Tag: hit&run

Watching an ugly, name-calling rift on the right between theocratic Catholics on the one hand and classical-liberalish evangelicals on the other, you could be forgiven for thinking that the conservative movement still has some intellectual life left in it. In the scant week since New York Post op-ed editor Sohrab Ahmari attacked what he called “David French-ism” in a bilious article for First Things, the internet has exploded with dozens of pieces on the matter, including a long column in The New York Times by Ross Douthat, a detailed explainer in Vox by Jane Coaston, and an hour-long discussion of the stakes on a recent Reason podcast featuring Katherine Mangu-Ward, Peter Suderman, Matt Welch, and me.

But the deeper effect of the ideological slap fight is to underscore how social conservatives have lost essentially every culture-war battle they have prosecuted since the modern conservative movement got started with the launch of National Review in 1955. Whether they want to use power of the state to compel or restrict certain behaviors (as Ahmari argues) or believe they can win debates in a noncoercive marketplace of ideas (as National Review‘s David French, the specific target of Ahmari’s ire, posits), both sides have wanted the same basic social and cultural outcomes over the past several decades, including a rejection of marriage equality, a ban on abortion except to save the life of the mother, the continued prohibition of most or all currently illicit drugs, an end to no-fault divorce, restrictions on the number and variety of immigrants, tighter controls on whatever they deem to be obscenity and pornography, a bigger role for religion in the public square, and an embrace of what they consider to be traditional sexual mores, marriage conventions, and gender roles.

The most you can say is that conservatives may have slowed down social trends, thus validating National Review founder William F. Buckley’s cri de guerre that conservatives existed to “stand athwart history, yelling Stop.” In the mid-1950s, Buckley targeted “liberal orthodoxy” and “relativism” as the immediate domestic enemies to be engaged. Writing a few months after the 9/11 attacks and after the capture of John Walker Lindh, the “American Taliban” soldier who was raised by hippies in Marin County and captured fighting against U.S. forces in Afghanistan, National Review‘s Jonah Goldberg identified “cultural libertarianism” as the real problem:

Cultural libertarianism basically says that whatever ideology, religion, cult, belief, creed, fad, hobby, or personal fantasy you like is just fine so long as you don’t impose it on anybody else, especially with the government. You want to be a Klingon? Great! Attend the Church of Satan? Hey man, if that does it for ya, go for it. You want to be a “Buddhist for Jesus”? Sure, mix and match, man; we don’t care. Hell, you can even be an observant Jew, a devout Catholic or a faithful Baptist, or a lifelong heroin addict—they’re all the same, in the eyes of a cultural libertarian. Just remember: Keep it to yourself if you can. Don’t claim that being a Lutheran is any better than being a member of the Hale-Bopp cult, and never use the government to advance your view. If you can do that, then—whatever floats your boat.

As I argued at the time (and continue to do so), this is a serious misrepresentation of libertarian thought, especially regarding the right to question and critique the sagacity of other people’s freely chosen decisions. (Any meeting of 10 libertarians will yield twice as many opinions about any topic.) For instance, granting freedom of religion, a core libertarian and classical liberal value, in no way implies that you’re not allowed to question other people’s theology or life choices. If anything, it may demand it. The same goes for the choices that particular businesses make. I believe that as a matter of law, Facebook and YouTube should have the right to adopt whatever content-regulation policies they wish, but that hardly stops me or anyone else from criticizing their specific choices, many of which are stupid beyond words.

But Goldberg was right to identify libertarianism, rather than liberalism or even progressivism, as the true engine of social change. Thanks to the rise of cheaper and better means of self-expression (most notably the internet), American cultural production and consumption has boomed and everything become more individualized and personalized. Since Goldberg’s column, it seems inarguable that American culture has evolved in an increasingly libertarian direction, one that grants the individual, rather than the group, what Friedrich Hayek called in The Road to Serfdom “the opportunity of knowing and choosing different forms of life.” Even in an age of political correctness, one in which governments, corporations, and social movements are constantly trying to surveil, nudge, and scold people into particular types of approved or “appropriate” behavior, we all continue to be that scourge of 17th-century England, masterless men and women who refuse to conform to what our political and social betters demand of us.

On the issues that conservatives especially care about, we are becoming increasingly secular, accepting of same-sex marriage, and welcoming toward immigrants even as support for abortion rights remains strong and steady. The recent spate of highly restrictive abortion laws in states such as Alabama moved no less a social con than 700 Club host Pat Robertson to say, “I think Alabama has gone too far…I think it’s an extreme law.” Far from indicating a groundswell in support, such laws, which will all be challenged on legal grounds and almost certainly struck down, suggest the death throes of a social movement that knows it no has chance of success.

