International

Passing the Euro

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Outside of Germany’s Constitutional Court headquarters in Karlsruhe, Germany, in 2016. (Ralph Orlowski/Reuters)

The efforts by the German constitutional court (the BVG) to avoid giving much practical meaning to its (profound) theoretical clash with the European Court of Justice continues.

Reuters:

BERLIN (Reuters) – The decision on whether Germany should pull out of the European Central Bank’s bond-buying programme lies with the Bundesbank, a judge in Germany’s highest court said in remarks published on Sunday.

Germany’s Constitutional Court ruled in May that the ECB overstepped its mandate with over 2 trillion euros of government bond purchases, ordering the Bundesbank to quit the scheme unless the ECB can prove proportionality within three months.

Peter Huber, a conservative judge at the court who drafted the ruling, told the Frankfurter Allgemeine Zeitung that the court was no longer involved and the decision on whether to quit rested with Germany’s central bank.

“The Bundesbank is bound by our decision, but it must determine on its own responsibility whether the ECB’s statement of reasons fulfils our requirements or not,” Huber said. “The Federal Constitutional Court is no longer involved.”

The ruling set off an unprecedented legal conflict with a national court looking to exert jurisdiction over an institution of the European Union and trying to curtail its policy framework, seen as an encroachment on ECB independence.

In a compromise deal, the ECB agreed last week to give vital documents underpinning its policy decisions to Bundesbank chief Jens Weidmann, who can then present them to the German parliament and government, as demanded by the court ruling.

It is highly likely that the Bundesbank will be “satisfied” by those “vital documents”

Meanwhile, the next chapter in the long battle over efforts to stabilize the euro zone (along with an attempt to sort out a new EU budget, now that the U.K., a large net contributor, has left), will be dominated by pushing and shoving ahead of a summit due for July 17/18.

France 24:

“Myriad talks” remain to be held, Merkel told a joint news conference with Macron. “We hope we can find a solution, even if there is still a long way to go.”

The French and German leaders have urged the European Union to reach an agreement on a recovery plan by the end of July to kickstart an economy battered by the coronavirus pandemic. Macron and Merkel sketched out the backbone of the €750 million ($840m) fund proposed by the European Commission to bolster the bloc’s economy.

The fund would offer grants – with no repayment obligation – to countries hardest hit by the pandemic, a major policy U-turn for Berlin and a bitter pill to swallow for the bloc’s most fiscally conservative members… Macron reiterated his position that a deal on the EU budget and recovery fund could be found at the July summit. He said the fund should include €500 billion of grants to the hardest-hit countries…. Merkel, who had initially rejected a proposal by Macron for a recovery fund, dropped Germany’s long-held opposition to mutualising debt to fund other member states when it became clear that the pandemic was an existential threat to the EU.

Scroll back a few days to an article in the Financial Times, which summarizes where the ‘northern’ countries — led by the Netherlands — stand, at least, on the coronavirus rescue package:

One of the key topics exercising Mr Rutte is the strings that could be attached to the proposed recovery fund cash. After last week’s summit, the Dutch prime minister stressed that recipient countries would have to carry out root and branch overhauls of their economies with the cash they receive from the fund.

“We want to see follow through and deep reforms to pensions, labour markets, judicial systems and taxation. We want to help others, but the others have to make sure they get their houses in order,” Mr Rutte told journalists after the virtual summit.

Talk of conditions is profoundly unpopular among southern member states. But the need for reforms is a neuralgic issue for the Dutch and their hawkish allies. Having signed off on unpopular bailouts during the height of the eurozone’s sovereign debt crisis a decade ago, the quartet of richer countries are determined to make sure that unprecedented amounts of aid offered under the recovery fund won’t come for free and will really make a difference in the EU’s weakest member states.

The Dutch (and the other three members of the “frugal four”) are dreaming. In the end, they will cave. They always do.

The FT’s report ends as follows:

[S]ome diplomats are already talking about when a follow-up summit — or summits — will have to take place. A long summer of budgetary wrangling lies ahead.

This will not be sorted out in mid July.

