Category: reason

Last week, I reported on two myths about socialism. My new video covers three more.

Myth No. 3: Socialism works if it’s “democratic.”

As the Democratic Socialists of America put it, “Society should be run democratically—to meet public needs, not to make profits for a few.”

Sounds nice. If socialists are elected, then we’ll have a more just society.

But Venezuela’s socialists were elected.

“They can start off democratically elected,” says economist Ben Powell, director of the Free Market Institute at Texas Tech, but “once they centralize control over the economy, it becomes impossible to ‘un-elect’ them.”

Hugo Chavez was elected but became an authoritarian who chose his successor, Nicolas Maduro. Maduro now gets “elected,” by having opponents arrested and “ordering state employees to vote for him or they lose their job,” says Powell.

“Socialism always becomes authoritarian?” I ask.

“Everywhere you try socialism, that’s what you get,” he replies. “It’s hard to exercise political freedom if you don’t have economic freedoms. If you’re dependent upon the state for your livelihood, you lose your ability to use your voice to oppose [the state] because you can be punished.

And if the state directs the economy, some government department must manage millions of production decisions and prices. That never works. No bureaucrat can anticipate the needs and wants of millions of people in different places. No politician can match the wisdom of decentralized entrepreneurs making subtle adjustments constantly.

Celebrities like Rosario Dawson, Susan Sarandon, and Danny DeVito star in videos selling “democratic” socialism as “public schools” and “interstate highways.”

They are not wrong. “Some industries are government-owned,” replies Powell, but “when you look at things that are inefficiently done—public education, our congested streets,” it’s clear “socialized industries don’t work well.”

“They do in Scandinavian countries!” say socialism’s promoters.

That’s myth No. 4.

Scandinavia does have big welfare programs, but capitalism pays for them.

The socialists call Sweden socialist, but that’s just wrong. “Volvo is a private company,” says Powell. “Restaurants and hotels are privately owned. Markets organize the vast majority of Swedish economic activity.”

Sweden did once try socialism. The result was high taxes, inflation, and economic decline. It’s an example of how people in prosperous places often don’t know what made their lives better.

In 1950, Sweden was the world’s fourth-richest country. Then Sweden tried socialism. Suddenly, once industrious Swedes started taking sick days. Wealth creation stopped.

“Talent and capital stormed out of Sweden to escape taxes and red tape,” writes Swedish historian Johan Norberg. “Businesses moved headquarters and investments to more hospitable places. IKEA left for the Netherlands…Bjorn Borg and other sports stars fled to Monaco.”

Sweden recovered only when it ended its socialist experiment. They cut taxes, government spending, and sold state-owned businesses.

After economically ignorant politicians like Bernie Sanders called Scandinavia “socialist,” Denmark’s prime minister even came to America to say: “Denmark is far from a socialist planned economy. Denmark is a market economy.”

In fact, in rankings of economic freedom, Denmark ranks as more free market than the United States.

Myth No. 5: Socialism is completely different from fascism.

In Congress, Rep. Louie Gohmert (R–Texas) called Hitler a “socialist.” Rep. Steve Cohen (D–Tenn.) took offense, shouting, “It’s the Nazis that were terrible, not the socialists!”

But Nazis were “national socialists.” There are differences between fascism and socialism, but “both replace market decision-making with command and control,” says Powell. Fascism “leaves private ownership in nominal terms” but neither system allows individual freedom. “You lose…control over your own future. Only under capitalism do you have the freedom to say, ‘No.'”

Socialism appeals to people today because it promises “equality and social justice,” but look at its track record. In Russia, Cuba, North Korea, Nicaragua, Vietnam, and China, socialism has meant a loss of freedom.

Socialist experiments also failed in Israel, India, Great Britain, Afghanistan, Syria, Algeria, Cambodia, Somalia, etc. There are no socialist success stories.

Only capitalist countries create real wealth.

“The history of humanity is poverty, starvation, early death,” Powell points out. “In the last 20 years, we’ve seen more humans escape extreme poverty than any other time in human history. That’s because of markets!”