We can put too much weight on coincidences, but it’s striking to me that just as internecine warfare was breaking out among social conservatives, Jonah Goldberg filed his final column for National Review, where he worked for the past 21 years. He had previously announced that he and former Weekly Standard editor Steve Hayes were starting a new venture that is slated to come online later this year. Goldberg is hardly a stand-in for all of conservatism, but he is surely one of the most thoughtful and representative voices of that broad movement. (So, too, is Hayes, and the weirdly rapid demise of The Weekly Standard is one more indicator that the conservative movement has serious problems.) While conceding that he doesn’t think “Sohrab’s utopian society, if achievable, would be such a terrible place,” Goldberg embraces something that sounds more than a little like the “cultural libertarianism” he once denounced:

Send power back to the communities where people live. If North Dakota wants to be a theocracy, that’s fine by me as long as the Bill of Rights is respected. If California wants to turn itself into Caligula’s court, I’ll criticize it, but go for it….

And the glorious thing about this kind of pluralism—i.e., for communities, not just individuals—is that if the community you’re living in isn’t conducive to your notion of happiness or virtue, you can move somewhere that is. We want more institutions that give us a sense of meaning and belonging, not a state that promises to deliver all of it for you.

People are misdiagnosing the problem of social, institutional and familial breakdown. A healthy society is a heterogeneous one, a rich ecosystem with a thousand niches where people can find different sources of meaning or identity. A sick society is one where people find meaning from a single source, whether you call it “the nation” or “socialism” or any of the other brand names we hang on statism.

Or from work, gender, sexual orientation, the family, religion, ideology—you name it.

In “Why I Am Not a Conservative,” his postscript to The Constitution of Liberty (1960), Hayek posited that a major dividing line between conservatives and libertarians (professing an intense dislike of the word libertarian, he used the term liberal) revolved around a fear of the future. Socialists and libertarians, wrote Hayek, were forward-looking in a way that conservatives were not. Conservatism “by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance.” Although Hayek was speaking of an older European vision of conservatism, his insight holds increasingly true for contemporary American social cons, who are simply more and more out of step with what most people believe or want out of life.

Especially in a world in which the progressive left is spending increasing amounts of time and energy trying to police not just our economic choices but our speech, thought, and all aspects of our lifestyles, the libertarian alternative is more appealing than ever. It offers “a rich ecosystem with a thousand niches where people can find different sources of meaning or identity,” where we can learn from one another, and have the space to experiment with who we are becoming.

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Scott Warren, on trial for providing humanitarian aid to two migrants, testified in his own defense on Thursday.

A volunteer with the advocacy group No More Deaths, Warren faces a possible 20-year prison sentence for two counts of harboring undocumented immigrants and one count of conspiracy to transport and harbor them. He argues that his alleged crimes amount to nothing more than basic human kindness.

On January 14, 2018, by Warren’s account, two Central American migrants—Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday—arrived unexpectedly at “the Barn,” a building in Ajo, Arizona, used by No More Deaths and other aid groups. Upon speaking with the migrants, who were suffering from blisters, dehydration, and exhaustion, Warren performed a brief medical assessment. He says he subsequently arranged a check-up by a doctor, who said the two migrants needed to stay off their feet.

Warren allowed the men to stay in the Barn for the next three days. Asked in court whether he intended to break the law, he replied that his “intent was to provide them with some basic humanitarian aid.”

Nate Walters, the assistant U.S. attorney, paints a very different picture. He argued in his opening statement last week that the case “is not about humanitarian aid,” and that Warren in fact hatched a nefarious plot “to shield illegal aliens from law enforcement for several days.”

A great deal of the federal government’s case hinges on two pieces of circumstantial evidence, including Warren’s relationship with Irineo Mujica, a Mexican-American activist who runs a shelter for migrants in the nearby town of Sonoyta, Sonora. Warren and Mujica met at the shelter several days before Mujica drove both migrants to the Barn, which the prosecution says is proof that Warren planned their stay. In doing so, they say, he conspired against law enforcement.

Warren told jurors that his communication with Mujica actually involved efforts to recover border crossers’ human remains from the desert—an activity that No More Deaths and similar volunteer groups often undertake. Mujica has not been charged in the case.

Prosecutors have also highlighted testimony from Border Patrol agents who say they observed Warren pointing to mountains in a conversation with the two migrants. They assumed the exchange included instructions on how to avoid a Border Patrol checkpoint as the men resumed their hike.

According to Warren, he was merely warning the two that it would be “critical” that, in case of emergencies, they keep tabs on State Route 85—the only paved road in the area, which runs between two mountains.

Warren disputes the overall notion that he plotted to shield the men from Border Patrol. “We are not going to hide them, we’re not going to keep them from Border Patrol,” he says he told the two migrants.

