Tag: posts

9/8/1953: Chief Justice Fred Vinson dies.

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In the last few years, a major fault line has opened up on the American political right: Call it the Great Liberalism Schism. On one side are those of us who remain committed to classical liberal norms and values such as due process, free trade, and religious freedom. On the other side is an increasingly restless group of writers and thinkers at places like First Things and the Claremont Institute who say America has tried classical liberalism—and it failed us.

These “post-liberals” believe it’s time for a conservative politics that stops worrying about protecting individual liberty and starts worrying about attaining the common good. Generally speaking, that means embracing “strong rule” by a government tasked, among other things, with “enforcing duties of community and solidarity in the use and distribution of resources,” as the Harvard law professor Adrian Vermeule put it in a March essay for The Atlantic.

There’s nothing wrong with caring about the common good. It’s just that the self-named Common-Good Conservatives don’t have a monopoly on the idea.

Just as there are many competing visions of the good life at an individual level, people frequently disagree about what a good society would look like. Most political leftists believe religiously affiliated employers should be required to pay for their workers’ birth control—and the language they use in defense of that position and others like it is nothing if not moral. Yet most people on the political right see that understanding of the common good as utterly mistaken. In a democratic society, how do you ensure that only the correct vision is coercively enforced?

At a sufficiently high level, we can all agree the concept is tied to human flourishing. The Catechism of the Catholic Church defines the common good as “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily.” The dispute, then, is about how to help people thrive. For many of us, protecting individual liberty is crucial as both a component of and a requirement for achieving that goal.

A free society is in itself a good thing. That doesn’t mean freedom is the only good or even the highest good. But it is a good that must be included in any final accounting of the common good. To deny someone control over his own life is to assert your supremacy over him, violating his innate dignity as a person. The more coercion exercised, the greater the violation. While there may be pragmatic arguments against the institution of slavery, I trust we all recognize them as secondary. The first and most important reason to oppose human bondage, which is the opposite of human liberty, is that it’s evil. A freer society is a better society, all else being equal.

But freedom isn’t just a component of the common good. It’s a prerequisite for other components as well.

Any list of the social conditions that promote human flourishing would certainly include things like justice for all and material abundance. When classical liberals emphasize institutions such as due process and free trade, it’s precisely because we see them as means to these ends. Hence libertarians’ seeming preoccupation with what the economist Deirdre McCloskey has termed the “Great Enrichment” of the last 250 years.

Classical liberals are not always comfortable employing common-good terminology, but creating the conditions under which people can thrive is undeniably the endgame of the classical liberal project. “We consider cooperation so essential to human flourishing that we don’t just want to talk about it,” wrote Cato Institute executive vice president David Boaz in his 2015 book The Libertarian Mind (Simon & Schuster). “We want to create social institutions that make it possible. That is what property rights, limited government, and the rule of law are all about.”

But if the so-called Common-Good Conservatives are not alone in their concern for the common good, then their chosen moniker obscures what differentiates them rather than illuminating it. What might be a better appellation for this group? I suggest, to borrow a concept from German philosopher Friedrich Nietzsche about human beings’ natural desire to expand and dominate, they would more accurately be described as Will-to-Power Conservatives.

In 1651, Thomas Hobbes described the precivilizational state of nature as “a war of all against all.” It appears some people believe the introduction of rule of law did little to alter that fact. New York Post opinion editor Sohrab Ahmari, in a now-infamous 2019 essay for First Things, called upon conservatives to accept the hard truth “of politics as war and enmity.” All societies have rulers, the Will-to-Power Conservatives seem to be saying; what matters above all else is ensuring that our tribe is dominant.

Don’t take my word for it. In a recent symposium published by The American Conservative, editor of American Affairs Julius Krein (echoing his colleague Gladden Pappin) complains that “contemporary conservatism” lacks “a serious approach to wielding political power.” Hillsdale College’s David Azerrad argues that conservatives must learn to be “manly,” “combative,” and “comfortable” using “the levers of state power…to reward friends and punish enemies.” And Claremont’s Matthew J. Peterson insists that “conservatism must not merely make arguments…it must act on them, wielding ‘regime-level’ power in the service of good political order to do so.”