Law & the Courts

Why Conservative Opinions Are Weird

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Supreme Court justices Neil Gorsuch and Brett Kavanaugh at the Capitol in Washington, D.C. February 5, 2019. (Doug Mills/Pool via Reuters)

There will be much good and astringent commentary on today’s Supreme Court decision striking down Louisiana’s modest attempts to regulate abortion clinics like any other medical provider.

But one of the most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of substance and form. The legal conservative movement was initially organized around substantive opposition against the Warren Court. But legal conservatives used the language of form to address those substantive concerns.”

That is, the Left has a substantive view of equality. The Right opposes that vision substantively, but the conservative legal movement only tries to do so indirectly. Instead of reasoning that abortion is totally unjust and violates something like the 14th Amendment, conservative jurists do their part by restoring culture-war questions to democratic institutions like legislatures (which do not want them).

I think this mismatch is why conservative or “moderate Republican” opinions on the controversial culture-war stuff are often the strangest opinions to read.

For a good long time now, rulings by Justices Breyer or Ginsburg read rather straightforwardly, even for those who don’t like them. They have a substantial view of justice in mind — call it Equality. And they move from the particulars of the Supreme Court case in front of them, to other cases that contain mere glimpses and foreshadowings of the full-flowered progressive view they will enshrine and expand in their current ruling. They aren’t short of examples because they are drawing on other jurists who put this substantive view of justice into their rulings. They go beyond the text of the statutes but not beyond their principles.

By contrast, it’s the conservatives who don’t just give us surprise rulings, but surprise reasonings. Two weeks ago, we had Gorsuch’s deeply weird argument that sexual orientation and gender identity discrimination are just sub-species of discrimination based on sex, therefore we can credit President Johnson with forbidding discrimination against Caitlyn Jenner. Or John Roberts’s opinion this morning, investing a Burkean respect of the ancient in a precedent he rejected as spurious just three years ago. Or there was his previous opinion that just flatly rewrote Obamacare’s penalties as taxes.

Roberts is said to always be acting to defend the Court’s reputation. But it’s precisely these strange and arbitrary applications of precedent and bald attempts at rewriting history that give credit to the sophists in our commentariat and universities that all invocations of principle are merely self-interested “discourses of power.”

Markets

Golden Years Ahead? Probably Not

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People line up outside a temporary unemployment office at the State Capitol Annex in Frankfort, K.y., June 17, 2020. (Bryan Woolston/Reuters)

It’s a statement of the obvious that savers — many of them retirees — unwilling to be pushed into the stock market, have been badly hit by the ultra-low interest rates that have been the norm since the financial crisis, but their effect on dreams of a comfortable retirement won’t stop there.

The Financial Times:

A decade of historically low interest rates since the financial crisis has put even more pressure on pension systems. This is particularly true for corporate and public sector “defined benefit” pension plans — which promise a certain payment to members….

Moreover, the investment outlook has become more complicated for all types of private and workplace pension plans. Central banks have indicated that savers could face another prolonged period of ultra-low interest rates as they try to foster an economic recovery, while a string of blue-chip companies have been forced to cut their dividends as a result of the crisis….

The crisis is also exacerbating funding challenges for traditional defined benefit retirement plans, which promise to pay a secure, indexed retirement income to hundreds of millions of beneficiaries around the world in the private and public sectors.

The sponsors of these plans take on the investment risk for payment of the pension, and are required to make contributions to plug funding gaps.

Both private and public plans were already feeling pain from the protracted low interest rate environment since the 2008 crisis. Pension liabilities are sensitive to movements in interest rates, and typically inflate when interest rates fall…

Bond investments have historically been the bedrock of most pension funds. But with yields sagging lower for an extended period of time, many fund managers have ventured into riskier corners of financial markets.

“One trend that has been disturbing is that over time many pension funds have adopted riskier and riskier investment strategies to compensate for the secular decline in interest rates,” says Seth Magaziner, general treasurer for Rhode Island state in the US. “That made them vulnerable to shocks.”

What could go wrong?

Read the whole thing, stiff drink, ideally, in hand.

Law & the Courts

Two Takes on June Medical

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United States Chief Justice John G. Roberts (Jim Young/Reuters)

Like everyone around these parts, I’m disappointed that John Roberts cast the deciding vote to strike down an abortion law, continuing to apply a precedent he himself thinks was wrongly decided. Here I just wanted to note two interesting takes I’ve seen elsewhere.