This isn’t the only time the crackdown on undocumented immigrants has expanded to become a crackdown on people offering humanitarian assistance. Most recently, a city attorney was arrested and detained for stopping on a West Texas highway to assist three young migrants, one of whom was gravely ill.

Closing arguments in the Warren case are underway this afternoon.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: cursing drivers, revoked driver’s licenses, and peeping police.

• Army Corps of Engineers authorizes Virginia power company to build electrical towers across a river. Conservation groups sue. In the district court, the Corps opposes a preliminary injunction: Don’t worry, we can always remove the towers later. Then again, opposing an injunction pending appeal: Don’t worry, we can always remove the towers later. The D.C. Circuit invalidates the project. Then the Corps: Actually, we finished the project a week before the circuit decision and didn’t tell anyone. Since there’s $400 mil invested in the towers, can they please stay up? D.C. Circuit: This is “more than a little troubling.” The district court will decide whether the Corps is barred from making this argument.
• Gluten-sensitive boy goes to restaurant in Colonial Williamsburg. The restaurant won’t let him sit and eat the gluten-free food he brought for himself. (Doing so might be against the local health code avers the restaurant). Fourth Circuit: Could be a violation of the Americans with Disabilities Act. The boy’s suit can proceed to trial.
• Hillview, Ky. police discover mayor’s son, backpack filled with meth-making materials at the mayor’s home. To save the mayor embarrassment, the police chief orders the officers to remove the backpack. They do, but an officer reports the incident to the authorities and word leaks to the public. Two officers who cooperate with an FBI investigation are subjected to series of dubious disciplinary actions. Sixth Circuit: Smells an awful lot like First Amendment retaliation.
• Allegation: Allen Park, Mich. officer arrests motorist without probable cause, tightens handcuffs to the point of bruising, takes him to jail, strips him, repeatedly searches his groin, probes his rectum, and, for good measure, throws his wedding ring across the room. There’s no contraband to be found. Qualified immunity? Sixth Circuit: No.
• Child porn recipient gets enhanced sentence because 40 years earlier, when he was 16, he had sexual contact with a boy of 11 or 12. The enhancement requires a 4-year age difference, and 16 minus 12 equals 4, right? Sixth Circuit: Just subtracting the ages could overstate the difference. If the defendant had just turned 16 and the boy was almost 13, the difference would have been closer to 3 years. The sentencing judge should have counted in days. The birthdays aren’t in the record, so remanded for more information.
• Indianapolis DEA taskforce members barge into suspected drug dealer’s house, find oodles of meth, and then use that evidence after the fact in their application for a warrant to . . . search the house. “We do not condone this illegal behavior,” says the Seventh Circuit. But even so, the district court rightly declined to suppress the oodles of meth at trial. The DEA’s warrant application had enough other information to establish probable cause. And despite one officer’s contradicting himself on the stand, the district court reasonably found that agents were going to seek the warrant whether or not they found the meth.
• Man collects unemployment benefits but is actually still working. Fraud! He’s sentenced to probation but could have served a max of five years. Seventh Circuit: It does not violate the Second Amendment to prohibit him from possessing guns. His crime may not have been violent, but it was serious. And 40% of nonviolent felons are caught committing subsequent crimes (some violent)—who knows on which side of the line he’ll fall?
• As every lawyer knows, quia timet—Latin for “because he fears”—is an equitable claim for protection from probable future harm. Learn more in a scholarly Seventh Circuit opinion featuring Coke and Story, writs of brevia anticipantia, and even ə—the International Phonetic Alphabet symbol for the schwa sound. [Short Circuit warns you that the facts are about surety bonds, but you can just read around that.]
• Passing motorist shouts profanity (a well-known phrase that has inspired artists ranging from Cee Lo Green to Lily Allen) at Arkansas state trooper who is conducting a traffic stop. The trooper then pulls over the shouter and arrests him for disorderly conduct. Eighth Circuit: No qualified immunity for that. A two-word unamplified outburst is not disorderly, and criticizing the cops is protected speech.
• Anti-abortion organization allegedly infiltrates meetings of pro-choice group, secretly films the meetings, then edits those films to inaccurately portray pro-choice folks as participants in the unlawful sale of fetal remains. Pro-choice group sues, and the district court preliminarily enjoins the anti-abortion group from disseminating the films. But the anti-abortion group, its founder, and its lawyers (in a different case) keep making the videos available on YouTube. Civil contempt sanctions ensue in the form of $195k to be paid by the anti-abortion group (and its founder and lawyers) to the pro-choice group. And because that order is not a final judgment, we lack jurisdiction to review it at this time, says the Ninth Circuit.
• Acting on an anonymous tip that a black man has been seen carrying a firearm—totally legal in Washington state—Seattle police make contact with a black man. Seeing the cop cars and patrol lights, the man runs, is seized, and is found to possess a gun, drugs, and cash. All of which should have been suppressed, says the Ninth Circuit. An anonymous tip about presumptively lawful activity does little to support the suspicion needed for the stop. Nor does the fact that the man fled. Particularly given “racial disparities in policing,” many innocent minorities may reasonably be disinclined to interact with law enforcement; in fact, the Seattle Police Department itself is subject to a federal consent decree focusing on eliminating constitutional violations. Concurrence: But just to be clear, there’s no evidence that this particular stop “fits into a longer history of Seattle law enforcement engaging in racially discriminatory policing.”
• And in en banc news, the Eleventh Circuit will reconsider its decision to unseal grand jury records related to 1946 murder of two African American couples in front of a large crowd in Walton County, Ga., perhaps the last mass lynching in American history.