Ahmari in his 2019 essay mocked classical liberals’ “great horror of the state, of traditional authority and the use of the public power to advance the common good.” He went on to urge conservatives to “fight the culture war with the aim of defeating the enemy and enjoying the spoils.”

And what would the Will-to-Power Conservatives do with state control once acquired? The specifics vary from person to person, but the policy agenda can be characterized as right-wing on social issues (blue laws; crackdowns on pornography) and left-wing on economics (industrial subsidies; generous unemployment insurance). At the nexus of the two are proposals to use the tax code to encourage larger families, in which women preferably work less outside the home.

That formulation—socially conservative and fiscally liberal—may seem to have an uncanny valley quality, because it’s the inverse of a common shorthand description of libertarianism. The Will-to-Power Conservatives make no bones about that: Their aim is “to challenge the moral-cultural dominance of radical liberal individualism,” writes Krein. It is collectivist, if not authoritarian, by design.

Classical liberals seek a world in which everyone is free to live out his own conception of the good so long as he abstains from forcibly interfering with others’ ability to do the same. We’re therefore just as concerned with defending a person’s right to view pornography or buy alcohol on Sundays (to the chagrin of some traditionalists) as we are with defending an employer’s right not to be involved in the provision of his workers’ birth control (to the chagrin of many leftists). One’s freedom, as far as the law is concerned, does not depend on his using it to do what’s objectively moral.

For Will-to-Power Conservatives, just the opposite is true: By virtue of representing the correct vision of the good, they say, they have every right to use the coercive power of the state to interfere with others’ choices. In place of equal rights under the law, it’s error has no rights. This is no way to achieve the common good.

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Rio Wotjecki, 15, got caught stealing motorized bicycles in 2018, the only crime he’s ever been accused of. He was given probation, and a probation officer regularly checks on him. But the Pasco County, Florida, sheriff’s office decided it needed to keep a close eye on him, too. Between September 2019 and January 2020, they visited his house 21 times. They also went to his mom’s place of work and to a friend’s house. Bodycam footage shows deputies admitting they don’t suspect him of any more crimes, but they question him about his friends and people he hangs out with. Wotjecki is one of some 1,000 people the sheriff’s office tracks because it considers them likely to break the law. The Tampa Bay Times reports the program is based on past arrests but also on “unspecified intelligence and arbitrary decisions by police analysts.” It says one former deputy said the program seems aimed to “Make their lives miserable until they move or sue.”

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An anonymous reader sent me what appears to be a copy of the letter mentioned in the L.A. Times article a few days ago. Here is the substance; for more on the controversy itself, see this post and this one:

Dear Deans, USC Administration, the Marshall School of Business and Alumni;

We write to you with great concern about the apparent removal of Prof. Greg Patton from his teaching role in GSBA 542 Communication in the Marshall School of Business at USC and the false claims that continue to circulate about the events. We have the following observations:

• All of us have gained enormous benefit from the academic leadership of Prof. Patton. His caring, wisdom and inclusiveness were a hallmark of our educational experience and growth at USC and the foundation of our continued success in the years following.
• We represent more than a dozen nationalities and ethnicities and support the global inclusiveness Professor Patton brings to the classroom. Most of us are Chinese, some ethnically, some by nationality, and many others have spent extensive time in China. Most of us live in China. We unanimously recognize Prof Patton’s use of ‘nei ge’ as an accurate rendition of common Chinese use, and an entirely appropriate and quite effective illustration of the use of pauses. Prof Patton used this example and hundreds of others in our classes over the years, providing richness, relevance and real world impact.
• A few of us, but many of our parents, lived through mainland China’s Cultural Revolution (1966–1976). This current incident, and Marshall’s response so far, seem disturbingly similar to prevalent behavior in China at that time—spurious accusations against innocent people, which escalated into institutional insanity. In the United States on 9 June 1954, the counsel for the U.S. Army, Joseph Welch, said to Senator Joseph McCarthy, ‘have you no sense of decency?’ Welch’s question eloquently pointed attention toward McCarthy’s misrepresentations and helped bring an end to the madness. It took courage to end the harm in both cases and we seek that from USC and Marshall.
• We fully support social and economic equality and justice, an end to police brutality, and necessary criminal justice reform in the United States. It is in part because those goals are so vital that we deplore what seems to be Marshall’s response so far; such ignorant and false charges as those leveled against Prof. Patton demean the importance of those goals, subvert essential social change and are deeply counter-productive.
• We also find the motivation behind these charges highly questionable. After many years of the example’s use, and positive feedback, this year the example suddenly caused deep mental health consequences and mental exhaustion? It seems entirely appropriate that the person or persons who brought forth such abusive and dishonest charges should be reprimanded strongly by Marshall not only for the obvious Student Conduct and Integrity violation, but for demeaning the important cause they pretend to stand for.
• We are also deeply disappointed that the spurious charge has the additional feature of casting insult toward the Chinese language, the most spoken in the world, and characterized it and its usage as vile. We feel Marshall should be open to diversity in all areas—not only those areas convenient for the moment. We further suggest that any attempt to degrade this matter and suggest that a Chinese word different in sound, tone, accent, context and language itself is “exactly like” an offensive US term would be naive, a disgusting and intentional stretch and would further degrade important societal discussion.