First, at the Cato Institute’s blog, Ilya Shapiro notes that Roberts has not always been so deferential to precedent:

After all, stare decisis didn’t stop him from overturning precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Knick v. Township of Scott (2019), cases in which the precedent was much older and more entrenched, but a very recent close decision in which he dissented apparently carries more weight. There are probably other examples, but those three come immediately to mind.

Mind you, I think Roberts was correct in all those earlier cases, and his concurring exposition of stare decisis in Citizens United was well done. But that doesn’t jibe with what he wrote today or, for that matter, with his vote in Gonzales v. Carhart (2007), which upheld the federal ban on partial‐​birth abortion a mere seven years after the Court invalidated a similar Nebraska ban in Stenberg v. Carhart (2000).

Meanwhile, at the Take Care Blog, Leah Litman has an optimistic (for conservatives) take. As she reads Roberts, he’s doing what the Court did in 1992’s Casey: Laying out a new framework for evaluating abortion restrictions. She writes:

The Chief said that he would respect the result of the Court’s prior decisions striking down abortion restrictions. Thus, states cannot enact restrictions that the Court has previously invalidated. But the Chief Justice also made clear that he would narrowly read the reasoning in those prior decisions in ways that gave states license to enact abortion restrictions that the Court has not previously invalidated.

The Chief Justice announced that he would weaken the legal standard governing abortion restrictions in at least two significant respects. One is that he will not examine whether a law offers any health or safety benefit to women seeking abortions.  The Chief Justice explained that in his view, the proper legal standard governing abortion restrictions requires only that courts examine the burdens that legal restrictions impose, and not whether the restrictions offer any benefits. . . .

The Chief Justice also rejected other elements of the Court’s prior decisions that limited states’ ability to enact restrictions on abortion.  The Chief wrote that “[n]othing … suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.” That is not what the Court said when it invalidated the Texas admitting privileges requirement four years ago.  In that case, the Court wrote that courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer” and specifically “weigh[] the asserted benefits against the burdens.” Here too, if courts allow states to enact laws that offer no medical benefits compared to their burdens, that gives states license to chip away at abortion through restrictive laws.

I have no idea if this is the correct reading of the tea leaves, but let’s start chipping and find out.

Elections

Does Anyone Fear a Candidate Who’s Sleepy?

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Obviously, if Trump is going to win in November he’s going to have to disqualify Joe Biden, which is going to be much harder than it was with Hillary. Check out the poll numbers in here:

“We need to be demonizing him,” said a Republican lawmaker who talks regularly to Trump. The lawmaker said “Sleepy Joe” sounds harmless, congenial and low key. “Sleepy probably sounds nice to a lot of people right now, with everything that’s going on,” he said.

  • In April’s NBC/WSJ poll, only 25% of voters held a “very negative” view of Biden. In the NBC/WSJ poll of April 2016, meanwhile, 42% of voters held a “very negative” view of Hillary Clinton. Trump’s figure is similar to Clinton’s — around 43% of voters today say they hold a “very negative” view of him (53% were “very negative” on Trump in April 2016).
  • In recent days, Trump has sought to cast a more sinister light over Biden, replacing “Sleepy Joe” with “Corrupt Joe,” the Washington Post first reported.

Behind the scenes: Trump’s aides say it will be harder to make Biden widely despised than it was with Clinton, who was a conservative media target for decades.

  • “You’re not going to make Joe Biden hated personally,” said a source involved in the internal discussions. “You can’t do it through personality.”
  • So they will try to argue that he wouldn’t really be in charge. “You’ve got to make it so that a vote for Joe Biden isn’t a vote for Joe Biden, it’s really a vote for his radical left-wing puppet masters,” the source said.
Elections

What Would Trump Do with a Second Term?

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At the moment, not only does no voter know the answer to that question, Trump himself has no idea, either.

From an exchange with Sean Hannity last week:

Hannity: Let’s talk about a second term. If you here in 131 days from now at some point in the night or early morning, “We can now project Donald J. Trump has been re-elected the 45th president of the United States” — let’s talk. What’s at stake in this election as you compare and contrast, and what are your top priority items for a second term?

