Jane Coaston is the new host of The Argument, a massively popular New York Times podcast that seeks to host civil and informed discussions about the most pressing issues of the day. A 33-year-old Cincinnati native, Coaston has worked at Vox, MTV, and the Human Rights Campaign, among other places. She’s the daughter of a black father and a white mother, was raised as a devout Catholic, is married to a woman, and identifies as queer.

She’s also a registered Libertarian who is “especially distrustful of efforts by the state to get people to do things.” She explains that “at some point, a regulation or a law with the absolute best of intentions will be wielded by people who may not have the absolute best of intentions.”

Coaston tells Nick Gillespie that growing up in a liberal household in a conservative part of the country made her concerned about giving authorities a lot of power. Adding to that was a sense of being isolated because of her race and sexuality. “My libertarian sensibilities really came from a sense of, I know what it is like politically to always lose and to see what the winners look like,” she says.

One of Coaston’s goals for The Argument is to bring in a lot of new voices to debates about politics, partly to learn new arguments but also to model true pluralism. She says she is sick of performative politics in which people act out predetermined roles rather than actually engage with one another and she’s wary of the idea that everything needs to be adjudicated at the national level. She also says that we the people—not the feds, or Donald Trump, or Joe Biden—are the ones politicizing every aspect of our lives. That’s an individual decision, she insists, and people can make that decision or not.

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President Joe Biden has invited the leaders of 40 countries to participate in a virtual Earth Day climate change summit starting tomorrow. To address the problem of man-made climate change caused by burning fossil fuels that load up the atmosphere with heat-trapping carbon dioxide, Biden is reportedly going to announce during the summit that by 2030, the U.S. will cut its carbon dioxide emissions from energy related sources by 50 percent below what the country emitted in 2005.

Back in that year, the U.S. emitted nearly 6 billion metric tons of carbon dioxide from burning fossil fuels, which means that the Biden administration is aiming to reduce emissions to 3 billion metric tons by 2030.

By 2019 U.S. carbon dioxide energy-related emissions had dropped to just over 5.1 billion metric tons, that is, to 14 percent below their 2005 levels. In 2020 carbon dioxide emissions fell steeply to under 4.6 billion metric tons, that is, they dropped by 11 percent, largely as a result of the economic contraction associated with the COVID-19 pandemic. (It is worth noting that U.S. real GDP fell 3.5 percent in 2020.) This means that U.S. energy-related carbon dioxide emissions in 2020 were around 24 percent lower than they were in 2005. However, the U.S. Energy Information Administration projects that CO2 emissions will bounce back up to 4.8 and 4.9 billion metric tons in 2021 and 2022 respectively.

In 2015, the Obama administration promised in its intended nationally determined contribution under the Paris Climate Change Agreement to reduce U.S. carbon dioxide emissions 17 percent by 2020, and 26 to 28 percent by 2025. As a result of the pandemic, the U.S. greatly exceeded its 2020 emissions cut pledge.

So, what would it take to meet Biden’s goal of cutting U.S. carbon dioxide emissions by 50 percent over the next 10 years? University of Colorado political scientist Roger Pielke, Jr. parses some figures. He notes that getting from 4.6 billion metric tons (2020) to 3 billion metric tons would require emission reductions of more than 4 percent annually. Since 1991, he notes, “The only annual reductions > ~3% occurred during global financial crisis and COVID-19, but some other years have been close, sustained annual reductions have not yet occurred.”

To make cuts of this magnitude, Pielke points out, would require annually retiring and replacing 3 to 5 percent of coal- and natural gas-fired electric power generation plants, 3 to 5 percent of fossil-fueled transportation, including cars, trucks, airplanes, and ships; and 3 to 5 percent of industrial emissions from sources such as concrete, petrochemical, and steel plants. Since 80 percent of future global warming is projected to result from carbon dioxide emitted from burning fossil fuels, Pielke cautioned against “accounting games” that include reductions attributed to land use and other offsets.

A recent study commissioned by the Environmental Defense Fund (EDF) lobbying group and performed by the Rhodium Group energy consultancy traced a pathway toward a 50 percent carbon dioxide emissions reduction by 2030. That study calculates that almost 60 percent of the carbon dioxide cuts would come from electric power generation. In 2020, emissions from that sector fell from 1.62 billion metric tons to 1.45 billion metric tons. A further 60 percent reduction of carbon dioxide emissions would mean that electric power generation would be emitting only about 580 million metric tons of carbon dioxide by 2030. This implies cutting annual carbon dioxide emissions from the electric power sector by around 100 million metric tons annually for the next nine years.

