Category: reason

From the Allegheny Plateau to the Florida coast to the wide-open spaces of the Upper Midwest, President Donald Trump and former Vice President Joe Biden will spend the last weekend of the 2020 presidential campaign crisscrossing the country in search of the last remaining undecided voters.

Trump, who trails in the (meaningless) national polls but seems to have a narrow path to victory in the Electoral College, plans to hold 11 rallies between now and Election Day, according to NBC News. He’ll spend Friday at rallies in Michigan, Wisconsin, and Minnesota, then will hold a series of three events in different parts of Pennsylvania on Saturday. Stops in North Carolina and Florida on the final days of the campaign seem likely, though details remain sketchy for now.

Biden has run a low-key campaign in contrast to the president’s high-profile public rallies—the challenger has left his home state of Delaware just three times in the past 10 days, The New York Times notes—but will make visits to Iowa, Minnesota, and Wisconsin on Friday. He will spend Sunday in Pennsylvania.

The contrasting campaign styles match the tone of the two major candidates and reflect, to some extent, their closing messages to voters. That’s especially true when it comes to the COVID-19 pandemic, which has been the dominant story of the campaign and the year. As he has been for months, Trump is pushing the message that America is winning its battle against the disease, and that advances in treating COVID-19 mean precautions like social distancing and mask wearing are not necessary. Biden’s more timid schedule recognizes the risks, particularly for individuals as old as the two candidates. “It’s important to be responsible,” Biden told The New York Times this week when asked about his slow campaign schedule.

This has really never been a campaign about policy—Trump has had a difficult time articulating a second-term agenda even when asked about it by friendly media, while Biden has luxuriated in simply being the anti-Trump.

Both men are likely to offload a significant portion of their agenda-setting to lieutenants, but that’s not necessarily great news. Senior White House adviser Stephen Miller on Thursday outlined plans for even more restrictive immigration rules if Trump is reelected, including “limiting asylum grants, punishing and outlawing so-called sanctuary cities, expanding the so-called travel ban with tougher screening for visa applicants and slapping new limits on work visas,” NBC News reported.

Meanwhile, Politico reported that Sen. Elizabeth Warren (D–Mass.) is seeking to become Biden’s Treasury secretary if he prevails. That would put her in a position to be one of the administration’s leading voices for setting economic policy—but her ideas don’t add up.

Unfortunately, those of us who believe in the unfettered movement of people and money don’t have much to get excited about in these final days of the campaign.

The political version of hell is scheduled for next Wednesday, when Dems are freaking out (and GOPers rejoicing) over vote totals that show Trump with large leads in Upper Midwestern states – but it's a mirage b/c millions of mail ballots have yet to be counted.

— Dave Wasserman (@Redistrict) October 29, 2020

Keep in mind that it’s unlikely we’ll know the outcome of the election on Tuesday night. In the key swing state of Pennsylvania, some counties won’t even begin counting their piles of absentee ballots until Wednesday. The ultimate irony of the 2020 campaign is that a record number of votes have already been cast—more than 75 million—before the candidates hit the homestretch, but that all those early votes will translate into later-than-expected results.

Those early votes also change the dynamic of the campaign’s final weekend. Instead of a last-minute appeal to would-be supporters (most of whom are already locked in), it’s a battle for the souls of Pennsylvanians and Floridians who just now realized there’s an election on Tuesday.

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FREE MINDS

Don’t buy Biden’s message about the Violence Against Women Act, which he frequently brags about helping to write when he was a member of the Senate, writes Reason’s Elizabeth Nolan Brown:

Biden’s role in all of this may indeed reflect a genuine desire to help women. But it also reflects his longtime role as Democrats’ for-better-or-worse standard-bearer—the party operator willing to go all-in on whatever centrist ideas have captured the zeitgeist and to give a folksy, do-gooder veneer to all sorts of ultimately ugly policies. In the years since, he has moved seamlessly from mischaracterizing fears about domestic violence to backing counterproductive and ineffective responses to more modern moral panics, like campus sexual assault. And he has continued to display a tendency for elevating faddish interpretations of progressive feminist advocacy that turn out to infantilize women, driving up their arrest rates and placing them in greater danger—all while portraying himself and the state as their saviors.

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FREE MARKETS

Don’t buy Trump’s message about tariffs and protectionism, because the “America First” agenda has failed on just about every possible front, writes the Cato Institute’s Scott Lincicome.