Trump: Well, one of the things that will be really great: you know, the word experience is still good. I always say talent is more important than experience. But the word experience is a very important word, a very important meaning. I never did this before, never slept over in Washington. I was in Washington, I think, 17 times and now I’m the president of the United States. I’m riding down Pennsylvania Avenue with our first lady and say this is great but I didn’t know very many people, it wasn’t my thing. I was from Manhattan, from New York. Now I know everybody. And I have great people in the administration. You make some mistakes like, you know, an idiot like Bolton. All he wanted to do is drop bombs on everybody. You don’t have to drop bombs on everybody. You don’t have to kill people.

Law & the Courts

Kurt Russell, Call Your Office

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I saw this video on Twitter of police responding to a shots-fired call in Harlem and hesitated to tweet about it because I wondered how it could be real. Frighteningly, it was:

Law & the Courts

Roberts vs. Burke

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Chief Justice John Roberts presides during the final votes in the Senate impeachment trial of President Trump in the Senate Chamber at the U.S. Capitol in Washington, D.C., February 5, 2020. (U.S. Senate TV/Handout via Reuters)

Chief Justice John Roberts concurred with the Supreme Court’s liberals today in June Medical Services v. Russo, overturning a Louisiana law that imposed on abortion providers the same modest requirement imposed on all ambulatory care clinics in the state—that they have admitting privileges at a local hospital. He did so, he said, because the case was very similar to the case of Whole Woman’s Health v. Hellerstedt, in which the Court overturned a similar Texas law four years ago. Roberts was actually a dissenter in that earlier case, and said today that he continues to believe that case was wrongly decided. But he still thought it should apply simply as a precedent.

“The question today,” Roberts wrote, “is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” The answer should be ‘yes,’ he insisted, on the basis of the principle of Stare Decisis, by which prior decisions of the Court are adhered to by default absent strong reasons to regard the underlying matters differently. To defend this particular application of Stare Decisis, Roberts pointed to several venerated voices, including Alexander Hamilton (in Federalist 78) and a number of prior decisions of the Court. But he began these references to sources with Edmund Burke, writing of Stare Decisis that:

This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).

Justice Clarence Thomas, in his dissent, took proper umbrage at this abuse of Burke, writing:

THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to “‘the general bank and capital of nations and of ages.’” Ante, at 3 (quoting 3 E. Burke, Reflections on the Revolution in France 110 (1790)). But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions—or Whole Woman’s Health, decided just four Terms ago—are part of the “inheritance from our forefathers,” fidelity to which demonstrates “reverence to antiquity.” E. Burke, Reflections on the Revolution in France 27–28 (J. Pocock ed. 1987).

He’s right, of course. But there’s a more basic problem with the Chief Justice’s resort to Burke. In the passage Roberts cites (as well as the one that Justice Thomas cites), Burke is talking about judgments made by statesmen, not by judges. And it’s not as though he never expressed any views about how judges should think about precedent. That’s actually a subject Burke took up explicitly (as my friend Jeremy Rozansky points out in a forthcoming essay), especially during the years of the trial of Warren Hastings.

Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:

They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.

The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.

A sophistic abuse of a barely-relevant quotation is obviously the least of the problems with Roberts’s concurrence. But it is indicative of the broader sophistry of the whole. Precedent is very important, in the work of a judge as well as in the work of a political leader. But it can’t just be used as an excuse to avoid responsibility, in either case. Only when we see that can we expect to live in “good and constitutional times.”

Health Care

Employers Must Embrace Viral Testing, Not Temperature Screening

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A self-driving robot checks a body temperature during a demonstration at the headquarter of SK Telecom in Seoul, South Korea, May 26, 2020. (Kim Hong-Ji/Reuters)

Few trends better highlight our desperate need for reassurance than the nearly universal installation of temperature checks in ever more workplace environments. The approach is quick, easy, cheap, and occasionally high-tech, in some cases generating futuristic thermal images that resemble something from Predator.

There’s just one problem: The approach doesn’t really work.