Yet, millions vote for socialism.

COPYRIGHT 2021 BY JFS PRODUCTIONS INC.
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“It was my understanding that I was to do the treatment, then be released,” says Mike Whipple, who recently participated in a 14-day hunger strike at the Minnesota Sex Offender Program’s facility in Moose Lake. “Twelve years later, I’m still here, doing the same thing, over and over and over.”

So far the civil commitment program has incarcerated Whipple three times longer than the prison sentence he served. The hunger strike, which involved a dozen of the program’s 737 “clients,” ended last week after state officials promised meetings where protesters could air their complaint that there is no “clear pathway” to release from their indefinite confinement. But those meetings surely will not resolve the fundamental problem with programs like this, which evade constitutional constraints by pretending that prisoners are patients.

Twenty states, the District of Columbia, and the federal government have laws that authorize civil commitment of sex offenders who would otherwise be released after serving their prison terms. The Supreme Court upheld the practice in 1997, saying it was appropriate for people who “suffer from a volitional impairment rendering them dangerous beyond their control.”

That logic is puzzling. The state punishes people who commit sex crimes based on the assumption that they could and should have controlled themselves. But when it is time for them to be released after completing the punishment prescribed by law, the state says that was not actually true; now they must be locked up precisely because they can’t control themselves.

If the government decided to retroactively increase an offender’s penalty, it would be clearly unconstitutional, amounting to double jeopardy or an ex post facto law. The trick is to cast continued confinement as treatment rather than punishment.

But what if treatment almost never produces a cure that allows a detainee’s release? In Minnesota, only 13 detainees have been unconditionally released since the program was established in 1994; more than six times as many have died in custody.

Back in 2015, when not a single “client” had been certified as fully cured, U.S. District Judge Donovan Frank concluded that Minnesota’s “treatment” was a sham designed to conceal “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” In the United States, he said, “we do not imprison citizens because we fear that they might commit a crime in the future.”

Yet that is manifestly what laws like Minnesota’s do, confining more than 6,000 people not for what they did but for what they might do. Even if that rationale were constitutionally valid, studies from across the country indicate that recidivism among sex offenders, including those who qualify for civil commitment, is far less common than the Supreme Court assumed.

While condemning Frank’s ruling, then-Gov. Mark Dayton conceded that civil commitment decisions are no better than guesswork, because “it’s really impossible to predict whether or not [sex offenders] are at risk to reoffend.” That did not faze the U.S. Court of Appeals for the 8th Circuit, which overturned Frank’s decision on the ground that people “who pose a significant danger” do not have “a fundamental liberty interest in freedom from physical restraint.”

Virginia, which began civilly committing sex offenders in 2003, has a much better track record than Minnesota. While Minnesota has conditionally released less than 4 percent of its detainees, meaning they are no longer imprisoned but are still subject to supervision, Virginia has granted that status to 60 percent of its detainees.

State Sen. Joe Morrissey (D–Richmond) nevertheless argues that Virginia’s program is “abhorrent to everything that our democracy and our criminal justice system believes in.” Morrissey recently introduced a bill that would have abolished the program.

Last month the Senate Judiciary Committee derailed Morrissey’s bill, referring it to the Virginia State Crime Commission for a study. “We don’t sentence people because of what they might do,” Morrissey says. For now, that remains an aspiration rather than a reality.

© Copyright 2021 by Creators Syndicate Inc.

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Former President Donald Trump’s lawyers flesh out their impeachment defenses in a 78-page pretrial memorandum they filed yesterday. They argue that the Constitution does not allow the Senate to try a former president, a process that began today. They also deny that Trump “incit[ed] violence against the Government of the United States” when he delivered an inflammatory speech to his followers shortly before hundreds of them attacked the U.S. Capitol on January 6.

The first argument is plausible, although hotly contested. But the second argument misconstrues the impeachment as a criminal charge, subject to the limits that the First Amendment imposes in such cases.