Tariffs didn’t revive America’s steel industry, reports The Wall Street Journal.

And Trump’s trade war didn’t boost the American manufacturing sector, writes Brad Polumbo at the Foundation for Economic Education.

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ELECTION 2020

Final days of the campaign lightning round!

A federal appeals court has ruled that Minnesota can’t accept absentee ballots that arrive after Election Day—even the U.S. Supreme Court has allowed, for now, post-election collection of mail-in ballots in North Carolina and Pennsylvania.

NEW: 8th Circuit Court of Appeals rules in Minnesota's absentee ballot deadline case that absentee ballots must be in by 8pm on Election Day.

"There is no pandemic exception to the Constitution."

Court holds out possibility of counting later and says late ballots set aside.

— Brian Bakst (@Stowydad) October 29, 2020

Read The Washington Examiner‘s Tim Carney on the political realignment in western Pennsylvania that has bridged a decades-old political divide between bosses and workers.

Four days before the election, turnout has already exceeded 2016 levels in Hawaii. Big turnout is being reported in the potential swing states of Georgia and Texas too.

Hawaii first state to beat its 2016 turnout: now at 104%

Texas: 95
Washington: 88
Montana: 86
Tennessee: 83
Oregon: 82
North Carolina: 81
Georgia: 82

More than 81 million ballots back in hands of election official, per @ElectProject #Election2020

— Ryan Heath (@PoliticoRyan) October 30, 2020

Sen. Lindsey Graham (R–S.C.) has twisted himself into a hypocritical pretzel to defend Trump during the past four years. Now that Graham is in danger of losing his Senate race, Trump seems to be leaving him hung out to dry. You absolutely love to see it.

Graham’s race is one of the most important Senate elections next week.

Libertarian Party presidential nominee Jo Jorgensen is unhappy about being left out (again) despite being on the ballot in all 50 states and being a potential spoiler in a few key places:

Sadly, @Nickelodeon / @NickelodeonPR is complicit in indoctrinating our children that there are only 2 parties, even though there are 3 candidates on all 50 ballots and 4 who can get to 270.
What a shame for America's future, #Nicknews.
This #election, teach your children well. pic.twitter.com/nugVSKu2i2

— Jo Jorgensen (@Jorgensen4POTUS) October 25, 2020

Finally, here’s a sign that America’s political state is perhaps a bit more fragile than it should be: Businesses in Washington, D.C., are already boarding up windows in advance of next week’s election.

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QUICK HITS

• Civil libertarian journalist Glenn Greenwald resigned from The Intercept, which he founded in 2014, amid claims that he was being “censored” by the publication’s editors, and it quickly turned into an ugly public feud.

• At the request of Turkish dictator Recep Tayyip Erdogan, Trump reportedly squashed a Justice Department investigation into a Turkish bank.

• Chinese authorities arrested a man for reading Wikipedia.

• Can companies lure workers back to offices with free lunches and other goodies?

• New Yorkers are rediscovering the fact that cars are pretty great.

New Yorkers remembering that the reason we have cars is because we love freedom and the car is the greatest symbol of freedom imaginable is the most New Yorker thing I can imagine. https://t.co/1rl4OZXhCo pic.twitter.com/12pZoWpy5Q

— Sonny Bunch (@SonnyBunch) October 29, 2020

• It’s a metaphor for the election, I think?

A New York City man recently fell about 15 feet into a pit of rats when a sidewalk sinkhole opened under his feet https://t.co/Yxd3mMQUpT

— The Cut (@TheCut) October 30, 2020

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From Judge Valerie Caproni (S.D.N.Y.) in Wednesday’s Simpson v. Peloton Interactive, Inc.:

Petitioner Simpson {“with agreement by Respondent Peloton Interactive, Inc.”} filed a motion to seal nine words from its Petition to Confirm Arbitration and to file the American Arbitration Association (“AAA”) Opinion and Interim Award and the AAA Opinion and Final Award completely under seal …. [Peloton] filed a motion for approval of redacted filings [without Simpson’s agreement], proposing more extensive redactions of the Petition to Confirm Arbitration and more narrow redactions of the two AAA Opinions ….

Respondent Peloton seeks to redact references to certain copyright disputes and to the decrease in size of Peloton’s on-demand class library following such disputes. The Court recognizes that these may be embarrassing for the company. But avoiding embarrassment is not the type of “higher value” that justifies overcoming the presumption of immediate public access. Moreover, Peloton’s removal of classes due to copyright disputes was discussed in an open letter to Peloton members and picked up by the media, so any argument that this fact is confidential is unwarranted….

