. Definitional ostracism is official policy of the world's primary conduit of information. 
 
You are hereby warned: Curiosity is not licit.

But this rule is exceptionally new. Those curious about the surprising outcomes of previous elections were not starved of explanation as they are today. When Democrats made accusations in 2016 of election interference, they were not, as are Republican accusations today, rejected out of hand. And when they continued making them in 2017, Americans still forbore from dismissing them outright. When they persisted in 2018, and in 2019, I must say I began to feel Democrats had begun to impose rather excessively on our credulity. And when their evidence was officially found wanting, I confess I searched, without success, for some expression of gratitude for their fellow Americans' years of patient attention. 

But I maintain that we Americans did the right thing: Our countrymen, though of profoundly different opinions, sincerely believed in their cause. We could not do less than to consider their cause on the merits. If a man "was such a rogue," said Samuel Johnson, "as to make up his mind upon a case without hearing it, he should not have been such a fool as to tell it." As it proved, the Democrats' cause proved to be bosh. But no one could have told them so without first having heard them out. We might have hoped they would make their case in less time than the three years they indulged. But a mind is another country, and who can say how long will be the travels through it. And to their credit, Democrats subjected their claims to the crucible of investigation, evidence, and trial, where it was found disproved, publicly and finally. Together, we reached closure. Consensus, it is to be hoped, will follow.

Just as four years ago, today a similarly large share of Americans have concerns about election interference. They are concerned that corporations leveraged censorship and algorithms to support a certain candidate. They are concerned about strange circumstances surrounding mailed ballots, and about strange circumstances in the vote counting election night. 

Nearly half of likely voters share these concerns. So they are justified in expecting the same respect they afforded their political opposites for nearly four years: that their concerns be taken up, investigated, and considered on their merits.

But that, it appears, is not to be. To the questions about the peculiarities of Biden's putative electoral win, all that is offered is definitional ostracism. Media bias: that is deemed a conspiracy theory. Censorship of conservative voices by social media? that's a conspiracy theory. Election interference? conspiracy theory. Voter fraud? conspiracy theory. Rand's art criticism was charmless, but at least it was rigorous. Political fact checkers have all of her charm, but fall rather short of her rigor. 

That is a shame. We are a country. The men and women of a country are meant to share things in common. Sharing things is not always easy. In fact, it is often very hard. Whether it is art or politics or religion or any of the other facets of life we share together, the project is to seek to understand others, even when – especially when – we do not agree with them. We wield only very lightly the ability to separate truth from nonsense. A mere eighth-of-an-inch is all that keeps the angels from tumbling out of the heavens onto the addled heads of forward-lookers and right-thinkers far below. 

Some humility is in order. How can any of us know what is true and what is nonsense? There is truth, and there is falsehood. But we can know the difference only seldom, and with much difficulty. And perhaps after committing many errors. The most common and most tragic failing of man is a too sure sense that he is right. You cannot dictate common sense by giving its Twitter account a blue check. 

Americans do not want in their politics the endless series of declarations given them by today's "fact check" journalism. Ordinary men, Thucydides observed, usually manage public affairs better than their more gifted fellows. Benjamin Franklin similarly noted that good governance depends not only upon the wisdom and integrity of its governors, but also "on the general opinion of the goodness of the Government." There is wisdom in the opinion of ordinary citizens. 

But even if Americans' opinion is wrong, it deserves a hearing, not mere scoffing. After Donald Trump won the Republican nomination in 2016, Jonah Goldberg took aim at Trump's ideas as nothing but empty populism, comparing him to the early 20th century populist William Jennings Bryan. Goldberg scoffed at Bryan who, when confronted with the question of whether to add silver to support the currency to support the farmers of his state, admitted he knew nothing about the issue. Yet Bryan had gone on to advocate the policy merely on the grounds it was supported by the opinion of the ordinary people of his state: “The people of Nebraska are for free silver and I am for free silver. I will look up the arguments later.”

Like Goldberg, I too scoffed at this. Of what relevance, I wanted to know, was the opinion of yokels to the subtleties of governance? 

But I was wrong. To this day, I freely admit I still do not know whether the "free silver" position was good policy or bad policy. All I know is that it was a question that ordinary people wanted argued. Now, ordinary people are not entitled always to have their way. But they are entitled to have their say. Even a criminal is entitled to an advocate. Americans deserve no less. If Bryan had not been willing to argue for his people's interests, he would have chosen the wrong vocation: he should not have entered politics, but the military. 
 