IJ’s Center for Judicial Engagement is hiring. We are looking for someone who will focus on content production (such as op-eds, blog posts, the occasional longer article), as well as assisting with yours truly—the Short Circuit newsletter and podcast. You will also attend events to network with allies and other organizations as well as host and plan conferences, symposia, and other public events aimed at inspiring others to recognize the importance of judicial engagement. Come work with an amazing team advocating for judges to do their jobs by engaging critically in the legal issues brought before them. Click here to learn more.

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Dangerous cancer-causing construction materials. Legions of dead birds. These are some of the potentially disastrous consequences that could allegedly arise if a major new construction project in Sunnyvale, California, is allowed to break ground.

That, at least, is what the Laborers International Union of North America (LIUNA), Local 270—which represents unionized construction workers in the area—claims in a new lawsuit it has filed against the City of Sunnyvale and its city council.

At issue is Sunnyvale’s approval of a 1,051-unit residential project being sponsored by the Irvine Company. The developer is proposing to tear down a collection of office buildings in an industrial area of the city and replace them with a mix of apartments and townhouses.

Additional housing in the ultra-expensive Silicon Valley community—where the median home price sits at $1.7 million—might sound like a good thing, particularly given that 58 of the project’s new units would be rented out at below-market rates to low- and moderate-income tenants.

But the LIUNA lawsuit claims that moving forward with the project without additional environmental review could cause irreparable harm both to future residents and to area wildlife, particularly birds, who allegedly will be killed en masse by flying into the proposed building’s reflective windows.

The union can hold up the Irvine project because of the California Environmental Quality Act (CEQA), a decades-old state law that requires government agencies to study projects for any potentially significant environmental impacts they might have and, if any are found, to propose changes that would mitigate those impacts.

The purpose of the law was to protect the state’s natural environment. But many people contend that CEQA is often hijacked by self-interested parties who want either to kill off unwanted developments or to extract concessions from a developer.

Indeed, LIUANA’s Local Angeles local is currently defending itself from just such a charge in a federal racketeering lawsuit. Back in January, the developer Icon sued LIUANA Local 300, alleging that the union had used frivolous CEQA complaints to delay one of the company’s L.A.-area projects until Icon agreed to hire all-union labor. This practice, Icon’s suit contends, violates federal racketeering laws.

The Sunnyvale drama started back in December 2018, when LIUNA filed a comment letter claiming that a 326-page draft environmental impact report (EIR) issued by the city for the Irvine project failed to adequately study all potentially significant environmental impacts. Ironically, LIUNA’s letter alleging that the report was insufficiently detailed itself contained no specific complaints.

In February 2019 the city issued a final EIR for the Irvine project, prompting LIUNA to raise a far more extensive set of objections.

In a March 24 comment letter, the union argued this final EIR failed to study the negative health effects that might arise should formaldehyde-containing construction materials be used when building the Irvine project.

LIUNA also argued that some 509 birds would kill themselves each year by flying into the project’s overly reflective windows.

The letter also claimed that the city did not do enough to study the environmental impact of future residents’ pet cats, who might kill even more birds while pooping out dangerous parasites.

In April, environmental consultants hired by the city filed a response arguing that LIUANA’s experts relied on outdated studies that didn’t take into account newer, stricter regulations of construction materials. They also argued that the Irvine project was similar enough to nearby buildings that it didn’t pose any new risks to birds in the area, that it abided by the Sunnyvale’s “Bird Safe” design guidelines, and that concerns about residents’ cats were entirely speculative.

On April 8, the city’s Planning Commission forwarded the Irvine project to the Sunnyvale City Council, recommending its approval. A few weeks later, the council voted 7–0 to approve the project. Its administrative remedies exhausted, LIUNA filed a CEQA lawsuit in late May, demanding that the approval be overturned so that yet more environmental analysis can be done.

The project could now be held up for months, if not years, while the case works its way through the courts, potentially costing its developer millions of dollars and denying Sunnyvale residents of additional housing options.

Whether LIUNA’s lawsuit is motivated by environmental concerns or self-interest is impossible to say definitively.