Respondent Peloton also seeks to redact the names of individuals associated with other cases against Peloton. Respondent Peloton does not allege that these individuals are minors whose names may be redacted pursuant to Federal Rule of Civil Procedure 5.2. Respondent Peloton also does not contend that these individuals have filed their cases under seal or have alleged some specific privacy interest sufficient to overcome the … presumption of access. It seems Peloton is further seeking to avoid embarrassment, this time as a result of the multiple actions filed against the company. In short, this proposed redaction is denied….

Respondent Peloton also seeks to redact the Arbitrator’s acknowledgment that Peloton’s rejected interpretation of “ever-growing” coincided with the time the litigation was filed. The Court recognizes that Peloton “vehemently disagrees with the arbitrator’s characterization of this information,” and Peloton is free to make its view more widely known. But the rejected interpretation of this phrase does not “provide valuable insights into a company’s current business practices that a competitor would seek to exploit.” As such, this proposed redaction is denied….

Respondent Peloton seeks to redact the number of classes added or removed over particular time periods. Additionally, Respondent Peloton seeks to redact information about and quotations from an internal document outlining communication strategy to ensure member retention. The number of classes over time and strategies to retain members do qualify as sensitive business information worthy of redaction as potential competitors could unfairly glean marketing and product development insights from this information. As such, Respondent Peloton may redact such information from the filings….

 

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According to reports we’ve received from multiple sources, a new version of the BlueBook, not yet released, may require legal scholars to flag any cases whose facts involve slavery. The new Rule 10.7.1 (explanatory phrases and weight of authority) would provide that citations to these cases must add a parenthetical disclaimer like “(enslaved party)” or “(enslaved person at issue).” This position was recently urged by Justin Simard in his paper Citing Slavery, and it has apparently persuaded the student editors of the Bluebook. We suspect that other scholars will be encountering it soon.

Good intentions notwithstanding, this rule is wrong. It’s legally misleading, morally misguided, and inconsistent with the goals of good scholarship. Journals should not impose it.

The rule is legally misleading. One ordinary reason to flag a case is to show that it carries more or less authority than we’d otherwise expect. But many cases involving persons held in slavery don’t carry less authority in our legal system. Pulliam v. Osborne, on the priority of federal judgment liens, or Wiscart v. Dauchy, on avenues to Supreme Court review of circuit decisions, are usually invoked for their legal conclusions about liens or appellate jurisdiction, not for the fact that the property at issue included human beings. Indeed, part of why we now recoil from slavery in horror is how the legal system treated people like ordinary property. But it did. And as a result, cases involving enslaved persons sometimes state ordinary rules of law. Sometimes they state those ordinary rules particularly well, which is why lawyers and scholars still cite them many years later.

Nor were these cases universally abrogated by the Thirteenth Amendment. It’s true that today’s law treats the facts of these cases very differently, but in a sense that’s true of nearly every old case. The Bank of the United States no longer exists, but M’Culloch v. Maryland hasn’t been “subsequently abrogated by statute.” Every litigant in every nineteenth-century case is now deceased, but those legal decisions aren’t vacated as moot. Which legal transformations have which effects on prior law is an immensely complicated question, one not at all captured by the proposed rule.

(Simard argues that some slavery cases really are bad legal authorities, either because their authors were stretching the arguments to protect slavery, or because the issues were so sui generis as to be inapposite to other contexts. This is often true, but again, it doesn’t call for a blanket rule. Pointing out a judge’s flawed reasoning or distinguishing a case from its applications are the task of good lawyers and scholars. A blanket parenthetical doesn’t help that task, and may distract from it.)

Whether law necessarily has certain ties to morality, such that morally repulsive cases always carry less legal weight, is a great and ongoing controversy. This isn’t a debate the BlueBook can settle, or should try to. And the rule’s attempt to do so may be misleading on its own premises: as Simard notes, the law of slavery surely permeated many cases in which enslaved persons weren’t directly at issue. Gibbons v. Ogden, say, was about steamboats in New York, but the lawyers knew (and argued) that it also involved federal and state power over the slave trade. Propositions of law in cases more directly involving slavery are often repeated in subsequent cases, which might now be cited without a flag, thus “laundering” the original sources. So the flag may end up being more performative than informative.

