Tuesday, June 05, 2018

SCOTUS got the Masterpiece Cake Shop decision badly wrong

The Supreme Court issued its much-anticipated decision in the gay wedding cake case yesterday.  It hasn't made as much of a splash as expected because the justices tried to split the baby and sidestep making what might otherwise have been a contentious decision.  But I think they failed and got it wrong anyway.

The gist of the ruling was that Jack Phillips, the cake shop owner, wins the case because the Colorado Civil Rights Commission exhibited "hostility" towards Jack Phillips religion when its members failed to contest the following statement made by one of its members:
I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
About which the Court's opinion says:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion...
But the statement does not describe Jack Phillips faith as  "one of the most despicable pieces of rhetoric that people can use."  What is despicable is not Phillips's faith, it is the use of that faith to hurt others which is being said to be despicable.  (And it is.)

The opinion goes on:
The commissioner even went so far as to compare Phillips’ [sic] invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
Again, it is very important to distinguish between two very different things.  It would indeed be inappropriate to compare Phillips's specific claim to slavery or the holocaust.  There is absolutely no moral equivalence there.  But again, that is emphatically not what the CCRC commissioner's statement says.  That statement is making the general observation that, historically, atrocities have been justified on religious grounds.  And that is simply a fact.

Ultimately this opinion is a reflection of Christian Persecution Complex, the unfounded belief held by many Christians in the U.S. that the mere existence of public critiques of Christianity is an attack and potentially an existential threat.  To say that Christianity was overtly used as a justification for slavery in the U.S. is disparagement and conclusively indicative of covert and nefarious bias, never mind that this is in fact demonstrably true.  The First Amendment apparently protects people from hearing anything unpleasant said about their religion by a government agent, even if those things are factually correct.

I do respect the Court's attempt to thread the needle here and come up with an inclusive ruling that would leave neither gays nor Christians out in the cold.  Unfortunately, it's simply not possible in this case.  The sad fact of the matter is that Jack Phillips and his ilk are simply on the wrong side of both history and morality, just as the defenders of slavery and segregation were in their day.  There is nothing wrong with being gay, just as there is nothing wrong with being black.  Discriminating against gay people is every bit as wrong as discriminating against dark-skinned people, notwithstanding anything you may believe, however sincerely, about what God has to say about it.

37 comments:

Peter Donis said...

In the discussion on your previous "Open Letter to Jack Phillips" post, you said:

The fundamental problem with allowing people to use religion to exempt themselves from civic responsibility is that it requires the government to get into the business of deciding what is and is not a legitimate religious belief.

Unfortunately, this also works the other way: the fundamental problem with trying to use the law and the power of government to force people to live up to some ideal of civic responsibility is that it requires the government to get into the business of what is and is not a legitimate "free exercise" of religion. As a result, you have decisions like this one, which cannot possibly achieve a reasonable resolution of the issue.

As a pure First Amendment issue, as our Constitution currently stands, I have to come down on the side of Phillips: however much we might detest his religious beliefs and how he puts them into action, I don't think it's reasonable to argue that they don't count as legitimate "free exercise" of religion as that concept is used in the First Amendment. The only real way to "fix" the fact that some people simply insist on acting on religious beliefs that many of us find offensive, would be to remove the "free exercise" clause from the First Amendment and admit that we no longer uphold the ideal of freedom of religion that it embodies. Then someone like Phillips would still be free to express his beliefs (since that's free speech, not free exercise of religion), but he wouldn't be free to use them in ways that the majority finds offensive.

I personally do not favor such an outcome; as I said in the previous discussion, I don't think the law and the government are the proper tools for "fixing" this issue. Anyone who disagrees with the beliefs that a business owner like Phillips puts into practice in his business should simply not do business with him. And I find it very hard to believe that there was really nowhere else that a gay couple could go to get a wedding cake. The government shouldn't get involved in this kind of issue at all.

Ron said...

@Peter:

> I don't think it's reasonable to argue that they don't count as legitimate "free exercise" of religion as that concept is used in the First Amendment.

No one is making that argument. That's the whole point.

The salient factor, as I pointed out in my Open Letter, is that freedom of speech and religion do not (or at least should not) extend to commercial activity. Commercial speech has always been less free than personal speech. Companies cannot, for example, make knowingly false claims about their products, even though individuals are perfectly free to do so. (But even personal free speech is not absolute. Libel, slander, and incitement to violence are just a few examples of speech that is not protected by the first amendment.)

