Elections

What If Trump Jumps Early?

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Former President Donald Trump speaks during his rally in Selma, N.C., April 9, 2022. (Erin Siegal McIntyre/Reuters)

There have been reports on and off about Trump announcing early, and you have to wonder if the strength that DeSantis is showing might be pushing him further in that direction.

The advantage for Trump of an early announcement is that it would presumably cause almost all the candidates who have said they won’t run if he does to say they are out, an immediate show of strength. And it might solidify his polling some and get fence-sitting Republicans who now say they don’t want him to run to throw up their hands: “Well, I wish he didn’t do it, but now that he has, I’m with him.”

But there’s a risk of getting in early and just sitting out there and not generating the accustomed excitement and interest. Indeed, if there’s a growing sense of Trump exhaustion in the party, having him a declared presidential candidate for basically a year and half before the primaries begin might enhance it, not diminish it. An early Trump endorsement might also help the candidates who could run regardless — DeSantis, Cotton, Pence, et al. — calculate their moves. If you’re DeSantis, say, you can see what Trump’s strength as a declared candidate appears to be well before having to make the momentous call about jumping in yourself.

So, I think on net an early announcement might be bad for Trump’s interests. But at the end of the day, timing probably won’t matter much — the party will either be ready to move on in 2024, or not.

Politics & Policy

Roe: Thinking Generationally

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Pro-life demonstrators celebrate outside the Supreme Court in Washington, D.C., as the Court rules in the Dobbs v. Women’s Health Organization abortion case, overturning the landmark Roe v. Wade decision, June 24, 2022. (Evelyn Hockstein / Reuters)

What, to the 24-year-old, is the death of Roe v. Wade? My colleagues have described the momentousness of yesterday’s ruling from almost every angle imaginable: Its significance for pro-lifers, for the conservative movement, for a proper and just understanding of the Constitution, and — of course — for the unborn. I shared the transcript of a speech I gave last night to my fellow young conservatives on The Corner earlier today, where I tried to speak to what it should mean to those of us who share our elders’ commitment to the sanctity of unborn life, and their joy at the Supreme Court’s decision, but who have only just recently come of political age: 

In this specific political context, we should also be considering the momentousness of today as conservatives; and for many of the young people here, as those who will—in one way or another—be inheriting the levers of power in the institutional conservative movement…this is a moment to be proud of our history. To be proud to be in this room—not because we, as young people here, have contributed all that much to the cause of life or the defense of the Constitution, but because we are lucky enough to have the chance to carry on the work begun by our forefathers. The ones who toiled, often thanklessly; often in silence; often in the face of ridicule and censure in mainstream institutions; for nearly half a century, and for decades and decades when the possibility of overturning Roe was unthinkable

I just want to add a couple quick thoughts to this sentiment. It’s a difficult question that I’ve been reckoning with over the past 24 hours: How should young conservatives think about Roe’s demise? Can we really feel “proud” of the fruit of a labor that was not, primarily, ours? Certainly, we can and should feel joy — joy for the millions of unborn lives who will see the light of day, and for a nation whose “fundamental law,” as the editors wrote yesterday, “will no longer effectively treat unborn children as categorically excluded from the most basic protection that law can provide.” 

But in the headiness of victory, I also can’t help but feel a certain amount of imposter’s syndrome. For me, this is particularly potent, given that I was not raised conservative, and only recently arrived in the movement. This is the conservative movement’s victory, yes, but it does not feel like it is mine. I wasn’t there for the decades of grassroots organizing, letter-writing, door-knocking, and prayer. I did not share in the many heartbreaks and losses that were sustained and endured on the uneven path to yesterday’s victory. 

The conclusion that I’ve arrived at, then, is that there is one appropriate emotion for a young conservative to feel in this moment: gratitude. With gratitude, comes humility; with humility, comes a moment for reflection. Today, I reflect on the nameless generations who toiled in silence before me, in the darkness of the decades when overturning Roe seemed a Sisyphean task — beyond the reach of any rational political imagination. I cannot ever hope to understand what yesterday’s decision means to them. But in acknowledging my own limited capacity to understand this moment, I can begin to recognize the magnitude of the debt they are owed.

Politics & Policy

Abortion and Legislative Precedent

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Williamson’s Second Law: “When Democrats are in power, they act like they’ll never be out of power, and when Republicans are out of power, they act like they’ll never be in.”

I wonder whether it has occurred to Democrats hysterically demanding that Congress “codify” a national right to abortion through legislation are simply pre-establishing congressional authority over the issue — about seven months before a Republican majority is likely to be sworn in.

If a Democratic Congress has the authority to mandate abortion rights in every state (and I do not believe that it legitimately does) in June of 2022, then the same legal theory that establishes that power surely must invest in a Republican Congress the power to enact a national prohibition of abortion in January 2023.

Be careful what you ask for, Democrats.

Media

Standing on the Shoulders of Giants: An Address to Young Conservatives

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The American flag flies at half staff over the U.S. Capitol to honor the late Supreme Court associate justice Ruth Bader Ginsburg, September 25, 2020. (Jonathan Ernst/Reuters)

The following is transcribed from a speech I delivered to the Intercollegiate Studies Institute’s class of Collegiate Network Journalism Fellows. It has been edited for length and clarity.

I don’t know if any of you heard yet, but there was a pretty significant decision over at the Supreme Court today. 

It’s a big deal. I don’t have to tell any of you that. But I think it’s worth pausing and taking a moment to think about why today’s decision matters.

Obviously, it matters first and foremost, because it’s the first step in building an America where abortion is unthinkable. And that matters because abortion matters — not just because it is the taking of the most vulnerable and defenseless kind of innocent human life, but because, as one prominent conservative thinker wrote in 1997, “abortion is today the bloody crossroads of American politics.” 

This is what that conservative thinker wrote at the time:

It is where judicial liberation (from the Constitution), sexual liberation (from traditional mores) and women’s liberation (from natural distinctions) come together. It is the focal point for liberalism’s simultaneous assault on self-government, morals and nature. So, challenging the judicially imposed regime of abortion-on-demand is key to a conservative reformation in politics, in morals, and in beliefs.

The man who wrote that was Bill Kristol. The Bill Kristol of 1997 was very different from the Bill Kristol we know today. 

But Kristol, circa 1997, was right. And I’m not here, primarily, to talk to you about abortion, or even jurisprudence and the courts in general. But I think today’s ruling is important for our purposes insofar as it allows us to take a moment to reflect on our position in this particular moment in history, as Americans, and as people who love this country. We are, in this room, occupants of the small sliver of the nation’s ruling class—and especially the elite media—who still see something beautiful and noble and redeeming in our history, our traditions and our founding principles.

In this specific political context, we should also be considering the momentousness of today as conservatives; and for many of the young people here, as those who will—in one way or another—be inheriting the levers of power in the institutional conservative movement.

There have been any number of criticisms of the conservative movement in recent years, some of which I’m personally sympathetic to. But this is a moment to be proud of our history. To be proud to be in this room—not because we, as young people here, have contributed all that much to the cause of life or the defense of the Constitution, but because we are lucky enough to have the chance to carry on the work begun by our forefathers. The ones who toiled, often thanklessly; often in silence; often in the face of ridicule and censure in mainstream institutions; for nearly half a century, and for decades and decades when the possibility of overturning Roe was unthinkable

And they did so not just because they believed in the sanctity of unborn life—although they did—but because they loved this country. And they understood what an insult it was to the Constitution—and to the men who wrote it—to say that it condoned, let alone mandated, such a profound moral evil as abortion.

All that is to say: We stand on the shoulders of giants. Particularly at storied institutions like ISI. 

The luminaries of the conservative intellectual tradition in America, many of whom were writers or journalists or essayists of some kind or another, were all young people once, too. Many of them sat at conferences like these, although they were probably listening to much better speeches. But remember, ISI was one of the original institutions in movement conservatism. And pretty much every single one of your intellectual heroes has probably been associated with it, in one way or another.

Now, I’m young, too — probably not much older than you all. I graduated college in May of last year. And young people have a tendency to think they know better than their elders. I’m certainly guilty of this. Young conservatives have traditionally been slightly less prone to this impulse than our progressive counterparts, because naturally, we are seeking to conserve something. It’s a fundamental tenet of the conservative disposition to be deferential to the wisdom of the past. And insofar as that wisdom is embodied in and passed down by previous generations, we’re generally a little less likely to be partial to the “don’t trust anyone under 30” impulse than many of our peers.

But all of you have probably experienced that there’s a certain kind of radical ethos in our generation of conservatives, particularly in the intellectual circles that we all, to one degree or another, are a part of. You’ve all heard of “Conservatism, Inc.” There’s a tendency to look around us—to see how bad things are in so many areas—and to dismiss the work of our predecessors, and the institutions they built.

I get it. Sometimes, I feel it too.

But I want to caution against taking that impulse too far—particularly for those of us in this room, who will be part of the class of writers, thinkers, reporters, and journalists who really set the tone for what it means to be a conservative in the 21st century. Elite conservatism has always had an insular, familial feel. Everyone here knows each other: We tend to come up through the same pipeline from campus chapters of the College Republicans or ISI to the right wing of the beltway political establishment. We’re mentored by the same group of figures in the same handful of conservative institutions.

What that means is that you all are in a position to be far more powerful than our counterparts on the left side of the aisle. 

The average left-wing writer, or journalist, or intellectual swims in a gigantic sea of mainstream elite American life. Being left-wing doesn’t make you special at a university or at the New York Times or the Washington Post. It doesn’t make you special in the federal bureaucracy, or Silicon Valley, or corporate HR departments, or the military brass, for that matter. They’re the norm.

We are the exception to the norm. The kind of young conservative who wants to go into writing, or reporting, or policy work, or any other kind of intellectual pursuit, is a very small and specific demographic. But the conservative movement infrastructure that our predecessors built is very powerful. And what that means is that we are situated to be in positions of unusual influence at a very early age.

We should take that seriously. It’s a cliché to say that great power comes with great responsibility, but it’s also true. 

Take my example. I just turned 24—on my 24th birthday, I wrote a 4500-word cover story for the New York Times. Next week, I’m writing a piece for The Atlantic. Next year, I’m probably writing a book. 

Some of my left-wing critics—and I seem to have more of them every day—would say that that’s because I’m a product of the so-called “conservative welfare state.” In other words, they’d argue that conservative writers and intellectuals, by virtue of their scarceness, but also because of the enormous amount of resources that they have access to, are a kind of affirmative action story.

Now, in one sense, that’s ridiculous. I don’t have to recite to you all of the mediocre writers and thinkers on the Left who were elevated to positions of influence and power because they had the right opinions, or to point out that the echo chamber in mainstream progressive institutions means that many of our public intellectuals rarely have to actually substantively defend their positions, which often leads to weak and lazy arguments. 

But in another sense, there’s something to this point. I’m happy to admit that I probably wouldn’t be where I am today if it weren’t for the fact that I believe things that are unusual in elite intellectual life, and that I wouldn’t be here at all if it weren’t for the generosity and support of institutions like ISI. 

So all of us here are, in the real sense of the word, privileged. Not because of skin color or gender identity or any of the other ways that term is wielded today, but because we are participants in something important and unique. We’re inheritors of a noble tradition, built by some of the most brilliant and passionate men and women that our country has known. 

Don’t just burn it all down. Be part of building something. Not “building a new world,” like the utopians on the Left claim to want to do, but rebuilding and renewing the America that the men and women who came before us fought for.

What does that mean for our specific wing of the conservative movement? As writers and journalists, I actually think we are uniquely situated to do the kind of work I’m talking about. Maybe some of that is self-flattery, but with the exception of the universities, I can’t think of an institution in American life where there is more of a need for conservative voices than the media.