The rule is morally misguided. Another argument for the rule might be that it avoids scholars’ passing without comment over extraordinary evils. American slavery is indeed an evil of world-historical proportions. But it’s far from the only evil found in the case reports. Lawyers cite dry propositions about procedure or interpretation that they draw from cases involving truly horrific personal abuses or government oppressions, whether at home or abroad. (The Missouri Supreme Court has already forbidden citations to one of its old cases on the state constitution’s single-subject requirement, because that old decision upheld a school-segregation law later struck down by the U.S. Supreme Court.) Singling out the evil of slavery is understandable, but it also potentially downplays many other evils, some of which remain pervasive today. Some people might welcome a more thorough moralization of citation style; if so, this only proves the slipperiness of the slope.

The point isn’t that, “if we start flagging slave cases, we might have to flag lots of other ones too.” The point is that, once we recognize how many evils the law addresses, it’s no longer plausible to claim that citing these cases unflagged reflects any indifference to their moral contents. Citing the appellate-jurisdiction holding of Wiscart doesn’t show indifference to slavery, any more than citing the required-party holding of Republic of Philippines v. Pimentel shows indifference to the crimes of the dictator Ferdinand Marcos. Abstracting away from circumstances is what law does, sometimes for the better and certainly sometimes for the worse. It lets us govern human experience by somewhat consistent rules, by treating only a few factors at a time as legally relevant. (From the crooked timber of mankind, no straight thing was ever made.) If that kind of abstraction is itself immoral, or if it tends to weaken our moral instincts, that problem goes so far beyond slavery as to render such a limited parenthetical requirement a mockery of those other evils.

Nor is the rule any cure for that abstraction. If these parentheticals are to be applied equally to Wiscart, Dred Scott v. Sandford, and Somerset v. Stewart (declaring slavery illegal in England), then they can’t convey any consistent moral message about the cases. And to the extent they do try to convey a moral message, the rule may actually undermine the intellectual distance we ought to have from the law. Sometimes our positive law really was, or is, abhorrent. Flagging the separation of moral and legal authority—as if that’s noteworthy, as if they should be expected to run together—encourages a kind of complacency as to legal rules whose evils aren’t yet so widely appreciated. As H.L.A. Hart once wrote, describing a case in which Nazi law had shielded the defendant’s abhorrent actions:

Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. . . . The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another.

The blanket rule is unscholarly. A third argument for the rule might be that it informs the reader of something true. Legal scholars cite past cases to document the truth about the legal past, and sometimes documenting that truth effectively and accurately means noting the crucial role played by slavery.

But sometimes not. The point of a blanket rule on parentheticals is precisely to ignore whether or not the connection to slavery is intellectually relevant in context. This is a judgment that authors, editors, and readers must make as a matter of substance, in evaluating particular cases—not a question of style that should be imposed on them as a matter of course. When it advances the argument to note the role of slavery in a given citation, authors and editors can already include it. When it doesn’t, including the parenthetical anyway is in tension with all of their other reasons for writing and publishing scholarship. (We suspect that not a few authors, rather than including these parenthetical asides, may simply stop tracing their chains of precedential authority back before 1865—which is merely a different way of hiding the role of the past.)

Some scholars might use their legal scholarship to advance a program of moral reform, to which these judgments of intellectual relevance might play only a subsidiary role. We profoundly disagree with this path; but this, too, is a debate the BlueBook can’t settle. Nor should it try to: a mere style guide shouldn’t rule substantive arguments of law or morality out of bounds. If the BlueBook editors want to start describing a future legal system in which morally disfavored law is flagged—perhaps citations to disfavored Amendments or disfavored Justices’ opinions (“(opinion of Taney, C.J., racist)”)—nothing can stop them. But those kinds of choices would make the BlueBook a worse guide to American legal citation, and they’d reflect an abuse of the buyer’s trust. We hope that serious scholars, as well as serious journals, wouldn’t follow along.

Why care? We feel some discomfort about writing this post. Slavery was and is monstrous, and we are not apologists for it. We simply believe that the intellectual enterprise of legal scholarship, and the contributions to knowledge that it can make, are desperately important. Manipulating the content of that scholarship for ends other than truth-seeking—even just a little bit, even hidden away in the footnotes, even for a good cause—is a breach of scholarly trust. It certainly shouldn’t be demanded of scholars by the publishers of A Uniform System of Citation.