Populism and free speech and free exchange of opinions, though less elegant than the approach of, say, a North Korea, can claim credit for bringing about consensus among Americans. Late in the 20th century, polls showed that most American blacks believed OJ Simpson was innocent of murdering his wife, compared with overall American opinion squarely believing he was guilty. But Americans did not censure or censor the opinions of those who disagreed. To the contrary, mainstream Americans accepted race populists like Al Sharpton, who advocate for race-based outcomes, as respectable political voices who deserve a say in our political discourse. Yet by elevating voices that many find grossly antagonistic to their own views, American opinion did not diverge. To the contrary, it came together: 20 years later, the opinion of blacks on OJ's guilt had moved decidedly closer to overall opinion. 

Airing different opinions promotes consensus. Squelching opinions promotes division. 

This principle bore out in the great American religious experiment, too. The Congregational churches of New England were deeply antagonistic toward Unitarians until at least the early 1800s. But Congregationalists were deeply individualistic and dialectical, who in the end found themselves more hostile to hierarchical thinking than to Unitarians. So by the end of that century, Unitarians were not only accepted in New England but became well-respected members of society. 

Had Google been around to censor and censure in the 1800s, Unitarians might still be as ostracized today as are Trump supporters. Google is at once more religious, and less broad-minded, than 19th century Congregationalists.

The modern politician, however, like the modern journalist, believes ordinary Americans have no right to advocacy or even to information that might support an opinion opposite their own.True progress, if anyone were really interested, is not in building things, but in building understanding. But those who say they want progress do not seem in the slightest bit interested in understanding those who stand in their way. They talk a good game about understanding, but in practice the understanding only flows one direction. 
 
These politicians, and journalists, after prompting by Rush Limbaugh, now openly wonder if Americans have an appetite to secede, to break apart our country. Might these politicians and journalists have considered whether they have already broken us apart? Elites are deeply interested in understanding the lives of strange and violent foreigners (even when the reporting is false), but they have no interest in understanding the concerns of ordinary citizens in their own country. Secession, at this point, would be a mere formality: America's leadership has already seceded from its people. They are in a loveless marriage. All that remains is the paperwork. 
 
Mark Steyn says he had been worried there would be a civil war, but that now he worries there won't be. Which I take to mean, there must be either reconciliation, or divorce – but not neither. Definitional ostracism is a desperate feint at neither. It may get us nowhere, but I suspect it will get us someplace much worse than that. 

Friday, December 11, 2020

For the Sake of Democracy

No other western countries run elections as comically ineptly as the Americans have for decades. Election malfeasance and misfeasance have been a persistent phenomenon of American life, ignored. Our country does not have any national elections. We have thousands of local elections on the same day. In many of the precincts, they have practiced fraud, in dozens of forms, for a variety of reasons, in election after election, for generations. It is a proud tradition. Grassroots, even, as though spontaneously occurring in nature. 

A conspiracy, in other words, is unnecessary. Election fraud simply is. The real question is how much.

If there were nothing to that question, the media would cover it. But, the media are silent. More than silent: they are censorious, even to the point of threatening lawyers for engaging in protected petitioning activity (my, but there is a lot of casual destruction of livelihoods this year). I find the silence and the silencing probative. Probative of what, exactly, I cannot say. But silence testifies against the censor. 

The censorship is, of course, for the sake of democracy itself. That is what they tell us. Democracy, they tell us, cannot abide questioning the integrity of our elections – except, as we know, when the election produces a win for candidates named Trump. In such cases, as determined by the media, the integrity of our elections must be questioned – for the sake of democracy. 

 

If the left did not have double standards, they would not have any standards at all.

And of course Dominion and the computer voting phenomenon is an entirely new and different animal, with established problems. A year ago, before questioning the integrity of electronic voting systems was deemed not licit, their integrity was questioned even by Democrats – for the sake of democracy: 

The websites where states post election results are even more susceptible. The event had 40 child hackers between the ages of 6 and 17 attempt to break into a mock version of the sites. Most were able to alter vote tallies and even change the candidates' names to things like “Bob Da Builder,” CNN reported.

"Unfortunately, it's so easy to hack the websites that report election results that we couldn't do it in this room because [adult hackers] would find it boring," event organizer Jake Braun told CNN. ...

"It’s stupid to have the view that states have the right to have poor election security,” [Democratic Congressman Ted] Lieu said.