Jack Phillips is perfectly free to discriminate against anyone he wants to in his home and in his personal life. He can even discriminate in his bakery if he wants, all he has to do is turn it into a private club. But if he holds himself out as a place of business open to the public then he has to take everyone, black or white, short or tall, male or female (or both or neither), straight or gay. That's how this country is supposed to work.

> Anyone who disagrees with the beliefs that a business owner like Phillips puts into practice in his business should simply not do business with him.

Do you think that businesses should be free to discriminate against black people? And that the proper remedy for that is economic and not legal? Do you think the Civil Rights Act should be repealed?

Peter Donis said...

@Ron:
Do you think that businesses should be free to discriminate against black people? And that the proper remedy for that is economic and not legal? Do you think the Civil Rights Act should be repealed?

My personal opinion? Yes to all three. But I'm careful to label that as my personal opinion. I'm obviously in a very small minority, and our country runs by majority rule, so my personal opinion doesn't count as far as public policy is concerned.

To elaborate somewhat on my personal opinion regarding the three points you raise, vs. how we actually run things in our society:

(1) I think private businesses should be free to do business or not do business with, hire or not hire, etc., whomever they please. But I also think private businesses should not be getting any special favors from the government. Corporations, particularly publicly traded corporations, in all developed countries are not "private businesses" by the definition I have just implicitly used; they are chartered by governments and get special favors from governments. In that kind of environment, I can understand why governments feel entitled to micromanage the behavior of businesses--and why, therefore, it is inevitable that the private beliefs of the people who run businesses will clash with the actions that governments want to force those businesses to take.

(2) If you think a particular business is discriminating against some class of people, the obvious remedy is for you to start your own business competing with them that does not discriminate against that class of people. If there is reasonable business to be done with that class of people, your company will have an obvious economic advantage and will out-compete the business that discriminates.

Historically, the reason this obvious remedy didn't work in the US is that, as I said above, businesses are not private entities but creatures of government, and governments control who can own them, and that control can of course be used unfairly if the people who control the government want to do so. The solution we have adopted is to make all kinds of laws regulating businesses so that they can't overtly discriminate--but those laws can also be used unfairly, though in different ways than the old rules were. The government, for example, forces itself to bend over backwards to offer equal opportunities for contracts to businesses owned by women and minorities--and the dollar values of those contracts are miniscule compared to the dollar values of contracts that go to the major defense contractors, who get those contracts simply because they have specialized in jumping through all of the regulatory hoops that have to be jumped through to get major government contracts. Take a look at who runs those companies.

(3) What is the practical effect of outlawing discrimination? You can't make people want to interact with other people by making a law. So forcing them to interact in a certain context (for example, employment) just makes them avoid that context. If a person knows they'll have to jump through a bunch of regulatory hoops to hire a person to do a job when they might end up being forced to hire someone they don't want to work with, they simply won't hire at all.

In my personal opinion, the biggest mistake the civil rights movement made was to ask for discrimination to be outlawed, instead of asking for special privileges from governments to businesses to be outlawed, so that they could have a level playing field for competition. Rosa Parks, or someone who sympathized with her, could have started their own bus company and driven the discriminating bus company out of business.

Again, all this is just my personal opinion. I don't think any of it is politically viable in the US, or any developed country, now or in the foreseeable future. We have decided to go down the road of forcing people to behave a certain way by law, instead of letting economics and competition do the job. So we'll just have to see how the experiment turns out.

Peter Donis said...

@Ron:
The salient factor, as I pointed out in my Open Letter, is that freedom of speech and religion do not (or at least should not) extend to commercial activity.

I don't think this distinction is there in the First Amendment. Nor would it have made sense to the people who wrote that Amendment. They did not view religion as something that you did on Sundays while adhering to different rules for business the rest of the week. Nor do people like Jack Phillips. That's the problem: different groups in our society don't even agree on what scope religion should have in public life. And our current set of rules about that is basically one faction imposing its views by fiat on everyone else.

Commercial speech has always been less free than personal speech. Companies cannot, for example, make knowingly false claims about their products, even though individuals are perfectly free to do so. (But even personal free speech is not absolute. Libel, slander, and incitement to violence are just a few examples of speech that is not protected by the first amendment.)

All of this is true, and none of it is relevant to the case under discussion, since Jack Phillips wasn't doing any of those things, nor is any free exercise of religion equivalent to doing one of those things. Phillips was simply choosing not to engage in a transaction that he believed was at odds with his religion.