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Want your brain sucked out by zombies?  Yahoo! News is happy to oblige. A recent article screams: “Beware of marijuana edibles in your kids’ Halloween stash, police warn: ‘Not everything is as it seems.'”

Do parents really have to worry edibles in their kids Halloween stash? The news site mentions a single case, from 2019, of two Connecticut kids receiving a package of edibles. (They didn’t eat them.) That’s two kids in a country of about 40 million children under the age of 10. Even the local cops said they didn’t believe this to be a “widespread problem.”

That’s because there’s very little upside for anyone giving away expensive edibles. Even if you’re the type (if there is a type) who thinks, “It would be so hilarious to see a baked Baby Yoda!” you wouldn’t bother giving some random kid cannabis, because you won’t be around for the fun. It’s like paying to see a Broadway show and leaving before the curtain goes up.

Ah, but the absence of a danger is never a reason to avoid scare parents! So the story goes on to describe what would happen if your kid did overdose on edibles and end up in intensive care:

Jamie Alan, an assistant professor of pharmacology and toxicology at Michigan State University, tells Yahoo Life. “There is a range of symptoms, from loss of coordination and being unbalanced to sleepiness to trouble breathing,” she says. “In severe cases, children can become unconscious and need ventilator support.”

Talk about masterful fear-mongering.

The report also quotes Alexandra Funk, director of Central Ohio Poison Control at Nationwide Children’s Hospital—yes, Nationwide, the same insurance company that showed us a dead child during the 2015 Super Bowl. (Nothing if not consistent.) Funk mentions the high levels of THC in gummies and how sometimes the packaging is easy to mistake for candy.

This is true. That’s why sometimes kids do accidentally eat edibles. Where do they get them? A 2016 study in JAMA Pediatrics found the not very surprising sources: parents and other family members.

The study also compared kids’ “marijuana-related” hospital visits two years before pot was legalized in Colorado and two years after. Sure enough, the kid visits went up, from 1.2 per 100,000 to 2.3 per 100,000. That’s an increase, but still a tiny overall number.

Per usual, the Halloween advice given by the authorities seems harmless. Indiana State Police Spokesman Ron Galaviz is quoted saying, “Just take an extra moment to inspect your child’s candy, maybe more than you normally wood.”

But the advice just isn’t necessary. It normalizes the idea that of course you were going to inspect your child’s candy—that this is a necessary precaution every good parent takes on Halloween. This reinforces the idea that there’s enough poisoning going on that parents should never just assume their kids’ candy is untainted. Candy poisoning, though, is an urban myth.

This is how helicopter parenting colonizes a culture. Good parents are exhorted to focus on some new danger, no matter how remote, which then necessitates more oversight. Instead of seeing kids as basically capable and safe, they’re seen as puffballs in need of protection.

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In my final guest post, I’ll turn to the implications of the original meaning of the citizenship clause for originalism and modern law. Before I do, I want again to thank Eugene Volokh and the Volokh Conspiracy for inviting me, and to thank everyone for your comments and criticisms. The discussion may continue over at my regular blog, The Originalism Blog.

With some oversimplification, originalism is the view that the Constitution’s original meaning should bind modern governmental actors (what Lawrence Solum calls the constraint principle). As described in prior posts, the original meaning indicates that persons born in U.S. overseas territories are born “in” the United States and that U.S.-born children of people not lawfully present in the U.S. are born “subject to the jurisdiction” of the United States. Originalism’s constraint principle would require modern governmental actors to recognize people in these categories as U.S. citizens.

This originalist outcome may seem odd, though. The clause’s enactors likely did not foresee that their constitutional language would resolve either question. Neither question was part of the 1866-1868 citizenship debates. The U.S. didn’t have material overseas territories until 1898. Materially restrictive federal immigration law didn’t begin until the 1880s. The originalist resolution is therefore accidental: the enactors could have chosen other language to accomplish their goals that might have affected these modern debates differently. What justifications for originalism explain enforcing outcomes that the enactors could not contemplate?

Several common justifications seem unhelpful here. One is that modern law should respect the wisdom of the framers. A related idea invokes the framework in which the Constitution was adopted. John McGinnis and Michael Rappaport argue that the supermajority process required to adopt constitutional provisions tends to produce good results. Similarly, it’s said that adopting or amending a Constitution occurs in an atmosphere in which people undertake unusually thoughtful reflection on long-term goals and structures, in contrast to ordinary short-term political thinking.