As Dr. Rajaie Batniji, a Stanford physician and co-founder of Collective Health, which focuses on employer health benefits, recently wrote:

“Temperature screening provides false assurance to employees entering the workplace. One recent study showed that about 70% of patients sick enough to be hospitalized for Covid-19 did not have fevers. Coupled with the fact that most people infected with the coronavirus do not have symptoms, screening for temperatures will miss at least 86% of infected individuals, and likely miss an even higher percentage.

A ‘barrier’ that allows nearly 9 in 10 infected individuals to enter a workplace or business is not one that should be used to provide reassurance to employees.”

Yet temperature screening seems to be just what many employees are requesting, in order to feel more secure in their workplace. When a large health-care company recently surveyed its workers about what would make them comfortable to return to work, the No.1 item was the institution of daily temperature checks.

In other words, temperature checks seem to function essentially as placebos, helping the users feel better, but not actually doing much good, and potentially making things worse by conveying a false sense of security to workers.

The best approach, not surprisingly, is testing for the virus itself — basically what the White House seems to be doing on a daily basis.  This approach, Batniji estimates, has just a 2 percent chance of missing infected workers. The catch, of course, is the cost, especially when you think about how frequently one might need to test; ideally, as Batniji suggests, this would be “based on local epidemiology of COVID-19, personal and workplace risk factors.” By “tracking symptoms and contacts, employers can calibrate how often they need to test workers to greatly reduce the risk of workplace transmission.”

The use of “pooled testing” is another approach apparently under active consideration by the Administration, according to recent comments by Anthony Fauci; this scheme aims to balance the benefits of virus testing with the costs by testing samples in batches (say 20 or 25 at a time), and then only doing individual tests on those in a positive pool.

America is eager to return to work, to school, to life — but we remain concerned about the very real risk of the virus, as both opinion polls and recent case spikes have reminded us. Wishing the virus away has not proved a viable approach either.  Relying on temperature screening isn’t much better.  The enemy here isn’t the perception of a pandemic — it’s the reality of one.

If we’re to durably achieve an economic recovery, employers will need to embrace –and employees demand — authentic solutions, like viral testing, rather than deceptive, feel-good measures, like temperature checks.

Science & Tech

Was SARS-CoV-2 Floating around Barcelona in March 2019? Probably Not, But . . .

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This not-yet-peer-reviewed study, looking for the coronavirus in wastewater samples, is generating a lot of double-takes in surprise, with the surprising suggestion that SARS-CoV-2 virus might have been circulating in Barcelona, Spain as early as March 2019:

This possibility prompted us to analyze some archival WWTP samples from January 2018 to December 2019 (Figure 2). All samples came out to be negative for the presence of SARS-CoV-2 genomes with the exception of March 12, 2019, in which both IP2 and IP4 target assays were positive. This striking finding indicates circulation of the virus in Barcelona long before the report of any COVID-19 case worldwide. Barcelona is a business and commerce hub, as well as a popular venue for massive events, gathering visitors from many parts of the world. It is nevertheless likely that similar situations may have occurred in several other parts of the world, with circulation of unnoticed COVID-19 cases in the community.

(Yes, wastewater treatment plants keep frozen samples of the water going back quite some time. This pandemic teaches us new and often unsavory things every day.)

But some virologists aren’t quite convinced. The study declares, “Both IP2 and IP4 target assays were positive.” IP2 and IP4 refer to particular sequences within the virus gene, called RdRp targets. RdRp is short for “RNA-dependent RNA polymerase,” which is an enzyme that is necessary for the virus to reproduce. In the virus that causes COVID-19, the Institut Pasteur in Paris identified three separate sequences in IP2 and three sequences in IP4.

The samples in Barcelona might be evidence of SARS-CoV-2, or it may be evidence of a largely-but-not-entirely genetically similar but distinct virus floating around the city in March 2019.

Even a small percentage of difference in a genetic code can turn out to be significant. Chimpanzees and bonobos are about 98.7 percent genetically similar to human beings. Another virus found in horseshoe bats in China is 97.2 percent similar to SARS-CoV-2 — but scientists don’t think it is likely to infect human cells, which for humanity is a pretty key difference!