The general rule about the boundaries of free speech, as your examples about personal free speech show, is basically that the right of free speech does not permit you to engage in speech that amounts to a common law crime or incitement or conspiracy to such. Companies making false claims about their products is a common law crime: fraud. But a company owner choosing not to engage in a particular transaction, even if it's for reasons you find distasteful, is not.

Peter Donis said...

@Ron:
if he holds himself out as a place of business open to the public then he has to take everyone, black or white, short or tall, male or female (or both or neither), straight or gay. That's how this country is supposed to work.

Another point that came up in the discussion on your previous Open Letter post is worth reiterating here: not all "open to the public" positions are the same.

If you're the only doctor in town, then I would agree that you have a responsibility to provide care in situations that might conflict with your personal beliefs.

If you're one of a number of wedding cake makers in town, not so much. (Even if you're the only wedding cake maker in town, in a country like ours, not so much. The "wedding" cake in this case wasn't even for the actual wedding: the couple was married in Vermont and wanted to have a reception in Denver. There were many other possible providers of a cake.)

I don't think a "one rule fits all" treatment is appropriate in such widely disparate situations.

Ron said...

> I don't think this distinction is there in the First Amendment.

Not explicitly, no. But taken at face value, the First Amendment forbids passing laws against libel, slander, and even fraud.

> > Do you think the Civil Rights Act should be repealed?

> My personal opinion? Yes...

Well, kudos to you for not being a hypocrite.

Do you think that the Second Amendment gives me the right to own a nuclear bomb?

Peter Donis said...

There is also another interesting point raised in the opinion: part of the basis for not upholding the Commission's ruling was that it treated Phillips differently from other business owners in similar circumstances. One of those other cases was a business owner who was asked by a customer to bake a cake with images that conveyed disapproval of same sex marriage: the baker refused. The customer filed a claim, and the state Commission ruled in favor of the baker.

Justice Kagan's concurring opinion makes a further interesting point here: the state Commission could have distinguished the two cases without raising the issue of religion at all. The baker (William Jack) who the Commission ruled in favor of refused to bake the cake because of its content--the images--and would have refused to bake it for anyone. Phillips, on the other hand, refused to bake the cake for those particular customers (as Kagan notes, he didn't even discuss the design of the cake before refusing to bake it).

I find Kagan's argument interesting because it can be interpreted as saying that Phillips' action should not count as "speech" at all: he wasn't refusing to produce a particular piece of content, he was refusing to interact with particular people. That takes the First Amendment entirely out of the debate and makes it a straight question of what a libertarian would call freedom of contract: and the footnote on p. 3 of Kagan's opinion makes it clear that she does not think that freedom is a right (she says "a vendor can choose the products he sells, but not the customers he serves--no matter the reason"). This seems to me to be a much plainer statement of the actual principle at work.

Peter Donis said...

@Ron:
taken at face value, the First Amendment forbids passing laws against libel, slander, and even fraud.

No, it doesn't. It just means you can't pass laws against them on the basis of the speech involved. You have to base the law on the action involved. A law that says "you can't make false statements about someone else" would be a law against speech and would be prohibited. But a law that says "you can't harm someone by spreading false information about them" would be fine, since what it makes illegal is causing harm, not speech.

Peter Donis said...

@Ron:
Do you think that the Second Amendment gives me the right to own a nuclear bomb?

My personal opinion? As the Amendment is written, yes. (Note that when the Amendment was passed, privately owned warships, similar in capability to the ones owned by national navies, were common.)

And if you want to argue that that means the Amendment should itself be amended, I would agree. Circumstances have changed a lot since the Amendment was passed, and the Constitution has an amendment process in order to allow us to adapt it to changing circumstances.

Peter Donis said...

The baker (William Jack)

Correction: William Jack was the person who went to three different bakers asking for a cake that expressed disapproval of same sex marriage, was refused three times, and lost when he filed a claim with the state.

Ron said...

> > Do you think that the Second Amendment gives me the right to own a nuclear bomb?

> My personal opinion? As the Amendment is written, yes.

OK, well, more kudos to you for not being a hypocrite.

> the Amendment should itself be amended

Yeah, good luck with that.