The good news, according to Pielke, is that the timeline implied by Biden’s pledge provides solid benchmarks that make his administration accountable, such that observers will know within a year or two if his administration is succeeding or failing to meet its emissions reduction goals.

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Daunte Wright, who was shot and killed this month by a Brooklyn Center, Minnesota, police officer who apparently mistook her handgun for a Taser, was pulled over because of an expired registration sticker. But after the cops stopped him, they also noted that the air fresheners hanging from his rearview mirror violated Minnesota’s traffic code, which by itself would have been legally sufficient to detain him. That rule illustrates how easy it is for police to justify traffic stops by citing a petty civil violation, even when it is merely an excuse for conducting a criminal investigation that would otherwise be unconstitutional.

State transportation codes include hundreds of rules governing the operation and maintenance of motor vehicles. Many of them are picayune (e.g., specifying acceptable tire wear, restricting window tints, and dictating the distance from an intersection at which a driver must signal a turn) or open to interpretation (e.g., mandating a “safe distance” between cars, requiring that cars be driven in a “reasonable and prudent” manner, and banning any windshield crack that “substantially obstructs the driver’s clear view”).

“The upshot of all this regulation,” University of Toledo law professor David Harris observed in a 1998 George Washington Law Review article, “is that even the most cautious driver would find it virtually impossible to drive for even a short distance without violating some traffic law. A police officer willing to follow any driver for a few blocks would therefore always have probable cause to make a stop.”

In the 1996 case Whren v. United States, the Supreme Court said such stops are consistent with the Fourth Amendment’s ban on unreasonable searches and seizures even when the traffic violation is merely a pretext for investigating other matters. If an officer stops a car for a traffic violation in the hope of finding illegal drugs or seizable cash, for instance, that is perfectly constitutional, even without any evidence of criminal conduct.

The arbitrary rule that Daunte Wright violated shows how even the pettiest violations can lead to interrogation, searches, arrests, and violent, potentially deadly confrontations. It says “a person shall not drive or operate any motor vehicle with…any objects suspended between the driver and the windshield.”

The law specifies six exceptions: sun visors; rearview mirrors; electronic toll collection devices; “driver feedback and safety monitoring equipment when mounted immediately behind, slightly above, or slightly below the rearview mirror”; “global positioning systems or navigation systems when mounted or located near the bottommost portion of the windshield”; and “identifying device[s]” used by commercial transportation services “when the device is mounted or located near the bottommost portion of the windshield.”

Air fresheners did not make the list, meaning they are categorically prohibited, even when they are designed to be hung from rearview mirrors. Graduation tassels, rosaries, crucifixes, and fuzzy dice are likewise verboten, so any of them is a license for an armed agent of the state to forcibly interrupt a Minnesota driver’s travels.

Do such items obstruct a driver’s vision more than an electronic device mounted “slightly below the rearview mirror” or “near the bottommost portion of the windshield”? Probably not. Minnesota legislators nevertheless thought it made sense to let cops stop drivers based on nothing more than small objects hanging from their rearview mirrors, including small objects expressly sold for that purpose.

Minnesota is hardly unique in that respect. The New York Times reports that most states have similar laws. Some of them are less categorical than Minnesota’s rule. Maryland, for example, prohibits dangling objects only when they “interfere with the clear view of the driver through the windshield,” although that stipulation still gives police a lot of discretion. More important, Maryland’s law specifies that “a police officer may enforce this paragraph only as a secondary action when the police officer detains a driver of a motor vehicle for a suspected violation of another provision of the Code.”

Until a few years ago, Maryland allowed primary enforcement of that provision. Legislators changed the statute in 2017, thereby slightly reducing the potential for police harassment of drivers who pose no threat to public safety.

The Times describes two incidents that illustrate that danger.

After a La Paz County, Arizona, sheriff’s deputy stopped Phil Colbert in 2019, Colbert wondered why. “You can’t have anything hanging from your rearview mirror,” the deputy informed Colbert (who recorded the encounter on his cellphone) before grilling him about drug use. Maybe the deputy surmised that the air freshener was meant to cover the odor of marijuana, or maybe he routinely asks drivers such questions in the hope of finding contraband to justify an arrest. Either way, Colbert suddenly became a criminal suspect simply because he unknowingly flouted Arizona’s traffic code, which prohibits any “object” attached to a car “in a manner that obstructs or reduces a driver’s clear view through the windshield.” As in Minnesota, the exceptions do not include air fresheners

Although Colbert, now 23, got off with a warning, things could have turned out much worse. If the deputy had ready access to a drug-sniffing dog, he could have used it to justify a search that would have been inconvenient and humiliating even if it turned up nothing incriminating. In practice, this judicially approved end run around the Fourth Amendment requires nothing more than a handler’s claim that the dog “alerted” to the car.