But now that the software produced a Trump defeat, assenting to the legitimacy of the stupid software is vital – for the sake of democracy. That stupid software tells us that Biden is more popular than Obama. That is what this stupid election requires us to believe, for the sake of democracy. But that is contrary to the common sense of every American of voting age. 

Someone is going to have to come up with an explanation how we can accept election results that are so contrary to common sense. I could accept that there was a lot of fraud yet not enough to change the outcome. That, at least, would not be so insulting. But when statists tell me there is not a smidgen of corruption, as a rule I tend to believe the opposite. That seldom leads me wrong.

But, I expect we will not get an explanation. Those who ask for an explanation will only be scolded. And those who persist, will, for the sake of democracy, be punished.

Tuesday, December 08, 2020

American History and Today’s Two Americas

 

 

In 1809, Jacob Henry was elected and qualified for a second, consecutive annual term in North Carolina’s lower legislative house: the House of Commons. He was one of two members for Carteret County. According to the standard narrative, Henry was Jewish. On December 5, 1809, another member, Hugh C. Mills, put forward a motion to declare Henry’s seat vacant based on the 1776 North Carolina Constitution’s religious test. (N.C. Const. of 1776, Article XXXII.) The next day, the Commons adjudicated the motion, and the motion failed. Henry kept his seat.

Much of what has been written about these events has been quite odd. My critique of the prior historiography and legal analyses can be found here: Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98(1) North Carolina Historical Review (forth. circa Jan. 2021) (peer reviewed), <https://ssrn.com/abstract=3498217>.

Here I want to flag how two historians characterized these events.

Jacob Rader Marcus, United States Jewry 1776–1985, multiple vols. (Detroit: Wayne State University Press, 1989), volume 1, page 507:


It must have been quite a shock to [Henry], after he had served for a year in the state legislature and had been reelected for another term, to see one of his colleagues rise and, without warning, ask for his expulsion because Henry, as a Jew, was not entitled to a seat in the Assembly. He had refused to take the prescribed oath affirming a belief in the divine authority of the New Testament. Naturally, as a Jew, he could not and would not take such an oath. On the following day, the 6th of December, 1809, after consulting with eminent Christian jurists, Henry [responded] to his colleagues in the House of Commons. It is a proud justification of his refusal to take the test oath. Tradition has it that his letter was framed, if not actually written, for him by Chief Judge John Louis Taylor of the State Supreme Court, a Catholic. [https://tinyurl.com/y2prjud4]

Jon Meacham, American Gospel: God, the Founding Fathers, and the Making of a Nation (New York: Random House Trade Paperbacks, 2007), page 107:


Jacob Henry, a Jew, was elected to the state house in 1808 but he was blocked the following year because the law required him to be a Protestant and to accept the divine authority of the Old and New Testaments. A standoff ensued, with Christian lawmakers refusing to seat [Henry]. [https://tinyurl.com/y2cwxmkx]


Published in 1989 and 2007, these writings are exemplars of today’s Two Americas.

 

Seth

 

Seth Barrett Tillman, American History and Today’s Two Americas, New Reform Club (Dec. 8, 2020, 6:56 AM), <https://reformclub.blogspot.com/2020/12/american-history-and-todays-two-americas.html>; 


 

The Greater Good

"Father, what does the greater good mean?" 
"Well, do you remember the other day when I explained to you about the trolley that couldn't stop?" 
"Yes." 
"And how all the people on the trolley would die unless someone switched the track?" 
"Yes." 
"But that if someone did switch the track, some different people would die?"
"Yes." 
"Well, the person who switches the track and kills those other people tells himself he did it for the greater good." 
"Oh. Okay."
"The greater good is what someone says when they want to do something they know is wrong." 
"I heard a man saying that we have to get vaccinated for the greater good. Is getting vaccinated wrong?" 
"No. But forcing someone to get vaccinated is wrong." 
"But why do they want us to force us? No one even asked us yet." 
"People who desire utopia very badly are not in the habit of asking for permission to get it." 
"What is utopia?" 
"Utopia is man's perfect society." 
"So utopia is like heaven?" 
"No. Utopia is not heaven. Heaven is God's creation. Utopia is something that man hopes to create." 
"I don't understand." 
"Let me try to explain the difference. Close your eyes and listen. I am going to read to you from a short story written by a Russian author who wrote about a dream he had. Here is what he wrote: 