Impeachment of former officials was a well-established practice in England and preconstitutional America. Given those precedents, Trump’s lawyers think it is telling that the Framers did not explicitly authorize late impeachments. “The Framers could have explicitly included a provision allowing for the impeachment of a former President, but they did not,” the memorandum says. “The text is also doubly clear given the clarity of available models in some of the United States themselves that did allow for late impeachments to take place.”

The Framers’ failure to explicitly address late impeachments, of course, also can be construed the other way. If they wanted to rule out what they knew was a common practice, they could have done so.

The text is not actually clear at all, which is why legal scholars are still debating this issue 233 years after the Constitution was ratified. But Trump’s lawyers think it is plain that a trial of a former president does not qualify as a trial of “the President.” If the Senate were in fact trying “the President,” they say, Chief Justice John Roberts would be presiding, which he is not. They also note that “remov[al] from Office” is mandatory upon conviction, while disqualification from future federal office is optional.

“The Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds,” Trump’s lawyers say. “Congress’ power to impose penalties upon conviction of impeachment is limited to removal, and (not or) disqualification.” When removal is no longer possible, they argue, a Senate trial is not only unauthorized but amounts to an unconstitutional bill of attainder targeting a private citizen. They cite court decisions that interpreted similar language in state constitutions as precluding impeachment of former officials.

The memorandum notes that Columbia law professor Philip Bobbitt and former Harvard law professor Alan Dershowitz share this view. It also repeatedly cites Michigan State law professor Brian Kalt’s thorough 2001 article on late impeachments without noting that Kalt disagrees with Bobbitt and Dershowitz.

One telling way in which Trump’s lawyers part with Kalt is their handling of Federalist No. 39, where James Madison says “the President of the United States is impeachable at any time during his continuance in office.” Trump’s lawyers read that statement as ruling out impeachment of a former president. But as Kalt notes, “Madison was not speaking of the limits of the federal impeachment power; rather, he was speaking of its expansion. Unlike certain states where the governor cannot be impeached at all or can only be impeached after he leaves, Madison explained, the President can be impeached while he is in office.”

Trump’s lawyers also misleadingly cite Kalt while attributing this quotation to “one legal scholar”: “A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together, he would be considered a very unpromising lad.” That remark does appear in Kalt’s article, but it is not his assessment. It is a quotation from a lawyer who defended former Secretary of War William Belknap during his 1876 impeachment trial. Kalt, by contrast, thinks the weight of the historical evidence supports the constitutionality of impeaching (or trying) former federal officials.

Trump’s lawyers concede that a majority of the House thought Belknap could still be impeached on corruption charges even after he resigned, while a majority of the Senate thought a trial was still appropriate. But as the memorandum notes, the minority of senators who disagreed was large enough to ensure Belknap’s acquittal. Trump’s lawyers also note that the House did not pursue impeachment after President Richard Nixon resigned, although that decision does not necessarily show that members of Congress thought doing so would have been unconstitutional.

In a 33-page reply filed today, the House members charged with prosecuting Trump say “scholars from across the political spectrum, including renowned conservative constitutional scholars, have recognized that the Constitution empowers the Senate to convict and disqualify officials who commit misconduct late in their terms and therefore can realistically only be tried after leaving office.” The House managers laid out the reasons for that conclusion in greater detail when they filed their trial memorandum last week.

The scholars cited by the prosecution argue that ruling out late impeachments would frustrate the goals of accountability and deterrence by leaving Congress with no recourse against a president who commits serious misconduct toward the end of his term or who resigns (as Nixon did) after his misconduct comes to light. The House managers also note that the Senate has “the sole Power to try all Impeachments.” Since “the House undisputedly had jurisdiction to impeach President Trump while he was still President,” they say, a Senate trial is clearly authorized.

This issue is not as clear as many of Trump’s defenders and critics suggest. Kalt, who argues that late impeachments are constitutional, nevertheless calls it “a close and unsettled question.” George Washington University law professor Jonathan Turley, who is more skeptical of late impeachments, likewise describes the issue as “a close question upon which people of good faith can disagree.”