Now of course, there is a sprawling ecosystem of conservative media already. We’re all in it. But the problem is that we are speaking, almost exclusively, to an audience that already agrees with us. That’s important, too, in and of itself. As I said earlier, one of the most significant roles we play as conservative writers is engaging with, and ultimately helping to define, the conversation about what it means to be a conservative today. And that question is more uncertain than it has been in decades. So the debates that we’re all involved in are important.

But we have yet to really break what people describe as “the New York Times effect.” The New York Times effect, for those of you who haven’t heard of it, describes the power that major left-wing papers like the Times wield in defining the terms of our national political discourse. It’s sort of like the Pareto principle—a small fraction of the population controlling a large portion of the wealth, in which 80 percent of consequences come from 20 percent of causes. A good example of this came last year, when powerful payment processors like Visa and Mastercard barred pornography platforms from using their services. Conservative faith-based groups had been working to go after platforms like PornHub, which were complicit in sex trafficking and child porn, for years. But it wasn’t until a big piece from Nicholas Kristof in the New York Times, and then another long, critical piece in the BBC, that corporations actually felt pressured to move.

All of that is to say: So much of conservative media—and conservative politics in general—is reactive. We spend our time reacting or responding to the Left. But that’s an inherently defensive posture. It makes it very difficult to win when you’re playing on the other side’s terms.

Part of all this is simply a question of power. The constellation of mainstream, credentialed, “reputable” news outlets is very powerful. In the short term, there isn’t much we can do about that.

But part of it is a choice. Conservatives have adopted this defensive crouch by spending our time writing op-ed after op-ed about how biased the media is, about what this or that progressive pundit or Democratic politician said, and so on. And all of that is important, to a degree. I certainly do plenty of it myself. Part of our job is to hold people accountable—especially the ones that the mainstream media doesn’t

But if we do that at the exclusion of other kinds of writing and journalism, we’ll never actually be able to set the terms of debate. And we’ll always be playing on a field where the referees work for our opponents.

The good news is, we don’t have to do that. The thing about the mainstream media’s bias is that they’re only really interested in uncovering half of the stories that are worth telling—and frankly, a lot of the stories they do tell aren’t particularly interesting or worthwhile.

What that means is that there is a cornucopia of stories for all of you to go out and find. Stories that matter, but that aren’t being told. All you have to do is go find them. 

Let me give you a couple of examples—one from me, and one from a young friend of mine who I think exemplifies what young conservative journalists should be aiming to do better than almost anyone I know. 

The first story: This January, Georgetown Law suspended their new professor, Ilya Shapiro, for an innocuous tweet he posted criticizing the Biden administration’s use of race and gender to select their new Supreme Court justice. It was an absurd, cowardly move, done not because Shapiro actually violated any of the school’s anti-discrimination policies—actually, he was defending the principle of colorblind equality under the law—but because the administration was scared of the student activists who were calling for his head.

When it happened, everyone on our side of the aisle—and even a couple principled progressive voices—called it a miscarriage of justice. But the story was Shapiro’s tweet. That, of course, was how it was reported in the mainstream media, and as such, that was the subject of debate. Even conservatives were backed into the defensive crouch of having to defend the content of the tweet, rather than being able to shift the conversation towards the Georgetown Law administration’s misconduct. 

But I found out, via social media and some friends at Georgetown Law, that the Georgetown Black Law Students Association, which was the group leading the charge against Shapiro, was planning to hold a sit-in at the school, demanding all of the things that activists like this usually demand—not just that Shapiro be fired, but that there be more funding for diversity, equity and inclusion, more departments with teachers who shared their ideological commitments, and so on. So I went to Georgetown Law to see it for myself. I ended up getting foiled by security, but I found an Instagram livestream of the event and screen-recorded it on my iPhone while sitting in a nearby coffee shop.

And it was—and I put this mildly—insane. The activists weren’t just demanding that Shapiro be fired, but that Georgetown Law’s entire originalism institute be shut down. On top of that, they were demanding reparations in the form of “free food” and a designated “place to cry” to remedy the emotional trauma inflicted on them by the tweet. But the most damning thing of all was the fact that Bill Treanor, the dean of Georgetown Law who showed up to personally address the students, was completely deferential to them. No pushback, not a word of criticism. Just “yes, of course, you’re absolutely right.” Even when they demanded free food—“we’ll get that for you right away.”

When I broke this story, it went viral. But more importantly, it completely changed the terms of the debate. Not because of anything particularly special about me or my coverage of the story, but because it allowed people to see the actual dynamic that had led to Shapiro’s ouster. The conversation shifted from debating Shapiro’s tweet to debating the school’s response. And in the face of what everyone could see about the dynamic between Dean Treanor and these student radicals, it became very, very difficult to defend what happened. The school dragged its feet, but it eventually felt the need to offer Shapiro his job back. (He didn’t accept, but that’s another story).

Now the other example, which I actually think is far more impressive than my coverage of the Shapiro story, is my friend Aaron Sibarium. Aaron is 26 years old — not much older than you or me. But what I did with the Shapiro story, he has done many times over, and to far greater effect. Most recently, he was there covering Princeton’s persecution of their conservative professor, Joshua Katz. Before that, he broke the story about the CDC, and a number of state governments, using racial preferences in the dispensation of life-saving Covid treatments — a scoop that none other than Donald Trump has taken to talking about at his rallies. Before that, he was covering how critical race theory has infiltrated everything from the medical bureaucracy to the American Bar Association. He’s been a tireless chronicler of how left-wing cultural ideology, particularly as it pertains to race, gender and sexuality, is corrupting American institutions. He recently started a podcast, called Institutionalized, with a friend. It’s excellent. You should all be listening to it.

These stories are defining the narrative. They shift the terms of the conversation. All of a sudden, the conversation about “wokeness” isn’t just old Boomer hosts on right-wing talk radio complaining about some college kid using weird pronouns or something; it’s actually about material, substantive examples of how this ideology, and the power structure that’s driving it, is affecting Americans and America. It’s not just rhetorical anymore; we’re not just talking about politically correct speech-policing. When the Small Business Association is denying restaurants pandemic relief based on their skin color and gender, or when the CDC is denying at-risk white men life-saving antivirals, that’s real. It’s much more difficult to wave away as “right-wing hysteria.” And a whole lot of that is because of Aaron.

That’s all at the age of 26, for him. That’s what I’m trying to hammer home. You all can be doing that. And you should be. Because it’s important. There’s a massive opportunity here. It just takes a little bit of creativity, and a willingness to actually go out and find the stories that no one else is paying attention to.

The last thing I should just say on this topic is to those of you who came into this world hoping to mostly do opinion, like I initially did. First of all, the best journalism advice that I ever received, from one of the movement’s elder statesmen, is, “No one actually really cares what you have to say.” At least at first, why should anyone listen to kids like us? Why should they take our opinions seriously? Before you give your take on the news of the day, or on some big philosophical debate within conservatism, you have to prove that you’re worth listening to. And the best way to do that—and to make your mark—is to actually find the stories that no one else is paying attention to. So the best way in is to actually tell other people’s stories, or at the very least, to incorporate them into the stories that you want to tell. 

The best way to learn how to write is to actually do real reporting. To write about real people, and real situations, rather than just to pontificate. And a lot of times, as I mentioned, that doesn’t have to be straight reporting. The best pieces I’ve ever written are “reported opinion,” where I’m making the case for something specifically, but using and relaying real stories rather than merely relying on my own thoughts. And that’s made me immeasurably better as a writer, even when I am writing something that could be described as mostly opinion.

To take an example—this long New York Times essay I just wrote. It was very much an opinion piece. But I wrote it very differently than I probably would have if they had asked me to write it two years ago. I was making the case that the decline of organized religion has substantially altered the priorities and worldview of the conservative movement—that’s an opinion. But I was describing it in the same way that I would report on the Ilya Shapiro situation at Georgetown. I was making an opinionated case, on the one hand, but was reporting, in a very real sense, on the other. And all of the best opinion pieces—the ones that really drive at something important—are, in a very real sense, reporting. 

So whatever you’re actually interested in, from straight reporting and journalism to policy writing and work to anything else in this profession, look for good stories to tell.

It’s an odd time to be a young person in America. And it’s doubly as odd a time to be a young conservative. As I mentioned earlier, a lot of young conservatives are entering politics with a sense that America is under siege. Even as we log major wins at the Supreme Court—gun rights yesterday, abortion today—it can feel like the country is slipping away from us. The kind of work that Aaron does, for example, chronicling the Left’s march through our institutions—that’s happening. And those of us who have spent time on college campuses recently, in particular, know exactly how serious it is. 

That’s disturbing, to me. No amount of tax cuts, or gun-rights expansions, or even Supreme Court victories seem to have been able to stem that tide. In a sense, I think, that’s because conservatives have been too narrow in our conception of politics. We thought that if we elected Republican majorities enough times, in enough places, they would save us from all of this.

Well, they haven’t. 

And none of that is to contradict what I said at the outset of this speech, about a deep and abiding gratitude for the conservative movement. The only reason we’re here at all is because of the work of past generations. And today, of all days—just hours after the reversal of one of the greatest affronts to justice and human dignity in Supreme Court history—we should remember that.

But just as it fell to our predecessors to answer the great challenge of Communism abroad, it falls to us today to answer the great challenge of a militant and profoundly anti-American progressivism at home. And since the defining battle lines today are in the culture, it will be in the cultural institutions where this fight is won or lost. That’s not to say debates about government or economics aren’t important—of course they are. But the work we’re doing, in the media and the intellectual sphere, has taken on a particular importance in the contemporary context. 

As I said earlier, all of us in this room, even those of us in the earliest stages of our careers, are in a unique position to actually have an effect in American politics and culture. It’s one of the greatest gifts that we’ve been given by those who came before us—including the men and women who built ISI. Our obligation, to them, is to fight for our way of life today, as they fought for it in generations past.

Thank you.

Single-Serving Libertarianism

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To be a Democrat in 2022 is to insist that “bodily autonomy” means that you may kill your children but you may not hit a Juul.

Politics & Policy

Susan Collins, Abortion Demagogue

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Senator Susan Collins (R., Maine) listens during a Senate Intelligence Committee hearing on Capitol Hill in Washington, D.C., February 24, 2021. (Tom Brenner/Reuters)

On the day after Roe was overturned, in Maine — the only place in America where Republican Senator Susan Collins actually represents anyone — lo and behold that abortion remains legal and widely available.

Under state law, there are generally no restrictions on it to the point of “viability,” which Maine deems to be about 24 weeks, well into the second trimester (and beyond the point at which many Americans, who disfavor abortion yet believe it should be safe, legal, and rare, would permit it in most cases). Even beyond viability, the law provides exceptions, particularly, of course, if the mother’s life is in danger. There is a parental-consent restriction for minors, but it is riven with exceptions that make it more like a speed bump. And Maine requires private insurance and Medicaid to cover abortions.

Contrary to what Senator Collins would have you believe, Justices Neil Gorsuch and Brett Kavanaugh have not outlawed abortion. To the contrary, they joined a ruling (in Dobbs) that gives the senator’s constituents complete control over what kind of abortion regulations they wish to adopt democratically.

Now that we are better positioned to notice such things, how curious that Collins is having a tantrum over Roe when the people she represents actually want abortion restrictions of the kind the Dobbs makes accessible. The Roe regime was so barbaric that it gave Democrats cover to oppose any restriction on abortion, up until the moment of delivery; most people in Maine, however, do not favor abortion-on-demand, at any gestational point and for any reason.

Democrats are lying about Roe, and Collins is helping them. Justices Gorsuch, Kavanaugh, and rest of the Dobbs majority have not outlawed abortion. They have re-empowered the people of Maine to control abortion. Ironic that the Court has more faith in the people who elected Susan Collins than Susan Collins does.

Politics & Policy

The ‘Oh, but Price Controls Did Work’ Claim

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Statists are demanding that the government impose price controls, now that reckless spending and money creation have brought on rapidly increasing prices. One of the claims we’re hearing is that we should ignore all that stuff about economic theory and look at history for instances when price controls “worked.”