"I suddenly, quite without noticing how, found myself on this other earth, in the bright light of a sunny day, fair as paradise. ... I saw and knew the people of this happy land. That came to me of themselves, they surrounded me, kissed me. The children of the sun, the children of their sun — oh, how beautiful they were! Never had I seen on our own earth such beauty in mankind. Only perhaps in our children, in their earliest years, one might find, some remote faint reflection of this beauty. The eyes of these happy people shone with a clear brightness. Their faces were radiant with the light of reason and fullness of a serenity that comes of perfect understanding, but those faces were gay; in their words and voices there was a note of childlike joy. Oh, from the first moment, from the first glance at them, I understood it all! It was the earth untarnished by the Fall; on it lived people who had not sinned."
"So that is utopia?" 
"No. Listen: 
"They desired nothing and were at peace; they did not aspire to knowledge of life as we aspire to understand it, because their lives were full. ... They showed me their trees, and I could not understand the intense love with which they looked at them; it was as though they were talking with creatures like themselves. ... The work they did for food and raiment was brief and not labourious. They loved and begot children, but I never noticed in them the impulse of that cruel sensuality which overcomes almost every man on this earth.... There was scarcely any illness among them, though there was death; but their old people died peacefully, as though falling asleep, giving blessings and smiles to those who surrounded them to take their last farewell with bright and lovely smiles. I never saw grief or tears on those occasions, but only love.... And not only in their songs but in all their lives they seemed to do nothing but admire one another. It was like being in love with each other, but an all-embracing, universal feeling."
"That sounds beautiful, father. Is that heaven?" 
"It might be. But at that very moment, there was a sudden explosion of noise, and a cacophony of scraping metal, and grinding gears, and screaming voices, carried on a speeding trolley straining desperately to end its journey, and which came to rest at last in the flesh and bone of those children who, a mere moment before, had communed with nature, and who understood all, and were happy, and sang songs of universal love." 
"The children died?" 
"Yes, in utopia, the children die. Utopia is very dangerous to children. If a grown-up ever starts talking to you about the greater good, you get away and find mother or me right away, do you understand?" 
"Yes, Father. I will."

Saturday, December 05, 2020

Judges and Professors, Working to Disarm the "Unvirtuous"

Federal law prohibits all felons from possessing firearms. So the Third Circuit recently held in Folajtar v. Attorney General, no. 19-1687 (3d Cir. Nov. 24, 2020). 

But, you ask, isn't this a Second Amendment problem? The Supreme Court has held, after all, that the right to bear arms is an individual right, guaranteed by the Constitution. 

No, the Third Circuit majority answers, it is not a Second Amendment problem. Read the question again closely. The law, 18 U.S.C. 922(g)(1), only applies to felons. Felons are dangerous. We don't let dangerous people have guns. Not at the time the Second Amendment was ratified. And not now.

But wait, you say. "Felon" has a broad definition. Especially in our hyper-legalized modern system. What was the felony at issue in Folajtar

Um, answers the Third Circuit, well, it was "a materially false statement on her tax returns." But I assure you, that does not make her any less dangerous. You see, making false statements on tax returns is a felony, and people who commit felonies, even nonviolent felonies, are more likely to be dangerous than people who don't commit any felonies. 

Oookay. Is that all? you ask. 

No! There's more! says the Third Circuit. There are also a lot of professors who say that our Constitution was made for a "virtuous citizenry." John Adams said that, you know. And clearly, people who commit felonies are not virtuous.

Well, you would like to know, who were the types of unvirtuous people who were deprived of their right to bear arms at the founding? 

Oh, lots of people, says the Third Circuit, now leaning on the Seventh Circuit. Intoxicated people, mentally ill people, tramps, lunatics, addicts, things like that. 

But someone can go to jail for what Martha Stewart did and be nothing like mentally ill or an alcoholic, you point out. So how does any of this make them dangerous? 

We didn't say it made them dangerous, exactly, strains the Third Circuit. We said it makes them unvirtuous

And unvirtue is probative on Second Amendment rights because, why again?

We already told you. A bunch of professors say so. 

(The dissent is having none of this. Drawing from a then-Judge Amy Coney Barrett, reasons the probative question is danger, not virtue.) 

The problem with modern lawyers citing 18th and 19th century precedent is modern lawyers lack the training or interest in understanding the natural law reasoning of founding-era lawyers. Founding era lawyers would understand the term felony, and the natural right of self-defense, based on their origins and roles in the natural law. 

