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.

Law & the Courts

BREAKING: Supreme Court Strikes Down New York’s Restrictive Gun-Carry Rules

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Associate Justice Clarence Thomas poses during a group photo of the Justices at the Supreme Court in Washington, D.C., April 23, 2021. (Erin Schaff/Pool via Reuters)

I’ll dig into the full 135-page decision in a moment, but here’s the bottom line from the blockbuster gun-carry case, New York State Rifle and Pistol Association v. Bruen, which the Supreme Court just announced:

The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.

In other words: New York cannot force applicants for gun-carry permits to “demonstrate a special need for self-protection distinguishable from that of the general community.”

The decision was 6–3. It was written by Justice Clarence Thomas. Justices Breyer, Sotomayor, and Kagan dissented.

PC Culture

Womb Carriers

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Verso Books, the “largest independent, radical publishing house in the English-speaking world” according to its Twitter bio, posted a thread yesterday about “womb carriers”:

“In the 1970s up to 50% of Native womb carriers were sterilized against their will by the Indian Health Service (IHS).”

“Stripping our womb-carriers of their ability to have children is the continuation of over 500 years of misogynistic violence against Indigenous peoples.” [emphasis added]

As easy as it is to dismiss this absurd, demeaning language, remember how quickly such terms become mainstream. A decade ago, there were women and men (a very small number of whom liked people to pretend they were women).

Now, in the mainstream, there are “cisgender women” and “transgender women.” Next: “birthing people,” “menstruators,” and womb carriers. 

Sports

A Nerd-Out on Golf

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Matt Fitzpatrick holds the championship trophy after winning the 2022 U.S. Open golf tournament in Brookline, Mass., June 19, 2022. (Bob DeChiara-USA TODAY Sports)

The U.S. Open was played last week at the Country Club in Brookline, Mass., outside Boston. That’s the name of the club: “the Country Club.” It’s sort of like naming a restaurant “the Restaurant,” but there you go. The Country Club is a historic place, where golf is concerned.

Have I said that this U.S. Open was the golf one, not the tennis one? It was.

Dueling down the stretch were Matt Fitzpatrick, a young Englishman (never mind the Irish name), and Will Zalatoris, a young American (never mind the Greek name). A thrilling duel it was. Fitzpatrick won out in the end.

Writing about him for Golf magazine was Luke Kerr-Dineen, who said, “Fitzpatrick is, quite simply, the golfer I want to be.” He added, “He’s the one you should want to be, too.” LKD is my guest on Q&A, here.

Kerr-Dineen is game-improvement editor for Golf (and Golf.com). He knows the ins and outs of swings and the rest of golf technique. He knows about the game at large. He is one to “nerd out,” he says, with Tour pros and other knowledgeable folk. Like Winston Churchill and Robert Conquest, Luke is both British and American. He was born in New York. (So was Boris Johnson, to British parents. He could run for president, right?) Then it was over to London, until he was 13. Then it was back to the U.S. — to South Carolina, in particular. Luke talks like a Brit, however, rather than a South Carolinian.

Bill Buckley used to say, “There’s something in the water over in Britain, rendering them articulate. It’s just so.” LKD is further proof of this.

Incidentally, we at NR offered him a fellowship, as he discloses in this podcast. But he chose a career in golf journalism — starting at Golf Digest. I expect him to be in the booth one day, commentating.

By the way, the “Kerr” in “Kerr-Dineen” is pronounced “cur,” rather than “car.” The coach of the Golden State Warriors says “cur.” But a proper Scot says “car.” Deborah Kerr, the striking actress who was born in Glasgow, was “car.” She is best known for playing Anna in The King and I (movie version). MGM had a slogan for her, to make things clear to American audiences: “Kerr rhymes with Star!” Luke says that, for his dad, “car” is a hill to die on. But Luke and his siblings go with “cur,” mainly for expedience in American life.

Enough nomenclature. In our podcast, besides names, we talk about swings. And the Tour life. And the new Saudi tour, speaking of tours. (For a piece I did on this, earlier this week, go here.) We also talk about Tiger Woods, of course. Is he finished, at long last? People have counted him out before, to their embarrassment. We talk about favorite golfers and favorite courses. Also, a longstanding question: the equipment. Has it advanced to a crazy degree, warping the game?

Oh, there’s another question: Is golf a sport or something else? More like a game? Some people don’t accord golf the name “sport.” I’m not too offended. Golf is a sport, of course, but I don’t care if you call it a ham sandwich, as long as I get to play it and watch it.

This Q&A is for golfers and golf fans, yes. But I think most everyone else would enjoy LKD too. Again, here we are.

Economy & Business

Prepare for Pain

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This article from the L.A. Times is the sort of thing that inspires me to invest in canned goods and shotguns.

The headline is “Yes, a recession looks inevitable. But it may not be that bad. Here’s why.”

The message is exactly what you would expect. Hey, a recession is coming. But don’t blame anyone in charge, they always happen eventually. And anyway, household balance sheets aren’t so bad, and more people are locked into low-interest-rate mortgages.

Here’s how it concluded:

Jeffrey Korzenik, chief investment strategist at Fifth Third Bank in Tampa, Fla., said the country will avoid a recession, barely, largely because of the strength of the labor market.

He figures the Fed’s tightening will create more layoffs but said, “We have so many openings, it’ll be easier to get workers recycled into the job market. It’s not bulletproof, but it means the economy is less likely to fall off a cliff.”

When the experts agree it won’t be so bad, I’m put into a mood to build a bomb shelter. “Less likely to fall off a cliff” is a great phrase, since it betrays no actual conviction about the overall likelihood.

Health Care

The CDC Just Pushed Fake News on Covid Child Mortality

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Centers for Disease Control and Prevention headquarters in Atlanta, Ga. (Tami Chappell/Reuters)

Only because “an internet rando is more knowledgeable and paying closer attention than our top scientists and doctors” do we know that the CDC just publicized false information about the deadliness of Covid-19 to small children. This misinformation, presented at a conference among top experts, went viral and was promoted, notes Substack columnist Matt Shapiro, by dozens of well-known physicians and other media commentators and specialists, including CNN mainstay Dr. Leana Wen and a former surgeon general of the United States. Wen’s promotion of the false claim is still up on Twitter as of 6:45 p.m. on June 22.

The CDC displayed a slide at a conference that falsely claimed Covid-19 was the fourth or fifth leading cause of death for all pediatric age groups. A writer who is publicly known only by the name Kelley immediately saw that the claim was “completely and utterly false.” Among several errors, which are so blatant as to seem like intentional massaging of the numbers, Kelley discovered that all data from a 26-month period were being crammed into one year, and that deaths were attributed to Covid, regardless of whether the death was caused by Covid, if the disease was mentioned on the death certificate. The CDC slide, which cited a pre-publication British study that is now being re-examined, also bumped up the numbers by altering the definition of pediatric (ordinarily understood to mean under 18) to include 18- and 19-year-olds.