If the deputy came across a substantial amount of cash, he could have seized it based on the bare allegation that it was somehow related to criminal activity. If the deputy decided to order Colbert out of the car, which the Supreme Court has said is allowed during any traffic stop, any objection or perceived resistance could have led to violence, an arrest, or both. All because of that air freshener.

Brittany Mixon, now 35, had a similar experience as a high school senior in 2003. After an officer pulled her over in Galesburg, Illinois, ostensibly because of her air freshener, he immediately asked whether she owned the car she was driving, implying that it might be stolen. “He kept asking me questions like he wanted to trip me up,” Mixon told the Times. To this day, she keeps her rearview mirror pristine and becomes anxious when she rides in a car whose owner has hung anything there.

Colbert and Mixon are both black. Is that relevant? Studies of traffic stops, which have repeatedly found that black people are especially likely to experience such harassment, suggest it is. But even if you are unimpressed by the evidence of racially skewed enforcement, the fact that cops have the legal authority to hassle people for such trivial reasons is more than a little troubling.

I have never hung an air freshener (or anything else) from my rearview mirror, but it never occurred to me that doing so might invite a cop to pull me over. Texas, where I live, authorizes arrests even for minor traffic offenses such as failing to buckle your seat belt, which the Supreme Court also has said is constitutionally kosher. That means you can go to jail for violations that are not punishable by jail. Can Texas drivers be arrested for air fresheners?

Under the Texas Transportation Code, it is a misdemeanor to drive a car with an “object” that “obstructs or reduces the operator’s clear view,” but only when that object is “placed on or attached to the windshield or side or rear window.” KPRC, the NBC station in Houston, reports that Texas currently has no law that explicitly forbids “hanging items such as air fresheners, graduation tassels and chains around your rearview mirror.” Whew.

Texas cops, of course, have plenty of other excuses to pull people over,  as do cops throughout the country. Incidents like the senseless deaths of Daunte Wright, Philando Castile, Walter Scott, and Sandra Bland suggest the hazards of giving police the power to mess with just about anyone who dares to travel in an automobile.

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Manhattan will dismiss thousands of prostitution and unlicensed massage cases, District Attorney Cy Vance, Jr. announced on Wednesday. Going forward, Vance’s office will also decline to prosecute people for selling sexual activity—though they can still be arrested, and people paying for such services will still be arrested and prosecuted. Additionally, the office will stop prosecuting people for unlicensed massage.

Overall, it’s a positive step. Vance’s office has moved to dismiss 914 prostitution and unlicensed massage cases and 5,080 loitering for the purpose of prostitution cases (New York legislators repealed the prostitution loitering law statewide in February). It’s also a reassuring sign of changing attitudes toward sex work and the criminal justice system.

Manhattan follows in the footsteps of Baltimore, which stopped prosecuting prostitution cases (for sex workers and their customers) and an array of other non-violent misdemeanors last year. And the move comes at a time when statehouses across the country have been considering prostitution decriminalization initiatives.

For decriminalization to happen in New York, the legislature will have to get involved. That means prostitution—whichever end of the exchange one is on—is still illegal in Manhattan, and a future district attorney could decide to start prosecuting sex workers again. Particular prosecutors pledging leniency is great, but it doesn’t negate the need for legislative change.

That’s especially true since Vance’s office will only offer leniency for sex workers, not their customers. That means Manhattan cops will still be policing private and consensual sexual activity between adults—still doing prostitution stings, still making prostitution arrests, and still prosecuting people on charges of patronizing a person for prostitution.

What Vance’s office is advocating is a form of asymmetrical criminalization, often called the Nordic Model. It’s a system that still creates many of the same harms as total criminalization, since it still forces sex work and sex workers underground.

Under the Nordic Model, sex workers must keep their whereabouts and activities secret or else face cops coming and arresting all their customers. Sex workers themselves may also be arrested in order to get them to comply in cases against their customers, coworkers, or bosses. And sex workers doing things like helping one another post ads, referring customers to each other, or sharing a physical work space can still be prosecuted as pimping, money laundering, or brothel-keeping.