There is less evidence of good faith in Trump’s argument that he cannot be impeached for persistently promoting the fantasy that he actually won the presidential election by a landslide, culminating in his fiery pre-riot address, because his expression of that demonstrably false opinion was protected by the First Amendment. His lawyers note that Trump never advocated violence and in fact urged his supporters to “peacefully and patriotically” protest the congressional certification of Joe Biden’s victory. “His statements cannot and could not reasonably be interpreted as a call to immediate violence or a call for a violent overthrow of the United States government,” they say. “President Trump’s speech at the January 6, 2021, event fell well within the norms of political speech that is protected by the First Amendment.”

I think that’s true. It seems clear Trump’s speech would not qualify as incitement to riot under federal law. It also seems clear that he did not exceed the bounds of constitutionally protected speech described by the Supreme Court in the 1969 case Brandenburg v. Ohio, which held that even advocacy of lawbreaking is protected by the First Amendment unless it is not only “likely” to incite “imminent lawless action” but also “directed” at that goal.

Even if the First Amendment does not allow the government to criminally prosecute Trump for inciting the Capitol riot, however, that does not mean Congress cannot impeach him, not only for the reckless speech he gave that day but for his monthslong campaign to overturn the election results. That campaign went well beyond court challenges, extending to arguably illegal conduct such as pressuring state officials and Vice President Mike Pence to stop Biden from taking office.

Whether or not Trump violated any criminal statutes, he abused his power and exercised his influence over his supporters in a way that undermined democracy and predictably (although perhaps unintentionally) led to violence. That is the main thrust of his impeachment, and it does not require proof that Trump did anything that was technically illegal.

As for Trump’s claim that the First Amendment bars his impeachment, George Mason law professor Ilya Somin notes that “high government officials don’t have a First Amendment right to be protected from firing based on their political views.” That principle, he says, “applies to presidents facing impeachment no less than other officials.”

The House managers likewise cite the verdict of “nearly 150 First Amendment lawyers and constitutional scholars,” who called Trump’s First Amendment defense “legally frivolous.” The reply brief argues that “the First Amendment has no application in an impeachment proceeding, which does not seek to punish unlawful speech, but instead to protect the Nation from a President who violated his oath of office and abused the public trust.”

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From Let Them Play MN v. Walz, decided yesterday by Judge Eric C. Tostrud (D. Minn.):

This case concerns the state of Minnesota’s decision to require youth athletes to wear face coverings while participating in organized sports activities and to limit spectators at organized youth sports events, both in an effort to limit the spread of COVID-19…. In this lawsuit, Plaintiffs claim that the face-covering requirement and spectator limits violate their rights under the Equal Protection Clause …. {Because Plaintiffs have identified no fundamental right, and because the challenged restrictions likely satisfy the rational-basis standard, Plaintiffs are not likely to succeed on the merits of their substantive-due-process claim[, either]…. [A] “rational basis for equal protection purposes also satisfies substantive due process analysis.”}

In the absence of a suspect classification or a fundamental right, the rational-basis standard applies. Under that standard, a challenged state law will be upheld as long as it is “rationally related to a legitimate government interest.” Plaintiffs do not seem to dispute that Minnesota has a legitimate interest in controlling the spread of COVID-19, and it is hard to see how they could. Instead, Plaintiffs argue that Minnesota’s youth-sports restrictions are arbitrary and irrational in relation to that interest.

Rational-basis review sets a low bar. The challenged law is presumptively valid, and a plaintiff can only overcome that presumption by showing that no “reasonably conceivable state of facts” could support the law. A challenged law may survive even if it is both overinclusive and underinclusive in advancing the asserted interest, and even if it is based on “rational speculation unsupported by evidence or empirical data.” Moreover, the state decisionmakers’ “subjective motives” for imposing the challenged restrictions are “irrelevant for constitutional purposes.” In other words, under these long-settled principles, it doesn’t matter whether Plaintiffs have the better policy argument. The question isn’t whether the state has made the best decision. The question the law requires us to answer is whether the challenged policies have some rational basis.