The danger to children from Covid is very, very low. For instance, babies and toddlers are 25 times likelier to die of an accident than of Covid. And all-cause pediatric mortality in the pandemic era for young children (up to 12) is 30 percent lower than it was a generation ago, in 1999. All-cause mortality for children over 12 has spiked in the pandemic era because of accidents, drug abuse, and other factors unrelated to disease. Covid barely registers as a cause of death for teens or small children.

Writes Shapiro in his Substack column, Marginally Compelling:

This is a massive data error, and yet it persisted through a supposedly rigorous data check from 11 authors and was selected by top-tier scientists for their landmark presentation to the most knowledgeable experts in the field.

No one in any of these meetings recognized this error. This slide was presented uncritically to the nation’s top doctors and epidemiologists who are in charge of setting the national policy on COVID vaccines for children and no one even noticed it.

Law & the Courts

Breyer’s History of ‘Strife’

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U.S. Supreme Court Associate Justice Stephen Breyer is seen during a group portrait session for the new full court at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

Fear of disputes among religious groups has been a recurring theme of the Supreme Court’s First Amendment jurisprudence for eight decades. Even so, Justice Breyer’s dissent in yesterday’s landmark Carson v. Makin ruling, which ordered Maine to stop excluding religious schools from a tuition-assistance program, had a familiar ring.

“I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program.” That’s not what Breyer wrote in yesterday’s dissent. It’s what he wrote in a 2002 dissent. Then the question was not whether the Constitution commanded states to include religious schools in scholarship programs. It was whether it even permitted them to include those schools. Five justices said yes; Breyer, and three other justices, said no.

Allowing states to fund religious schools, even indirectly, would, in Breyer’s view, pose an unacceptable risk of “social dissension,” a “struggle of sect against sect,” and “division among religious groups.” The word “strife” got a particular workout, appearing ten times. In conclusion, he warned of “religiously based conflict potentially harmful to the Nation’s social fabric.”

It has been twenty years since Breyer lost in that case. Is there any evidence that the majority opinion resulted in any of the dangers he mentioned? If so, you would think that he would mention it. In yesterday’s dissent, though, he does nothing to evaluate whether the record since 2002 makes his fears look more or less plausible. Instead he just repeats the argument. We hear about “religiously based social conflict,” “disunion,” the European wars of religion, “division,” and, of course, “strife” (this time eight times).

The line about “the struggle of sect against sect” was not original to Breyer. He was quoting Justice Wiley Rutledge’s opinion in a 1947 case — in another dissent, as it happens. Perhaps some other justice in 2094 will be quoting Justice Breyer, with a similar indifference to how prescient his words will have proven.

Film & TV

What Happened to Star Trek?

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Sonequa Martin-Green in Star Trek: Discovery (Paramount Plus/YouTube)

Writing in the New Atlantis, Alan Rome takes issue with the now-stunted horizons of Star Trek as manifested in the new series Star Trek: Discovery. Rome charts the rise and fall of Star Trek in tandem with the contemporary forms of liberalism each series embodied. First was the confident, assertive, Kennedy-era Captain Kirk incarnation of the late 1960s (The Original Series). Then came the universalist, “End of History” Captain Picard of the late 1980s and 1990s (The Next Generation). Some of the TNG spinoffs, such as Star Trek: Deep Space Nine, dabbled in post-colonialist forms of liberalism. Even so, Discovery’s pessimistic, dead-end, identity-politics-obsessed modern version came as something of a surprise, despite matching considerably the tenor of modern liberalism. As Rome puts it,

The most prominent current series, Discovery, shows no interest at all in discovery, or in science, wonder, or philosophical reflection. It represents a new type of cultural myopia and chauvinism, different from that seen in The Original Series in its total closure to worlds outside the ones run by its protagonists. Indeed, it seems not even to recognize the existence of alternative conceptions of the world. . . .

While Discovery’s third season is set in a distant future where the Federation has all but collapsed, the first two seasons are set during the supposed historic height of the utopia, and yet lack any recognition of it. The show evinces no interest in any positive aspects of the Federation, nor do its characters seem to be driven by any higher principles or ideals. Discovery has quietly abandoned the moral superiority of the future: The barely-developed characters are almost entirely unlikeable, highly flawed, some explicitly mentally ill, others ill-tempered, bickering, ruthless, or vain. . . .

Whereas in the earlier waves of Star Trek the ideals of equality and freedom had triumphed and become permanently available to all, these ideals are now fragile and ephemeral, relative products of a particular time and place, lacking any real grounding and perhaps even any desirability. They are under siege. . . .

Now, despite having written about Star Trek for National Review, I am not what is known as a “Trekkie.” I have seen a decent number of episodes of TOS and TNG, as well as several movies from the former and one from the latter. So I cannot speak to the quality of Discovery. But, at the risk of violating K-Lo’s ancient proscription, I would like to speak to a part of Star Trek that I do know, one that Rome’s essay touches upon.

Rome writes that one of the central tensions of all of Star Trek is that between the utopian aspirations of the world created by the United Federation of Planets, a kind of “space U.N.” that is also post-scarcity, and the lingering remnants of either (1) atavistic human foibles or (2) the designs of other alien races outside of the Federation (which often resemble No. 1). Luxuriating in utopia all day just isn’t very exciting. Thus, in my experience of its various media, Star Trek is at its most interesting when emphasizing this tension. Often, this requires setting heroes directly against such forces. As Rome writes,

Star Trek manages to cheat history of its finality. Post-historical humanity no longer internally faces interminable political conflict, but it does externally in the infinite number of other species and regimes of the galaxy that remain incorrigibly “historical.” The republic must eternally renew itself in its confrontation with outsiders.

Star Trek II: The Wrath of Khan, for example, forms around a classic quest for vengeance on the part of Khan, its villain. Calling it an “old Klingon proverb,” thereby tying himself to one of the other sources of primal resistance to utopian designs in the Star Trek universe, Khan asserts that “revenge is a dish best served cold.” (“And it is very cold . . . in space,” he adds.)  Khan is a figure out of Earth’s past, but he combines his primeval qualities with a genetically enhanced strength and intelligence, making him a threat from two worlds. Defeating him requires the crew of Kirk’s Enterprise to access some timeless heroics and virtues of their own, ones that we would easily recognize regardless of the setting. Thus does Khan become by far the most interesting and compelling foe for Kirk and Co.