We earnestly hope that our collective voices in this matter will help Marshall reach the ethically required decision in this matter: complete exoneration of Prof. Patton, and probably a reprimand to the ignorant-at-best instigators of such deplorable and false accusations. Below our list of names, you may see some of our individual comments about this matter….

Sincerely, Alumni of the University of Southern California & The Marshall School of Business

[102 signatory names, graduation dates, and geographical locations omitted. -EV]

The document I received closes with what it labels “Some typical individual reactions from our global USC alumni community”:

• “For such a group of administrators to misconstrue this specific situation is purely ignorance on their individual part and on the MBA program, Marshall School, and USC as a whole.”

• “I am so disappointed with [Dean Garrett] and his decision.”
• “I think what’s going on in US is kind of ‘Culture Revolution’. We experienced in our history. It’s a Nightmare. Anything you say can be enlarged to be something ‘Political Guilty’ if you don’t extremely express in the way of ‘political right’. We must support Prof Greg. I truly hope USC don’t lose his rational judgment.”
• “‘那个那个那个’—this has nothing to do with racism!”
• “Extremely disappointed in the USC Marshall leadership in the handling and communication of this situation.”
• “What he said in the video clip is absolutely appropriate to me, and, I believe, appropriate to anyone who can understand Chinese.”
• “This is so ridiculous culturally, and even politically.”
• “This morning, I am shocked to hear that Marshall school removed the GSBA-542 teaching and remainder responsibility of Professor Greg Patton because he applied Chinese dialect ‘neige-neige’ (equal to ‘that’) during the class. It is just most Chinese in nature to use this tone during the oral talking. Nothing matters to racism.”
• “Prof Patton was an instructor for my program through multiple sessions and I found him to be one of the most talented teachers an communicators that I have ever had the pleasure to learn from. He fostered an extremely inclusive learning environment and worked tirelessly both inside and outside the classroom to connect with each and every student in the class.”
• “I studied with Professor Greg Patton during 2004–2006, when he taught me ‘communication.’ I can’t forget what he gave a wonderful teaching in the ‘communication,’ and his leadership and passion to people with diversified background impressed me deeply. I would say he is one of the better professors I ever met in my life who does not only give world 1st class fantastic teaching in the subject, but also get along well with everybody he met with full He always tries his best to build-up value to his students and people surrounding him from his knowledge, experience, and skills … Many of us had benefited from his teaching and leadership in our career and daily life afterwards.”
• “But his speech content has nothing to with racism!”
• “Too crazy!!!!”
• “He is great assets of USC and Marshall school and entire our community. To give such bad treatment to him is totally unbelievable and would hurt and destroy our community value and confidence to school.”
• “If you had been in China long enough and learn more about how people act in so-called culture revolution 50 years ago, you will know it could be just someone hold a grudge with Prof. Greg and took the chance to ruin him.”
• “Ridiculous stuff!”
• “I took communication class by Prof. Patton. He is respected very much by me and my classmates. We are impressed with his wisdom, kindness, and inclusiveness. We would never link him to any kind of racism.”
• “Why someone oppose to use ‘那个那个那个…’ [na ge na ge na ge] and refer it as tough words or racism. Can anyone educate me?”
• “Greg should give this dean a lecture on communication, and especially on crisis communication management.”
• “I went through Culture Revolution as a teenager. The fact of this becoming a concern to some and the handling by the Marshall management even if unwillingly, reminds me that crazy dark period in Chinese history.”
• “You can easily find it in the video. Obviously Professor Greg is totally innocent and in fact he did the same when he taught us in the class, and I assume he did for other classes as well since it’s a part of his lesson and make people know the communication principle of using pause in your conversation. I don’t want to assume is there anything behind caused this unreasonable blaming, but Professor Greg did NOTHING wrong! Support him for sure and please COUNT ME IN.”
• “It’s so culturally, socially and politically naive to behave in this way ….”
• “This is not a derogatory remark in any context. This is an example of words being used for effect as per the lesson. The word used is also tonal, where an English has no tones, further separating it from the expected phrase.”
• “While not a native speaker of Chinese I lived and worked in China for over 12 years and become proficient in mandarin Chinese over this time. That being said, am absolutely dumbfounded by the school’s decision to discipline Prof Patton for his use of an extremely common filler expression in Chinese within the context of the larger discussion around pausing or ‘filling’ during a conversation to collect ones thoughts or provide added message impact.”
• “In rewatching the video Professor Patton even explains before he said 那个那个exactly what it means … and states it is a foreign language. In fact it was an outstanding example of how language is used in communication and students should feel lucky to get a professor’s international insight about commutation in the fastest growing second largest economy in the world …. Chinese examples should be prized in a truly global education curriculum like Garrett pretends to adhere to …”
• “Horrible political correctness”