For a modern lawyer, however, trained only in positive law, a "felony" is simply a binary status spit out by a computer terminal -- it is merely the answer to the question whether the applicant has paid his renewal fees with the DMV (Department of Moral Virtue), and is a member in good standing.

Positivist professors and lawyers, by smuggling natural law concepts into their positivist program, and emptying these concepts of their ancient meaning and redefining them. That includes the concept of virtue itself. These practitioners would deprive us of any limiting principle that would keep their feeble justification of "unvirtue" from abridging our right to self-defense, and all our other rights.

Thursday, December 03, 2020

Elections in Puerto Rico and the Other U.S. Territories


There was no change in partisan control in DC, Guam, and U.S. Virgin Islands. 

There are no 2020 election results yet from the Marianas. 

But, the big, big news is Puerto Rico. In Puerto Rico, there was a shift in control in the territorial Senate and House. Both flipped from NPP to PDP. My understanding is that PDP wants continued commonwealth status—and not statehood. This is what is called news. The territorial governor has been in office since 2019, and she is affiliated with NPP—a party which supports statehood. Thus, political control of the island territory is divided. If that is not confusing enough, historically, NPP loosely affiliates with the “mainland” Republican Party, and the PDP loosely affiliates with the “mainland” Democrat Party.

Seth 

Seth Barrett Tillman, Elections in Puerto Rico and the Other U.S. Territories, New Reform Club (Dec. 3, 2020, 3:39 AM), <https://reformclub.blogspot.com/2020/12/elections-in-puerto-rico-and-other-us.html>;

Source: <https://www.ncsl.org/research/elections-and-campaigns/ncsl-state-elections-2020.aspx>; 

Wednesday, December 02, 2020

Election News: State and U.S. Territories Roundup

What happened in the 98 partisan state houses? (Nebraska’s unicameral legislature is officially non-partisan). Data is still subject to change, but preliminary results are available (before & after the election) on the http://NCSL.org website.

49 State Senates:

Most states saw no change, or a change of 1 or 2 seats. In several states the Rs picked up 3 seats: NY, ND, SC, WV, and WI. The biggest shift was NH, where Rs picked up 4 seats. [The largest and smallest state senate, Minnesota and Alaska, have 67 and 20 members, respectively.]

49 State Houses:

Again, many states saw no change or a swing of 4 or fewer seats. Some exceptions include CT where Ds picked up 6 seats. Republican gains in state houses include: FL (+5), IA (+6), KY (+13), ME (+8), MN (+5), MT (+10), NH (+55), NC (+5), OK (+5), WV (+18), and WY (+12). [New Hampshire has the largest state house, with 400 members. The next largest is Pennsylvania, with 180 members. The smallest state house is Alaska, with 40 members.]

Republican net gains in state legislative races will probably exceed 150 seats. But the only changes in partisan control were the NH-House & NH-Senateboth flipped from D to R. NH has a R governor. So this state is now an R state. But both U.S. senators from NH are Ds, and its two U.S. House members are Ds, and it voted Biden/D in the presidential election.

The only governorship to flip was Montana: from D to R. The legislature was already R. So the state is now an R state. At the federal level, MT voted for Trump/R. It has 1 D and 1 R U.S. senator, and it has 1 at-large R U.S. House member.

As to the federal territories: no change in partisan control in DC, Guam, and U.S. VI. There are no 2020 election results yet from the Marianas. But, the big, big news is Puerto Rico. In PR, there was a shift in control in the territorial Senate and House. Both flipped from NPP to PDP. My understanding is that PDP wants continued commonwealth status—and not statehood. This is what is called news. The territorial governor has been in office since 2019, and she is affiliated with NPP—a party which supports statehood. Thus, political control of the island territory is divided. If that is not confusing enough, historically, NPP loosely affiliates with the “mainland” Republican Party, and the PDP loosely affiliates with the “mainland” Democrat Party.

Seth

Seth Barrett Tillman, Election News: State and U.S. Territories Roundup, New Reform Club (Dec. 2, 2020, 8:40 AM), <https://reformclub.blogspot.com/2020/12/election-news-state-and-us-territories.html>; 

Sunday, November 29, 2020

Stop Following the Science -- Follow #TheScience

In the 20th century, science is dangerous. Think about it. If normal people were to try to follow the science, they might start asking dangerous questions. Questions that make it harder for government and corporations to achieve the progress we need -- progress that our souls need. Questions like: Is pumping children full of hormones actually safe? Has anyone tested the long-term effects? Questions like: Are humans really responsible for every weather event? Aren't we going to need nuclear if we're to replace fossil fuels? Or questions like: We've placebo-tested our vaccines, right? 