All of this seriously limits the safety utility of not prosecuting people for selling sex, despite the fact that many advocates for asymmetrical criminalization claim it’s about keeping sex workers safe. It also does little to reduce law enforcement contact with sex workers or cut down on the amount of time and resources devoted to policing sex.

In Manhattan, police aren’t being asked to actually refrain from arresting sex workers or unlicensed masseuses. The plan is to still arrest these populations—still putting them into unnecessary contact with cops, still disrupting their work, still putting them on the state’s radar—but to ultimately let them go if unlicensed massage or selling sex is their only offense.

“Any arrest involving these charges should be referred to the Human Trafficking Response Unit,” state’s Manhattan’s new policy. “In cases where they are the sole charge, the Human Trafficking Response Unit will complete all necessary paperwork to formally decline to prosecute these cases and will arrange for information about voluntary services to be provided to the person arrested, but these services will no longer be mandated.”

Vance’s office notes that the new policy “does not preclude us from bringing other charges that may stem from a prostitution-related arrest.”

While a Nordic Model-style system may be better than full criminalization, it’s not what researchers, civil liberties advocates, and public health groups recommend, nor what sex workers say they want or need to keep them safe. What they’re asking for is full decriminalization of prostitution between consenting adults—a system in which neither sex workers nor their customers are arrested or prosecuted.

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A bipartisan group of lawmakers has introduced a bill to stop federal law enforcement from sidestepping citizens’ privacy rights by secretly purchasing our personal data from third-party brokers.

In 2018 the Supreme Court ruled in Carpenter v. United States that the FBI violated a suspect’s Fourth Amendment rights by tracking his cellphone without getting a warrant first. The majority opinion, written by Chief Justice John Roberts, concluded that “We hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information].”

In response to the ruling, federal agencies began looking for ways to just buy the information from brokers who were collecting it from third parties.

And so a group of privacy-minded lawmakers—including Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore.), Patrick Leahy (D–Vt.), and Mike Lee (R–Utah)—has introduced The Fourth Amendment Is Not For Sale Act. The bill prohibits federal law enforcement and intelligence agencies from attempting to bypass court order requirements by purchasing private citizen tech data from brokers or any third-party company that may have legitimately or illegitimately obtained the information.

In the past two years, we’ve seen the feds make this end run several times. In February 2020, the Wall Street Journal revealed the U.S. Immigration and Customs Enforcement purchased a commercial database full of cellphone tracking data (the very type of information the Supreme Court ruled was private) for immigration enforcement purposes. At the time, a Customs and Border Protection spokesperson said that while the database included tracking information, this was somehow different from the Supreme Court case because it didn’t involve the use of cell towers to aid in the tracking, an argument that deliberately ignores the part of the decision that says that we have an expectation of privacy for records of our physical movements, regardless of the means used to access those records.

We’ve seen other signs of the feds purchasing our personal data. Last June the Wall Street Journal reported that the IRS had purchased access to cellphone location data in order to try to track down tax cheats. They apparently ended their subscription to the service after it failed to help them find any suspects.

The Fourth Amendment Is Not for Sale Act won’t actually ban the purchase of this data, but it will require federal law enforcement officers to go get a court order, just as they have to do now if they want to force a phone service provider to cough up your information. It prohibits the use of this data as evidence if it’s not legitimately collected. It also adjusts the rules of Foreign Intelligence Surveillance Act (FISA) courts to protect the private data of Americans abroad.

“The Fourth Amendment’s protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer,” Paul said in a prepared statement. “This critical legislation will put an end to the government’s practice of buying its way around the Bill of Rights by purchasing the personal and location data of everyday Americans.”

“There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider,” Wyden said. “This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.”

Wyden and Paul have been longtime bipartisan buddies in the fight to protect Americans from warrantless federal surveillance. A House version is expected to be introduced today by Reps Jerry Nadler (D–N.Y.) and Zoe Lofgren (D–Calif.).

The Senate version has several other notable cosponsors, including former presidential candidates Elizabeth Warren (D–Mass.), Bernie Sanders (I–Vt.), and Cory Booker (D–N.J.). A transpartisan group of tech and civil liberties organizations, including the American Civil Liberties Union, FreedomWorks, Demand Progress, the Due Process Institute, the NAACP, and Americans for Prosperity, have all signed on in support.

It’s unfortunate that such a bill is even necessary, but given that federal officials argue that the Carpenter decision is about cell towers and not our overall data privacy, clearly it’s needed.