Don’t buy it. Economics professor William Anderson has a sharp refutation here.

Referring to Harold Meyerson’s hymn to price controls during World War II, Anderson writes, “Yet that tells us absolutely nothing, for he fails to mention the shortages, official rationing of goods, and the general economic misery that Americans faced during those conflicts, when the economy, geared to total war, vacuumed up vast numbers of resources, leaving Americans on the home front to scramble for the leftovers and, with much difficulty, scratch out a living.”

To that, I’d add the economic waste of having to hire a small army of price-control officials to enforce the system. Leftists never see the opportunity cost of creating “jobs” that produce no value.

Read the whole thing.

Law & the Courts

Abortion and the Restoration of Democracy

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My latest column in the New York Post on how Roe made our current political moment:

Roe was a legal mistake that played a large role in driving our national politics crazy. Now the democratic process gets to decide what happens to abortion. Before Roe, nearly every state in the Union banned or restricted abortion, but the trend was toward allowing abortion in more situations. That trend, here and abroad, tracked the liberalizing of divorce laws and other features of the sexual revolution of the 1960s and 1970s. Roe stopped all that in its tracks, high-handedly sweeping off the books the laws of nearly every state at once. (New York’s law, the nation’s most permissive, allowed abortions up to 24 weeks.) The Supreme Court’s job is to read the law, not write it. Nothing in the Constitution mentions abortion even indirectly, and nobody before the 1970s thought the Constitution made abortion legal. . . .

All the energy that usually goes into politics and lawmaking in Congress and state legislatures was forced into an all-or-nothing national battle for the Supreme Court that lasted decades. When presidential candidates such as Donald Trump or Bill Clinton misbehaved, their supporters insisted that the stakes of every presidential election were too high for dissent, because Roe was always on the national ballot. That isn’t healthy. In America, the people are supposed to make the law. Now they can.

Politics & Policy

How Bad Is the Rewrite of Title IX Sexual-Harassment Rules?

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Very bad, argues former Department of Education lawyer Hans Bader in this Liberty Unyielding post. 

The revision is an attack on freedom of speech that opens the door for campus administrators to bring complaints against anyone who says things that upset the militants.

Bader observes that the language is based on a concept of “harassment” that one appeals court has already declared unconstitutional.

Bader writes, “The Biden administration’s proposed definition of sexual harassment disregards the Supreme Court’s Davis decision. It adopts a definition of harassment that is even broader in some respects than the broad harassment definition used in workplaces, which the Supreme Court rejected as impractical for schools, because of the fact that ‘schools are unlike’ the workplace, and because students ‘regularly interact in a manner that would be unacceptable’ among adult workers.”

It sounds as though these rules wouldn’t survive a legal challenge, but that’s true of most of what Biden has been up to.

Law & the Courts

Roe and Casey Are Overruled’

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Pro-life demonstrators celebrate outside the United States Supreme Court as the court rules in the Dobbs v. Women’s Health Organization abortion case overturning Roe v. Wade in Washington, D.C., June 24, 2022. (Michael Mccoy/Reuters)

In a historic ruling, the Supreme Court on Friday overturned Roe and Casey. Rich and the other Editors hosts discuss this momentous day and the various legal and political angles of the decision.

Rich reminds listeners of just how many people were involved over the last almost-five decades in bringing about this victory. From voters to activists to Donald Trump, the editors make the point that this victory would not have been possible without the continued perseverance — in the face of seemingly insurmountable odds — of those fighting to bring about a culture of life in the United States. 

There has been major Democratic outcry over the decision, and the editors consider how the decision will affect November’s midterm elections. MBD brings up some important points concerning what cultural shifts we may see moving forward, specifically from the emerging populist class. In terms of individual states, Phil discusses what actions governors and legislators might take. 

Come for the Dobbs discussion, but make sure to stay for the gun-case decision talk at the end of the show. Listen below or on your podcast player of choice. 

 

NR Webathon

Celebrate the End of Roe with National Review

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Cover of the November 29, 2021, Issue of National Review (National Review)

The day that we long fought for, and that we long hoped would come, has finally arrived. With its decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court has overturned Roe v. Wade, the constitutional and moral abomination that ended tens of millions of innocent human lives, and that for decades warped and corrupted our political order. The journey to its overturning was not without heartbreak and setback. It proceeded along contingencies and ironies that seem almost impossible to line up with the reality of triumph for the lives of the unborn. It is a day we owe to countless pro-lifers, many of whom were happy to toil in obscurity and even anonymity in the hope that, one day, their efforts would bear fruit. Today, at long last, they have.

National Review has long been with and among them, supporting and heralding the pro-life cause. As a culmination of these efforts, we dedicated an entire issue, timed to coincide with the oral arguments in the Dobbs case last year, to explaining from every conceivable angle why Roe could not stand. That issue is now available here to all readers. We delighted in seeing pro-lifers on the steps of the Court proudly bearing copies of it. We urged the Court to defy the pressure campaign that began once a draft version of a possible decision leaked (an act itself likely part of that campaign). And today, we are celebrating with the many other people and organizations who made the end of Roe possible.

Our home page is packed with this coverage. See our own editorial marking the removal of the “stain” of Roe. See Alexandra DeSanctis, one of the youngest and also most fervent and articulate voices for life in the public sphere, discerning what comes next. See Dan McLaughlin’s double-header celebration of the decision itself and of the political actors who made it possible. And so much more. This is National Review at its best. But for the sake of our readers and for the causes we all hold dear, we strive to be at our best every day. So if you’re enjoying what you see today, sign up for an NRPlus subscription to get fuller access to our offerings. We are today offering 60 percent off subscriptions to NRPlus, a deal — even a steal — by any reckoning. Take advantage of it, and ensure that you don’t miss any of our coverage on this or any other pressing topic. And celebrate with us on this historic occasion.

Economy & Business

If You Really Want to Understand Inflation …

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John Maynard Keynes (right) speaks with Harry Dexter White, assistant secretary of the Treasury, in Savannah, Ga., March 8, 1946. (International Monetary Fund/Wikimedia Commons)

The nation abounds in chatter about inflation these days, most of it badly informed if not deliberately misleading.

But there is some sound writing, and I recommend this AIER essay by  Peter Calcagno and Edward Lopez. They argue that if you want to understand the problem, “look to Harvey Road, not Pennsylvania Avenue.” The reference is to the residence of John Maynard Keynes, whose prescription for government economic management steered us wrong in the 1930s and still bedevils us.

Keynes liked inflation as a means for the state to extract wealth from producers for its purposes and liked it especially because, he wrote, “not one man in a thousand can see what is going on.” Unlike taxation, which people see and object to, deficit spending and subsequent money creation through a central bank takes place covertly and is easily blamed on others.

Calcagno and Lopez praise the analysis of James Buchanan and Richard Wagner in their book Democracy in Deficit, which gets at the root of the problem, namely the insatiable appetite of our politicians for money to spend on all the things they like (mostly because they help get them re-elected).

Here is Calcagno and Lopez’s conclusion: “Taking Buchanan and Wagner’s Democracy in Deficit seriously means putting the focus on political morality and institutional rules. These rules restrain discretion in monetary policy and limit both the scope and scale of fiscal policy. AIER’s Alex Salter and others are right that we need Milton Friedman back now more than ever. But even more so, we need Buchanan and Wagner to take front and center in the political and economic discussion.”

Education

Universities Lament Roe’s Overturning

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Pro-life demonstrators celebrate outside the Supreme Court in Washington, D.C., as the Court rules in the Dobbs v. Women’s Health Organization abortion case, overturning the landmark Roe v. Wade decision, June 24, 2022. (Evelyn Hockstein / Reuters)

The Supreme Court’s decision to overturn Roe v. Wade prompted the presidents of many colleges and universities throughout the country to send messages to their students, lamenting the decision and affirming their commitment to “reproductive rights.”

Here are some of the most egregious statements from universities in response, coming from public statements or emails obtained by National Review.

In an email to students, University of Michigan president Mary Sue Coleman told Wolverines, “I strongly support access to abortion services, and I will do everything in my power as president to ensure we continue to provide this critically important care.”

Coleman recently convened an abortion-access task force, one of the functions of which will be to provide resources for out-of-state abortions for students and patients who come to the university’s hospital system. The co-chair of the task force, Dr. Lisa Harris, once served as chief medical officer for Planned Parenthood of Michigan.

Down the road, President Samuel Stanley of Michigan State University felt the need to “emphatically state that reproductive health care is a basic human right.” Though he said that he respects “the diversity of opinions Spartans hold on the issue of elective abortion,” he stated that the university has “a responsibility to stay true to our core values and work to improve the health and life outcomes of all those we educate, train and serve.”

“To that end,” he continued, “MSU will continue to stand for sustainable health for all. In the face of a ruling that jeopardizes many people’s health, we will — within the boundaries of the law — continue to educate the next generation of clinicians and health professionals in reproductive health and also support access to equitable, high-quality, affordable and safe health care for all.”

Out west, University of California system president Michael Drake, though he recognized the different opinions students have on abortion, wrote, “The Court’s decision is antithetical to the University of California’s mission and values. We strongly support allowing individuals to access evidence-based health care services and to make decisions about their own care in consultation with their medical team.”

Colleges within the system riffed on Drake’s statement. UCLA chancellor Gene Block echoed Drake’s sentiments and told students that “UCLA currently provides students with access to comprehensive reproductive health services and will continue to offer these services.”

UC-Davis chancellor Gary May wrote that “we will continue to move forward together to protect the human rights for people making health care decisions.”

In fairness, the messages were not all bad. University of Iowa president Barbara Wilson assured students in an email that her personal views would remain private, encouraging Hawkeyes to “help ensure that the University of Iowa is a place for open and respectful discussion of differences” and implored them to “find constructive ways to have your voice heard by participating vigorously in our democratic process.”

Additionally, multiple Catholic schools rejoiced at the decision. President John Garvey of the Catholic University of America in Washington, D.C., praised the rejection of “the unholy idea that there is a constitutional right to kill unborn children” and encouraged students to “build a civilization of love” in a post-Roe world. Ave Maria University in Florida tweeted a picture of students at the annual March for Life with the caption, “Ave stands for life.”

Unfortunately, the responses that implored students to engage in civil debate or rejoiced at the end of Roe v. Wade appeared to be the exception. Those who lament the decision in Dobbs v. Jackson Women’s Health make pro-life students feel unwelcome at their institutions. Many of them recognize the diverse opinions on campus then proceed to take a side in the debate. Here are publicly funded schools advocating for a specific side of a political issue, something unbecoming of supposed places of learning and free thought.

Law & the Courts

How Assisted Suicide Euthanized Roe v. Wade

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The U.S. Supreme Court building in Washington, D.C. (Molly Riley/Reuters)

Back in the ’90s, the assisted-suicide movement tried to convince the Supreme Court to impose a Roe v. Wade–style decision for their cause that would circumvent the democratic process by imposing doctor-hastened death as a constitutional right. (Full disclosure: I wrote and filed an amicus brief in the Supreme Court against that effort as a lawyer for the International Anti-Euthanasia Task Force, now the Patients Rights Council.) The effort failed, with the Supreme Court ruling 9–0 in Glucksberg v. Washington (1997) that there is no right to be found in the United States Constitution to assisted suicide.

Now, in a turn that could not have been anticipated at the time, Glucksberg provided the primary precedent for striking down Roe as bad constitutional law! From Dobbs v. Jackson (my emphasis):

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg. . .

More:

In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” . . . Glucksberg . . . And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue. . . .

Thus, in Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 years of “Anglo-American common law tradition,” 521 U. S., at 711, and made clear that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition.

Analyzing the history of the unenumerated claim of a right to abortion, the majority found it wholly wanting.