In an interesting twist on this, Picard’s main antagonist is not a man but a species: the Borg, a galaxy-bestriding, techno-organic assimilative hive mind that absorbs then destroys the individuality of every other race it comes across. “Resistance is futile,” goes the Borg’s famous taunt. And yet Picard and the Federation do resist, at great cost; a memorable arc from The Next Generation sees Picard assimilated by the Borg. In Star Trek: First Contact, Picard faces the Borg again; this time, he is the one motivated by vengeance as he seeks to reverse a Borg time-travel scheme that has assimilated Earth centuries before the Federation even comes into existence. In facing the Borg, our heroes once again assert more old-fashioned virtues and individuality. And, arguably, they do so facing a dark mirror of their own universalist designs. A character in DS9 makes this explicit, telling an officer of the Federation, “You know, in some ways, you’re even worse than the Borg. At least they tell you about their plans for assimilation. You’re more insidious. You assimilate people and they don’t even know it.”

Given that Star Trek always depended, somewhat paradoxically, on this tension, it is not surprising that current versions of the show have found it somewhat tricky to navigate, and have instead once again resorted to a more familiar and more human backdrop. After all, not even a warp drive will get rid of human nature.

Business

Electric Vehicles and the Green New Dole (2)

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Ford Motor Co. shows the all-new electric Mustang Mach-E vehicle at a studio in Warren, Mich., October 29, 2019. (Rebecca Cook/Reuters)

Policy-makers relying on electric vehicles to be a source of net new jobs (after subtracting the jobs lost by conventional automakers, and to Chinese manufacturers) are likely to be disappointed.

I’ve mentioned this a few times, including here, but this is another story to add to the pile (my emphasis added):

The Financial Times:

Ford has selected its Spanish plant to make battery cars and will cease vehicle production at a rival site in Germany as the carmaker reshuffles its European factories ahead of going all-electric in the region.

The US carmaker also plans “significant” staffing cuts, even at the Spanish plant in Valencia because electric cars need fewer staff to build them, it said on Wednesday…

Ford’s new in-house system will be used in factories globally, but the company expects to have only one European production centre for the vehicles that use the technology.

Ford’s European president Stuart Rowley said Ford was “seeking alternative opportunities . . . both in Ford and outside of Ford”, for the German site, but added that the US carmaker “does not have additional product at this point in time” to make at the site when the current car, the Ford Focus, ends production in 2025.

But even in Valencia, which has 6,000 staff, there will be a significant number of job reductions.

“We will need to restructure both of our plants in Saarlouis and Valencia to compete against existing incumbents and new competitors,” Rowley said. “We will require less employees to build new electric vehicles.”

Here are some comments from the CEO of Stellantis, the fifth largest automaker in the world (formed as a result of the merger between Fiat Chrysler and Peugeot). They date from January 2022. Biased? Perhaps, but I suspect that he knows what he is talking about:

“What is clear is that electrification is a technology chosen by politicians, not by industry,” Tavares told a handful of European newspapers in a joint interview. “Given the current European energy mix, an electric car needs to drive 70,000 kilometres to compensate for the carbon footprint of manufacturing the battery and to start catching up with a light hybrid vehicle, which costs half as much as an EV (electric vehicle).”

A technology chosen by politicians. What could go wrong?

But at least the electricity grid is in good shape to cope with the increased demand.

Isn’t it?

Elections

NH Poll: DeSantis 39 percent, Trump 37 percent

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I’ve been thinking the chances are high that Trump runs again and wins the nomination, but this is an encouraging poll:

Sports

Young Female Athletes Defend Women’s Sports

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Selina Soule (left) and Alanna Smith, part of Alliance Defending Freedom’s Soule v. Connecticut Association of Schools case. (Courtesy Alliance Defending Freedom)

Tomorrow marks 50 years since the passing of Title IX. Today, Alliance Defending Freedom held a press conference to discuss some of the cases they’ve handled as they relate to fairness in women’s sports.

ADF senior counsel Christiana Kiefer introduced clients involved in Soule v. Connecticut Association of Schools, B. P. J. v. West Virginia State Board of Education, and Hecox v. Little.

“It took incredible courage for women 50 years ago to fight for a level playing field in sports, and serving alongside these incredible female athletes has allowed me to experience a new generation with equal courage,” Kiefer said.

She introduced Selina Soule, Chelsea Mitchell, and Alanna Smith. During their time in high school, two male athletes were awarded 15 women’s state championship titles and set 17 new individual meet records.

Also present was Lainey Armistead, who won a soccer scholarship to West Virginia State University, and has since taken a stand in defense of the Save Women’s Sports Act, a West Virginia law. Madison Kenyon and Mary Kate Marshall, Idaho female collegiate athletes who support the state’s Fairness in Women’s Sports Act, were also in attendance.

“My dad was a soccer coach, and growing up I got to play against my brothers and against boys’ pickup teams. It was a lot of fun, but I knew when they were holding back because they were bigger, faster, and stronger than me,” Armistead said.

I asked when she first encountered the concept of transgenderism. “Probably high school,” she said. And how did she square that concept with her early experience of sex differences? “I knew the difference growing up with brothers and competing against men. There’s just a big difference in how our bodies are.”

As Kiefer outlined in her introduction:

Males are generally bigger, faster, and stronger. They have larger hearts and greater lung capacity, denser bones, and stronger muscles. These physical characteristics give males a 10 to 50 percent performance advantage over comparably fit and trained female athletes. That means that no amount of hormones or testosterone suppression can undo those physical advantages.

Someone asked: Why aren’t more female athletes speaking out?

“First of all, I think they are speaking out,” said Mary Kate Marshall, a competitive track athlete at Idaho State University. “I think that they’re kind of being swept under the rug and important voices aren’t being heard as loud . . . The scariest part about this is the initial step to do it. But once you do it, it’s nowhere near as scary. So to many people, I would tell them that they should speak out. It’s not scary and so many people are supporting us.”

Education

Evidently, Plagiarism Is No Big Deal (If You’re a Lefty)

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Historian Phil Magness specializes in debunking bad scholarship by “progressives.” Most recently, he wrote about the obvious plagiarism of Princeton historian Kevin Kruse.

Naturally, some of Kruse’s fellow leftists have come to his defense with feeble excuses. In this post, Magness jousts with one in particular, Lora Burnett of Collin College. She has quite an animosity towards Magness, dating back to his attacks on the veracity of Nancy MacLean’s screed Democracy in Chains.

If this were a boxing match, the referee would have to stop the contest.

Law & the Courts

Why, Exactly, Would the Biden Administration Choose to Persecute Andrew Gillum?

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Democratic Florida gubernatorial nominee Andrew Gillum concedes the race to Ron DeSantis at his election-night rally in Tallahassee, Fla., November 6, 2018. (Colin Hackley/Reuters)

Andrew Gillum, who ran for governor of Florida in 2018, has been indicted on 21 counts:

Andrew Gillum, a once-rising Democratic star who nearly won a 2018 race for Florida governor, was indicted on Wednesday along with a close political ally on charges of conspiracy, wire fraud and making false statements.