These approaches share the common feature that they suppose adherence to original meaning produces (on balance) desirable substantive outcomes due to the way the text was adopted as law. Invoking the constraint principle to bind modern political actors is justified by the results. But this justification seems inadequate where the enactors didn’t choose the constraint that is now applied. With the citizenship clause, for example, the enactors likely didn’t understand the policy questions involving birth in overseas territories or birth to persons not lawfully present in the United States. Invoking the constraint principle to resolve these policy questions today (instead of leaving them to the political branches) is difficult to justify on the basis of the enactors’ wisdom or the enactment’s structural advantages. The text’s resolution of the policy questions arises from fortuity, not choice.

A second set of justifications for originalism rests on popular sovereignty. Regardless of the desirability of the enactors’ choices, those choices should (it is said) be honored because they were made through a democratic process encompassing the people’s will. Again, though, it is not clear why modern political actors should be bound to outcomes not deliberately chosen by the people at the time of enactment. If “the People” in adopting the Fourteenth Amendment couldn’t have foreseen that they were resolving key modern debates over citizenship, the resolution is only a fortuity of the language chosen, not a deliberate constitutional commitment of the popular sovereign.

These concerns might not worry those, such as my colleague Larry Alexander, who adopt an “original intent” view of originalism. Intentionalists might say that the best originalist way to apply the framers’ enactment is to constrain the political branches only in the paradigm situations the enactors actually understood and confronted, while leaving further extensions or non-extensions to the political branches.

But most modern originalists call themselves “original meaning” originalists (following Justice Scalia), not “original intent” originalists. So they need a justification for treating the citizenship clause’s text as binding even in its “accidental” applications.

I think there are two related justifications. The first is modern originalism’s core commitment to rule-of-law values, specifically (in the case of a written document) to the rule of written law. Professor Solum discusses this commitment at length in justifying the constraint principle. Rule-of-law values such as stability, objectivity, and predictability are served by following the text’s original meaning even if that meaning constrains modern political actors in ways the enactors couldn’t foresee.

Originalism’s rule-of-law commitment also arises from a formalistic idea of what the law is. This commitment underlies Justice Scalia’s pioneering shift from original intent to original meaning. The law, he insisted, is what was enacted: the text, not the intentions. A formalist conception of law requires that the text be applied to the full extent of its meaning even if that goes beyond (or not as far as) the enactors’ conscious design.

Originalism’s commitment to formalism and rule-of-law values isn’t incompatible with commitments to the framers’ wisdom, the structure of the enactment process, or the idea of popular sovereignty. In many (perhaps most) cases, the justifications will run in parallel. Commitment to the text’s original meaning commonly validates these other justifications because the text is (usually) the best evidence of the enactors’ design. But as the citizenship clause indicates, original meaning and the enactors’ design will sometimes diverge. At that point, rule-of-law considerations appear to dominate and justify original meaning originalism’s adherence to the text without exception.

Categorical adherence to original meaning is reinforced by an important practical concern. To this point, I’ve assumed that it’s possible to separate clearly situations in which the enactors deliberately resolved a modern policy choice and situations in which they resolved it only accidentally. But those situations may not be so easily distinguished. Even with the citizenship clause, some authorities have suggested that the enactors could have foreseen the issues of overseas possessions and undocumented migrants. Beyond the citizenship clause, categorization difficulties become even more apparent. What if the enactors deliberately chose to constrain the political branches in a certain way, but new policy considerations, not present at the time of enactment, arise to suggest that the policy decision has additional dimensions the enactors could not foresee? Pursuing such inquiries necessarily injects uncertainty and subjectivity into the interpretive process. Originalism applied with such qualifications may resemble non-originalism and cease to provide dependable constraint on judges or the political branches. Originalism’s commitment to rule-of-law values will sharply oppose such moves as undermining objectivity, stability, and predictability; originalism’s formalism will insist that the solution is the (relatively) concrete rule of original textual meaning, irrespective of whether that meaning reflects a deliberate policy choice of the enactors.

The formalist approach is compatible with other justifications for originalism. Those who rest originalism on the framers’ wisdom may believe that, on balance, the best way to effectuate the framers’ wisdom is to apply the framers’ text categorically, even to situations in which it may appear that the framers did not make a deliberate policy choice. The alternative is case-by-case evaluation of the text’s compatibility with the framers’ choices, which, in addition to being unstable and unpredictable, may, due to institutional limitations and bias, not deliver superior results. Thus, other justifications for originalism may combine with and complement originalism’s formalism, rather than stand as an alternative to it. But the example of the citizenship clause indicates, I think, that formalism is originalism’s core.