And don't even think about questions like: Do the data support the claim that cops are racist? Or questions like: Do any clinical trials support the effectiveness of masks against Covid-19? And especially not like this: Is shutting down our economy and cowering in fear an effective response to Covid-19?

It really is frightening to think about. Just imagine if we did not have attractive, responsible, reputable people on our screens telling us what to think. And working very hard to provide us with content that gives us alternatives to thinking. Struggling with dark feelings of curiosity? Relief is here! Try #ClimateJusticeNow, or #TransRightsAreHumanRights, or #DefundThePolice.

Thinking is dangerous. Thinking people is the "Report Offensive Content" button exists.

Don't think. Don't follow the science. Follow #TheScience.



Thursday, November 26, 2020

Blame It On Trump

The following language was in the per curiam opinion in Roman Catholic Diocese of Brooklyn, NY v. Cuomo.


If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred.

Slip opinion at page 5, <https://tinyurl.com/y4zewqz8>. I have to suggest . . . the language here . . . isn’t it odd? Right? And . . . the 5 members of the Supreme Court joining the per curiam opinion are: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ. Not a Jewish person in the bunch. Right? So isn’t this language a bit odd? Just a little? I am not complaining, but if an executive body did this . . . would not we characterize this as some sort of establishment of religion? I am not complaining . . . but why would the Court do this? Why did not the dissenters—dissent? Is not there one ACLU-type Supreme Court law clerk around?

Can I get odds on whether this language will make it into United States Reports

5 … 4 … 3 … 2 … 1: Someone will blame this on Trump. Just a matter of time.

Seth 

Seth Barrett Tillman, Blame It On Trump, New Reform Club (Nov. 26, 2020, 1:37 PM), <https://reformclub.blogspot.com/2020/11/blame-it-on-trump.html>; 


New Paper: Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?

Seth Barrett Tillman, Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, Jurist–Academic Commentary, Nov. 30, 2020, 5:46:13 PM, <https://www.jurist.org/commentary/2020/11/seth-barrett-tillman-kamala-harris-vp-senator/>, <http://ssrn.com/abstract=3737188

Seth

Seth Barrett Tillman, New Paper: Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, New Reform Club (Nov. 26, 2020, 10:24 AM), <https://reformclub.blogspot.com/2020/11/new-paper-senator-and-vice-president-of.html>;


 

Sunday, November 22, 2020

This is CNN


CNN lists the current configuration of the House at 222 Ds to 207 Rs—with 6 undecided races. In all 6 races, the Rs lead. <https://edition.cnn.com/election/2020/results/house>. 

CA-21: R leads D-inc by circa 1500 votes, with 99% reported; [Valadao versus Cox, Fresno Bee reports Republican win.] 

CA-25: R-inc lead D by circa 400 votes, with 99% reported; [Garcia versus Smith]

IOWA-2: R leads D by circa 50 votes, with 89% reported; [Miller-Meeks versus Hart]

NY-2: R leads D by circa 40,000 votes, with 84% reported; [Garbarino versus Gordon]

NY-11: R leads D-inc by circa 37,000 votes, with 85% reported; [Malliotakis versus Rose] 

and, 

NY-22: R leads D-inc by circa 9000 votes, with 92% reported. [Tenney versus Brindisi] [other media show a much closer race: status confused]

In all 6 races, the Rs lead. 

Seth Barrett Tillman, This is CNN, New Reform Club (Nov. 22, 2020, 3:20 AM), <https://reformclub.blogspot.com/2020/11/this-is-cnn.html>; 


Thursday, November 19, 2020

Democracy Dies Digitally™

 © Instagram


Methinks the odds of this being good news for the First Amendment and freedom of speech in criticizing the 2020 election or the Biden Administration are exactly less than zero.





Hi dykevantom,

We wanted to let you know that we’re making a few updates to our Terms of Use to make them clearer. We’re making it easier to understand what is allowed on Instagram and how our service works. These terms will be effective on December 20, 2020, and continuing to use the app will mean you accept them.
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Control of U.S. House of Representatives Delegations and yet-to-be called House races

 

By my current count, Republicans have a majority on 26 U.S. House of Representatives state delegations. 3 state delegations (Mich., Minn., and Penn.) are evenly split. And 1 state delegation (Iowa) is not yet determined.