But back to the mater at hand:

> I find Kagan's argument interesting because it can be interpreted as saying that Phillips' action should not count as "speech" at all:

This whole case has been a hot mess because neither side seems to be able to decide whether it's a freedom of speech case or a freedom of religion case. It was filed as a FoR case, but argued as a FoS case (or maybe it was the other way around. Like I said: it's a mess.) In any case, the principle that commercial speech can be restricted more than individual speech is well established in American jurisprudence, notwithstanding literal readings of the First Amendment. (The idea that the Constitution means what it says hasn't been taken seriously by anyone but the most hard-core libertarians for a very long time.)

The FoR argument can be debunked (or could be debunked if anyone were paying attention) by observing that there is an overt bias towards Christian beliefs in the cases currently before the courts. Specifically, all of the corporate religious freedom cases (this one, Hobby Lobby) involve people wanting to deny reproductive freedom and discriminate against gays. Everyone knows perfectly well that the outlook would be very different (to put it mildly) if these were, say, Muslims wanting to apply Sharia in the workplace.

Peter Donis said...

@Ron:
The idea that the Constitution means what it says hasn't been taken seriously by anyone but the most hard-core libertarians for a very long time.

Oh, I most definitely agree. I view this as a bug. I'm not sure whether you view it as a bug, a feature, or just one of those things.

Peter Donis said...

@Ron:
> the Amendment should itself be amended

Yeah, good luck with that.


Again, I agree but view this as a bug. It seems to me that there is a prevailing sentiment that following the procedures explicitly laid down in our founding documents is just too much trouble, and that we should just ignore those procedures when there are important problems that need to be fixed. To me that's backwards: there is no problem more important than the problem of people being willing to ignore, bend, or outright break the rules when they think they have a sufficiently important issue. Having a set of stable rules that everybody agrees to obey is more important to the survival of civilized society than the specific policy we adopt on any particular issue. But we seem to have lost sight of that.

Ron said...

> Having a set of stable rules that everybody agrees to obey is more important to the survival of civilized society than the specific policy we adopt on any particular issue.

I dunno, I think having random people running around with nukes is probably a bigger threat to the survival of civilized society than doing end-runs around the Constitution. Which is not to condone end-runs, but if I have to choose one or the other I'll take those over having a Nukes-R-Us on every corner.

Peter Donis said...

@Ron:
I think having random people running around with nukes is probably a bigger threat to the survival of civilized society than doing end-runs around the Constitution.

If it were just that one issue, or a very small number of issues that obviously require special handling, I wouldn't consider it a problem (but see the caveat below). (You've said many times, in effect, that all extreme positions are wrong, so any statement that appears to be an extreme position should be interpreted with reasonable caveats. I would apply that interpretation to my statement that you quoted.) But it isn't just a few obviously special-case issues. It's everything.

And even in the special cases like nukes, our response should be "well, we obviously have to adopt a sane policy about personal nukes while we wait for the Constitutional amendment process to catch up with reality", not "well, it's obviously too much trouble to actually amend the Constitution, so we'll just interpret it out of all recognition instead". But we actually do the latter.

Ron said...

The Constitution has never been strictly adhered to ever, and a good thing too. Think about it: "Congress shall make no law ... abridging the free exercise [of religion]..." Really? What if my religion calls for ritual human sacrifice? Or punishing disobedient children by stoning them to death? Or forcing women to marry their rapists? Or stealing from the rich to give to the poor? Should religious freedom really trump everything else? Of course not.

But if you start to try to codify the exceptions into written law you will end up in a horrible quagmire. Even if we can all agree that (say) my right to life trumps your right to practice a religion that requires human sacrifice, there is no way we're going to agree over whether the right to life accrues at birth or at conception or at your bar mitzvah. So while it is not "obvious", it is in fact "too much trouble" (i.e. impossible) to amend the Constitution to eliminate the need for end-runs in order to keep society from literally blowing itself up, let alone running smoothly.

What I think would be much healthier is if we would admit when we're doing end-runs and say explicitly that yes, this is an end-run, which is not ideal, but we're doing it in service of some higher unwritten principle, like that acknowledging a fundamental right to detonate nukes is probably the Wrong Answer, the Second and Ninth Amendments notwithstanding. Then at least we could have a principled discussion about it. The problem is not the end-runs per se. The problem is trying to pretend we're not doing them.

BTW, the Constitution explicitly acknowledges its own incompleteness and need for constant interpretation in the Ninth Amendment. The right to travel freely, for example, is nowhere enumerated, but I think if you took a poll you would find pretty overwhelming agreement that we do in fact have that right nonetheless.