According to a news release from the United States attorney for the Northern District of Florida, Gillum and a longtime associate, Sharon Janet Lettman-Hicks, are accused of making “false and fraudulent promises and representations” related to money that they had received from 2016 to 2019. The money was diverted to a company owned by Lettman-Hicks and then funneled to Gillum for personal use, the US attorney’s office said.

Gillum and Lettman-Hicks face 21 charges, according to the news release. Gillum, a former CNN political commentator, is scheduled for an initial appearance at 2 p.m. ET Wednesday at the United States courthouse in Tallahassee, where he resides.

In return, Gillum has said:

In a statement released before the government announced the charges, Gillum declared his innocence and suggested the case against him was political.

“I have spent the last 20 years of my life in public service and continue to fight for the people,” Gillum said in the statement. “Every campaign I’ve run has been done with integrity. Make no mistake that this case is not legal, it is political. Throughout my career I have always stood up for the people of Florida and have spoken truth to power.”

Look: as all NR’s readers and podcast listeners know by now, I am a self-professed “criminal justice squish,” and I am entirely open to the idea that Gillum is innocent — which, of course, he must be presumed to be until a jury decides otherwise. Prosecutors often gets things wrong, or overcharge, or bring cases that aren’t good enough to satisfy our constitutional and statutory rules. Maybe Gillum will walk away free, and maybe he’ll deserve to. I don’t know.

But the idea that the case against him is “political”? That seems silly on its face. Gillum, you will note, is not being prosecuted by the State of Florida, but by the federal government. So where’s the motive? Gillum mentions his “campaigns.” But he’s a Democrat, like the president, and his most recent opponent was Ron DeSantis, whom the president loathes. In 2018, Joe Biden not only endorsed Gillum, he stumped for him, too.

As for Gillum’s “career”? Again: He’s a lifelong Democrat, whose last political act was to help “mobilize 50,000 voters” for Biden during the 2020 presidential election. What, exactly, is the executive branch supposed to get out of persecuting him? Clearly, if the federal government thought that the investigation into Gillum was some Trump-era holdover, it wouldn’t have charged him.

Is that federal government wrong in its assessment of Gillum’s conduct? Maybe. We’ll find out. Is it “political”? That seems extremely, extremely unlikely to me.

Politics & Policy

Once Again, Only the Other Guy’s Super PACs Are Bad

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Third party candidate Evan McMullin, an independent, talks to the press as he campaigns in Salt Lake City, Utah, October 12, 2016. (George Frey/Reuters)

Well-past-his-sell-by-date former presidential candidate Evan McMullin is now the de facto Democratic nominee for Senate in Utah, running against incumbent Republican Mike Lee. McMullin insists he’s an independent, but the Utah Democratic Party endorsed him.

In a recent fundraising email, McMullin’s campaign writes:

After a new poll showed us in a near-statistical tie with Senator Lee, a far-right super PAC announced it was spending $2 MILLION to prop up Lee’s campaign.

That is the type of dark-money spending we’ll be up against from now through Election Day.

It’s also the kind of so-called “dark money spending” that helped McMullin in his presidential bid in 2016! The Lincoln Project is a super PAC, will McMullin denounce their efforts as sinister “dark money spending”? Or is McMullin like almost every other candidate in politics who denounces the super PACs that work against him but quietly assents to the super PACs that work to help elect him?

As for that near-statistical tie that McMullin’s campaign touts, it is a poll of registered voters with no likely-voter screen, conducted over eleven days, showing a four-point lead for Lee. But hey, with everything in the country going so well, it’s entirely reasonable to assume that GOP enthusiasm and Democratic enthusiasm will be the same in November, right?

Culture

Dave Chappelle’s Plot Twist

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Dave Chappelle in Toronto, Canada, September 9, 2018 (Mario Anzuoni/Reuters)

After the controversy at Duke Ellington School of the Arts in Washington, D.C., over the school’s relationship with its most famous graduate, Dave Chappelle, comes a surprise twist. Chappelle, after whom a theater building was supposed to be named, announced during a special naming ceremony that he would not lend his name to the theater after all. Instead, the theater is to be called the Theater for Artistic Freedom and Expression.

“I saw in the newspaper that a man who was dressed in women’s clothing threw a pie at the Mona Lisa and tried to deface it. And it made me laugh and I thought, ‘It’s like The Closer,’” he said, referring to his Netflix special, which prompted fierce backlash from trans activists.

“When you say I can’t say something, the more urgent is it for me to say it. It has nothing to do with what you are saying I can’t say. It has everything to do with my freedom of artistic expression.”

Chappelle is right that this controversy is much bigger than him, or even the issue of transgenderism. As I wrote previously, comedy exists to puncture sacred cows. Artistic freedom and expression are essential components of this. No belief — whether religious or ideological – should be insulated from criticism.

Politics & Policy

Tearing Us Apart: How Abortion Harms Everything and Solves Nothing

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Tearing Us Apart: How Abortion Harms Everything and Solves Nothing by Ryan T. Anderson & Alexandra Desanctis (Regnery Publishing/Amazon)

Monday may very well be the long-awaited Supreme Court decision in the Mississippi abortion case. If so, the Heritage Foundation will be a good place to be – I’ll be moderating a conversation with Ryan T. Anderson and Alexandra DeSanctis, authors of the new book (coming out Tuesday) Tearing Us Apart: How Abortion Harms Everything and Solves Nothing. I cannot think of a better title to explain why we are where we are today, in such a culture of death and violence. Their book is clear and a handbook for going forward. It should be a conversation-starter with reasonable people who are on the fence or open to learning more about why we have been opposing Roe since it was imposed by the Court.

11 a.m. Monday. You can join us in person and get a book signed after. Or if you’re nowhere near D.C., you can join us by livestream. RSVP for one of these options here.

World

From a Nobelist, Nobility

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The Russian journalist Dmitry Muratov delivers his Nobel lecture in Oslo, Norway, December 10, 2021. (Stian Lysberg Solum / NTB via Reuters)

Today on the homepage, I have an Impromptus column, which begins with Charles Barkley and ends with the late Mark Shields. In between are the Texas GOP, Sonia Sotomayor, Clarence Thomas, and other personalities and issues. Elsewhere, I have a piece on the new Saudi golf tour: from the points of view of golf, world affairs, and human rights. In 2016, David Satter wrote a book about Russia called “The Less You Know, the Better You Sleep.” The less you know about Saudi Arabia, the more you can enjoy a Saudi golf tour, or a Saudi-funded anything.

Here is my view in a nutshell: Though I am a traditionalist, and fond of the PGA Tour, I am also for markets. Including in golf tours. I’m for competition. I am anti-monopolistic. But this “sportswashing” from the Saudis — as from the Chinese and others — is appalling and unstomachable.

The Saudi dictatorship has a lot of support in the Free West. It is a lot of people’s favorite dictatorship, I have discovered, not least through social media. Whenever I write critically of the Saudis . . . wow. The resentment and vitriol are enormous. People who like the Saudi dictatorship also tend to like Russia’s.