According to a blog post written Sunnyvale City Councilmember Michael Goldman, Irvine has already agreed to hire local union labor for its project. That said, it’s not unheard of for a union local to hold up a project with CEQA appeals and lawsuits until their members are guaranteed the work.

Even if you assume that LIUNA’s objections are accurate and made in good faith, there is still a question of trade-offs. At what point does the well-being of birds outweigh the human need for housing?

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Big Little Lies. HBO. Sunday, June 9, 9 p.m.

You don’t normally want to proclaim a returning TV show has already topped itself after one episode. But Big Little Lies, HBO’s sinister and slightly cracked comedy-drama about male violence and female duplicity, has undeniably surpassed one of its own mileposts.

Last season, the show created busybody real-estate agent Madeline Martha Mackenzie (Reese Witherspoon) as the scorched-earth snarkiest character in television history, spitting out such lines as “I would have told him to go fuck himself, but I don’t talk like that” like a machine gun.

Yet this season’s opening episode was barely underway when Madeline met her match and then some in her first encounter with Mary Louise Wright (Meryl Streep), the mother-in-law of a friend. “You’re very short,” says Mary Louise with a half-smile some unidentifiable place between pleasant and creepy. “I don’t mean it in a negative way. Well, maybe I do. I find short people to be untrustworthy.”

Like Mary Louise’s smirk, Big Little Lies is practically impossible to define but wholly intriguing. It’s about sly contrivance and brute force, sexual terror and masochistic thrills, cowardly parents and terrorist children, people with too much money and too little sense, the savage id beneath the progressive superego. It’s crazy funny, scary and disquieting. And it’s about as must-watch as anything on TV.

Big Little Lies was HBO’s surprise miniseries hit of 2017, Americanized but based closely on Australian author Liane Moriarty’s novel about life in the upscale suburbs. It faded out with five previously troubled moms frolicking delightedly with their kids in the sand of a Monterey Bay beach, their problems all solved with a happily deniable murder, or at least manslaughter, of a hellishly abusive husband.

So when HBO announced Big Little Lies would have a second season, the natural question was, how? Two years later, we finally have the answer: a retraction of that final scene. Nagged by conscience and cops, the moms—now known as the Monterey Five by their suspicious neighbors—are slowly unraveling.

The most frayed is attorney Celeste Wright (Nicole Kidman), whose rapist husband Perry (Alexander Skarsgard) broke his neck in a tumble down a steep staircase that the women have falsely sworn to the police was accidental. Her shrink thinks her Ambien sleep-walking (well, sleep-driving) episodes and the agonizing nightmares in which Celeste dreams she’s a monster are the result of survivor’s guilt. But actually they stem from a secret Celeste has kept even from her friends: that until nearly the end, she was complicit in her increasingly violent sexual encounters with Perry.

And it’s not helping that Celeste is terrified someone will find out how her husband really died—if not the cops, then her mother in law Mary Louise, who has some to help her care for her unruly twin boys but makes no secret of her suspicion that there’s more to Perry’s death than anybody is admitting.

Also coming apart is yoga instructor Bonnie Carlson (Zoë Kravitz), the one who actually pushed Perry down the stairs after she saw him attack Celeste. Only recently has it occurred to Bonnie that what she did might not even have been a crime, but she was locked into the cover-up by her friends’ lies. That’s left her with a growing sense of apartness that’s fed by the fact that she’s the only one of the women who is black. Not that the others see it her way. “Unplugged is one thing,” observes Madeline tartly. “But unhinged is a total other thing.”

Young single mom Jane Chapman (Shailene Woodley), who realized only moments before Perry died that he was the unknown man who raped and impregnated her several years earlier, was initially relieved—ecstatic might be a better word—at his death, which broke up her obsessive brooding about what happened to her.

But the realization that the cops haven’t abandoned their investigation of Perry’s death is taking a toll on Jane, too. Best evidence: Her choice of a “fun fact” about red octopi to a group of grade school kids visiting the aquarium where she works. “Females contain deadly venom and sometimes they’ll kill and they’ll eat the males after they mate with them,” she tells the bewildered children.

Model Renata Klein (Laura Dern) is worried about the cops, too, but those concerns have recently been eclipsed by the revelation that her husband lost all their money on an insider-trading scheme. Her primal-shriek response: “I will not not be rich.” And ringleader Madeline is also distracted by a mutinous teenage daughter who has canceled plans to go to Stanford and is unimpressed with her mother’s belligerent insistence that a college degree is the sine qua non of modern womanhood. “Do you know what kids do at college,” her daughter asks the nonplussed Madeline. “They drink. They fuck. They mull over a sex change.”