As the Court cautioned in Glucksberg, “[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” 521 U.S., at 720 (internal quotation marks and citation omitted).

Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Cf. Glucksberg, 521 U.S., at 713 (removal of “common law’s harsh sanctions did not represent an acceptance of suicide”).

And kaboom!

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].” 521 U.S., at 719.

So, in a hubristic attempt to force assisted suicide on the nation in the same way abortion had been, euthanasia activists instead laid the groundwork for Roe’s obliteration. The irony is so delicious I can’t stop smiling.

Politics & Policy

Women Deserve Better Than Abortion

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Pro-life and pro-choice activists demonstrate outside the Supreme Court building, ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021. (Evelyn Hockstein/Reuters)

Much of the backlash to today’s ruling overturning Roe and Casey has been entirely predictable. Progressives are angry that the Court is no longer enforcing a regime of abortion on demand across the entire country, and abortion supporters appear unwilling or unprepared to make the case for laws that effect their preferred status quo.

But the overwhelming theme of the outrage thus far has centered around one theme: What will become of women? Many say it cynically, others say it sincerely. It’s the foremost argument for abortion, an argument that the Court itself made in Casey: Women need this. Women can’t be free, women can’t be equal to men, women can’t be fully human without abortion.

There is much to be said about how deeply flawed this view is, but on a day like today, I return to the wisdom of an essay by Frederica Mathewes-Green published here at NR in 2016. Mathewes-Green was an avowed pro-abortion feminist who became a passionate pro-life activist, and the way she explains her conversion is instructive. I encourage you to read the entire essay, but here’s a crucial passage that gets to the heart of why abortion is deeply anti-feminist and anti-woman:

This issue gets presented as if it’s a tug of war between the woman and the baby. We see them as mortal enemies, locked in a fight to the death. But that’s a strange idea, isn’t it? It must be the first time in history when mothers and their own children have been assumed to be at war. We’re supposed to picture the child attacking her, trying to destroy her hopes and plans, and picture the woman grateful for the abortion, since it rescued her from the clutches of her child.

If you were in charge of a nature preserve and you noticed that the pregnant female mammals were trying to miscarry their pregnancies, eating poisonous plants or injuring themselves, what would you do? Would you think of it as a battle between the pregnant female and her unborn and find ways to help those pregnant animals miscarry? No, of course not. You would immediately think, “Something must be really wrong in this environment.” Something is creating intolerable stress, so much so that animals would rather destroy their own offspring than bring them into the world. You would strive to identify and correct whatever factors were causing this stress in the animals.

That image has always haunted me. Surely every one of us, even those who support abortion, would recognize the horror of such a situation if we witnessed it in the animal kingdom. Why have we decided as a society to celebrate the fact that women feel compelled to kill their own children in order to save themselves? How could we believe this is any sort of solution? It isn’t. And in the debates that are sure to come in a post-Roe America, pro-lifers should be ready to say so.

Law & the Courts

Pro-Life State Laws Poised to Take Effect in the Wake of Dobbs

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Pro-life demonstrators celebrate outside the Supreme Court in Washington, D.C., as the Court rules in the Dobbs v. Women’s Health Organization abortion case, overturning the landmark Roe v. Wade decision, June 24, 2022. (Evelyn Hockstein / Reuters)

In the wake of the Supreme Court decision in Dobbs overturning Roe v. Wade and Planned Parenthood v. Casey, all eyes will turn to the states, which now have the chance to set their own abortion policies for the first time in nearly half a century. There are plenty of battleground purple states where lawmakers have yet to pass abortion laws for a post-Roe era, but here’s the state of play in states that already have laws in place to protect unborn human beings.

More than a dozen states — Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming — already have laws on the books that are slated to take effect when Roe is overturned, protecting unborn children from the moment of conception, with varying levels of exceptions for cases of rape and incest or when a mother’s life is in danger.

In most of these states, the laws could take effect as soon as today, although in some cases a state official is required to certify them in order for them to take effect in the wake of Roe being overturned. In a handful of these states, the pro-life protections could take effect within five days or up to 30 days after the ruling overturning Roe.

A few other states — including Arizona, Arkansas, Michigan, Oklahoma, Texas, West Virginia, and Wisconsin — have pro-life laws on the books pre-dating Roe, all of which have become enforceable in the wake of Roe having been overruled. In some of these states, abortion supporters have already begun efforts to invalidate the policies under the state constitution. In at least one, Wisconsin, pro-abortion state officials have pledged not to enforce the law.

Finally, in Georgia, Ohio, and South Carolina, there are heartbeat bills slated to take effect when Roe is overturned, protecting unborn children after their heartbeats can be detected, which usually takes place around six weeks into pregnancy. It’s worth noting that these states and some mentioned above are entangled in litigation from abortion supporters, and state officials will need to ask courts to handle those lawsuits in light of today’s ruling in order to allow their pro-life laws to take effect.

Apart from these states, there are a handful of abortion-friendly states with policies allowing abortion until birth for any reason, providing state Medicaid funding for abortions, or declaring abortion a fundamental right. They include California, Illinois, a number of states in the northeast, and a few others. The remaining states are battlegrounds, where post-Roe law has yet to be established, and now is the time for pro-lifers in those states to push harder than ever for laws that respect the dignity of every human life.

Politics & Policy

Settle Down, Democrats

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Rep. Alexandria Ocasio-Cortez (D., N.Y.) gestures outside the U.S. Supreme Court as the court rules in the Dobbs v. Women’s Health Organization abortion case overturning Roe v. Wade in Washington, D.C., June 24, 2022. (Evelyn Hockstein/Reuters)

Nobody should be expected to take seriously any theory of constitutional interpretation that holds that abortion — found nowhere in the Constitution — is an untouchable, bedrock right, while the right to keep and bear arms — explicitly enshrined in the Bill of Rights — somehow is not.

All Dobbs means to the pro-abortion camp is that you savages will have to make your case to the voters.

Democracy and all that.

Law & the Courts

What the Dobbs Majority Said at Their Senate Hearings

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Judge Amy Coney Barrett reacts during her confirmation hearing on Capitol Hill in Washington, D.C., October 14, 2020. (Jonathan Ernst/Reuters)

There are critics out in force today trying to portray the five justices in the Dobbs majority — plus Chief Justice John Roberts, who was a sixth vote for upholding the Mississippi law and partially overturning the Roe/Casey framework — as having misled the Senate in their confirmation hearings. I did a deep dive into this question last month.

The most egregious claim now being circulated is that Amy Coney Barrett testified that Roe and Casey were “so well settled that no political actors and no people seriously push for their overruling.” CNN’s Edward-Isaac Dovere:

Celeste Headlee:

This is flatly false. Barrett was discussing the academic concept of “super-precedents” — a term used by scholars, but with no actual meaning in the courts — which she defined as cases that are “so well settled that no political actors and no people seriously push for their overruling.” Cases such as Marbury v. Madison or Brown v. Board of Education may still have their critics, but there is no chance of their ever being seriously challenged in court, much less overturned. When asked by Amy Klobuchar whether Roe and Casey fit that definition, however, Barrett explicitly said they did not:

This happened less than two years ago in a nationally televised hearing at which Barrett’s views on the precedential value of Roe were the most newsworthy issue. The truth can be found easily on video with a simple Google search. And yet, they can’t help themselves.

Law & the Courts

Sasse on Dobbs: ‘Pro-Life Movement’s Work Has Just Begun’

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Sen. Ben Sasse, R., Neb., speaks during a subcomittee meeting at the Capitol in Washington D.C., April 27, 2021. (Tasos Katopodis/Reuters)

“America’s work of becoming a more perfect Union is never over, but today — by righting a constitutional wrong — the Supreme Court took a historic step forward,” Nebraska GOP senator Ben Sasse said in a statement on Friday. “Roe’s days are over, but the pro-life movement’s work has just begun.” 

More from Sasse:

This issue will now be debated in the 50 states, and a 330,000,000-person, continental nation will work through this debate in a way that’s healthier than Roe’s one-size-fits-all, Washington-centrism. The pro-life movement is pro-baby, pro-mom, and pro-science. This cause is rooted in love and now is the time to show it. We can’t call this legal victory the end, because our movement has never been primarily about lawsuits and laws – it’s about love and compassion. So let’s celebrate today’s victory and get to work. Let’s support and love all pregnant women. Let’s come alongside them and give the support they need. Let’s support babies regardless of the situations they face and build communities around them that will love and cherish them.

“On a separate note, let’s celebrate the fact that our institutions held. In spite of the doxxing of their homes, violent threats and intimidation, and even a plot to assassinate Justice Kavanaugh, the Court held strong. There is no room for political violence in America – none. Mob violence is un-American, period. President Biden needs to personally and forcefully condemn violence and threats against Supreme Court Justices. Our institutions still work. Let’s keep faith in them.”

Law & the Courts

NR Tweets the Dobbs Decision

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Politics & Policy

McConnell: Dobbs Decision ‘Courageous and Correct’ 

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Senate Minority Leader Mitch McConnell (R., Ky.) speaks to reporters at the Capitol in Washington, D.C., June 14, 2022. (Sarah Silbiger/Reuters)

Senate GOP leader Mitch McConnell, one of the most consequential individuals who helped bring about today’s historic Supreme Court decision overturning Roe v. Wade and allowing states to regulate and ban abortion, issued the following statement:

The Supreme Court’s landmark ruling in Dobbs is courageous and correct. This is an historic victory for the Constitution and for the most vulnerable in our society.

For 50 years, states have been unable to enact even modest protections for unborn children. More than 90% of Europe restricts abortion on demand after 15 weeks, but every state in America has been forced to allow it more than a month past that, after a baby can feel pain, yawn, stretch, and suck his or her thumb. Judicial activists declared that every state had to handle abortion like China and North Korea and no state could handle it like France or Germany.

Not anymore. Now the American people get their voice back

The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson. The Justices applied the Constitution. They carefully weighed the complex factors regarding precedent. The Court overturned mistaken rulings that even liberals have long admitted were incoherent, restoring the separation of powers. I commend the Court for its impartiality in the face of attempted intimidation.

Democrats’ disgraceful attacks on the Court have echoed Democrats’ outrage at Brown v. Board in 1954. Today’s Democrats are jaw-droppingly extreme on abortion. 97% of Washington Democrats support legislation that would effectively require nine months of abortion on demand until the moment of birth. Only 19% of Americans share this radical view but 97% of Democrats in Congress embrace it. They would rather attack our institutions than let the American people enact the reasonable protections they want.

Millions of Americans have spent half a century praying, marching, and working toward today’s historic victories for the rule of law and for innocent life. I have been proud to stand with them throughout our long journey and I share their joy today.

Culture

Love the Mothers

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Pro-life activists celebrate outside the Supreme Court as the court rules in Dobbs v Women’s Health Organization overturning Roe v Wade in Washington, D.C., June 24, 2022. (Evelyn Hockstein/Reuters)

With today’s Supreme Court ruling striking down Roe v. Wade by way of Dobbs v. Jackson Women’s Health Organization, please consider what comes next. Celebrate, cry, and be merry. But while you do these things, consider your nearest crisis pregnancy center or church and their outreach to young mothers. 

There is a vicious smear bandied about by pro-abortion activists, saying that pro-lifers are only protective of children while in the womb and that we somehow lose any interest in supporting or bettering the lives of children and their moms after birth. In the days and years to come, please embarrass these assertions through your giving to and volunteerism with organizations caring for mothers and children for decades. 

The legal matter of abortion at the federal level is achieved. We must reaffirm our devotion to showing our love for life and one another.

Law & the Courts

Ruth Bader Ginsburg’s Unexpected Legacy

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Justice Ruth Bader Ginsburg speaks at a conference in Long Beach, Calif., October 26, 2010. (Mario Anzuoni/Reuters)

Considering how overturning Roe v. Wade looked impossible, or extraordinarily unlikely, when Justice Antonin Scalia died on February 13, 2016, to many pro-lifers, today seems nothing short of miraculous.