Under this standard, Plaintiffs have not shown that Minnesota’s face-covering and spectator requirements likely violate the Equal Protection Clause. In the preamble to EO 21-01, Governor Walz acknowledged that the state was facing a “challenging balancing act.” EO 21-01 at 2. He concluded that restrictions like the ones that Plaintiffs challenge were necessary because lifting the temporary ban on certain activities, like youth sports, would increase the risk of COVID-19 transmission. He described his reasoning for that conclusion in some detail:

“[S]ome settings continue to pose more risks than others. Indoor activities pose higher risks than outdoor activities. Strenuous activities resulting in increased respiration pose higher risk than sedentary activities. Unpredictable settings are riskier than more predictable and controlled settings. Settings conducive to prolonged contact provide more opportunity for transmission than settings featuring more transitory interactions.”

Based on the whole record in this case, it is perfectly reasonable to conclude that youth sports—which often involve sustained close contact, physical exertion, and large groups of spectators—would pose a risk of transmission. According to Defendants’ evidence, sports have been associated with multiple COVID-19 outbreaks throughout the country. In Minnesota, MDH has “traced at least 334 outbreaks and 10,207 positive COVID-19 cases to sports activities” and found that “[s]ports-related cases are more than twice as prevalent among high school-age children as any other age group[.]”

It is also reasonable to conclude that the face-covering and spectator restrictions would lessen this risk. Social distancing is a basic recommendation for limiting the spread of COVID-19. The American Academy of Pediatrics has specifically recommended that children wear face coverings while playing sports, and a recent nationwide survey found that the use of face coverings was associated with decreased COVID-19 infections in high-school athletes, at least for indoor sports….

To be sure, Plaintiffs present another side of the story with their evidence. They have submitted affidavits from multiple individual physicians opining that it is not safe for children to wear masks while playing sports. The concern, according to these sources, is that masks could hamper an athlete’s breathing, leading to dizziness, hyperventilation, and other negative effects. Or they could obstruct an athlete’s vision, increasing the risk of collisions and related concussive injuries.

Plaintiffs provide anecdotal evidence, including videos, to show that some of these injuries may already have occurred. Plaintiffs also emphasize the significant physical and emotional benefits of participation in youth sports, and with their Complaint, they included a summary of a Wisconsin study finding that “participation in sports is not associated with an increased risk of COVID-19[.]”

All of this evidence shows that Plaintiffs have a reasonable, good-faith policy disagreement with Minnesota’s approach to combating COVID-19 in youth sports. But their disagreement is ultimately a political one; it does not show that Defendants likely violated the Equal Protection Clause.

Seems legally quite correct to me.

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“Biden vows to reopen most schools after 1st 100 days on the job,” ran the Associated Press headline on December 8. Advocates of reopening who follow the issue closely could see the potential wiggle room—it’s not the federal government’s call, the full statement was shot through with hedges and conditions, “most” just means 50 percent plus one, etc.

Still, even after the downgrading of most K-12 schools to most K-8 schools (sorry, Classes of 2021-24, you’re just hosed), I can’t say I was ready for a goalpost-shift this tectonic:

 

White House: Our goal is to have 50 percent of schools open by April 30, 2021 — “at least one day per week” pic.twitter.com/7VNpG9i0Sx

— Tom Elliott (@tomselliott) February 9, 2021

This is the ground-softening in advance of the Biden administration’s expected guidelines tomorrow to “safely reopen” K-8 schools in the United States, which has had among the lowest percentage of classroom attendance in the industrialized world during these past 11 pandemic-cursed months.

Reopening has become a heated political issue, with labor clashes delaying in-school instruction in Democratic-run big cities such as Chicago, Philadelphia, San Francisco, Washington, D.C., and Los Angeles. Remote and hybrid learning has been statistically brutal on students and their parents, with the former suffering educational setbacks and significant increases in emotional problems, and the latter experiencing a mass dropout of women from the labor force.