 

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Litigation over state and federal COVID-19 regulations has highlighted the potential conflict between public health measures and constitutionally protected liberties. Recent cases have implicated the constitutional protection of religious exercise, reproductive rights, and property rights, among other things. These cases also highlight that conflicts over regulatory measures may pit agency expertise against constitutional rights.

As a general matter, courts are quite deferential to federal agency policy judgments, particularly where such judgments are informed by scientific expertise. The degree of deference given to expert agency scientific judgments is so great that it is often referred to as “super deference.” The reasons for this degree of deference are understandable, as courts lack the scientific expertise of agencies, but are nonetheless controversial.

In “Super Deference and Heightened Scrutiny,” forthcoming in the Florida Law Review, I explore the potential tension between judicial deference to federal agency scientific judgments and the application of heightened scrutiny, and argue that the latter should trump the former. I first became interested in this question in the context of commercial speech regulation, as federal agencies sometimes seek to restrict or compel commercial speech on questionable grounds, but then recognized the conflict had broader implications to other contexts in which heightened scrutiny is implicated.

I have posted a current draft of the paper on SSRN. Here is the abstract:

Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call “super deference.” While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there are reasons to question such deference when agency action implicates constitutional matters. In particular, where agency actions trigger heightened scrutiny, such as occurs when agency actions intrude upon expressly enumerated or otherwise recognized fundamental rights or adopt constitutionally suspect classifications, courts should not apply traditional levels of deference. This Article explains why the application of so-called “super deference” is inappropriate where federal agency action triggers heightened scrutiny, considers some of the potential implications of such a rule.

I am still tweaking a few parts, and I am still thinking about the implications of my argument for legislative findings (among other things), so substantive comments are welcome.

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One of the most extraordinary moments in American constitutional history occurred on December 4, 1865. On this, the opening day of the Thirty-Ninth Congress, congressional Republicans made the extraordinary decision to refuse admission to representatives from the former Confederate States. The bewildered southern representatives were left standing in the aisles, their pleas to be recognized by the Chair ignored. Republicans instead proceeded to create the Joint Committee on Reconstruction and tasked it with determining the constitutional changes that had to be made before the Union could safely allow the return of the former rebel States.

Thus began a constitutional drama that would not be complete until after the passage of two more constitutional amendments. The Fourteenth Amendment would solve the problem of southern state representation created by the ratification of the Thirteenth Amendment and define the scope of post-bellum constitutional liberty. The Fifteenth Amendment would prohibit states from denying the right to vote on the basis of race.

At no point was it certain that either amendment would be passed, much less be ratified. The effort to pass the Fourteenth Amendment almost failed, and its ratification triggered a second civil war (one between Republicans and Democrats). It took the impeachment of an American President and the enforcement of the Reconstruction Acts before ratification was assured. Passing Fifteenth Amendment almost failed due to procedural chaos between the two houses of Congress, and securing its ratification involved kicking a readmitted state out of the Union.

The newly published collection of original historical documents, The Reconstruction Amendments: Essential Documents, Volume Two presents the historical record of this remarkable, and remarkably public, constitutional event. The documents include the key congressional speeches and debates, state ratification debates and reports, newspaper essays, campaign speeches and documents, and efforts by women’s suffrage advocates and black civil rights organizations to shape the scope and content of constitutional reconstruction.

Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Fourteenth and Fifteenth Amendments were open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. In short, members of the public could follow the arguments supporting or opposing proposed amendments, arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons and the nature and limits of federal power.

Nor was the public reduced to mere spectator. Women’s suffrage groups, for example, continually pressed Congress to enact universal suffrage. When Robert Dale Owen sent Thaddeus Stevens his suggested draft of a five-sectioned Fourteenth Amendment, newspapers reported the draft before Stevens introduced the draft to the Joint Committee (“News of the Proposed Amendments in the Joint Committee,” Chicago Tribune, April 16, 1866).

Volume Two also presents a number of previously unpublished documents containing the Fourteenth Amendment ratification debates. Long assumed to be either non-existent or no more than fragmentary, Volume Two contains discussions of the proposed amendment in gubernatorial addresses, committee reports, and state legislative debates (including Pennsylvania’s lengthy ratification debates). Ratification documents also include public commentary on the proposed amendment by Frederick Douglass, Wendell Phillips, southern loyalists, Susan B. Anthony, Elizabeth Cady Stanton, S.S. Nicholas, anonymous essayists (the “Madison” essays), northern and southern newspaper editorialists, and much more.