Democrats who support abortion rights will point a lot of fingers in the weeks to come. They will blame Senate minority leader Mitch McConnell for refusing to hold confirmation hearings when Obama nominated Merrick Garland for the Supreme Court. They probably ought to assign some blame to Harry Reid for eliminating the filibuster for certain judicial nominees, which led to Republicans eliminating the filibuster for Supreme Court nominees. While his vote wasn’t decisive in either case, they will probably set aside some ire for Senator Joe Manchin of West Virginia for voting to confirm Neil Gorsuch and Brett Kavanaugh. They may well fume about the eleven Senate Democrats who voted to confirm Justice Clarence Thomas back in 1991.

But there’s one other figure whose decisions inadvertently but inevitably led to today’s decision: the late justice Ruth Bader Ginsburg. Back in 2013, President Barack Obama met with Ginsburg, with hopes that the then-80-year-old, two-time cancer patient could be persuaded to retire:

Mr. Obama had asked his White House counsel, Kathryn Ruemmler, to set up the lunch so he could build a closer rapport with the justiceaccording to two people briefed on the conversation. Treading cautiously, he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court’s oldest member and a two-time cancer patient.

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation — the possibility that if the Senate flipped, he would lose a chance to appoint a younger, liberal judge who could hold on to the seat for decades.

Senator Patrick Leahy reportedly had a similar conversation with Ginsburg, hoping to nudge her to retire, to ensure she would be replaced by a like-minded justice. At the time, Democrats effectively had 55 seats — 53 Democrats and Vermont’s Bernie Sanders and Maine’s Angus King. It was extremely likely that Obama could have gotten Garland or another philosophically aligned nominee confirmed by the Democratic-controlled Senate in 2013 or 2014.

But Ginsburg just wasn’t interested in retiring. After Ginsburg died in 2020, and President Trump and the GOP-controlled Senate replaced her with Amy Coney Barrett, many liberals realized Ginsburg had made a catastrophic mistake. By remaining on the court for another six or seven years, Ginsburg had denied Democrats their last, best chance to keep a majority on the Court that viewed the law the way she did.

Today’s decision was 6–3, but in his concurrence, Chief Justice John Roberts seemed significantly less enthusiastic about overturning Roe. It is more than fair to wonder if Roberts would have concurred with Thomas, Alito, and the rest if he was the deciding vote, and the other justices split four to four. In that scenario, it is likely Roberts would have attempted to find some narrowly tailored middle path.

In other words, Roe v. Wade probably wouldn’t have been overturned if Obama’s lunch with Ginsburg had convinced her to retire.

Politics & Policy

Elections Have Consequences

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Pro-life demonstrators celebrate outside the U.S. Supreme Court as the court rules in the Dobbs v. Women’s Health Organization abortion case overturning Roe v. Wade in Washington, D.C., June 24, 2022. (Evelyn Hockstein/Reuters)

Republicans have won only eight of the last 14 presidential elections (and two of those presidents did not win the popular vote), so the presidency has seemed like more or less a toss-up since the debacle of the Lyndon Johnson presidency. However, luck simply fell in favor of the Republicans; from the election of Richard Nixon through to the start of the Bill Clinton era, Republicans have seated ten consecutive justices. (There were four by Nixon, one by Ford, three by Reagan, and two by George H. W. Bush. Jimmy Carter is the only president in my lifetime who was not able to fill a Supreme Court vacancy. Donald Trump served only one term, yet got three seats.)

The point is, as a matter of Supreme Court dynamics, Roe never should have lasted as long as it did. Even if you date the rise of the pro-life movement to the election of Ronald Reagan as president (just a few years after he had signed a very permissive abortion law as governor of California), Republican presidents (all of whom campaigned as pro-life stalwarts) have chosen ten of the last 14 justices (not counting Ketanji Brown Jackson, who has yet to be seated) and five of the last seven. There should have been a majority to overturn Roe many years ago.

The only reason Roe lasted this long was that Republican presidents seated many justices who turned out to be either reliably liberal or at least liberal on the things that are most important to liberals. (The last Democrat-picked justice who could be described as conservative was Byron White, whom John F. Kennedy nominated.) For this reason, Democrats started to think, not without good reason, that the Supreme Court was functionally a moderately liberal super-legislature that would almost always cut through the failure of Democrats to persuade voters to make the changes they wanted at the times they wanted them and come through with the proper liberal decision (albeit not in Bush v. Gore).

But that isn’t the way the Supreme Court is supposed to work. Far from being institutionally liberal, it’s supposed to be institutionally conservative, i.e., it’s supposed to apply the Constitution. We appear to be at the start of a bold new era in which the Left of this country will have to recognize the Constitution and work from there.

Politics & Policy

New York State of Death

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New York Governor Kathy Hochul speaks during a news conference after a shooting at a subway station in Brooklyn, April 12, 2022. (Brendan McDermid/Reuters)

“My friends, the sky is on the verge of falling.” That was how New York governor Kathy Hochul went about her abortion-fest multiple bill signings a week or so ago at Cooper Union in New York. She talked about “the persistent assault” on women’s abortion rights.

“Not here. Not now. Not ever.”

“The women of New York will never be subjugated to government-mandated pregnancies. Because that is what will ensue if Roe v. Wade is overturned.”

“New York has always been a beacon for those yearning to be free. And I want the world to hear — loud and clear — that will not change.”

“This is the United States of America, where freedom and liberty are supposed to mean something.”

Abortion rights are the “rock upon which we were founded.”

I have Hochul’s abortion extravaganza in mind because during a brief trip between Philadelphia and New York and back, I noticed a night of rage planned for New York, gathering in Washington Square Park the night of the Dobbs decision — tonight. Forgive me the harsh language, but this is what some of us encounter and more when we pray outside abortion clinics in New York.

Immediately upon seeing that, I thought of the reckless, overwrought rhetoric of the governor of New York. As someone who has been among those who have needed police protection to pray, I expect more sense from someone in public office.

There has been bipartisan outrage over January 6, and rightfully so. How about people who support abortion with wild enthusiasm insist that anyone who does violence in the name of abortion will be prosecuted to the full extent of the law?

For about a year now, there have been protests of prayer outside abortion clinics fairly consistently here in New York. They call us clinic harassers for standing across the street from Planned Parenthood in Manhattan praying for an end to abortion. Now, the Jane’s Revenge domestic-terrorism threats raise the question of what our monthly prayer vigils are going to look like after the Dobbs decision. Besides the evil of the violence, two little points: When you attack a pregnancy center or a church, you are attacking people and places that help women. Many of the women’s care centers run on pennies. You’d be amazed at how they often make sure a little goes a long way. And in New York State, abortions will not end with the end of Roe. In fact, I am not alone in expecting that we will have more abortions, not less. Our governor wants us to be an abortion destination, and she’s as extreme as they come on abortion — as witnessed by her recent abortion-bills-signing extravaganza.

While she recently engaged in cheerleading for abortion, her dishonest tag line was: “A Safe Harbor for All.” Not if you’re unborn. And with the recent violence against pro-life care centers and post-Dobbs violence planned, evidently it’s not a safe harbor for people who work to make sure women have the practical choice to not have an abortion.

Please, Democrats, insist on no additional violence in the name of abortion. Surely we can have a debate about abortion in America. Some of us have been asking for this for 49 years.

Politics & Policy

What Comes after Roe?

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A woman holds a baby at a Republican presidential rally in Colorado Springs, Colorado, U.S., July 29, 2016. (Carlo Allegri/Reuters)

Today’s a historic day: The Supreme Court has overturned Roe v. Wade and Planned Parenthood v. Casey, and we should celebrate. It’s a major and decisive victory, without a doubt, the culmination of decades of dogged work from countless pro-lifers, so many of whom are largely unknown. We owe them a real debt of gratitude.

But today’s win is far from the end of the fight. It’s a victory in a major battle, the first hurdle, and now we move on to the next stage in the war. In the NR print magazine, Ryan Anderson and I have a long essay — adapted from our forthcoming book Tearing Us Apart: How Abortion Harms Everything and Solves Nothing — exploring what we think pro-lifers should do in the wake of Roe, offering some ideas as to how we can make our country more welcoming to children and more supportive of families, an essential task if we want to make abortion both illegal and unthinkable, if we want to end abortion in a sustainable way. Here’s a bit of what we offer:

The only proper response to the past five decades of destruction is to dismantle every part of the system that perpetuates abortion, a project that will become far more feasible if the Supreme Court overturns Roe v. Wade and Planned Parenthood v. Casey in deciding this term’s Dobbs v. Jackson Women’s Health Organization. As it has done since Roe v. Wade, the pro-life movement must work to make abortion not only illegal but also unthinkable. There are no simple solutions to bring about that goal, but there is plenty that each of us can do. Consider the immense power that even one maternity home or pregnancy resource center has to transform the life of a mother in need, helping her reject the falsehood that abortion will solve her problems. Women deserve so much better than abortion, and babies deserve to live.

Creating a society in which every unborn child will be welcomed into the world is going to require major shifts in our law and our culture. In each domain, our efforts should prohibit the evil of abortion and affirm the goods of life and family. Making abortion illegal and unthinkable will require the work of politicians and policy-makers, pregnancy resource centers, churches, other groups that assist families in need, and each of us in our community. . . .

Much of what we offer should be a matter of charitable discussion among pro-lifers. We must agree on our final goal: abolition of abortion through both law and culture, a world where abortion is both illegal and inconceivable.

But there are a multitude of ways to achieve that goal, and prudence will be necessary. Achieving consensus will be easier on the supply side of abortion — no pro-lifer can support lethal violence in the womb — but there is a diversity of reasonable views about which measures best address the demand side. We should not establish litmus tests for what constitutes a “real” pro-life solution for any given cultural or legal proposal in this regard. Pro-lifers can hold a range of views on, for example, paid family leave or child tax credits. We should debate these policies on the merits and keep in mind that ending abortion will require a “both/and” approach in many areas, not an “either/or.” We need plans for shifting our laws and our culture, efforts to care for babies and mothers, work from state and federal governments — and all of these efforts should aim at ending the supply of abortion and the demand for it.

Should Roe and Casey be overturned, states will scramble to respond. Pro-lifers should concentrate on advancing laws as protective of unborn children as possible, keeping in mind that we can’t let the perfect be the enemy of the good. In many states, this will require patience and incrementalism, enacting more and more protections for the unborn over time while continuing to convince our fellow citizens that nothing short of full protection will satisfy the demands of justice.

Roe has been thrown in the dustbin where it belongs, and if you’re curious about what comes next for the abortion debate and the pro-life movement, I hope you’ll read our whole essay, and indeed our whole book — not because we have all the answers, but because it’s a place to start thinking through the monumental task of creating a truly pro-life future.

Economy & Business

Thanks a Lot, ‘Fact-Checkers’

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Gas prices at a Chevron station in Los Angeles, Calif., June 13, 2022. (Lucy Nicholson/Reuters)

When I saw that viral image of a 7-Eleven store and gas station offering both regular and diesel gasoline for $7.11, I figured it had been digitally altered.

Just about everywhere in the country, the cost of a gallon of diesel is almost a dollar more than the cost of a gallon of regular. Even in this current era of “can you believe gas prices these days? They’re crazy!” it would be unlikely any gas station would be charging the same price for both regular and diesel.

It turns out that image wasn’t photoshopped. Thankfully, AP’s fact-checkers are here to set us straight.

The photo, taken at a Chicago 7-Eleven location, is more than a year old and shows placeholder numbers being used to test the sign before the location was open to the public, according to both the person who took the image and representatives for 7-Eleven. While gas prices in some parts of the country have exceeded $7 in recent weeks, this particular gas station was not charging that amount when the photo was captured, and is currently charging around $6.