As for the notion of whether the virus was floating around residents Barcelona in January, well before the first announced case February 25, that seems pretty plausible, particularly in light of the confirmed report that a man in France caught the virus in December. It is believed he caught it from his wife, who worked at a supermarket near Charles de Gaulle airport and could have come into contact with people who had recently arrived from China. Travelers from China in December and early January could well have started the spread of SARS-CoV-2 well before doctors in Spain realized that it was a novel coronavirus.

Politics & Policy

Us ’n’ Them

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President Donald Trump speaks at a campaign rally in Charlotte, N.C., March 2, 2020. (Lucas Jackson / Reuters)

Today on the homepage, I have a brief essay called “The Curse of Identity Politics.” It was motivated by two events yesterday.

Early in the morning, President Trump circulated a video in which a supporter of his yelled “White power!” twice. Later, he took it down. Shortly after the original posting, I went for a walk in a New York City park and happened upon a fierce racial battle (verbal).

Let me relate a few memories, here on the Corner.

The first goes back only to last month — when Trump said, “‘MAGA’ is ‘Make America Great Again.’ By the way, they love African-American people. They love black people. MAGA loves the black people.”

That gave away rather a lot, I thought.

And during the 2016 campaign — at a rally in California — there was that remarkable moment when Trump pointed to a man in the crowd and said, “Look at my African American over here!”

I am a dinosaur, as critics tell me every day (critics on left and right). I believe in the old colorblind faith (although I am hardly naïve, and getting less so by the day). I believe in “We hold these truths to be self-evident, that all men are created equal.” I believe in E pluribus unum.

All that gooey, quaint stuff.

But it is obvious that people want their tribalism, or need it — or are driven to it by something primal. Something “baked in.” I should leave this discussion to the biologists.

Many years ago, I gave a talk at Yale, in which I criticized identity politics and made a pitch for the old ideals. Afterward, I was approached by a young woman: cheerful, bright, and heartbreakingly beautiful. She said she was a Hispanic — a Latina — and that was it. It was her identity, and she wanted it.

What can you do? People are “free to choose,” to borrow an old line.

But let me qualify this — and do so by quoting a paragraph from my piece today:

Some individuals and some groups have tribalism forced on them, at least to a degree, by the tribalism of others. That must be acknowledged. If Smiths are constantly running down Joneses, people named “Jones” are going to feel like Joneses — are going to “identify” that way.

What I know, more than ever, is that leadership matters. We like to think of ourselves as a bottom-up society, not a top-down one. We are a nation of individuals, and little platoons. I don’t know. It seems to me that people take their cues from leaders, for better or worse. Leaders can summon angels: better ones or worse ones.

“Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try,” said James Mattis earlier this month. (He is the retired Marine general who served as Trump’s first secretary of defense.) “Instead, he tries to divide us.”

I don’t know about “first president in my lifetime.” But it is certainly true that Trump plays us-and-them politics, as everyone does, to a degree. The question is: What is the degree? Way out there?

As I say in my essay, I know conservatives who refer to “our people.” They mean what some designate as “the white working class,” by and large: good people in the “red states,” unlike bad people in the “blue states,” who attend cocktail parties.

President Obama was no slouch as a divider. In 2012, he ran an ad against the Republican nominee that went, “Mitt Romney. Not one of us.” Can’t get starker than that, can you?

Today, Romney is a bête noire of the Right, not of the Left. Political alignments are in frequent motion. They can change faster than the New England weather.

On the subject of identity politics and tribalism, I’m resigned. People want what they want, whether their genes drive them to it or not. But I am not quite defeated. I believe that life can be breathed into E pluribus unum, by people willing to swim against tribalist currents.

I have titled this post “Us ’n’ Them.” I think back to a wonderful moment in the mid 1990s. William J. Bennett gave an interview to The New Yorker. He was criticizing Patrick J. Buchanan, saying that Buchanan was “flirting” with fascism. In the course of describing Buchanan’s worldview, Bennett said, “It’s a real us-and-them kind of thing.”

When the article came out, it had Bennett saying, “It’s a real S&M kind of thing.” The magazine had to run a correction.

Over time, the Republican Party — and the conservative movement along with it — was Buchananized. “The ideas made it,” Pat told Tim Alberta in early 2017, “but I didn’t.”