Documented alongside these ratification debates are a number of critical events that had an impact on ratification: The 1866 New Orleans riots, the 1866 congressional election (numerous campaign speeches spoke about meaning of proposed Fourteenth Amendment), the impeachment of President Andrew Johnson, and the passage of the 1867 Reconstruction Acts. One of the most sublime documents in this section is the notice of ratification by the majority black legislative assembly of South Carolina, the state that started the Civil War.

The second half of Volume Two focuses on the framing and ratification of the Fifteenth Amendment. The question of black suffrage had been part of constitutional reconstruction debates even before the ratification of the Thirteenth Amendment. Now, sensing that the window for constitutional change was closing, Republicans in the final days of the Fortieth Congress rushed to pass a proposed suffrage amendment and send it to the states before the end of the current state legislative session.

The result was procedural chaos, with competing drafts sent back and forth between the houses of Congress. Within this chaos, however, are extraordinary speeches on the meaning of American citizenship, the nature of constitutional federalism, the scope of Fourteenth Amendment enforcement power, and the perceived limits of public support for universal suffrage.

Although a number of reconstructed southern legislatures quickly ratified the amendment, northern opposition emerged in the form of Democrat-controlled state legislatures and, most startlingly, from women’s rights advocates like Susan B. Anthony and Elizabeth Cady Stanton. In language increasingly racist in tone and content, Stanton and Anthony called for the defeat of the Fifteenth Amendment (see Stanton’s “All Wise Women Should Oppose the Fifteenth Amendment”). At the 1869 Equal Rights Association, with Frederick Douglass seated on the same stage, Stanton announced that she “did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey.”

In fact, significant pockets of opposition to black suffrage remained both north and south. Ohio ratified the Amendment by a single vote. New York ratified, but then rescinded its ratification. When the newly readmitted state of Georgia refused to seat newly elected black state representatives, Congress expelled the state of Georgia and demanded the ratification of the Fifteenth Amendment as the price of re-readmission. Similar “Requirement Bills” were passed for the readmission of Virginia, Mississippi and Texas.

Finally, on March 30, 1870, President Grant announced the ratification of the Fifteenth Amendment, “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.” Frederick Douglass, in a message to a group celebrating the passage of the Fifteenth Amendment, wrote, “[h]enceforth, we live in a new world, breath a new atmosphere, and have a new earth beneath and a new sky above us.”

Tomorrow: Using the Collection for Research and Teaching a Course on the Reconstruction Amendments

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This Thursday, Earth Day, politicians and activists will shout more about “the climate crisis.”

I don’t think it’s a crisis. COVID-19, malaria, exploding debt, millions of poor children dying from diarrhea—those are genuine crises.

But global warming may become a real problem, so it’s particularly absurd that Earth Day’s activists rarely mention the form of energy that could most quickly reduce greenhouse gases: nuclear power.

When France converted to nuclear, it created the world’s fastest reduction in carbon emissions.

But in America, nuclear growth came to a near halt 40 years ago, after an accident at the Three Mile Island plant in Pennsylvania.

The partial meltdown killed no one. It would probably have been forgotten had Hollywood not released a nuclear scare movie, The China Syndrome, days before.

“People saw that and freaked out,” complains Joshua Goldstein, author of A Bright Future: How Some Countries Have Solved Climate Change (with nuclear power).

One of the people still freaking out is solar activist Harvey Wasserman. “I live in terror of the next accident,” he says in my latest video.

His anti-nuclear argument has basically won in most of the world. Nuclear plants are being shut down.

“Why?” I ask Wasserman. No one was hurt at Three Mile Island.

Wasserman replies that after the accident, he went to nearby homes and people showed him “their tumors, their hair loss, their lesions.”

“It’s bunk,” I tell him. “It’s been studied. People lose hair and get cancer and they attribute it to Three Mile Island, but it’s not true.”

“Having been there,” Wasserman responds, “it’s my clear assertion that people were killed.”

Actual scientists don’t agree. In fact, they find less cancer near Three Mile Island than in other parts of Pennsylvania.

But what about Fukushima? That was more serious. Today, clueless media quote Greenpeace claiming Fukushima’s radiation could “change our DNA!”

Also bunk. “There was heightened radiation, but it was all at this low level below what we consider to be safe,” explains Goldstein.

The low level of radiation released at Fukushima was hardly a threat. What killed people was the panicked response.