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More than two decades ago, Virginia Postrel published a prescient book with a wonderful title: “The Future and Its Enemies.” The technological revolution that has led to “greater wealth, health, opportunity and choice than at any time in history,” she argued, has resulted in “a chorus of intellectuals and politicians [that] loudly laments our condition.”

Sadly, the future’s enemies use the government to fight inevitable innovation and progress.

These critics bemoan the economic insecurity such advances have wrought, as well as other first-world problems ranging from our “enslavement” to technology to the supposed (but not actual) despoliation of the Earth. When she published the book, “smart phones” were rather dull. They were large, clunky, and served solely to make phone calls. It’s inconceivable how far those—and other common products—have developed in the ensuing years.

I recall my prized eight-track tape player, my first car with its whopping 70 horsepower and AM-only radio, phone booths, library card catalogs, pneumatic tubes for delivering office documents (Google it), video stores, and, my favorite, Qwip machines. The latter was cutting-edge in the 1970s. The sender put a document on a cylinder that would spin. It slowly transmitted a facsimile of the document—line by line and in crude fashion—to carbon paper at the other end.

Today I scanned and emailed dozens of documents and shudder at the thought of doing things in that archaic manner.  By the way, it’s easy to get caught up in the consumer-oriented improvements we cherish while forgetting about, say, the vast improvements in food production that have dramatically reduced world hunger and the many life-saving medical advancements.

In California this year, the fight over the future centers on Proposition 22, which would allow companies such as Uber, Lyft, and DoorDash to classify workers as independent contractors rather than as permanent employees. Obviously, technology has disrupted the way we travel, shop, and work, which has made our lives much better—but has infuriated labor unions, which find it tougher to organize workers in the flexible new work world.

I’ve noted this before, but they’ve clearly taken on the role of the 19th Century British Luddites—textile workers who couldn’t compete with mechanized looms, so they vandalized them. Modern unions don’t destroy property these days—but they lobby the government to do something worse. They try to hobble those industries that are moving the world forward.

A few weeks ago, I took a taxicab for the first time in months. The driver didn’t want my business because, apparently, it wasn’t a good-enough fare. The cab was grimy. He balked at my credit card, and it took time to process it after I insisted. Compare that to the friendly and seamless experiences we have with Uber and Lyft. Think about the deliveries we receive—and how they allow us to avoid those laborious trips to box stores and restaurants.

Proposition 22 is a reaction to Assembly Bill 5, which went into effect in January. The law, signed by Gov. Gavin Newsom and championed by unions, codified a 2018 California Supreme Court decision (Dynamex) that applied a strict test to companies that want to hire freelancers. The measure would exempt drivers from A.B. 5’s provisions—and provide them with some portable benefits.

After A.B. 5 became law, it had vast should-have-been-seen consequences. Instead of bringing workers onboard full-time and paying them benefits, companies started laying off their California contractors. Californians who had good jobs but used freelance and contractor work to earn some side income had to give up their lucrative gigs. Consumers suffered, too, as they endured rising prices and fewer choices—all in the midst of a pandemic.

That’s why even the union-controlled California Legislature exempted more than 100 industries from A.B. 5’s strict provisions. They exempted almost every major industry, except for those increasingly vital transportation and delivery services.

If voters approve Proposition 22, the state will have a groundbreaking labor law that applies to virtually no one, yet that hasn’t stopped the labor movement from touting it as a nationwide model. If California voters approve it, they will slow this new Luddite movement from spreading.

Unions can’t stop the future, but they can cause misery as we await its arrival. For instance, our union-allied attorney general, Xavier Becerra, has filed lawsuits against the transportation companies to force them to comply with A.B. 5 as we await the election. The companies were hours away from suspending operations here until a court issued a temporary stay. This is nonsensical in a state that sees itself as the embodiment of progress.

Even if labor wins at the polls this November, it will have no more long-term success than any other group that has tried to fight a changing world. Like water rolling down a hill, creative minds will find their way around every obstacle. Sorry, but the union vision of factory floors and cubicles is a vestige of the past—not a roadmap to the future.

This column was first published in The Orange County Register.

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