Of course, that meme wasn’t intended as journalism; it was a joke – the idea that a gas station named 7-Eleven would be selling gas for the once-unthinkable price of seven dollars and eleven cents. (In a couple of counties in eastern California, the average price for a gallon of regular is now more than $7.11.) The point of the meme wasn’t to claim this is what people are paying; it was to joke that prices are rising so fast, soon we’ll be paying an amount that is the same name as the store. While the specific price in the image isn’t accurate, the reason the meme was popular was because it used humor to illustrate a real truth — gas prices are jaw-droppingly high right now.

The AP fact-check is “part of AP’s effort to address widely shared misinformation.” Thanks, guys. Heaven forbid Americans walk around thinking gas is $7.11 per gallon in some places, instead of the $7.29 that it actually is in sparsely-populated Mono County, California.

Politics & Policy

Rebutting the ‘Bodily Autonomy’ Argument for Abortion

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Women dressed as handmaids to promote the television series The Handmaid’s Tale stand along a public street during the South by Southwest Music Film Interactive Festival in Austin, Texas, March 11, 2017. (Brian Snyder/Reuters)

In Public Discourse yesterday, Ryan Anderson and I published an excerpt from our forthcoming book Tearing Us Apart: How Abortion Harms Everything and Solves Nothing, rebutting the bodily autonomy argument for abortion. In brief, this argument concedes that the entity in the womb is a human being and even a human person but holds that a woman’s right to autonomy over her body supersedes any rights of the child in the womb.

This argument predates legalized abortion, appearing first in its fullest instantiation in a 1971 essay by moral philosopher Judith Jarvis Thomson, who is famous for creating the “violinist analogy” in defense of abortion. Here’s how Ryan and I summarize her argument over at PD:

Her famous analogy compared a pregnant woman to a hypothetical individual who, without his consent, has been hooked up to a famous violinist who is sick and requires this connection to remain alive. Imagine someone with kidney or liver failure who needs to be plugged into your body so he can rely on your kidney or your liver for, say, nine months, until a transplant could be found.

In Thomson’s analogy, just as it would be morally acceptable for you to choose to detach from the violinist, even if you know he will die as a result, so too would it be acceptable for a pregnant woman to have the unborn child detached. In neither case did you consent to having the violinist plugged in or the child exist in the womb. And in neither case are you seeking the person’s death. You don’t want it for its own sake, nor do you want it for the sake of something else it will bring. Death is neither your means nor your end, in the jargon of philosophers. It isn’t intended, only foreseen. You cut someone off from invasive access to your body, while knowing this will result in death. With this argument, Thomson portrayed pregnancy as an act of violence against women. Just as the violinist was secretly hooked up without your knowledge or consent, violating your bodily integrity, so too the child conceived and growing in the womb does so without permission.

More recently, Thomson’s argument has reappeared in the form of what I call the “forced birth” smear. Abortion supporters insist that pro-lifers are in favor of forcing women to give birth, that pro-life laws force women to be pregnant, give birth, and become mothers against their will. It’s just another way of articulating the bodily autonomy argument for abortion. Here’s a snippet of how Ryan and I respond:

Those who use Thomson’s philosophy to justify abortion today have repurposed it and pushed it in an even more insidious direction. During the Dobbs oral arguments, for instance, both attorneys arguing against Mississippi’s fifteen-week abortion ban were asked about “safe haven” laws, which shield women from prosecution if they terminate their parental rights and surrender an unwanted child to a safe haven. Justice Amy Coney Barrett asked both attorneys why safe haven laws are an insufficient solution to the supposed burden of parenthood, such that a right to abortion is still necessary.

In response, Julie Rikelman emphasized the burdens of pregnancy, echoing Thomson by arguing that continuing an unwanted pregnancy remains too burdensome on a woman’s rights even if she can legally relinquish her child after birth. But the second attorney made an even more revealing admission. U.S. solicitor general Elizabeth Prelogar told Barrett that reliance on safe haven laws overlooks “the consequences of forcing [on a woman] the choice of having to decide whether to give a child up for adoption. That itself is its own monumental decision for her.”

The implication of Prelogar’s argument was that the right to abortion is more than a right to “terminate pregnancy” or reject parenthood. As she herself said in the argument, part of the goal is to allow the woman not “to have a child in the world.” The intention in abortion, then, isn’t to remove a child from the womb but to make the child no longer exist. In the view of many abortion supporters, the right to abortion is the right to a dead baby. A National Review editorial put a fine point on it: “Abortion is valuable—it has constitutional status—because it lets mothers and fathers come as close as scalpel and poison can bring them to pretending they were never parents at all.”

For many abortion supporters, that is the aim: allowing mothers and fathers to choose abortion, not to avoid the burden of pregnancy or the sacrifices of parenthood, but as a means of eliminating their unwanted child from the world. The bodily autonomy arguments for abortion fail to acknowledge that all our liberties have limits. One standard limit on our liberty is that we aren’t allowed to intentionally kill innocent people. Whether those other people are in utero or ex utero, the same basic principle applies.

In the wake of a Court decision in Dobbs, expect to see abortion supporters cling to this argument, hoping to wring some political momentum out of the end of Roe.

U.S.

A Store, a Country, a Song Lyric . . .

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A customer walks in the Meijer parking lot in Southfield, Mich., January 25, 2022. (Emily Elconin/Reuters)

The name on the store in the photo up there is “Meijer.” But a lot of us Michiganders call the store “Meijer’s,” and nothing else. (Once upon a time, the store was known as “Meijer’s Thrifty Acres.” So “Meijer’s” is a shorthand. Plus, Michiganders have a predilection for apostrophe ess. “Where does he work?” “Out to Ford’s.”) Last year, I podcasted with Peter Meijer, the congressman from Grand Rapids, whose great-grandfather founded the store(s). I said, “‘Meijer’ or ‘Meijer’s’?” He said that friends would call him, late at night, to settle a bet on the question. So, the answer? The family is happy for you to say whatever you like.

Anyway, I lead Impromptus today with a story or two concerning Meijer’s. That column is headed “The American experience, &c.” I have notes on entrepreneurship, immigration, Jerry Hall, George C. Marshall, Antonin Scalia, Ruth Bader Ginsburg, Shohei Ohtani — a slew. Now let’s have some mail.

Earlier in the week, I had a column headed “Before We ‘Move On.’” I spoke of “the frame of our country: its system, its constitution. ‘A nation of laws, not men.’” A reader writes,

When I was in school, and we were studying History or World History, we saw that all great civilizations or empires usually lasted around 300 years. I remember celebrating our Bicentennial and thinking, “Wow, we’re already at 200 years.” It was a sobering thought, even at the age of 15.

I was lucky enough to have a great teacher (WWII vet) for a Civics class my junior year of high school. The only thing we read/studied/discussed that year was the Constitution. It was a great class!

As I aged, I always figured our Constitution was the only thing that could save us from the “300-year curse.” Now I’m not so sure. Seems most people no longer care or know what it says or means.

Hope I’m wrong!

Me too. One thing that has become clear to me is that “paper protections” are not enough. You can have all the constitutions or laws in the world — but without men and women of character in office, we are out of luck. There is such a thing as a liberal-democratic culture, too. I closed that column earlier in the week with Learned Hand, who wrote, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

I also quoted Jim Jordan, the Republican congressman from Ohio (a different cat from Learned Hand). He is one of those people who like to speak of “real America.” Last year, he tweeted, “Real America is done with #COVID19.” More recently, he tweeted, “Real America doesn’t care about the January 6th Committee.” I used to dabble in this “real America” stuff. It was Bill Buckley, more than anyone, who talked me out of it. All of America is real — even the parts you may not like. Hollywood and Provo; Greenwich Village and Tuscaloosa. It’s all real, and it’s all American.

Related to “real America” is “real people.” I had to wrestle with that one, too. When I was young, lefties tended to say “real people.” These days, I hear it more from the Right.

A colleague e-mails me, “In logic, there is a name for this sort of fallacious speech: ‘No true Scotsman . . .’” Ah, yes. For the Wikipedia explanation, go here.

Finally, I am fond of quoting a Lyle Lovett lyric, and have done so in recent articles: “It may be no big deal to you, but it’s a very big deal to me.” You are entitled to regard as important what you regard as important. And if others don’t — well, fine.

A reader writes,

I’m always happy to see a Lyle Lovett quote. You mentioned Mitch Daniels, who is probably not electable as president. Here’s a Lyle lyric for that: “If were the man you wanted, I would not be the man that I am.”

Perfect. Thanks to all readers and correspondents. Again, for today’s Impromptus, go here.

Law & the Courts

George Will Bungles Bruen

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Supreme Court Justice Clarence Thomas in his chambers at the Supreme Court in Washington, D.C., in 2016. (Jonathan Ernst/Reuters )

In the Washington Post, George Will describes yesterday’s Bruen decision as a “serious misfire.” But there is nothing in his piece that comes close to justifying this characterization.

Will starts by quoting Justice Thomas’s 2017 claim that

it is “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

“Thomas,” Will writes, “was right about the framers.”

And yet Will avers that the majority in Bruen was “wrong on Thursday in arguing that this improbability was essentially dispositive.” Why? And — more important — how? If, as Will concedes, the original public meaning of the Second Amendment was that Americans enjoyed the right to bear arms outside the home, then the majority was surely right to have said so?

Continuing, Will notes that “the Second Amendment is the only one in the Bill of Rights with a preamble,” that “the amendment was 217 years old before the court held that it protected the gun rights of individuals, irrespective of membership in a militia,” and that Heller did not reach the question of “bearing” but only of “keeping.” But, again, he draws no negative conclusions from these facts. Instead, he writes only that “Chief Justice John G. Roberts Jr. not unreasonably expressed uneasiness about ‘the idea that you need a license to exercise’ a fundamental right,” and concedes that even Justice Elena Kagan seemed “conflicted.”

Is it the decision itself that is wrong? Apparently not, no. Will submits that

Thomas, in his 63-page opinion, was characteristically meticulous and exhaustive in marshaling evidence of an enduring American tradition of permitting public carry of firearms by people with “ordinary” self-defense needs. And he found no “American tradition” that could justify New York’s “proper-cause requirement.”

So far, so good.

Will’s next complaint is that “the court effectively removed from public debate the essentially legislative choice of balancing the competing values of self-defense and public safety.” But this is what courts do when they conclude that the text of the Constitution is at odds with “legislative choices.” If, after “meticulous” and “exhaustive” research, a majority on the Supreme Court can find no justification for New York’s “proper-cause requirement,” then that majority is obliged to strike it down. In other contexts, Will understands this.

Oddly, Will then switches his focus away from Thomas’s decision, and quotes at length from an amicus brief by “former federal appellate judge (on the 4th Circuit) J. Michael Luttig.” In particular, Will records that, in the 19th century, there were many restrictions on concealed carry, and that these were usually upheld by the courts. But this objection is dealt with in the opinion, which is careful to deal with carry per se, and not just with concealed carry. Consistent with his broader approach, Thomas makes clear that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” But he notes that, irrespective of all that, the “concealed-carry prohibitions” to which Luttig (and Will) are pointing have historically been “constitutional only if they did not similarly prohibit open carry.” Because New York is one of only five states that prohibits open carry entirely, this objection must fall.

Putting meat on the bone, Will then runs through the practical problems he foresees flowing from the ruling, and it is here that he errs most noticeably:

Today, most states, including almost all that filed briefs supporting New York, have multiple restrictions forbidding concealed carry at schools, government buildings, bars, amusement parks, churches, athletic events, polling places, etc. On Thursday, the court perhaps did not invalidate most such restrictions, but it condemned itself to years of judicial hairsplitting in search of a principle about balancing judgments.