“Everyone freaked out and ordered a massive sudden evacuation. That caused suicide, depression….Fear of radioactivity really did kill people.”

One nuclear accident, Chernobyl, did kill, and its radiation may still kill thousands more.

But Chernobyl was built by socialists cutting corners to please dictators. No Chernobyl-like plant will ever be built again. And even with Chernobyl’s deaths, nuclear power’s safety record is better than that of coal, oil, and natural gas.

“But what about the nuclear waste!” shout the activists.

“It’s a small problem,” says Goldstein. “All the nuclear waste from all America’s reactors for 60 years would fit into a Walmart.”

While the anti-nuclear movement has stopped nuclear construction in most of the West, “other places are building them like crazy,” says Goldstein. “China puts a nuclear reactor on the grid every two to three months.”

America may soon finish…one. It took Georgia Power Company six years just to get permission to build a plant. Regulation is so heavy that, 15 years later, it still isn’t operating.

Wasserman is proud he played a role in that. “If you want to accuse us of having raised the cost of building new nuclear plants by demanding more regulation, I plead guilty.”

He claims countries can power themselves with rooftop solar panels and wind.  Technology improvements did lower their prices, but what happens when the wind doesn’t blow? Or the sun doesn’t shine?

Store energy in batteries! replies Wasserman. “We are having a major technological and industrial revolution in battery capacity.”

Goldstein scoffs in response, “The idea that a miracle battery is going to come along and save us is completely untested.”

By contrast, nuclear energy has been tested. It could reduce greenhouse gases, and provide reliable energy, if only we didn’t fear it so much.

“The whole regulatory system is crazy,” Goldstein concludes. “We’re regulating this energy source as though it were the most dangerous thing out there, and it’s actually the safest thing!”

COPYRIGHT 2021 BY JFS PRODUCTIONS INC.

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President Joe Biden addressed the nation on Tuesday following the conviction of former Minneapolis police officer Derek Chauvin on all three charges. Biden applauded the verdict and said that George Floyd’s death was “murder in full light of day, and it ripped the blinders off for the whole world to see the systemic racism.”

Biden said this outcome was a step forward for racial justice, but that Congress should act to pass legislation that would address misconduct in police departments. He said that should be Floyd’s legacy—a legacy of “peace, not violence”:

Peaceful expression of that legacy are inevitable and appropriate. But, violent protest is not. There are those who will seek to exploit the raw emotions of the moment, agitators and extremists who have no interest in social justice, who seek to carry out violence, destroy property, and fan the flames of hate and division, who do everything in their power to stop this country’s march toward racial justice.

We can’t let them succeed. This is a time for this country to come together, to unite as Americans.

Remarks by Speaker of the House Nancy Pelosi were less well-received. As SFGate reported:

Shortly after former Minnesota police officer Derek Chauvin was found guilty in the murder of George Floyd, House Speaker Nancy Pelosi, D-Calif., delivered a bizarre speech that immediately angered and disturbed people following along on social media.

“Thank you George Floyd for sacrificing your life for justice,” Pelosi said. “For being there to call out to your mom — how heartbreaking was that?” she interjected. “Call out to your mom, ‘I can’t breathe.’ But because of you, thousands, millions of people around the world who came out for justice, your name will always be synonymous with justice. And now we have to make sure justice prevails in the sentencing. But, you know, that’s its own procedure.”

Obviously, the idea that Floyd sacrificed his life for justice is a bit presumptuous. Floyd didn’t choose to be killed. (The Las Vegas Raiders posted a similarly cringeworthy social media statement.)

Meanwhile, Rep. Alexandria Ocasio-Cortez (D–N.Y.) cast doubt on the notion that Chauvin’s conviction represented some meaningful achievement of justice.

That a family had to lose a son, brother and father; that a teenage girl had to film and post a murder, that millions across the country had to organize and march just for George Floyd to be seen and valued is not justice.

And this verdict is not a substitute for policy change. https://t.co/tiDkhl9Dk4

— Alexandria Ocasio-Cortez (@AOC) April 20, 2021

There were also plenty of questionable reactions from the right. Republican Anthony Sabatini, a member of the Florida House of Representatives, described the outcome as “mob justice.” Several other conservative commentators echoed this notion.

Mob justice

— Rep. Anthony Sabatini (@AnthonySabatini) April 20, 2021

The mob, led by Democrats at the highest level, successfully intimidated the jury into getting the result they wanted before the trial started

— Matt Walsh (@MattWalshBlog) April 20, 2021

For a recap of the jury’s decision, read Reason‘s Jacob Sullum.