 

Michigan is split: 7-to-7;

Minnesota is split: 4-to-4; and,

Pennsylvania is split: 9-to-9.

 

Iowa has 4 seats. 2 seats are now Republican; 1 seat is Democratic. And 1 seat (Iowa-2) is not yet called, with 89% reporting, the Republican leads by 48 votes.

 

10 House seats are not yet called:

CA-21: 99% reporting, Republican leads Democratic-incumbent by circa 1800 votes.

CA-25: 99% reporting, Republican-incumbent leads Democrat by circa 400 votes.

CA-39: 99% reporting, Republican leads Democratic-incumbent by circa 4000 votes.

           [Why hasn’t CA-39 been declared?]

Iowa-2: 89% reporting, the Republican leads by circa 50 votes.

NY-2: 83% reporting, the Republican leads by circa 40,000 votes.

NY-3: 85% reporting, the Democratic-incumbent leads by circa 20,000 votes.

NY-11: 85% reporting, Repub leads Democratic-incumbent by circa 37,000 votes.

NY-18: 79% reporting, the Democratic-incumbent leads by circa 10,000 votes.

NY-19: 85% reporting, the Democratic-incumbent leads by circa 17,000 votes.

NY-22: 84% reporting, Repub leads Democratic-incumbent by circa 23,000 votes.

 

Louisiana-5 will advance to a run-off: top-2 Republicans only. So it will be an R seat.

 

House is now 219 D to 206 R. If the leads above are maintained, the final composition of the House will be: 222 D to 213 R. The Democrats started with 235 seats. So 222, is a drop of 13 seats. This will be the narrowest House majority since 2001.

Seth Barrett Tillman, Control of U.S. House of Representatives Delegations and yet-to-be called House races, New Reform Club (Nov. 19, 2020, 9:03 AM), <https://reformclub.blogspot.com/2020/11/control-of-us-house-of-representatives.html>; 



Wednesday, November 18, 2020

How did the Parties do in Relation to State Legislative Seats?

 E-mail from National Conference of State Legislatures to Seth Barrett Tillman:


That number is always the last to pin down [and not yet final] and the one with the most ‘noise.’ Our current estimate is that Republicans netted at least 160 seats in the [2020] election. It is rare, but far from unprecedented, for the party winning the White House to lose seats in states. This is the 6th time that it has happened since 1960, and the most losses by the winning president’s party since then. In 1960, Democrats lost around 300 legislative seats even though John Kennedy won the White House. 


The reader can reflect on that comparison—to the election of 1960.


Seth

Seth Barrett Tillman, How did the Parties do in Relation to State Legislative Seats?, New Reform Club (Nov. 18, 2020, 9:34 PM), <https://reformclub.blogspot.com/2020/11/how-did-parties-do-in-relation-to-state.html>;

Monday, November 16, 2020

Not Yet Called Races and State Elections


There are 435 House seats. In the outgoing House, the Ds had 235 seats. Currently, in the new House, the Ds lead the Rs, 219 to 205. There are 11 uncalled House races—the Rs lead in 8 and the Ds lead in 3. Those races are not final, but if those numbers hold up, the House will be 222 Ds to 213 Rs. This is a loss of some 13 seats for the Ds. (FYI: One House race in Louisiana is uncalled—but it will go to a run-off between 2 Rs.)

 

Governorships

8 governors were up for re-election. In 7 of the 8 races, the incumbent won re-election or if the incumbent was not running, the incumbent’s party won. The exception was Montana, which flipped from D to R. Given that both houses of the legislature were and remain R, the state is now an R-controlled state. Montana has 1 House seat—and it elected an R member.

 

State Legislatures

Both legislative houses of New Hampshire went from D to R. The governor was and remains an R. So NH is now an R-controlled state. New Hampshire has 2 House members, and it elected 2 Ds.

49 states have bicameral legislatures. Minnesota is the only such state where the same party does not control both houses.

Nebraska is the only state which has a unicameral legislature—and its members are technically not partisan. 

State Control

The Ds had control of 16 states before and after the election.

The Rs had control of 21 states before the election, and 23 states after the election.

After the election, 10 states have divided state control among the two legislative houses and the governor. And Nebraska does not have a partisan legislature. 