Peter Donis said...

@Ron:
The problem is not the end-runs per se. The problem is trying to pretend we're not doing them.

the Constitution explicitly acknowledges its own incompleteness and need for constant interpretation in the Ninth Amendment

I agree that we can't possibly explicitly cover all edge cases, exceptions, etc. There is always a need for interpretation because ordinary language is imprecise and because nobody can foresee all possibilities. Also because, as you note, different rights will sometimes come into conflict, and there's no way to lay down an explicit rule for how to resolve all such conflicts.

So I agree that, if we're going to do an "end run", we should say so explicitly and have a discussion about the reasons why and whether it's justified.

However, I also think that situations in which an "end run" is justified--i.e., where there is simply no viable way to apply the written rules as they stand, or to reasonably amend them, to get a sane answer--are rare. Personal nukes might be one, although I can think of at least one fairly simple amendment that would cover those: "The right to keep and bear arms shall not include any right to weapons of mass destruction". But I don't think such cases are common.

I think almost all cases in which a policy has been adopted that doesn't conform to any reasonable reading of the Consitution (for example, the Wickard v. Filburn or Kelo v. New London Supreme Court decisions) are not cases where there's no reasonable reading that will give a workable policy. They are cases in which the authority simply didn't like any of the policies that a reasonable reading of the written rules would lead to (even though those policies would have been workable), so instead of doing the political work to try and convince people to amend the written rules appropriately, they just interpreted them out of all recognition and adopted their preferred policy willy nilly. That is what I think is unhealthy.

Also, historically, we have not been unable or unwilling to adopt major amendments to the written rules when necessary. We amended the Consitution to abolish slavery, to have Senators elected by popular vote instead of State legislatures, to give women the right to vote. Of course, those were all cases where there was enough popular support to get the Amendments passed. But that's precisely my point: if there isn't enough popular support for your preferred policy, that doesn't mean you can just ignore the rules and adopt it anyway. In some cases (like personal nukes), it might be that the issue justifies doing that. But in most cases in which it's actually happened, I don't think that's true.

Ron said...

> "The right to keep and bear arms shall not include any right to weapons of mass destruction"

It would be interesting to see what would happen if this were seriously proposed. My guess is that the NRA would object on the grounds that "weapon of mass destruction" is not a well-defined term and might be construed to include military-style assault weapons.

> Wickard v. Filburn

I'll see your Wickard and raise you Gonzales v. Raich.

> Kelo v. New London

This is murkier. The Constitution does not define "public use", so it is not entirely unreasonable for the Court to defer to the duly elected representatives of the people to make that determination. (Personally, I don't like Kelo any more than you do. But it's far from a slam-dunk as an example of an egregious violation of the Constitution.)

BTW, the takings clause actually has a serious bug in it. It should say, "Private property may not be taken *except* for public use *and* with just compensation." The way it is worded, private property may be taken for non-public use without any compensation at all.

BTW2, I'm surprised you didn't cite Bennis v. Michigan. IMHO, civil forfeiture is a much more egregious end-run around the Constitution than any of your examples. It's just such a clear violation of the due-process clause(s). But IANAL so what do I know?

> We amended the Consitution to abolish slavery

Sort of. The North conquered the South by military force and essentially installed puppet governments that ratified the three Reconstruction amendments.

> to give women the right to vote

But still not full equality under the law. The ERA failed.

It's far from a slam-dunk that strict adherence to the process would produce better outcomes.

Peter Donis said...

@Ron:
My guess is that the NRA would object on the grounds that "weapon of mass destruction" is not a well-defined term

I picked it because there are international treaties that give that term a specific meaning (basically all nuclear, radiological, biological, and chemical weapons). Not that that would necessarily stop the NRA from objecting. :-)

I'll see your Wickard and raise you Gonzales v. Raich.

Bennis v. Michigan

I agree these are additional cases of dubious Constitutional interpretation.

> Kelo v. New London

This is murkier.


Agreed.

the takings clause actually has a serious bug in it

Yes, you're right. It should be amended as you say.

It's far from a slam-dunk that strict adherence to the process would produce better outcomes.

I think the case is a lot stronger than you appear to. The individual outcomes of specific cases are not all that should be taken into account. The result of frequent end runs around the rules, in cases where the issues aren't critical enough to justify it, is that politics is more and more about each side taking turns in running roughshod over the other, and less and less about working together. A good example is the issue you blogged about recently here:

http://blog.rongarret.info/2018/04/support-josh-harder-for-congress.html

Ron said...