On that subject: Dmitry Muratov is one of the noblest people in the world. He is — I suppose I have to say “was” now — the editor of Novaya Gazeta, the newspaper. It was one of the few independent media outlets in Russia. Of course, all of those have been shut down now. Over the years, six of Muratov’s colleagues on the paper have been murdered: Igor Domnikov, Yuri Shchekochikhin, Anna Politkovskaya, Anastasia Baburova, Stanislav Markelov, and Natalia Estemirova.

In 2021, Muratov won the Nobel Peace Prize, along with another splendid person, Maria Ressa, the journalist from the Philippines. Like Muratov, she has braved many dangers. I wrote about Muratov and the Nobel last January, here.

Yesterday, this came in from the Associated Press:

The Nobel Peace Prize auctioned off by Russian journalist Dmitry Muratov to raise money for Ukrainian child refugees sold Monday night for $103.5 million, shattering the old record for a Nobel.

Muratov auctioned off the gold medal you receive when you win the prize. (For the article I have quoted, go here.) Obviously, someone — an anonymous bidder — wanted to aid Ukrainian refugee children, and the medal was simply an occasion, or spur. This bidder has a very big heart, in addition to a very big bank account.

In Russia, there is much dishonor, starting at the top: starting with Putin, the boss in the Kremlin. But there is honor too, as represented by the political prisoner Vladimir Kara-Murza and the journalist, and Nobelist, Dmitry Muratov. As I have done in the past, I will quote a statement from José Martí, the Cuban independence hero: “When there are many men who lack honor, there are always others who have within themselves the honor of many men.”

Politics & Policy

The Limits of Expertise

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In today’s Martin Center article, political-science professor Joseph Knippenberg reflects on a new book by David Epstein in which he explains why generalists often do so well in a world that seems to be dominated by experts. “The book,” Knippenberg writes, “is chock-full of anecdotes and evidence that people with breadth or range—indeed, amateurs in the true sense of the word—can contribute immensely to enterprises in environments that seem, at first glance, to respond to and reward highly specialized expertise alone.”

Good, but how does that relate to higher education?

Knippenberg continues, “As a college educator (and parent), I take to heart and endorse Epstein’s exhortations against forcing young people to decide what they want to be when they grow up before they’ve actually grown up. One of the most compelling stories in the book involves the proportion of service academy graduates who do not make a career of the military, despite our government’s investment of hundreds of thousands of dollars in their education and training and their gung-ho attitude at age 18.”

So, when colleges (and families) try to push young people into paths of specialization early, they may be making a serious mistake.

Knippenberg draws this conclusion: “In a world where the market still rewards specialization, many of the disciplines (especially in STEM fields) will take care of themselves. What need to be nurtured are those inter-, multi-, and pre-disciplinary programs that provide range and context for specialists.”

International

Will Electric Cars Crash the German Government?

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The new Smart Concept #1 electric car ahead of the Munich Motor Show IAA Mobility 2021 in Munich, Germany, September 5, 2021. (Andreas Gebert/Reuters)

Well . . .

The Financial Times:

Germany’s finance minister has rejected EU plans for a de facto ban on the sale of new combustion engines cars by 2035, raising the prospect that a pillar of the bloc’s green agenda will be watered down.

Christian Lindner told a conference in Berlin on Tuesday that completely phasing out the combustion engine in Europe was “the wrong decision” as manufacturers elsewhere in the world would fill the gap. Lindner, who also heads the business-friendly Free Democratic party, said: “Germany is not going to agree to a ban on combustion engines.”

Brussels wants the region’s automakers to cut carbon emissions from cars by 100 per cent from their 2021 levels, a mandate that would make it impossible to sell new petrol or diesel vehicles from 2035. The move would force the German car industry to accelerate its electrification plans, and lobbyists have warned it could lead to the loss of hundreds of thousands of jobs in the sector.

Hundreds of thousands of jobs?

I reckon that that will have weighed with Mr. Lindner, who may, I suspect, not be entirely convinced by stories of all those new jobs that are supposedly going to be created in the green economy.

I wrote about what the switch away from internal-combustion engines could mean for carmakers here. Looking on the bright side, it will be a good news for the Chinese auto sector, which will be able to take advantage of the position that it has built up in the battery sector, and the fact that electric vehicles are relatively simple to make. Chinese exports of EVs are already doing well in Europe. Rejoice!

The FT:

A vote by MEPs [members of the European Parliament] two weeks ago to adopt the revised CO₂ standards met with a strong backlash from Germany’s automotive lobby, the VDA. The VDA claimed the decision was “taken against citizens, against the market, against innovation and against modern technologies” . . .

Perhaps the VDA is wrong about that, or perhaps it is right, but it seems that the EU’s central planners do not want to put its claims to the test.

The FDP is only one of three parties within Germany’s governing coalition. The second of those parties, the Greens, does not agree with the position Lindner has taken. Meanwhile, the FT reports no one could be reached for comment from the SDP, the third (and leading) party in the coalition, and one that enjoys significant blue-collar support.

The conversation across the coalition table will be interesting.

Back to the FT:

The division between Germany’s coalition partners echoes the ructions within the European auto lobby in Brussels, known as ACEA. Stellantis, one of the organisation’s largest members, left to start its own campaigning organisation just days after the parliamentary vote. Stellantis boss Carlos Tavares has been critical of the speed at which regulators are forcing carmakers to electrify their models.

Stellantis was formed by the merger of Fiat Chrysler and Peugeot, and is the fifth-largest auto manufacturer in the world,

On the other hand, other automakers disagree.

The FT:

The boss of Volkswagen’s passenger cars brand, Ralf Brandstätter, said: “The current vote, but above all the choice of customers in Europe, shows that the shift to electromobility is irreversible.”

Best guess is that after the dieselgate scandal, VW won’t want to risk alienating any governments. Nevertheless, an obvious question remains. If consumers are so keen on EVs, why the need for compulsion?

Something similar might be said of Mercedes, another carmaker with a diesel scandal to live down, which has also backed the European vote.

The skilled engineers over at (checks notes) the German Federation for the Environment and Nature Conservation, meanwhile, declared that “the internal combustion engine is a discontinued model,” language with more than a touch of the commissar about it.

World

U.S. ‘Nazi Hunter’ Leading Ukraine War-Crimes Team

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Pro-Russian troops inspect streets in the southern port city of Mariupol, Ukraine, April 7, 2022. (Alexander Ermochenko/Reuters)

CNN reports that the Department of Justice has tapped its top “Nazi hunter” to lead a U.S. war-crimes prosecution team supporting Kyiv’s efforts. Attorney General Merrick Garland made the announcement during his surprise trip to Ukraine earlier today:

The team, Garland said, will be led by the department’s best-known Nazi hunter Eli Rosenbaum, and will be made up of experts in investigations involving human rights abuses and war crimes. Rosenbaum, a 36-year veteran of the Justice Department, previously served as the director of Human Rights Enforcement Strategy and Policy, and helped the department over 100 cases to strip citizenship from or deport accused Nazis, according to the Justice Department.