For whatever it’s worth, the signatories’ geographical locations do appear to be overwhelmingly in China, Singapore, Taiwan, with many of the remainder being elsewhere in the Far East, where various versions of Chinese are indeed likely often heard. It thus seems likely that they are in a position to know what they’re talking about with regard to how normal the phrase is in, and that they represent the reactions of at least some reasonable segment of Chinese speakers. Likewise, for whatever it’s worth, the bulk of the names appear ethnically Chinese, though of course the case of the famous Chinese-American Civil War general shows the inaccuracy of such assumptions. (Or was he Korean?)

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Isaiah Elliott, a 12-year-old boy who lives in Colorado Springs, Colorado, is fond of his neon green Nerf gun—which has the words “ZOMBIE HUNTER” written on it.

Last week, during a virtual classroom session, Elliott briefly picked up his toy gun, causing it to appear on screen for just a few seconds. This was noticed by his teacher, who promptly alerted the authorities. As a result, the police paid a visit to Elliott’s home and the school suspended him for five days.

The teacher was fairly certain the gun was a toy, according to local news station KDVR. But instead of checking with the parents to assuage any doubts, the school went straight to the cops.

In a statement, the district explained that all school board policies would be enforced regardless of whether “we are in-person learning or distance learning.”

“We take the safety of all our students and staff very seriously,” said the district. “Safety is always our number one priority.”

This explanation—we are just enforcing the policy equally—might make make more sense if the policy itself was logical, but deploying the police to deal with a nerf gun would have been ridiculous even if the incident took place in a physical classroom. The fact that the other students were, in this case, even further removed from the nonexistent danger just makes the situation even more ridiculous.

“For them to go as extreme as suspending him for five days, sending the police out, having the police threaten to press charges against him because they want to compare the virtual environment to the actual in-school environment is insane,” said Dani Elliott, the boy’s mother.

Another kid, an 11-year-old whose airsoft gun briefly appeared on screen during a Zoom class, was similarly suspended. There are many reasons to oppose virtual learning as the new default for American public K-12 education: Perhaps most importantly, it neglects school’s vital role as a form of daycare. But the opportunity for the state to invite itself into the home and make trouble for hard-working parents and innocent children is also a serious concern.

There’s one more wrinkle here: Unbeknownst to parents, Elliott’s school had been recording the Zoom session. The school did say it would abandon this practice, though it makes little difference to Elliott’s parents: They wisely decided to transfer him to a private or charter school.

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The Republican National Convention last month highlighted Donald Trump’s support for the FIRST STEP Act, a 2018 law that Ivanka Trump, the president’s daughter, called “the most significant criminal justice reform of our generation.” A new report from the U.S. Sentencing Commission (USSC) describes what that reform has accomplished so far: During the first full calendar year in which the law applied, it resulted in shorter sentences for more than 4,000 drug offenders. While that is nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans, including more than 68,000 drug offenders, behind bars.