Big Little Lies‘ acidly funny dialogue is the work of author Moriarty, TV veteran David E. Kelley and Kelley’s longtime sidekick Matthew Tinker. But that’s only one element in a show that’s as complete a television package as you could hope to find. The addition of Streep to what was already the deepest, most powerful female cast in TV history makes it simply impossible to look away ay from a single scene. (You also wouldn’t want to miss the sumptuous seaside photography, which more than one critic has called “real-estate porn.”)

The male cast isn’t half-bad, either, including the seductively menacing Skargard, who is still around in frequent flashbacks, and Adam Scott (Parks and Recreation) as Ed, the bemused husband of Madeline, who is unaware that the many of her incomprehensible enthusiasms that he patiently endures include cuckoldry.

Not the least of Big Little Lies‘ achievements is its relentless mockery of the moneyed class of California progressives from which most of its cast and writers presumably spring. Its characters embrace every crackpot totem of fashionable liberalism with bubblehead enthusiasm that masks a profound lack of sincerity. (“I don’t give a fuck! I don’t care about homeless people!” screams Madeline in a fit of unmasked honesty when she’s blindsided by her daughter’s college decision.)

It’s all so pitch-perfect that when Renata warns her daughter’s teacher that “My Annabella was bullied last year, in like biting and choking, so we’re gonna make sure that doesn’t happen again,” it’s impossible to tell whether she’s threatening, or bragging.

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San Francisco became in May the first jurisdiction to ban law enforcement use of facial recognition technology. Civil libertarians persuaded the city’s Board of Supervisors to pass the measure on the grounds that the government could abuse the technology and make the country more of an oppressive surveillance state.

That same month, the California State Assembly passed a less comprehensive bill that would simply ban law enforcement use of realtime body camera facial recognition technology. Here are the bill’s chief justifications for the ban:

The use of facial recognition and other biometric surveillance is the functional equivalent of requiring every person to show a personal photo identification card at all times in violation of recognized constitutional rights. This technology also allows people to be tracked without consent. It would also generate massive databases about law-abiding Californians, and may chill the exercise of free speech in public places.

Facial recognition and other biometric surveillance technology has been repeatedly demonstrated to misidentify women, young people, and people of color and to create an elevated risk of harmful “false positive” identifications.

Facial and other biometric surveillance would corrupt the core purpose of officer-worn body-worn cameras by transforming those devices from transparency and accountability tools into roving surveillance systems.

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New York Times columnist Jamelle Bouie faults Democratic presidential contender Pete Buttigieg for his insufficiently ambitious plan to remake the U.S. Supreme Court, arguing that progressives need to challenge the idea that the Court has the final say on what the Constitution means. The problem, Bouie says, is not that the Court is too partisan or political but that it has the power to override the will of the people—or at least the will of politicians who claim to speak for them. Bouie thinks that ditching the principle of judicial review enunciated in Marbury v. Madison will help progressives pursue their policy agenda. He does not pause to consider that it might also have consequences he would not like.

“Progressives have a crucial task ahead of them—not merely to defeat Trump and Trumpism, but to reclaim the Constitution and advance a more expansive vision of democratic freedom, in which Americans have inalienable economic rights as well as inalienable political and civil ones,” Bouie writes. “It’s a problem of power, which means it’s impossible to fight this conflict with Buttigieg-style technocratic reforms. Progressives must look, instead, to presidents and other leaders who resisted the Supreme Court’s claim to ultimate interpretive authority.”

Bouie is right that the central issue is “a problem of power.” The Constitution addresses that problem by imposing limits on what politicians can do, even when backed by a majority of voters. If politicians themselves get to decide what the Constitution means, those limits, including the ones that Bouie thinks are important, mean nothing.

We need not engage in wild hypotheticals to imagine the downside of this approach. Our current president thinks that flag burners should be jailed or stripped of their citizenship; that TV stations should lose their broadcast licenses when they air content that offends him; that he has the authority to wage wars Congress never declared and spend money Congress has repeatedly refused to appropriate; that due process is something people should get only after they’ve been stripped of their constitutional rights; and that birthright citizenship, guaranteed by the 14th Amendment, can be abolished by an act of Congress. That’s just for starters. In the name of “defeat[ing] Trump and Trumpism,” Bouie is recommending a principle that would let Trump and every reckless demagogue who follows him do their worst.

“After decades of railing against ‘activist judges,'” Bouie complains, “Republicans are poised to reverse the hard-won gains of activists and ordinary people through judicial fiat.” He does not specify which “hard-won gains” he has in mind. But let’s take Roe v. Wade as an example, since fears of its impending doom have been much in the news lately. It is possible to believe both that Roe was wrongly decided and that women should be free to obtain abortions. In fact, that’s the position staked out by pro-choice luminaries such as Justice Ruth Bader Ginsburg and Harvard law professor Laurence Tribe. But in Bouie’s view, the result is all that matters; how you get there is so much legalistic mumbo-jumbo aimed at concealing a process that is inescapably political.