Bruen did not deal with this question. It is not, as Will claims, the case that the “court perhaps did not invalidate most such restrictions.” It is the case that the court did not invalidate any such restrictions. Perhaps, in the future, the scope of America’s “gun-free zones” will be litigated. Thus far, however, it has not. Indeed, the only reference made to this question in Bruen comes when the majority makes clear that, while it is “settled” that “arms carrying could be prohibited consistent with the Second Amendment” and that “modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible,” New York cannot get around the problems with its permitting process by cynically “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement.” Recording that it is “aware of no disputes regarding the lawfulness of such prohibitions,” the majority lists a bunch of examples of legitimate “gun-free zones,” including “legislative assemblies, polling places, and courthouses,” “schools and government buildings.”

These details aside, the suggestion that the Court has “condemned itself to years of judicial hairsplitting” makes little sense on its own terms. In the 15 years since Heller, the Court has taken just two Second Amendment cases, and neither of those has been concerned with details, but with broad principles. McDonald applied Heller to the states without altering it. Bruen dealt with the other half of the “keep and bear arms” construction and declined to touch anything else. From where, exactly, does Will get the idea that the Court is interested in micromanagement?

Most peculiar of all is Will’s citation of Luttig’s reference to the events of January 6, 2021:

Finally, Luttig wrote: “Many [Jan. 6, 2021] riot defendants” have said they knew the District of Columbia’s restrictions on concealed carry “and accordingly left their guns at home.” This “may well have prevented a massacre that day.”

This is irrelevant for two reasons. First, because Bruen governs only how Washington, D.C., must treat residents of Washington, D.C., when they apply for a gun-carry permit, and because it therefore has no bearing on visitors from other states, who, under D.C.’s untouched anti-reciprocity laws, would still be unable to carry firearms in the capital. Second, because, irrespective of D.C.’s permitting laws, the restrictions on carrying in the Capitol, the National Mall, the White House, and so forth are not implicated by Bruen, and therefore remain in force.

Will concludes his piece with a cliché:

America the beautiful is today America the irritable, where road rage, unruly airline passengers and political violence — a protective fence surrounds the court — reveal a nation of short fuses and long-simmering resentments.

This may or may not be true — personally, I am skeptical that our age is much different than any other — but, either way, it has no bearing on the constitutional argument at hand. Moreover, given that the case under discussion affects only those Americans who are already legally eligible to possess firearms, it is practically beside the point. Concealed carriers do not intersect with mass shootings, except insofar as they occasionally stop them (this happened as recently as May), and they have little effect on net crime rates in either direction, which is why 25 of the 50 states have abolished their permitting systems completely (while maintaining rules as to who is legally eligible to carry). If, as Will implies, something mystical has changed in the American character since 1791, then Americans must change their laws to reflect that. But until they do, there will be no good case for treating one part of the original Bill of Rights differently from another.

The “misfire” here is not the Court’s. It is Will’s.

Politics & Policy

Biden Wants to Turn Back the Clock on Title IX

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To the surprise of no one, the Biden regime has chosen to return to the dark days of Title IX enforcement. Just like nominating a black woman to the Supreme Court, this was a pledge to a big leftist support group that had to be kept.

In today’s Martin Center article, Joseph Warta asks readers to remember the abuses that occurred under Title IX during the Obama era.

“The original legislation,” he writes, “meant simply to level the playing field, has turned into a cudgel with which overzealous colleges and universities can impose their agendas. Obama-era interpretations of Title IX moved the collegiate judicial system toward a standard of ‘guilty until proven innocent,’ even though accusations are often impossible to disprove. Perhaps worst of all is that these affronts to justice have been made under the guise of gender equality.”

Under the hyper-aggressive Title IX bureaucrats at almost every college and university, students and faculty members could be dragged through exhausting “investigations” and usually subjected to a range of punishments. A good example is Professor Laura Kipnis, who was targeted by irate female students because she offered an opinion on gender that angered them. Title IX made it easy for anyone claiming to have been “harassed” to take revenge.

And the current furor over “incorrect pronouns” can also lead to Title IX trouble.

Warta concludes, “The problem with these and similar stories is not just that they represent an injustice, even though they undoubtedly do. Rather, the dilemma is that they signify the corruption of a worthy goal. The original intent of Title IX has been tragically disregarded in favor of nefarious alternative pursuits. As a consequence, gender equality and safety have been trampled.”

Law & the Courts

A Remarkable Symmetry

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Detail of Storming Fort Wagner, c. 1890, depicting the 54th Massachusetts Regiment’s assault on July 18, 1863. (Kurz & Allison/Library of Congress)

As Justice Thomas noted today, the execrable Dred Scott decision of 1857 contained a passage in which Justice Taney suggested in horror that if freed slaves were able to become citizens

and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

After the Civil War, the Republican Party tried to make this so via the Freedmen’s Bureau Act, the 1866 Civil Rights Act, and the 14th Amendment. Ultimately, that project failed — or, rather, was crushed — along with Reconstruction as a whole.

Today, 165 years after Taney wrote his ugly words, a member of the same Supreme Court — a descendant of slaves who grew up under segregation — said, in effect, “you’re damn straight we can.” Remarkable.

Politics & Policy

Don’t Indict Trump

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I wrote for Politico today on all the reasons it doesn’t make sense to indict Trump, including that it will bring his misconduct into the legal realm where hair-splitting matters. Consider the notorious call to Brad Raffensperger:

From a layman’s perspective, the Raffensperger call was outrageous and damnable, a sitting president strong-arming a state official to get the election results he wanted.

From a defense lawyer’s perspective, it is different. Trump goes on and on about various categories of supposedly fraudulent votes, adding up to a victory of “at least” 400,000 votes. When he says his famous line, “I want to find 11,780 votes” — one more than Biden’s margin of victory — the context suggests he’s talking about literally finding them, not manufacturing them, from a vast pool of improper ballots.

The specific requests during the call were made by Trump’s staff and lawyers and had to do with information-sharing and a meeting to go through in detail the Trump team’s claims of fraud.

Near the end of the conversation, a Trump lawyer named Kurt Hilbert pipes up to say four categories of allegedly improper votes add up to 24,149 votes, enough “to change the results or place the outcome in doubt.” He says the Trump team believes the numbers are accurate, having had three or four experts look at them, but it wants to vet them with the secretary of state’s office. “We would like to sit down with your office,” he says, “and we can do it through purposes of compromise and just like this phone call, just to deal with that limited category of votes. And if you are able to establish that our numbers are not accurate, then fine.”

The call ended with an agreement that Raffensperger’s lawyers would be in touch with Trump’s lawyers.

Now, you might say that this interpretation of the call misses the forest for the trees and is far too lawyerly, but this is exactly the kind of close reading elicited by a criminal trial.

Politics & Policy

Voters: Actually, We Trust Republicans More on Protecting Democracy

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The House Select Committee to investigate the January 6 Attack on the United States Capitol convenes in Washington, D.C., June 16, 2022. (Jonathan Ernst/Reuters)

One may argue the merits of the January 6 committee hearings, but plainly, the political aim of Democrats in the hearings, and in the torrents of press coverage and commentary on January 6 over the past 17 months, has been to present the Republican Party as a whole as an existential threat to American democracy.

How’s that working out? The latest Fox News poll actually asked voters, and the results are not going to make Democrats happy: “When asked in a new Fox News poll which party would ‘do a better job’ on ‘preservation of American Democracy,’ 46% of registered voters said Republicans compared to 45% who said Democrats.” In the same poll in January, Democrats had the advantage, 50 percent to 48 percent. Interestingly, this month’s poll showed a Democratic advantage on “voting rights” (49 percent to 43 percent) and even “election integrity” (47 percent to 44 percent), so this is not so much an endorsement of Republicans on a specific elections issue; some voters may just feel that the long-term survival of our system is better protected by Republicans, or that Democrats cannot really be trusted to let voters have their way when Republicans win elections. But either way, it is a hilariously embarrassing failure for a core Democratic narrative heading into the midterms.

Politics & Policy

Don’t Listen to Europe on Free Speech

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European Commission Vice President Věra Jourová speaks during a meeting in Brussels, Belgium September 22, 2021. (Francois Walschaerts/Reuters)

Yesterday, vice president of the European Commission for Values and Transparency Věra Jourová addressed the E.U.–U.S. Defense and Future Forum in Washington, D.C. “Do not throw away your shot, and help us protect democracy from the risk coming from both the online and offline world,” she urged attendees. She implored Americans to take actions similar to those of the E.U. against “information manipulation.”

Anyone who heard what Jourová had to say should be dubious. Most countries in the European Union do not share the same commitment to free speech, whether online or offline, and we in the United States should not be taking advice from people who do not hold the right as highly as we do.

Jourová’s comments come in the wake of the E.U.’s adoption of a Strengthened Code of Practice on Disinformation, which will “be a more efficient instrument in fighting disinformation” online. What is “disinformation,” according to the code? The E.U. uses it as a catch-all term for “false or misleading information” spread either knowingly or unknowingly. Like other measures of this type, the definition is dangerously vague. Most of our social-media elites view the belief that “men can not become women” as false or misleading.

The code does include the caveat that regulatory efforts “should strictly respect freedom of expression and include safeguards that prevent their misuse.” One such misuse would be “the censoring of critical, satirical, dissenting, or shocking speech.” Still, it makes a sharp distinction between legitimate political speech and impermissible speech, and Europe and America disagree on where to draw that line.

We can see an example in the speech laws of Jourová’s home country, the Czech Republic. Like many countries in Europe, Czech law guarantees a right to freedom of expression but then waters it down with exceptions. Czechs may not instigate “hatred towards any nation, race, ethnic group, religion, class or another group of people.” Notice the language; it does not prohibit specifically violence, but all hatred.

This standard is expectedly un-American. Hating anyone, especially for immutable characteristics is immoral and unadvisable, but it is a person’s right. This is the moral imperative for protecting hateful speech, but there is also a practical one. Allowing explicitly racist speech – “black and white people are not equal to each other ”– buffers legitimate speech on race issues – “America is not systemically racist – that some may falsely consider to be hateful.

If we move a few miles to the West, we see similarly poor standards. “Freedom of expression has its limits,” said German then-chancellor Angela Merkel in a 2019 speech. “Those limits begin where hatred is spread. They begin where the dignity of other people is violated.” During her term as chancellor, Merkel had enormous influence over the rest of the E.U., and America should look at the confederacy’s speech recommendations with skepticism when its former de facto leader holds these standards of speech.

The new person to hold that much influence over the E.U. will likely be newly reelected French president Emmanuel Macron, who is no defender of free speech, either. Like other countries, France says that it guarantees its citizens rights to free speech. Unlike the other countries, however, instead of limiting or qualifying the right, it just unapologetically infringes on it. Most conspicuous is its ban on religious symbols in public buildings such as schools and courtrooms, which often affects Muslim women who wear hijabs. One of America’s great virtues is its defense of the rights of both political and religious minorities, something sorely lacking across the Atlantic.

America is exceptional in many ways, not least among them in its commitment to the protection of First-Amendment rights. For that reason, we should be incredibly skeptical when bureaucrats who do not share our values want to preach to us about controlling them.

Law & the Courts

Biden on Bruen

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President Biden speaks in Philadelphia, Penn., June 14, 2022. (Evelyn Hockstein/Reuters)

In response to today’s decision in New York Rifle and Pistol Association v. Bruen, President Biden said:

I am deeply disappointed by the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen. Since 1911, the State of New York has required individuals who would like to carry a concealed weapon in public to show a need to do so for the purpose of self-defense and to acquire a license. More than a century later, the United States Supreme Court has chosen to strike down New York’s long-established authority to protect its citizens. This ruling contradicts both common sense and the Constitution, and should deeply trouble us all.