The announcement is a signal from DOJ that it is interested in investigating war crimes in the ongoing war in Ukraine and follows a previous effort by the department to lock down the assets of Russian oligarchs.

Garland made the announcement after meeting with Iryna Venediktova, the top Ukrainian prosecutor.

Rosenbaum’s War Crimes Accountability team will streamline multiple ongoing department efforts to investigate war crimes and “provide wide-ranging technical assistance, including operational assistance and advice regarding criminal prosecutions, evidence collection, forensics, and relevant legal analysis” to Ukraine, according to a Justice Department statement.

The team will also “play an integral role” in U.S. prosecutions involving Russian war crimes, such as when U.S. journalists are killed by Russian forces while covering the invasion.

While prosecuting top Russian leaders for their roles in the atrocities they ordered remains a very unlikely prospect for the time being, empowering the Ukrainians to go after Russian soldiers is a realistic option.

In addition to identifying hundreds of war-crimes suspects, Venediktova’s team secured the first conviction of a Russian soldier, for shooting an unarmed civilian, in May.

Still, needless to say, whatever legal actions the Ukrainian authorities are able to initiate won’t, for the foreseeable future, come close to meeting the scale of the atrocities that have been carried out across the country, and continue to be carried out, every day.

These smaller prosecutions are a no-brainer, but no one disputes that securing any true measure of justice for the massacres, torture, and rapes of Ukrainians will only begin with a battlefield victory.

Law & the Courts

More Details on the Cornyn-Murphy Bill

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A man holds a gun displayed at the Shore Shot Pistol Range gun shop in Lakewood Township, N.J., March 19, 2020. (Eduardo Munoz/Reuters)

Earlier today, I noted a Washington Post report on John Cornyn’s proposed gun-control bill, which suggested that “under-21 gun buyers will have to wait at least 3 days, perhaps 10” to buy a gun.

This evening, the text of the bill was released, and it seems that the Washington Post‘s characterization was incorrect. Specifically, it is not the case that buyers will “have to wait at least 3 days, perhaps 10,” but that they could have to wait that long depending on whether the enhanced background checks in the bill trigger an extended investigation, and on how long that investigation takes.

Essentially, the bill would require NICS checks performed on purchasers who are under-21 to look for some additional information, including:

  • “criminal history repository or juvenile justice information”
  • “mental health adjudication records”
  • “local law enforcement agency”

That process, Cornyn’s office told me, would be “automated through NICS and done immediately by them.” If the purchaser is 21 or older, NICS would not include those items in its search. It is not currently clear how NICS would interact with all those different systems.

If NICS turns up potentially disqualifying information on a buyer, then the FBI would be obliged to investigate that information (as it is currently) to see if it prohibits the applicant from purchasing a gun. Currently, the FBI has three days to complete that investigation. Under Cornyn’s bill, if the purchaser is under 21, it would have ten days. If the FBI cannot find anything disqualifying in that time, the transfer would go through.

Over time, the extra information that NICS would be obliged to look up for purchasers younger than 21 would come to be included within the NICS database as a matter of course, and the need for more explicit checks on under-21s would thereby be negated. In consequence, those extra checks would be discontinued after ten years.

According to an explanatory document issued by his office, Cornyn’s bill “clarifies current law that a person is prohibited from purchasing a firearm if their juvenile record meets the existing criteria for a prohibited firearms purchaser under 18 U.S. 922(d).” If enacted, this would represent a biggest change in the law, in that, for the first time, Americans who have juvenile records (obtained at any age) would be excluded from buying firearms irrespective of their current age. (Possibly due to a drafting error, the text of the law makes it unclear whether these rules apply to possession, or just purchasing.)

It is unclear what happens to Americans whose juvenile records have been expunged.

World

Anti-Slavery Uyghur Bill Takes Effect

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A guard watchtower along the perimeter fence of what is officially known as a “vocational skills education center” in Dabancheng, Xinjiang Uighur Autonomous Region, China, September 4, 2018. (Thomas Peter/Reuters)

A major law to combat the Chinese Communist Party’s enslavement of Uyghurs took effect today, kicking off a vigorous effort to enforce an effective ban on importing goods from Xinjiang.

The bipartisan sponsors of the legislation, called the Uyghur Forced Labor Prevention Act, hailed the law’s enactment and the release of a Department of Homeland Security enforcement strategy, in a statement on Friday.

“The United States is sending a clear message that we will no longer remain complicit in the Chinese Communist Party’s use of slave labor and egregious crimes against humanity,” said Senators Marco Rubio and Jeff Merkley, and Representatives Jim McGovern and Chris Smith, in the statement.

The law contains a rebuttable presumption, meaning that importers must prove that any goods originating from Xinjiang, or from forced-labor-connected entities in China, were not produced using forced labor. That’s a significant standard, filling the gaps left by previous discrete U.S. government actions to block certain cotton and agricultural imports.

Companies in industries as varied as textiles, agriculture, and green technology have been found to use Uyghur forced labor. In 2020, the Australian Strategic Policy Institute found that at least 80,000 Uyghurs were placed in slave-labor programs across China between 2017 and 2019 alone.

In an op-ed for RealClearPolitics today, Rubio called the law “the most significant change in America’s relationship with China since 2001, when the communist nation joined the World Trade Organization.”

Rubio also characterized the law as a rejection of the elite ideology held by business leaders, politicians, and intellectuals that free trade with the West could bring about liberalization in China.

“This proclamation is already is sending shockwaves through the global economy, but enduring change will only come from its rigorous and thorough enforcement,” Rubio wrote, adding that the Biden administration is under pressure from businesses to minimize the law’s impact through various loopholes.

That the Uyghur Forced Labor Prevention Act became law is significant, considering the obstacles that powerful interests threw up to block it.

Major companies with ties to Uyghur forced labor, such as Coca-Cola, Apple, and Nike, reportedly lobbied to water down the bill. In its own statement on the law’s enactment, the Uyghur Human Rights Project noted the corporate lobbying effort.

“The fact that it is now clearly illegal for companies to import goods made with Uyghur forced labor into the United States is a huge win for our movement to end atrocities in East Turkistan,” said UHRP executive director Omer Kanat, using the Uyghur name for Xinjiang.

The Biden administration also reportedly urged lawmakers to stymie the bill late last year, as it pursued an agenda emphasizing some degree of cooperation with Beijing. That effort, revealed by the Washington Post, sparked a public outcry, ending an unexplained monthslong delay of the bill and contributing to its ultimate passage by Congress and signature by the president.