> The result of frequent end runs around the rules, in cases where the issues aren't critical enough to justify it, is that politics is more and more about each side taking turns in running roughshod over the other, and less and less about working together.

I don't agree with you that the current adversarial atmosphere is a result of end-runs. I think it's the result of concerted and intentional campaign by the right to vilify the left. This campaign has been waged in an organized and very successful manner for several decades now, most prominently (but not exclusively) by Fox News and Rush Limbaugh. Their message is: whatever is wrong, it's the fault of liberals. Liberals are evil. There must be no compromise with liberals. Any incumbent who even so much as hints at compromising with liberals is not One of Us and must be defeated in the next primary.

It has been frighteningly effective.

Peter Donis said...

@Ron:
I don't agree with you that the current adversarial atmosphere is a result of end-runs. I think it's the result of concerted and intentional campaign by the right to vilify the left. This campaign has been waged in an organized and very successful manner for several decades now, most prominently (but not exclusively) by Fox News and Rush Limbaugh.

I agree that the right has been waging such a campaign, but I think there has been a corresponding campaign on the part of the left, not to vilify the right, but to consistently move the Overton window leftward by not even engaging with any arguments made by the right, but simply portraying positions on the right as so obviously reactionary and backward that they don't even need to be argued against.

And the latter campaign has been going on for more than several decades. It's harder to see it in the 1930s and 1940s because the right was so successfully suppressed during FDR's Presidential terms that the US was basically a one party state. But consider, for example, the fate of a Republican like Barry Goldwater, who opposed the Civil Rights Act of 1964, not because he didn't believe in civil rights, but because he considered parts of the act unconstitutional. Did Democrats say "we disagree with you, but we respect your right to vote based on your principles"? No, they accused him of being a racist, which he clearly was not (for example, he desegregated the Arizona National Guard two years before the US military was desegregated, and in 1953 he forced the Senate cafeteria, which had previously refused to serve non-white Senate staffers, to serve a legislative assistant of his who was black).

So if the left feels that the right is vilifying them, at least part of the reason is that the left has systematically eliminated conservatives who actually have reasonable, principled views to defend.

Ron said...

@Peter:

> It's harder to see it in the 1930s and 1940s because the right was so successfully suppressed during FDR's Presidential terms that the US was basically a one party state.

Yes, but you have to remember that the reason that U.S. was a one-party state in the 30's and 40's was because the other party had totally fucked things up in the 10's and 20's.

In fact, the large-scale history of the U.S. can be told in terms of this dynamic: Conservatives fuck things up to the point where it is no longer tenable to leave them in charge. Liberals come in and fix things, at which point everyone forgets how badly things were fucked up and starts to focus on how annoying all those taxes and regulations are. The fact that those were put in place to solve problems is no longer on anyone's radar screen (including, ironically, liberals). So conservatives are voted back into power, at which point they undo all of the policies that were designed to fix the problems they created the last time they were in power (and which everyone has forgotten about). The entirely unsurprising result is that things get fucked up again, and the whole cycle begins again with a mean period of about two generations (which is no coincidence). The most recent cycle started with Reagan, reached its nadir with Bush II, and ended with Obama. The one before that started with Wilson, reached its nadir with Hoover, and ended with Nixon (who was a liberal by today's standards). Trump is starting a new cycle. (The pace of change seems to be accelerating.)

> not even engaging with any arguments made by the right

Unfortunately, engaging with the right is just really hard to do because most conservatives today are just such FUCKING HYPOCRITES! I'm sorry for breaking decorum there, but it just steams my clams. Conservatives say they are for limited government, federalism, and individual freedom, but support the war on drugs. They want to make abortion illegal because human life is sacred, but support the death penalty and oppose universal health care. They say they want freedom of religion, but then they support Muslim bans. I'm sorry, but these positions are just not deserving of respect.

This is why I am so impressed with you being willing to admit, for example, that the 2nd amendment protects an individual right to nukes. Very few conservatives are willing to go that far, even though there is no principled way to avoid that conclusion if you believe that the 2nd amendment protects an individual's right to own firearms. You are principled, and so your views deserve respect and a considered response. Alas, you are an extremely rare breed nowadays.

Ron said...