“There’s no depoliticizing an institution that deals with political questions and operates in the context of political struggles and conflicts,” Bouie writes. “The Supreme Court has always been political, and no reform short of ending the power of judicial review will disentangle it from ordinary, partisan politics.”

Yet ending the power of judicial review would leave legislators free to do whatever they want, restrained only by their own consciences and their fear of political repercussions. Depending on who happens to be in power, legislators might enact Bouie’s policy agenda, or they might endorse torture, approve warrantless searches, abolish the presumption of innocence, close down newspapers that criticize them, or exclude immigrants based on their race. They might even ban abortion.

The whole point of a constitution is to put some decisions outside the realm of politics. The course Bouie recommends would make literally everything subject to the whims of elected officials, including the current occupant of the White House.

The main benefit of the Trump administration, aside from its entertainment value and some surprisingly good judicial appointments, is that it encourages people who might otherwise be inclined to expand the power and scope of government to think seriously about what that means in practice. But some of those people are so focused on getting rid of Trump that they ignore the civics lesson he embodies.

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The Volokh Conspiracy symposium on Our American Story: The Search for a Shared National Narrative, edited by Joshua Claybourn, has now concluded. I would like to thank all the contributors for their excellent posts, Joshua Claybourn for putting together this timely volume and extending to me the opportunity to be part of it, and Eugene Volokh for allowing us to do the symposium at the VC.

This post provides a list of links to all the earlier posts in the series:

1. Ilya Somin, “Introducing the Volokh Conspiracy Symposium on ‘Our American Story: The Search for a New National Narrative.‘”

2. Joshua Claybourn, “In Search of a Shared National Narrative.”

3. Gerard N. Magliocca, “More Franklin, Less Jefferson.”

4. Richard A. Epstein, “Prudent Minimalism: How to Forge a National Consensus.”

5. Eleanor Clift, “America as a Social Movement.”

6. Jason Kuznicki, “The Declension Narrative.“

7. Ilya Somin, “Foot-Voting Nation.”

8. Nikolas K. Gvosdev, “An American Community.”

The book also includes contributions by many writers who did not participate in the VC symposium, including legal scholar Cass Sunstein, historian Gordon Wood (probably the leading historian of the American Founding), David Blight (author of major works on race, the Civil War, and Reconstruction), Jim Banks, Spencer P. Boyer, former Senator John C. Danforth, Cody Delistraty, Cherie Harder, Markos Moulitsas, Alan Taylor, James V. Wertsch, and Ali Wyne.

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In May, Maryland legalized edible forms of medical marijuana. But don’t expect such products to be available in Maryland anytime soon. Regulators are gearing up for a long debate about exactly what shape these products can take, what they can look like, what packaging they can use, and how they can be marketed.

The new law “was careful not to classify such treats as ‘food’ for a reason,” explains Doug Donovan at The Baltimore Sun. “Doing so would have required redundant oversight from the Maryland Medical Cannabis Commission and the Department of Health’s food safety division. Instead, as in 30 other states, edible cannabis products are now a class of their own.”

Maryland authorities say they want to make sure edibles are used for medicinal purposes only, rather than recreationally. 

Medical marijuana was made available for legal distribution in Maryland in 2017. In February the Maryland General Assembly created a work group with the purpose of studying the potential of legalizing marijuana for recreational uses.

The Baltimore Sun reports that, “The bipartisan group will make recommendations at the end of December that could be used to develop bills for the 2020 legislative session.”

Opponents of extending medical marijuana legalization to include edibles argue that this will encourage recreational use and pave the way for full legalization.

“I don’t want to deprive anyone of their medication, but let’s treat this like medicine, not make little gummy bears out of it,” Sen. Robert Cassilly (R-Harford County) told the Sun. “You’re just flirting with legalization.”

The Maryland Medical Cannabis Commission said it will likely take the rest of the year to develop rules for the “packaging, labeling, marketing, and appearance of edible cannabis products,” with the goal being “to ensure the safety of minors.”

In other states with legal marijuana, similar attempts to micromanage the edible market have been offered in the name of shielding youth from harm.

Last year, Washington state flirted with banning any edible that could be seen as appealing to children. The Seattle Stranger reported in October 2018 that regulators were considering a rule saying edible baked goods could not “contain any icing or sprinkles” and “chocolate cannot be sold in a shape that appeals to kids—it must be ‘in the shape of a bar or ball.'”

The final version of the regulations, handed down by the Washington State Liquor and Cannabis Board in December, bans bright colors for edibles and their packaging. Products must use a “standard pantone color book that sets the list of colors and specified ranges within those colors,” the board said.