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FREE MINDS

Columbia University students filed complaints against Dinah PoKempner, an adjunct professor at the Institute for the Study of Human Rights and former general counsel at the Human Rights Watch, after she used the word nigger in an educational setting while discussing “the comparative legal treatment of hate speech.” According to The College Fix:

Students attempted to inform PoKempner why her language was out of line, but without success. They ended up taking their complaints to the Office of Equal Opportunity and Affirmative Action, the Office of Multicultural Affairs and Institute for the Study of Human Rights.

According to Columbia’s faculty handbook, professors should “engage their students in discussions about issues that are contentious and emotionally charged” and “challenge them to reexamine deeply held beliefs.” It also notes such discussions should embrace “civility, tolerance, and respect for ideas that differ from their own.”

While the complaints about PoKempner are being looked into, Institute for the Study of Human Rights Director Elazar Barkan “acknowledged” students’ post-episode “anxiety about the course.” Another administrator will handle grading for PoKempner’s class for the rest of the semester.

Adam Steinbaugh of the Foundation for Individual Rights in Education urged Columbia to refrain from punishing PoKempner. “A class discussing what the First Amendment protects will naturally raise the likelihood of hearing or seeing words people find offensive,” he said. “While students have the right to criticize those choices or to complain about them, an investigation or punishment by the university would be a marked departure from its commitment to academic freedom.”

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FREE MARKETS

The Senate will hold confirmation hearings on Wednesday for Lina Khan, an associate professor of law at Columbia University who was nominated by Biden to join the Federal Trade Commission (FTC). Khan’s appointment is notable because she’s a major intellectual proponent of the idea that the federal government should use antitrust laws to regulate major tech companies. She was the co-author of an influential 2017 paper that argued Amazon’s multiple market functions—as a platform, a retailer, a book publisher, and a web hosting service—create “anticompetitive concerns.”

In essence, Khan is an adherent of the progressive approach to regulating “Big Tech.” What’s interesting is that many conservatives have also soured on tech corporations and some—Sens. Josh Hawley (R–Mo.) and Ted Cruz (R–Texas) in particular—have signaled an openness to regulating or even breaking up Big Tech. If the Republicans decline to get behind Khan—or even deride her pro-government, pro-regulation approach—it might show that their stated opposition to Big Tech is just for show. Sen. Mike Lee (R–Utah) has suggested that Khan is too inexperienced for the job, which could be his way of saying he’s not on board.

Assuming that Khan does get confirmed, she is likely to bolster the Biden administration’s misguided efforts to rein in tech companies. Biden previously tapped Tim Wu, a Columbia law professor and close ally of Khan, to join the National Economic Council. This is one area of policy where Biden’s views seem to be well in keeping with far-left progressivism, and there’s plenty of damage that Wu and Khan can do. How Republicans might respond is something of a mystery, given that petty grievances have caused them to abandon free market principles when it comes to tech.

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QUICK HITS

• Former President George W. Bush criticized the modern Republican Party as “isolationist, protectionist, and to a certain extent, nativist.”
• The Johnson & Johnson vaccine rollout will resume in Europe.
• Things are going very, very badly in India.
• New York Times columnist Michelle Goldberg: “There Could Never Be a Female Andrew Yang.“
• A school board in Newark, New Jersey, went “nuclear” and ordered all teachers to return to classrooms by the end of the month.

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Last week I heartily endorsed Kurt Lash’s new two-volume set on the Reconstruction Amendments. Here, let me offer a testimonial.

I am writing about a statute passed after the ratification of the Fourteenth Amendment. During the writing process, I came across a question: did any members of the Reconstruction Congress cite Hamilton’s Federalist No. 60? It was such an obscure, but relevant question. Before Kurt’s book, it would have been virtually impossible to perform this query. I would have had to walk through thousands of pages of documents in various sources. And who knows if I would even find anything of relevant.

But now with Kurt’s book, the query took 5 minutes. I searched my Kindle version of Volume II for “Federalist.” Moments later, I found that a member of Congress from Wisconsin cited Federalist No. 60 during the debates over the Fifteenth Amendment. Indeed, he recited from the exact Hamilton passage I was researching. In an instant, I realize how valuable Kurt’s books are.

We are all much better off for this valuable set. The price is steep–about $95 for each Kindle version. If you can’t afford it, ask your library to get a copy. It will come in handy in ways you cannot even imagine.

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