In the wake of the horrific attacks in Buffalo and Uvalde, as well as the daily acts of gun violence that do not make national headlines, we must do more as a society — not less — to protect our fellow Americans. I remain committed to doing everything in my power to reduce gun violence and make our communities safer. I have already taken more executive actions to reduce gun violence than any other President during their first year in office, and I will continue to do all that I can to protect Americans from gun violence.

You’ll hear a lot of this today, but it’s a strange non sequitur. Bruen dealt exclusively with concealed carry, and concealed carry has absolutely nothing to do with mass shootings such as those “in Buffalo and Uvalde” — except insofar as, occasionally, concealed carriers are able to stop them. Whatever limits have been placed by the Court on the other gun-control provisions Biden may covet came from Heller and McDonald, not from today’s ruling.

As for “the daily acts of gun violence that do not make national headlines,” those have nothing to do with concealed carry either — let alone with the prevalence of the “shall issue” approach that Bruen makes mandatory in New York (and is currently the norm in 43 of the 50 states). On the contrary: Data from Florida and Texas have shown that concealed carriers are, on average, seven times more law-abiding than the police.

Law & the Courts

Supreme Court Sticks Up for the Adversarial Process in Voter-ID Case

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The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

This morning’s 8–1 decision in Berger v. North Carolina State Conference of the NAACP stands for an important value that is often under attack from the left: the adversarial process. The question was whether North Carolina state legislative leaders (Republicans) could intervene in a federal lawsuit over the state’s voter-ID law when the state’s elected attorney general (a Democrat) was opposed to the law and likely to undermine it in court rather than defend it. Just last week, in Arizona v. City of San Francisco, the Court declined to consider a similar issue regarding the Biden administration undermining a Trump-era rule rather than defend it in court; in Arizona, the Court found that there were too many complicating issues and dismissed it from the docket, but not before Chief Justice John Roberts warned that the federal government settling cases against it was a potentially improper way to repeal regulations without complying with the usual notice-and-comment procedures. In March, in Cameron v. EMW Women’s Surgical Center, P. S. C., the Court allowed Kentucky attorney general Daniel Cameron to intervene in an appeal defending his state’s partial-birth abortion ban when the state’s Democratic governor, Andy Beshear, tried to abandon the appeal.

This has become a common modus operandi for Democrats seeking to rig the judicial game against legislation, constitutional provisions, and ballot initiatives by colluding with the people suing to strike down these democratic enactments: lie down, refuse to defend them, reach a settlement, or wait for a lower-court ruling and abandon the appeal. In the 2013 Hollingsworth v. Perry case, a refusal to appeal prevented the Supreme Court from hearing challenges to decisions striking down California’s ban on state recognition of same-sex marriages — a ban that passed by popular vote in California in 2008 with over 7 million votes. Thus, the voters of California could get a day in court only from California federal judges who had a deeply vested interest in ruling on one side of the case. Not every law passed by the voters should survive a court challenge, but a duly enacted law representing the public will ought to be struck down by the courts only after a full, fair adversarial presentation of the issues. That is the American way; it conflicts with the progressive supervised-democracy model in which officials who lack the constitutional power to repeal a law can nonetheless kill it permanently by temporary non-enforcement and non-defense.

There was a similar problem here: The North Carolina voter-ID law was passed over a veto by Democratic governor Roy Cooper, and Democratic attorney general Josh Stein had not only voted against the state’s prior voter-ID law as a state senator, he helped the NAACP — the party suing against the current law — in its lawsuit against the prior law, by submitting a sworn declaration supporting its position. So, North Carolina’s legislative leaders made a motion to intervene in the case as parties, to defend the state’s laws and prevent the case from settling without their consent. The relevant rule of federal court procedure, Rule 24(a)(2), provides that a “court must permit anyone to intervene” who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest,” unless “existing parties adequately represent that interest.”

As Justice Neil Gorsuch’s opinion for the majority noted, North Carolina law explicitly authorizes the leaders of the legislature to intervene in this situation. So, the immediate question was whether they qualified to do so under the federal rule. Gorsuch deferred to state law on whether the North Carolina legislative leaders had a sufficient interest in the case, so the issue came down to whether the attorney general would adequately defend the law. The Court rejected the idea that courts should just presume adequate representation where state law has explicitly authorized some other party to intervene: “a presumption of adequate representation is inappropriate when a duly authorized state agent seeks to intervene to defend a state law.” That law existed for a reason: “More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declined to defend them fully in federal litigation.” And the facts of Stein’s approach to defending Cooper and the North Carolina State Board of Elections gave reason to believe that a more thorough defense might come from someone who actually wanted the defense to succeed:

When confronted with a motion for a preliminary injunction, the Board declined to offer expert-witness affidavits in support of S. B. 824, even though its opponent offered many and the legislative leaders sought to supplement the record with their own. After the District Court issued its (ultimately overturned) injunction, the Board declined to seek a stay. That tactical choice, motivated by the Board’s overriding concern for stability and certainty, meant that the State could not enforce its new law during a statewide election [the March, 2020 primary election]. Throughout, Board members have been appointed and potentially removable by a Governor who vetoed S. B. 824 and who filed his own briefs in this litigation calling the law “unconstitutional” and arguing that it “should never go into effect.”

This was enough to convince even Justices Stephen Breyer and Elena Kagan to join the majority; only Justice Sonia Sotomayor was willing to entertain the fiction, in dissent, that Stein was putting up an adequate defense. Sotomayor argued that Stein and the legislative leaders “share the same interest: ensuring the validity and enforcement of S. B. 824. . . . [The legislative leaders] seek only to represent the State’s interest in defending state law, an interest that [Stein and the Board] already represent.” She claims that declining to fight for enforcement of the voter-ID law while the litigation was proceeding “was merely a choice about litigation strategy,” as if elected Democrats were Solomonically disinterested in the outcomes of the 2020 elections (specifically the March 2020 primaries, but at the time, the general election loomed in the background, including Cooper’s own reelection bid). Of course, nobody actually believes this.

Looming in the background is another, broader issue: When, exactly, does the Supreme Court take a state’s internal allocation of powers at face value, and when does it not? This has been a particularly recurring issue in election law cases, because the elections clauses of Article I, Section 4, and Article II, Section 1, refer to presidential electors being selected in each state, and the “Times, Places and Manner of holding Elections” for Congress in each state, as matters determined “by the Legislature thereof.” The Court has returned a number of times to what “the Legislature” means. In Smiley v. Holm (1932), for example, it held that a state’s normal legislative process still allows a governor to veto an election law. In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court allowed a state constitution to hand a legislative power (the drawing of legislative districts) over to an independent commission. There have been other, more extensive debates since Bush v. Gore over the “independent state legislature doctrine” and to what extent federal courts can or must prevent state courts and state executive agencies from overriding the work of state legislatures in this area. One side issue in 2020’s cases — particularly in North Carolina — was whether state executive agencies such as the Cooper-appointed North Carolina Board of Elections could properly cite state law as a basis for exercising de facto legislative powers that undermined the state’s election laws passed by the legislature.

Berger does not resolve that issue, because it does not deal with a constitutional provision that applies explicitly to the powers of a state’s “Legislature.” But it does lay out the general background presumption that federal courts should not, in the ordinary case, second-guess how state law allocates powers within the states — and looking ahead to elections-clause cases may well be another factor that motivated Kagan and Breyer to join Gorsuch’s opinion on this point:

Within wide constitutional bounds, States are free to structure themselves as they wish. Often, they choose to conduct their affairs through a variety of branches, agencies, and elected and appointed officials. . . .

No one questions that States may organize themselves in a variety of ways. After all, the separation of government powers has long been recognized as vital to the preservation of liberty, and it is through the power to structure its government, and the character of those who exercise government authority, that a State defines itself as a sovereign. . . . Nor does anyone question that, when a State chooses to allocate authority among different officials who do not answer to one another, different interests and perspectives, all important to the administration of state government, may emerge. . . .

Appropriate respect for these realities suggests that federal courts should rarely question that a State’s interests will be practically impaired or impeded if its duly authorized representatives are excluded from participating in federal litigation challenging state law. To hold otherwise would not only evince disrespect for a State’s chosen means of diffusing its sovereign powers among various branches and officials. It would not only risk turning a deaf federal ear to voices the State has deemed crucial to understanding the full range of its interests. It would encourage plaintiffs to make strategic choices to control which state agents they will face across the aisle in federal court. It would tempt litigants to select as their defendants those individual officials they consider most sympathetic to their cause or most inclined to settle favorably and quickly. All of which would risk a hobbled litigation rather than a full and fair adversarial testing of the State’s interests and arguments. . . .

Through the General Assembly, the people of North Carolina have authorized the leaders of their legislature to defend duly enacted state statutes against constitutional challenge. Ordinarily, a federal court must respect that kind of sovereign choice, not assemble presumptions against it.

Whether the Court sings a different tune when asked to define specifically who is a “Legislature” as contemplated by the elections clauses will await another day.

Law & the Courts

The Coming Contradiction on Judicial Activism

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The nine Supreme Court justices pose for a group photo in Washington, D.C., April 23, 2021. (Erin Schaff/Reuters)

Today we are likely to hear a lot of Democrats furiously denouncing the Supreme Court decision in New York State Rifle and Pistol Association v. Bruen, contending that the Court has seized a controversial public issue, where public opinion is passionately and deeply divided, and usurped the rightful role of the legislative branch to pass laws as it sees fit to preserve the common good, and unilaterally imposed a one-sided ideological vision, callously and arrogantly sweeping away the legitimate concerns of millions of Americans.

And then, a little while later, those same Democrats will insist that Roe v. Wade must be preserved.

Many progressives seem psychologically incapable of recognizing that the way gun-control advocates feel about today’s decision and the Heller decision is exactly the way pro-lifers feel about Roe v. Wade. It’s not merely that they oppose the decision; it’s that they believe the Supreme Court stepped into a role it was never meant to have, overruling the duly elected legislature based upon a hotly contested interpretation of the Constitution.

Remember, it’s only judicial activism when the other guys do it.

Samuel Alito
Alito Smacks Down Breyer’s Attempt to Link Concealed-Carry Case to Uvalde

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Supreme Court Justice Samuel Alito participates in taking a new photo with his fellow justices at the Supreme Court in Washington, D.C., in 2017. (Jonathan Ernst/Reuters)

On Thursday, the Supreme Court voted 6–3 to strike down New York’s concealed-carry restrictions, with Justice Clarence Thomas writing for the majority that “nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms” and that the “definition of ‘bear’ naturally encompasses public carry.”

In his dissent, Justice Stephen Breyer writes, “The dangers posed by firearms can take many forms,” and then has a long list of mass shootings that have occurred in recent years, including the attacks in Uvalde and Buffalo.

In a concurring opinion, Justice Samuel Alito strikes back:

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. . . . Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? . . . Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

 

Politics & Policy

Pray You Don’t Wind Up in a Charlie Cooke Column

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National Review’s Charles C. W. Cooke (National Review)

You just know you’re in a Charles C. W. Cooke joint when you come across a phrase such as “tribal wittering.” And who else could write, “This is a reflex, a habit, a tic, a chant. It is catechism, not analysis; prayer, not insight; dogma, not science. It is an old memory, stored at the back of a dusty brain that, some time ago, summarily ceased to inquire.” Or, “We fancy ourselves frightfully modern here in 2022.” Or “slogans have replaced expostulation and ideas have been melded into pink noise.” Or (being a bit of a dad here), “The words were just snapped carelessly together, like Freudian Duplo.” Charlie notes, “Chaucer taught us that all good things must come to an end, and so it will be here.” (Wait, Chaucer came up with that? Huh.)

Here’s a 200-proof, Everclear shot of Cooke-ism: “Like Shakespeare’s Thomas Mowbray, progressive America may at long last have run out of gas, leaving its participants to confess in desperation that, ‘The language I have learned these forty years / My native English, now I must forego / And now my tongue’s use is to me no more / Than an unstringed viol or a harp.’”

Wow. Son, you just got Cooke’d.