> FUCKING HYPOCRITES

Oh, I left out the best example: conservatives say they are for law and order, and that they value honesty, but then stand idly by as the President of the United States says that he is above the law (can pardon himself, cannot obstruct justice, cannot be subpoenaed...), blatantly violates the emoluments clause, and tries to eviscerate federal law enforcement and intelligence agencies through a deliberate campaign of transparent (but nonetheless effective) lies.

Peter Donis said...

@Ron:
the reason that U.S. was a one-party state in the 30's and 40's was because the other party had totally fucked things up in the 10's and 20's.

No, the Federal Reserve had messed things up in the 20's with a loose monetary policy, leading to a bubble and a stock market crash.

The party in power during the 10's was the Democrats, not the Republicans.

the large-scale history of the U.S. can be told in terms of this dynamic: Conservatives fuck things up to the point where it is no longer tenable to leave them in charge.

I don't see this pattern in U.S. history. I see a pattern of nobody knowing what the heck they're doing at all. I'll agree that liberals don't know what they're doing in different ways than conservatives, but that's about all.

This is why I am so impressed with you being willing to admit, for example, that the 2nd amendment protects an individual right to nukes. Very few conservatives are willing to go that far

I'm not a conservative. Nor am I a liberal. The best term I can pick using current terminology is libertarian, although that doesn't mean I necessarily agree with all libertarian policies either.

Just for calibration: there has not been a single election since I was old enough to vote (the U.S. 1984 election was the first) in which I have voted for a candidate I actually liked. Every voting choice I have made has been an attempt to choose the least worst candidate--the one I thought would screw up the least.

Peter Donis said...

@Ron:
Conservatives say they are for limited government, federalism, and individual freedom, but support the war on drugs. They want to make abortion illegal because human life is sacred, but support the death penalty and oppose universal health care. They say they want freedom of religion, but then they support Muslim bans.

conservatives say they are for law and order, and that they value honesty, but then stand idly by as the President of the United States [egregiously violates those principles]

I agree that these are all good examples of conservatives being hypocrites. (The last one, in particular, is something every Republican in Congress, except John McCain as far as I can see, should be ashamed of. To go back to Barry Goldwater again: he was retired by the time of Watergate, but he went with top Senate leaders to Nixon to advise him to resign. I don't think even McCain would do that with Trump; there is no other Republican in the country that I can think of who would even consider it for an instant.)

Now for some liberal examples:

Liberals say they are for treating and rehabilitating people who make mistakes, not punishing them purely for retribution, but they support the war on drugs.

Liberals also refuse to acknowledge that people can actually suffer bad consequences because they make bad choices, not because someone else was oppressing them.

Liberals say they are for freedom of speech, but anyone who opposes any of their favored policies, or even expresses opinions at odds with liberal orthodoxy, is immediately branded a racist/sexist/whatever and shouted down, without even trying to see what their actual basis for their position is.

Liberals want strict gun control because of gun violence, but refuse to acknowledge that the regions of the U.S. that have a gun violence problem are the ones that have strongly liberal governments that refuse to crack down on crime. If the government is going to restrict citizens' access to guns, it has a responsibility to also eliminate the reasons why citizens might need guns for self defense.

Liberal leaders say they are for integrated communities and public education, and then live in exclusive neighborhoods and send their kids to private schools.

Liberal leaders in Congress voted in favor of the invasion of Iraq. (Obama, to his credit, came out against it, but he wasn't in the Senate at the time. And to the credit of Democrats now, they are doing their best to keep the investigation of Trump going.)

I'm sure we could both go on and on; again, my basic point is that both liberals and conservatives are off the rails, and neither side really knows what it's doing.

Peter Donis said...

@Ron:
I don't see this pattern in U.S. history.

Having said this, I do think there is one way in which, in the U.S., the deck is stacked against conservatives. The U.S., as a country, is built on the idea of experimentation and change, and conservatives by nature are always suspicious of experimentation and change. So it's to be expected that conservatives will more often find themselves on the wrong side of particular issues.

Ron said...

> The party in power during the 10's was the Democrats, not the Republicans.

Political parties back then didn't really align left-right the same way they do today. But if any party was the conservative party back then it was the Democrats. The alignments (such as they were back then) reversed themselves in the 60s after the passage of the Civil Rights Act and Nixon's Southern Strategy.

But the parties didn't really become as polarized as they are today until after Reagan.

> both liberals and conservatives are off the rails

Yeah. :-( But conservatives aren't even in the train yard any more.

> the deck is stacked against conservatives

Let's hope.

Peter Donis said...