 

Source: 

<https://www.ncsl.org/research/elections-and-campaigns/ncsl-state-elections-2020.aspx>;

 

Seth Barrett Tillman, Not Yet Called Races and State Elections, New Reform Club (Nov. 16, 2020, 12:15 PM), <https://reformclub.blogspot.com/2020/11/not-yet-called-races-and-state-elections.html>; 

Judicial Impeachment in Ireland

 

 

Seth Tillman: Court of public opinion offers Séamus Woulfe no justice

 

Pandemic fatigue has led to an overreaction against judge’s Golfgate error


This is what the Supreme Court judge Séamus Woulfe did not do; he did not take a bribe, he did not use his official position or government property to break the law, he did not block the investigation into his “misdeeds” or fail to co-operate with investigators. 

This is what Woulfe did do; in his own time, he had a meal, at a golf society event, with other people. In doing so, he violated government pandemic guidance, which was in the process of transition. It had changed the day prior to the event. 

Woulfe made one mistake; he relied on the event’s organising committee to ensure the event complied with the law. Had I been in his place, that is precisely what I would have done. I suspect a majority of you would have done much the same. When I walk into an establishment—a private retail store or a government building—the on-site staff are the experts. We all rely on others to know and to advise us regarding prevailing regulations. A catered hotel event is not so different. There is not the slightest reason to believe Woulfe knowingly, or even recklessly, broke the law. 

If there were no violation of an identifiable legal provision, then any talk involving removal or resignation is reprehensible. If there were an actual legal violation, and it were committed inadvertently in a period of legal transition, Woulfe should face the same treatment and penalty we all would face; the inconvenience of showing up to court, waiting for one’s case to be called, admitting error in public, being chewed out by a judge and, just maybe, a fine, if the law so provides. All talk of resignation or worse is disproportionate in the extreme. 

We all know this. So why all the talk about removal and resignation? First, because a lot of people have suffered and are still suffering from the pandemic and its restrictions. But Woulfe is not the cause of their suffering, and taking it out of his hide will not undo anyone’s loss, nor solve anyone’s problems. 

Second, the view is that state officials—especially judges—should be exemplars of good conduct. They should know the law and obey its letter and spirit. I support that view, to a point. With regard to old or settled law, it makes complete sense to hold judges to a higher standard than the public because judges know, or should know, the law. Ignorance is no excuse, and judges regularly hold citizens to account under that standard. 

But with regard to “new” law, judges are no better placed than anyone else to know what the law is. In such circumstances, they should be held to the same standard as everyone else. Most of us would get a slap on the wrist and, perhaps, a fine for doing what Woulfe did. Most of us would not be in danger of losing our livelihood and neither should he. 

Third, Woulfe stubbornly defended himself—and this is seen as pig-headed, if not arrogant. The fact is, many people perform poorly as defendants. Still, if they are not guilty of wrongdoing, the legal system should not punish them for not yielding to the most prosecution-oriented view of the circumstances. Further, characterising Woulfe as pig-headed is just one view. The other view is that he has a backbone—a characteristic which used to be considered good in a judge. 

Frank Clarke, the chief justice, asked several senior judges to meet Woulfe and mediate the developing imbroglio. How did Woulfe’s colleagues respond? Was it like this? “CJ, happy to volunteer. I have a long list of cases, and they are so . . . boring. This will make a nice break.” Or, was it more like this? “CJ, I cannot take this on. If the Director of Public Prosecutions or Oireachtas [the Irish national legislature] want to prosecute or remove, that’s a decision for them. My priority is with my court’s embarrassingly long backlog of unresolved cases and the long-suffering litigants caught up in our legal system. And, by the way, what, if anything, have you done lately to get me more help, and, more importantly, to reform our rules of procedure, bar and legal profession?” 

Respectfully, Woulfe is not the Irish judiciary’s core problem. People speak about diversity as a basis for appointment to high office. Let me suggest that experience as a defendant, chewed up by the legal system, is exactly the sort of diversity the Supreme Court needs most. Promote that man. 

Seth Barrett Tillman is a lecturer in the Maynooth University Department of Law 

[747 words] 

First published as: Seth Barrett Tillman, Opinion Editorial, Court of public opinion offers Séamus Woulfe no justice, The Sunday Times (Ireland edn), Nov. 15, 2020, 12:01 AM GMT, News Section, page 14, <https://tinyurl.com/y69zfkso>, <http://ssrn.com/abstract=3729356>; 

Subsequently reproduced here: Seth Barrett Tillman, Judicial Impeachment in Ireland, New Reform Club (Nov. 16, 2020, 2:10 AM Eastern Time), <https://reformclub.blogspot.com/2020/11/judicial-impeachment-in-ireland.html>;