More Memory Lane? One final jaunt? On October 24, 1999, Tim Russert said to his guest on Meet the Press, “Tomorrow, Pat Buchanan is announcing that he will be a candidate for the presidency.” The guest said, “I just think it’s ridiculous.” Russert asked, “Why?”

“Because — look, he’s a Hitler-lover,” said the guest. “I guess he’s an anti-Semite. He doesn’t like the blacks, he doesn’t like the gays. It’s just incredible that anybody could embrace this guy. And maybe he’ll get 4 or 5 percent of the vote and it’ll be a really staunch, Right-wacko vote. I’m not even sure if it’s Right. It’s just a wacko vote. And I just can’t imagine that anybody can take him seriously.”

The guest, of course, was Donald J. Trump. Isn’t politics absolutely amazing?

Law & the Courts

June Medical Is Another Disappointment for Pro-Lifers

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In a 5–4 decision, the Supreme Court has ruled in favor of abortion providers in June Medical Services v. Russo, striking down a Louisiana law that required abortionists to maintain admitting privileges at a local hospital in order to perform abortions. In doing so, the majority has upheld flawed precedent and permitted abortionists to continue benefiting from an enormous loophole, ignoring the health and safety concerns at stake for women seeking a surgical abortion.

Louisiana’s law aimed to bring abortion clinics into compliance with all other ambulatory surgical centers in the state, where health-care providers already are required to maintain admitting privileges. According to the Supreme Court’s majority opinion, applying that same policy to abortion providers is an unacceptable infringement on a woman’s supposed constitutional right to an abortion — in short, they have widened the gaping loophole that already exists for any policy related abortion, what the late Justice Antonin Scalia called the judiciary’s “abortion distortion.”

The majority opinion was written by Justice Stephen Breyer, and Chief Justice John Roberts penned a concurrence in which he insisted on the importance of stare decisis, arguing that because the Court struck down a similar admitting-privileges law in Texas in the 2016 case Whole Woman’s Health v. Hellerstedt, it was bound by precedent to strike down the Louisiana law as well.

Though I don’t have the legal acumen of some of my colleagues, I think it’s quite obviously the case that the Court is empowered to overturn bad precedent, and that it’s easier to do so the more recently those bad precedents were decided. One reason I thought there was a chance Roberts would take June Medical as an opportunity to vote with a slim majority and overturn Hellerstedt was the simple fact that he himself dissented from it quite strongly at the time. But apparently, in his view, even a wrongly decided case must stand and must be applied to future cases simply for the sake of upholding precedent.

It is worth noting, too, that there were relevant distinctions between the Louisiana law and the Texas law struck down in Hellerstedt, the most important of which is that, as Louisiana officials ably illustrated, the enforcement of its policy would not result in the closure of any of the state’s abortion clinics, as had been the case in Texas. Pro-life advocates believed this might alleviate the Court’s concerns that the policy would impose an “undue burden” — in the vague language of Planned Parenthood v. Casey (1992) — on women seeking an abortion.

Finally, as Justice Clarence Thomas pointed out in his excellent dissent, the majority opinion almost entirely ignored a second key question at stake in June Medical. While the case primarily concerned the constitutionality of Louisiana’s admitting-privileges law, the Court also agreed to consider whether abortion providers have standing to challenge regulations on behalf of women. As Louisiana argued compellingly, the interests of abortionists and women actually don’t align perfectly, and are quite often at odds, especially because of the financial incentive to perform abortions, no matter the risk to women.

“The plurality and the chief justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents,” Thomas wrote. “But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

Just so.

Politics & Policy

The Silent Majority Must Sing

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(Pixabay)

We’ve gone from protests, to riots, to autonomous zones, to attacks on police, to calls to abolish the police, to the destruction of statues, to the defacing of our most sacred memorials. Who knows; calls for the destruction, replacement, or renaming of the Washington Monument and the Jefferson and Lincoln Memorials may be next. It’s time to push back on what has morphed into a comprehensive assault not only on America itself, but on the very conditions of social peace.

Yet people are afraid to push back, chiefly because they are afraid of being called racist. The racism charge — wildly expanded to cover the entire American “system” — is the shield behind which an agenda of anarcho-socialist transformation now advances. No proposal is too outrageous to float, so long as opponents can be tarred as racists for rejecting it.