@Ron:
Political parties back then didn't really align left-right the same way they do today. But if any party was the conservative party back then it was the Democrats

Not in the 1910's. At the turn of the 20th century, yes, the Democrats were still more conservative than the Republicans. But I would not characterize Woodrow Wilson, for example, as a conservative President. By his administration the realignment was already in progress; I might be willing to delay its completion until FDR, but not past that.

The alignments (such as they were back then) reversed themselves in the 60s after the passage of the Civil Rights Act and Nixon's Southern Strategy.

So you're saying that FDR, for example, was a conservative President? I strongly disagree.

the parties didn't really become as polarized as they are today until after Reagan.

This I can agree with. (Although I do wonder, for example, how Watergate would have played out if the Republicans had controlled Congress instead of the Democrats.)

Ron said...

> I would not characterize Woodrow Wilson, for example, as a conservative President.

Yeah, well, no sweeping generalization of U.S. history is going to be accurate 100% of the time.

> FDR, for example, was a conservative President?

In some ways. He supported segregation. He opposed allowing Jewish refugees into the country. He was a pro-military hawk. Yes, he famously supported liberal economic policies. But even there he was no Bernie Sanders. FDR only seems liberal because the Overton window in the U.S. is and has always been very far to the right. (Offhand I can't think of any Western nation further right than the U.S. Our taxes are lower, our social safety net is thinner, our regulations less stringent.)

Ron said...

> I do wonder, for example, how Watergate would have played out if the Republicans had controlled Congress

Why do you think that would have made a difference? Even Republicans were starting to turn on Nixon after the SNM and the smoking gun tape.

A more interesting question is how it would have played out if Fox News had been around. (If the Dems don't take the House in November, I think we may learn the answer to that question.)

Peter Donis said...

@Ron:
FDR only seems liberal because the Overton window in the U.S. is and has always been very far to the right.

Relative to a viewpoint that is far enough left, yes, I suppose this is true. But the window in the U.S. has moved steadily to the left, as I said.

Offhand I can't think of any Western nation further right than the U.S.

I can't either; but again, that does not mean the U.S. has not been moving steadily left for a long time.

Peter Donis said...

@Ron:
Even Republicans were starting to turn on Nixon after the SNM and the smoking gun tape.

I'm wondering if the tapes would ever have been revealed if the Republicans had controlled Congress.

Ron said...

> the U.S. has [] been moving steadily left for a long time

That was true until Reagan. Since then it has been moving right.

> I'm wondering if the tapes would ever have been revealed if the Republicans had controlled Congress.

Why do you think things would have gone any differently? The Senate vote to establish the select committee was 77-0. Donald Sanders was a Republican.

Peter Donis said...

@Ron:
The Senate vote to establish the select committee was 77-0. Donald Sanders was a Republican.

Hm, fair point.

Peter Donis said...

@Ron:
> the U.S. has [] been moving steadily left for a long time

That was true until Reagan. Since then it has been moving right.


Possibly it hasn't been moving left quite as fast, but I see no indication whatever of rightward movement.

I don't view Trump's election as a rightward movement; I view it as a disastrous mistake on the part of the Democratic party, allowing the party machine to nominate Clinton even though there was strong evidence that Sanders had more popular support. If Sanders had been nominated, I think he might well have beaten Trump, and he might possibly also have carried a few more Senate and House seats with him (the Democrats gained seats in both houses as it was, which is unusual for an election in which the Presidency switches parties).

I think Trump's support base is not the extreme right so much as the extremely dissatisfied: people who (with considerable justification) see politics in general in the US as a machine which is not looking after the best interests of the people. (Yes, I know Trump isn't either; demagoguery is nothing new in US politics.) Sanders appealed to the same people; but I can't think of any candidate less likely to appeal to such people than Clinton.

Publius said...

@Ron
>The salient factor, as I pointed out in my Open Letter, is that freedom of speech and religion do not (or at least should not) extend to commercial activity.

The problem here is: you don't get to determine how a religion conducts its ministry, or witness about their faith.

In short, excluding religion from extending to commercial activity is a violation of the free exercise clause of the 1st amendment.

Ron said...

> excluding religion from extending to commercial activity is a violation of the free exercise clause of the 1st amendment.

No, it isn't. It is widely accepted in American jurisprudence that religion and commerce are separate. Not even the Masterpiece decision disputes this. If it were not so, *all* laws governing commerce would be trumped by any crackpot claiming that God told them otherwise.