The legislation could also hamper the White House’s green-energy push, as a New York Times report found that lithium mines in Xinjiang participated in a Uyghur forced-labor program. The mineral is a key component in electric-vehicle batteries.

Whether that will shape enforcement efforts remains to be seen. Last year, climate envoy John Kerry said the mass atrocities in Xinjiang are “not my lane.

Nevertheless, top administration officials said they are committed to ensuring the law’s full implementation.

“The State Department is committed to working with Congress and our interagency partners to continue combating forced labor in Xinjiang and strengthen international coordination against this egregious violation of human rights,” Secretary of State Antony Blinken said in a prepared statement today. “Addressing forced labor and other human rights abuses in the People’s Republic of China (PRC) and around the world is a priority for President Biden and this Administration.”

World

Germany, Devil, Long Spoon, etc.

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Then-German Chancellor Angela Merkel at a press conference on the second day of a face-to-face EU summit at the European Council building in Brussels, Belgium, May 25, 2021. (John Thys/Pool via Reuters)

With the euro zone heading toward some tough economic times (it’s hardly alone in this, but the currency union’s structural failings have a way of making the bad worse), this report on Germany, the euro zone’s largest economy, might signal grim times ahead.

The Daily Telegraph:

German businesses are set to pay the price for years of reliance on Russian gas, with a new study saying the corporates in the country face soaring bills as Moscow throttles energy supplies.

Companies in Germany are at the greatest risk of default compared with their European counterparts, according to the Weil European Distress Index, which looked at data from more than 3,750 listed companies across Europe….

But what does Angela Merkel, the former chancellor of Germany who presided over the reacceleration of the country’s scrapping of its nuclear power stations and its increasing reliance on renewables and Russian gas, have to say about her handling of relations with Moscow?

Writing in the Financial Times, Constanze Stelzenmüller:

After handing over to her successor Olaf Scholz in December, [Merkel] disappeared from public view, taking winter walks along the Baltic Sea and listening to an audiobook of Macbeth. Six months later — and four months into the war — she is back and clearly intent on protecting her legacy in a series of conversations, speeches and interviews.

Merkel left office of her own will, the only postwar chancellor to do so. She was popular at home and she was admired worldwide as one of Germany’s greatest postwar leaders. Now, Russia’s full-scale invasion of Ukraine on February 24 has cast a dark backwards shadow over her tenure.

Indeed she was admired, greatly so, something that at one level was remarkable (to me, it has long been evident that she was one of Germany’s worst post-war chancellors), but at another not. Whatever her shortcomings, she had immense political skills, and those included knowing how to play to an audience, whether in Germany or beyond it.

Stelzenmüller:

Should [Merkel] not have paid more attention to Putin’s repression of civil society and murders of political opponents in Russia? His poisoning of European politics by means of disinformation and corruption? His careful weaving of a continent-wide web of dependency on Russian gas? His stationing of intermediate-range missiles in Kaliningrad? His increasingly evident imperial ambitions?

Should she not have seen a connection between the assault on Chechnya, with which Putin began his reign at the turn of the millennium, the war with Georgia in 2008 which resulted in that country’s dismemberment at Russian hands, the annexation of Crimea in 2014 and eight years of proxy war in Donbas with 14,000 dead? But those who expected a self-critical examination of her record were disappointed.

“I don’t see that I should now have to say, that was wrong. And I will therefore not apologise.” The literal English translation is clunky, but then so is Merkelish in the original German. The point of the former chancellor’s remarks to a Berlin theatre audience was clear enough: she had nothing to regret.

Merkel contended that she always saw through Putin: “I always knew he wanted to destroy Europe.” Yet she insisted — in a phrase redolent of Bismarckian Realpolitik — that it was important to maintain “a trade connection” with “the world’s second largest nuclear power”.

One commentator branded her comments as appeasement. A second seized on her description of Putin’s war as “a great tragedy” as evidence of fatalistic determinism. Others suggested that Merkel had simply been “the perfect chancellor for a system that had reached its limits”. None of these explanations is entirely off the mark.

What matters, however, is that Merkel’s signature approach to dealing with problems — comprehending them fully, but choosing to manage rather than to resolve them — was shared not just by her various coalition partners, but by the German business community and by voters. It is in line with a longstanding postwar tradition of German leaders framing strategic choices as strategic constraints, thereby evading the appearance of agency or responsibility.

As a recipe for grappling with an unchained totalitarian Russia — and with a future of permanent upheaval and disruption — it is not just futile but reckless.

Too true.

One additional detail from Stelzenmüller’s piece that stands out was a reference to (an apologetic) Sigmar Gabriel. A member of the SPD, Merkel’s center-left coalition partners, Gabriel rose to be foreign minister, but was economic affairs and energy minister at the time that Russia annexed Crimea. Stelzenmüller notes that Gabriel sold Germany’s largest gas-storage facilities to Gazprom after the Kremlin’s seizure of the peninsula.

Now turn back to the Daily Telegraph:

In February, Mr Habeck [Germany’s economic minister] said Gazprom, which operates midstream energy infrastructure in Germany, had “systematically emptied” the country’s gas storage facilities in the run up to the war.

And here we are.

Politics & Policy

WaPo: Cornyn’s Gun-Control Bill Adds Waiting Periods for Under-21s (Updated)

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Senator John Cornyn (R., Texas) attends a Senate Judiciary Committee meeting on Capitol Hill in Washington, D.C., October 22, 2020. (Hannah McKay/Reuters)

UPDATE: The text of the bill has been released, and it appears that the Washington Post‘s report was incorrect. I have published a separate post explaining the full details of this part of the bill here.

Mike DeBonis reports:

If this is correct, the bill is a catastrophe. The Republicans who negotiated this deal — “deal” — may see adding a federal waiting period for under-21-year-olds as a narrow exception to the general rule, but the Democrats will not. Within an hour of that measure becoming law, the Chris Murphys of the world will start calling it the “waiting period loophole” and asking in faux confusion why we apply it to Americans aged 18 to 21 but not to everyone else. And the press, of course, will follow suit.

Worse yet, the GOP will have helped set the precedent that the federal government may micromanage the purchasing process. The 1993 Brady Bill contained a waiting period, but it was valid only until the instant-background-check system was ready, and then it immediately disappeared. This would restore that system for a subset of buyers. At present, the federal government’s role in regulating firearms purchases is limited to running checks. Once expanded, it will be extremely tough to put it back in its proper place. Is that what John Cornyn wants?

The Economy

The Biden Team Whistles Past the Graveyard on Recession Fears

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White House Press Secretary Karine Jean-Pierre speaks during a daily press briefing at the White House in Washington, D.C.., May 16, 2022. (Elizabeth Frantz/Reuters)

There are few good ways for a president or his staff to talk about the economy when the nation is on the precipice of a recession. If a president acknowledges hard reality and concedes that a recession may be imminent, he may inadvertently spur Americans to alter their economic behavior and create a self-fulfilling prophecy. But when the outlook is grim, the president can look naïve, overly optimistic, and out of touch by downplaying the likelihood of a recession.