“There will also be limits on the shapes, with exceptions for things like non-profit collaborations or naturally-occurring colors,” KOMO Seattle reported in December.

In 2017, Colorado passed similar regulations with the defense of stopping edibles from “appealing to children” in the state. These regulations banned edible gummies in the shapes of animals, people, or fruit while adding regulations to how edibles must be packaged.

California also passed regulations in 2017 that limited the shape of edible cannabis products. The new rule states that “a cannabis product shall not be made in the shape of a person, animal, insect, or fruit” and put a 10 milligrams of THC cap on all edibles being sold.

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There is a well-known gulf between the way many originalist scholars and jurists think about constitutional law and the way many credentialed historians do. (This conference at the Stanford Constitutional Law Center a few years ago (1, 2, 3, 4, 5) is a great introduction.) Why do so many legal scholars rely on Founding-era history even when historians say they shouldn’t? How can responsible legal scholars expect to find answers where historians find ambiguity and disagreement? And how can we apply any of what we find in the Founding era to today’s legal problems, given that the basic facts of modern life would have been beyond the ken of even Hamilton and Madison and Jefferson?

In Originalism and the Law of the Past, a short piece forthcoming in the Law and History Review (a peer-reviewed history journal), co-author/co-blogger Steve Sachs and I try to provide some answers. Here is the abstract:

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

And from the introduction of the piece (without footnotes):

In 2011, a federal appellate court rejected the United States’s claim to own a parking lot on the Alexandria waterfront. According to the court, the plot in question used to lie in the Potomac riverbed, which was granted by Charles I to Cecilius Calvert in 1632 and then ceded by Maryland to the United States in 1791. Because it lay past the old high-water line, the plot remained in the District of Columbia after the rest of Alexandria was retroceded in 1846. At some point the reclaimed land was transferred to the Old Dominion Boat Club, which claimed title under Maryland’s rules of riparian ownership—not as they stand today, but as they stood in 1801, when Congress fixed in place the law governing Maryland’s portion of the District. “Thus,” the court concluded, “despite the fact that the plaintiff is the United States, the defendant is a private club in Virginia, and the year is 2011, the district court correctly held that ‘[r]iparian rights within the District of Columbia are governed by Maryland law as it existed in 1801.'”

What is striking about this episode is precisely how ordinary it is, notwithstanding its unusual facts. Tracing a chain of title or a chain of legal authority decades into the past is normal lawyers’ work. The kind of research necessary to adjudicate claims to riparian land in Maryland is also necessary to identify the scope of modern intellectual property rights, to interpret our civil rights statutes, and more. Courts solve today’s cases through the application of yesterday’s laws—not out of admiration for their ancient wisdom or fealty to the dead hand of the past, but simply because those old laws remain good law today.

Episodes like this one shed useful light on the debates over constitutional originalism. Much has been written about the special historical problems that originalism poses. Yet at its core, originalism demands no more of the past than ordinary lawyering does.

The recent “positive turn” in originalist scholarship takes the theory as a claim about positive law, something that varies from one society to another. Today’s law is equally free to rest a claim to property on an old conveyance or this morning’s bona fide purchase. Similarly, today’s law is free to rest a claim to government authority on older legal instruments. An executive-branch agency might trace the authority of its regulation to a prior statute, which traces its own authority to a constitutional grant of legislative power to Congress. Determining the regulation’s validity requires looking to what law that statute made in the past, which might in turn require looking to what power the Constitution vested in the past. Viewed in these terms, originalism is unexceptional, no different from our law of property: it simply reflects a decision by today’s law to grant continuing force to the law of the past.

This brief article suggests that this form of originalism may help explain the proper domains of history and law. Whether and how past law matters today is a question of current law, not history. This may be easier to see in the case of property or statutes, but constitutional law is no different: giving current force to past rules is simply our way of allocating authority in the present.

To be sure, applying the law of the past requires knowledge of the past, and lawyers must often defer to historical expertise on the relevant questions. But we should also recognize that the legal inquiry is a refined subset of the historical inquiry. It looks to legal doctrines and instruments specifically, rather than intellectual movements more generally. It interprets these instruments in artificial ways, properly ignoring certain facts about their historical authors and audience. And when there is uncertainty, law also has various evidentiary principles and default rules that can give us confidence about today’s law, even when yesterday’s history remains obscure.

Applying this old law to new facts may seem daunting, even anachronistic. Yet here, too, originalism demands no more than ordinary lawyer’s work. Deciding whether a “no vehicles in the park” ordinance forbids motorized wheelchairs and reviewing warrantless GPS searches under Founding-era trespass doctrines differ only in degree. Such reasoning is part and parcel of any system that treats prior rules, not as mere curiosities, but as current and operative law.

It’s short, so if you’re interested, please do (as we used to say in the blogosphere) read the whole thing!

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