Teachers unions and the politicians they support, including Biden, say that more money is needed to safely reopen elementary, middle, and high schools, on top of the $69 billion in additional federal funding they received in two 2020 COVID-relief bills. (The K-12 system typically receives around $40 billion a year from the feds.) Biden’s $1.9 trillion relief package proposal contains $130 billion for pre-college education, and an additional $350 billion in fiscal stabilization for the states. Given that public school spending amounts to around 20 percent of state budgets, it’s safe to assume around $70 billion of that would go to K-12.

Complicating that combined $200 billion ask is the fact that many schools are already open five days a week, without any new checks being written.

“More than 70 [percent] of all K-12 students in Alabama, North Dakota, Texas, and Utah have the option of in-person instruction, while Florida and Wyoming are teaching almost all of their students in person,” reported CBS News, citing the reopening-tracker website Burbio. “All of these states also have ‘right to work’ laws that say no one can be forced to join a union, which means that…if the district orders schools to be reopened, teachers must show up for work or risk losing their job.”

Whereas most of the public system remains fully or partially closed, most private schools are fully open, including in the same cities and neighborhoods where government-run education is 100 percent remote. And many of the empty school buildings in largely closed districts are not in fact empty—they are filled with kids, being supervised by adults, just not adults who belong to teachers unions.

Regardless of the contractual status of participating adults, indoor buildings full of kids during weekdays have consistently been among the safest known settings for humans to gather during the COVID pandemic. This was true in late August, when the American Federation of Teachers (AFT) was running anti-Donald Trump scare-ads characterizing schools as “superspreader events,” as it is true this week, when the The New York Times is implausibly portraying AFT President Randi Weingarten as a tireless advocate for reopening schools.

A president and political party who campaigned on the haughty promise to “listen to scientists and heed their advice—not silence them,” now find themselves shooshing the Centers for Disease Control (CDC) for making factual statements that complicate the P.R. rollout for the $200 billion beg.

“There is increasing data to suggest that schools can safely reopen and that safe reopening does not suggest that teachers need to be vaccinated,” CDC Director Rochelle Walensky said on February 3, echoing the position of her predecessor. “Vaccinations of teachers is not a prerequisite for safely reopening schools.”

Responded White House spokeswoman Jen Psaki on February 4: “Dr. Walensky spoke to this in her personal capacity.”

So what specific measures are in the $200 billion proposal?

According to a White House breakdown, $60 billion would go for preventing layoffs, $50 billion for reducing class size (which comes with an estimated 10 percent staffing bump), $29 billion for extra make-up learning and tutorial, $14 billion for increased custodial staff, $10 billion for more counselors and psychologists, and $3 billion for school nurses. So basically 80 percent of the money would go toward personnel. At a time when K-12 enrollment is down by around 6 percent nationwide.

To sum up: The Biden administration seeks an extra $200 billion, on top of the $70 billion in extraordinary COVID relief already spent, so that K-8 schools that have been bleeding students can hire enough more teachers and staff that maybe 50 percent of them can open once a week by April. Meanwhile, private schools without a drop of federal funding have remained open five days a week in the most shuttered cities.

Sound like a plan?

“Science is not the obstacle. Federal money is not the obstacle. The obstacle is a lack of willpower,” snarled Senate Minority Leader Mitch McConnell (R–Ky.) in a February 3 statement. “The President’s Chief of Staff keeps saying we need even more massive federal funding before teachers can go back. There’s no scientific basis for that. The goalpost-moving doesn’t stop with money. In several places, these unions sought to elbow toward the front of the line for vaccinations—only to turn around and say, thanks for those vaccines, but don’t think these will necessarily get our folks back in the classroom anytime soon.“

But McConnell isn’t the one who holds power here. Democrats are prepared to use Vice President Kamala Harris as the tiebreaker on a 50-50 Senate vote, so the only thing standing between teachers unions and their workplace-avoiding payday is any lingering sense of shame about moving goalposts, breaking promises, ignoring science, infuriating parents, and inflicting measurable damage on students.

“Schools plan for potential of remote learning into the fall,” went yesterday’s Associated Press headline. Meanwhile, those millions of us parents who want no such thing are making other plans of our own.

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