That’s not a good look in normal circumstances, but it’s terrible for a president who is approaching a likely midterm shellacking, who insisted that inflation would be transitory, that “there’s going to be no circumstance where you see people being lifted off the roof of a embassy in the — of the United States from Afghanistan,” and that he would have to be a “mind reader” to see the infant-formula shortage coming, and so on. Just in time for November, Biden may be telling Americans not to fear a particular dire economic outcome, right before it becomes true.

Yesterday in Delaware, Biden was left to insist that a recession wasn’t inevitable . . .

Q    (Inaudible) in Congress are saying a recession is even more likely than ever.

THE PRESIDENT:  Not — the majority of them aren’t saying that.  Come on, don’t make things up, okay?  Now you’re sounding like a Republican politician. I’m joking. That was a joke. But all kidding aside — no, I don’t think it is. I was talking to Larry Summers this morning.  And there’s nothing inevitable about a recession.

. . . while also trying to tell Americans to look for the silver linings:

And we also — I’m working with our team is — to put together, at the same time — my dear mother used to have an expression: “Out of everything lousy, something good will happen if you look hard enough for it.”

And today, White House press secretary Karine Jean-Pierre had to offer the finely worded argument that the U.S. was not officially in a recession yet: “Right now, we don’t see a recession right now. We’re not in a recession right now. Right now we’re in a transition where we are going to go into a place of stable and steady growth.”

But the country isn’t going to have to wait too long to hear whether it is in recession. A recession is defined as two consecutive quarters of negative GDP growth. In the first quarter of 2022, the U.S. experienced a shrinkage of about 1.5 percent. The U.S. Bureau of Economic Analysis will release the numbers for the second quarter on July 28.

Some of the Federal Reserve banks regularly update their projections for the next quarter’s GDP. And none of the outlooks are particularly cheery.

The Atlanta Fed’s “GDPNow model estimate for real GDP growth in the second quarter of 2022 is 0.0 percent.” Technically that isn’t two quarters of negative growth, but about as close as you can get; most Americans would likely interpret two quarters of no economic growth as a de facto recession.

The St. Louis Fed currently projects GDP growth of “0.0273 percent” in the next quarter — dodging an official recession by the skin of its teeth.

Meanwhile, the New York Fed model offers a particularly grim assessment: “a contraction by 0.6 percent this year, and another 0.5 percent next year, compared with the Fed’s median forecast for 1.7 percent growth this year and next.”

All of these assessments could be wildly off base, but the range of outcomes appears to be extremely small growth to staying flat to another quarter indicating negative GDP growth. This shouldn’t be surprising; the past two and a half months or so have featured runaway inflation, continuing supply chain problems, and about 11.4 million unfilled jobs during a continuing labor shortage. Businesses are nervous about the coming year, and even if they felt confident, expansion and growth are hindered by those skyrocketing fuel costs, supply chain issues, and labor shortages. Maybe the economy will be able to eke out a little growth in the face of these obstacles, but we shouldn’t count on it.

In other words, there is a good chance that we will learn late next month that Biden was declaring “there’s nothing inevitable about a recession,” while the U.S. was in a recession.

National Security & Defense

TikTok Is (Still) Evil

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(Dado Ruvic/Reuters)

It is my considered opinion that TikTok, a fast-growing Chinese social-media app, is evil. And not just because it seems uniquely manipulative of user attention at the algorithm level, tracking user keystrokes and even the amount of time a user lingers on a certain video. Or because, as a result of a soulless algorithmic manipulation excessive even by modern standards, users can be led down dark rabbit holes of drug- and sex-related content very quickly.

All of this is suspect, but questions about the app’s possible connections to the Chinese government should remain paramount. We have asked such questions here before. The stock response is that ByteDance, the parent company of TikTok, maintains separation between TikTok, the American app, and Douyin, the Chinese version; and that the data of U.S. users stay in this country. But a recent BuzzFeed report by Emily Baker-White raises questions about this arrangement.

According to BuzzFeed, though TikTok does not currently store user data in China and is making efforts to store all of it in the U.S. (with backups in Singapore), they can still be accessed by ByteDance employees in China. From the report:

For years, TikTok has responded to data privacy concerns by promising that information gathered about users in the United States is stored in the United States, rather than China, where ByteDance, the video platform’s parent company, is located. But according to leaked audio from more than 80 internal TikTok meetings, China-based employees of ByteDance have repeatedly accessed nonpublic data about US TikTok users — exactly the type of behavior that inspired former president Donald Trump to threaten to ban the app in the United States.

The recordings, which were reviewed by BuzzFeed News, contain 14 statements from nine different TikTok employees indicating that engineers in China had access to US data between September 2021 and January 2022, at the very least. Despite a TikTok executive’s sworn testimony in an October 2021 Senate hearing that a “world-renowned, US-based security team” decides who gets access to this data, nine statements by eight different employees describe situations where US employees had to turn to their colleagues in China to determine how US user data was flowing. US staff did not have permission or knowledge of how to access the data on their own, according to the tapes.

“Everything is seen in China,” said a member of TikTok’s Trust and Safety department in a September 2021 meeting. In another September meeting, a director referred to one Beijing-based engineer as a “Master Admin” who “has access to everything.” (While many employees introduced themselves by name and title in the recordings, BuzzFeed News is not naming anyone to protect their privacy.)

There are all sorts of reasons to find this unnerving. The more worrisome but perhaps less plausible concern is that the data could be accessed directly by the Chinese Communist Party, to which Chinese tech companies are legally subordinate. A more plausible concern is that the CCP could exert a more indirect influence over the platform. “The soft power of the Chinese government could impact how ByteDance executives direct their American counterparts to adjust the levers of TikTok’s powerful “For You” algorithm, which recommends videos to its more than 1 billion users,” as Baker-White puts it. This is unsettling for all sorts of reasons, chief among them that, apparently, “Zoomers” (the generation after my own, for whom I am thus obligated to have some contempt) get a lot of their opinions, information, and general awareness from TikTok. Writing on his Substack earlier this year, Matt Yglesias said that this level of cultural power was equivalent to “if the Brezhnev-era Soviet Union had decided to plow some of its oil export profits into buying up broadcast television stations across the U.S.”

Yglesias notes that the FCC would not have permitted this. And yet, here we are with TikTok. Late in former president Donald Trump’s term, he attempted to force a sale of TikTok to a U.S. company; early in his term, President Joe Biden abandoned this effort. And so TikTok faces no competition even from a government-revived (for national-security reasons) Vine. Until government action is taken against this app, the best we can do is be wary of it.

(And definitely keep kids off of it.)