The way to turn this around is to sing. Specifically, the way the push back is to sing the “Star-Spangled Banner.” Activists are now proposing to replace the “Star-Spangled Banner” with John Lennon’s “Imagine.” They say that if a tradition “hurts any part of society” we should “just throw it away.” It doesn’t seem to have occurred to them that an anti-national anthem that rejects the deeply held religious views of countless Americans, the rights of her property owners, the life’s work of her entrepreneurs, indeed the very existence of America itself, might “hurt some part of society.”

My book, The Lost History of Western Civilization, begins with a discussion of Lennon’s “Imagine.” Lennon’s song is more than a popular anthem now sung at the dropping of the ball on New Year’s Eve in New York City’s Times Square. It is also the veritable program of the academics who have for decades rejected not only America, but Western civilization itself. As I show in the final part of the book, the program of Lennon’s “Imagine” is behind the race-obsessed thought-policing that has so dangerously seeped out of the campus and into our culture. In effect, the struggle between “Imagine” and the “Star-Spangled Banner” has become the politics of our day.

We should start singing the “Star-Spangled Banner” to show that we reject the dangerous anti-American turn of the movement led by Black Lives Matter. Yes, black lives — like all lives — do matter. Unfortunately, the organization that goes by that name has been using the noble desire of Americans to condemn racism as a cover for its outrageous and destructive agenda.

If you happen to be strolling by alone while an angry crowd is defacing a statue, I suppose it would be prudent to think twice before breaking into the national anthem. A larger crowd of onlookers could do it, however. Crowds in our reopened restaurants could certainly start singing our national anthem. In Italy, people managed to sing together on lockdown. Zoom videos of groups singing the “Star-Spangled Banner” might make a nice reply to movie-stars singing “Imagine.” Trump voters will be all in on this, but Never Trumpers and moderate Democrats should join as well. Surely they don’t hold with the folks who are pulling down statues of George Washington, Abraham Lincoln, Andrew Jackson, and Ulysses S. Grant. Democrats traditionally celebrate the founding of their party with Jefferson-Jackson dinners, after all.

The bipartisan nature of this proposal notwithstanding, I suppose there’s a danger here of “politicizing” our national anthem. Unfortunately, that ship has sailed. And singing our national anthem is the best way to push back. It is powerful — as anyone who has watched Casablanca will know — yet it is also positive and peaceful.

No doubt there will be instances when a group singing the “Star-Spangled Banner” is drowned out by a larger (and likely much younger) group singing “Imagine.” Some of our citizens may already be that far gone, sad to say. But if that’s so, we need to know it.

In the end, and overall, I’m betting the “Star-Spangled Banner” will win. And why not try following the “Star-Spangled Banner” with “America the Beautiful,” “God Bless America,” “My Country ‘Tis of Thee,” and “God Bless the U.S.A.” There’s a generation or two out there that’s barely heard any of these songs. It is time they did.

Education

Research Universities Have a Duty to Reopen — but to Do It Smart

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So argues Buck Goldstein, who is “entrepreneur in residence” at UNC-Chapel Hill and also a professor in the economics department. The Martin Center’s Shannon Watkins recently interviewed Goldstein to get his thoughts.

He said:

We have a unique community, I would say it’s a somewhat closed community, and we have the ability to punch a bunch of different buttons in an attempt to learn more about how people can live in a community within the context of the virus. Here at Chapel Hill, we also have an extraordinary group of scientists, epidemiologists, and specialists in all of the issues connected with the virus — and so I think we all believe that we ought to try.

But how can UNC or any other university make sure that it isn’t putting anyone at risk? Goldstein admits that there are still plenty of unknowns. Referring to a seminar he teaches, Goldstein says,

What’s an appropriate room and setting for a seminar of 25 students if they’re going to be meeting in person? Do they need to be six feet apart? They certainly need to be wearing masks. Or could they be three feet apart? If they’re six feet apart, then how big does that room have to be? Should the seminar be meeting in person all the time or part of the time online through Zoom?

Goldstein also agrees with many who forecast that numerous colleges and universities won’t survive COVID-19, but thinks that the damage will be worse if schools try to continue as they have been since March when the crisis broke.

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