The FIRST STEP Act sentencing reform with the biggest impact in 2019, measured by the number of people affected, was retroactive application of the lighter crack cocaine penalties that Congress approved in 2010. Congress raised the mandatory-minimum weight thresholds, moving them closer to the thresholds for cocaine powder while maintaining a still irrational and unjust 18-to-1 ratio (down from 100 to 1). In 2019, the USSC report says, 2,387 already imprisoned crack offenders qualified for shorter sentences under the FIRST STEP Act’s retroactivity provision. The average reduction was 71 months, making the average sentence for this group 187 months (more than 15 years), down from 258 months (more than 21 years).

The second most significant FIRST STEP Act sentencing reform in 2019 (again, measured by the number of people affected), was its widening of the “safety valve” that allows low-level, nonviolent drug offenders to avoid mandatory minimums they otherwise would receive. The USSC reports that 1,369 defendants benefited from that expansion in 2019. The average sentence for that group was 53 months (more than four years), compared to 36 months (three years) for defendants who already were eligible for the safety valve. The average sentence for federal defendants who receive mandatory minimums, based on data for fiscal year 2016, is 138 months, or more than 11 years.

Two other FIRST STEP Act sentencing provisions had a much smaller impact. The law narrowed the criteria for the enhanced penalties that apply to repeat drug offenders, which reduced the number of defendants eligible for those sentences. The enhanced penalties applied to 849 drug offenders in 2019, 152 fewer than in fiscal year 2018. The FIRST STEP Act also reduced the enhanced penalties, from 20 to 15 years for defendants with one prior conviction and from life to 25 years for defendants with two prior convictions. In 2019, the USSC says, 219 drug offenders benefited from the first reduction, while 21 benefited from the second reduction.

Even rarer were situations where defendants received shorter sentences because of the FIRST STEP Act’s changes to a law that imposes escalating mandatory minimums on drug offenders who have firearms. The USSC says 205 defendants benefited from that provision in 2019, receiving sentences of five, seven, or 10 years rather than the 25-year sentence that previously would have applied.

The FIRST STEP Act was supposed to facilitate compassionate release of elderly or ailing prisoners. In 2019, 145 prisoners were granted compassionate release, five times the number in fiscal year 2018.

The law also expanded the “good time” credits that allow prisoners to be released early. Although the USSC report does not analyze the impact of that provision, the Justice Department reported last year that more than 3,100 prisoners had benefited from it.

By the end of last year, then, more than 7,000 people either had been released from prison earlier than they otherwise would have been or were serving sentences that will end sooner than would have been the case before the FIRST STEP Act took effect. That is a meaningful accomplishment. Thousands of people will spend less time behind bars, and more time with their families, friends, and neighbors, thanks to this law, and that number will rise each year.

At the same time, the law’s beneficiaries at this point represent less than 5 percent of the federal prison population, less than 11 percent of drug offenders in federal prison, and less than 10 percent of federal criminal cases each year. And while a crack offender who serves 15 years rather than 21 years in prison surely is better off, the reduced penalty is still draconian, especially if you think peaceful transactions involving arbitrarily proscribed intoxicants should not be treated as crimes to begin with.

Even leaving aside the moral bankruptcy of drug prohibition, the FIRST STEP Act fell far short of reforms that have gained bipartisan support in Congress. In addition to making shorter crack sentences retroactive and widening the safety valve, the Smarter Sentencing Act, which was introduced by Sens. Richard Durbin (D-Ill.) and Mike Lee (R-Utah) in 2014, would have cut mandatory minimums for drug offenses in half. That bill passed the Senate Judiciary Committee with the support of three Republicans and 10 Democrats. The Justice Safety Valve Act, which Sens. Rand Paul (R–Ky.) and Pat Leahy (D–Vt.) introduced around the same time, would have gone further, making mandatory minimums effectively optional by allowing judges to depart from them in the interest of justice. Joe Biden, Trump’s Democratic opponent in this fall’s presidential election, likewise favors abolishing mandatory minimums, along with the distinction between the smoked and snorted forms of cocaine (both of which he supported as a senator).

As its name indicates, the FIRST STEP Act was not meant to be the last word on criminal justice reform. “We’re just getting started,” Ivanka Trump promised at the Republican convention. Now is the time to spell out what that means.

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