I have not been deep in the weeds of the arguments about Section 3 of the Fourteenth Amendment, unlike my constitutional law casebook coauthors: Mike Paulsen, Michael McConnell, and Will Baude. But it is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an “officer of the United States.” This is the lead argument in the brief available here. And for reasons I cannot understand—as a matter of legal principle—this argument is now being advanced by various conservative legal luminaries.
Three observations:
1. The textual arguments advanced in the brief are weak, but the fundamental problem is a lack of sophistication about the interplay between semantics and context. Here is an example from pages 23-24: “every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials.”
But it is not “this phrase” that excludes. In the Appointments Clause and the Commissions Clause, it is the context that makes clear that the President is not in view, because the President is not appointing or commissioning himself. It is not the semantic content of “officer of the United States.”
By analogy, if I were to host a dinner for all of my colleagues at Notre Dame Law School, and I said “all law faculty are welcome, but none are obligated to be there,” would I be saying that I, as the host, was not obligated to be there? Of course I would be obligated. Would I therefore be saying that I was not “law faculty”? No. My usage would not be advancing a narrow view of the semantic domain of “law faculty”; I would instead be using the phrase in a context that indicated that I was obviously excluded.
And in the Impeachment Clause it is not even the case that the phrase excludes the President, since it merely has an overlap with a very good reason for the additional specification. It is so important to make clear that the President and Vice President may be impeached—no small point against the background of royal prerogative power in England—that they are spelled out specifically. That does not mean they are not officers, and the brief’s suggestion that “all other civil officers” would have to be used does not fit the legal drafting culture of the late eighteenth and nineteenth centuries. To give another example from that legal drafting culture, “necessary and proper” and “necessary or proper” and “necessary and appropriate” and so on all meant exactly the same thing (the sort of thing I explored here). This general point also weighs against any attempt to cut hyper-fine distinctions between an “officer of the United States” and an “office under the United States.”
2. So is Section 3 such a context where the President is excluded? And here the argument in the former President’s brief runs straight into the buzz-saw of what we could call the Andrew Johnson Problem. It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President. We can retrofit plausible explanations for why the President and Vice President might be different (e.g., the Lessig argument here). But the Reconstruction Congress was in the middle of fighting tooth and nail with Andrew Johnson. That Congress thought President Johnson was imperiling all that the Union soldiers fought for. Was that Congress creating an exception for President Johnson? The burden of proof for showing that they were in fact doing that is so massive that it could not be met except with the clearest possible evidence.
3. The argument on page 23 of the brief that a presidential oath to “preserve, protect, and defend the Constitution” is not an oath to “support” the Constitution is risible. Try explaining it to a child. It is an argument that should be treated with derisive scorn by everyone who encounters it. It is the kind of magic-words literalism that is the reason people think they hate lawyers. Justice Scalia once said that if he accepted a certain argument “I would hide my head in a bag.” That is a fitting response to the argument that the presidential oath does not require the President to support the Constitution.
[The heading of what appears to be one of the items included in the mandatory training.]
[I’m delighted to pass along this very interesting reporting and analysis by Prof. Alan Rozenshtein (Minnesota). -EV]
According to the Wisconsin Institute for Law and Liberty (WILL), a conservative advocacy group, the University of Wisconsin Law School conducted a mandatory 1L “reorientation DEI session” last week for which students had to fill out a “race timeline worksheet” with “7 significant moments at least” of “significant life events around race” and read a worksheet listing 28 “common racist attitudes and behaviors,” including views like “I’m colorblind” and “We have overcome.” A student who attended the session confirmed to me that WILL’s reporting was broadly accurate.
I reached out to the University of Wisconsin Law School and received the following statement:
Friday’s session on diversity, equity, and inclusion for second semester 1L students was held in partial fulfillment of ABA Standard 303’s requirement that law schools provide education to their students on “bias, cross-cultural competency, and racism.”
The session was interactive, with ample opportunities for students to engage in dialogue with each other. A core goal was to help students develop their critical thinking skills with respect to these topics.
We do not expect students to automatically accept the views expressed in the document referred to, any more than they would the reasoning of a legal brief, judicial opinion, or their professors. Intellectual and academic freedom are core values of the Law School.
Accordingly, we welcome and encourage vigorous debate over important questions of law and policy, and this session provided a forum for such discourse.
My goal is not to adjudicate between the competing accounts of the session, and indeed different good-faith observers can characterize the same event differently. More questions would need to be answered to properly evaluate a DEI session, such as: were a range of readings provided that offered a different perspective on race and racism; to what extent was the format of the session that of a training or rather an open-ended discussion; and, if the latter, was the environment such that students were comfortable expressing views contrary to those expressed in the worksheet, by the person leading the session, and by other students?
It’s a problem if the answer to these questions is no. Some concerns are legal: WILL argues that such trainings would violate civil rights law and create a hostile environment (see, for example, a recent court case upholding a lawsuit against Penn State for particularly extreme DEI trainings). Others are substantive: it’s jarring, especially a week after Martin Luther King Jr. Day, to read that the statement, “Character, not color, is what counts with me,” is a “detour or wrong turn into white guilt, denial or defensiveness.” And then there is the practical issue of whether such training might in fact backfire.
But I want to focus on a different point: that an educational institution committed to academic freedom and free inquiry should not use mandatory trainings to impose contested moral claims (again, without taking a position on the specifics of how the Wisconsin session was conducted). This principle is especially important for law schools, which are, after all, in the business of training future lawyers who will need to be able to consider all sides of an argument rather than dogmatically accept one view or another.
The issue is not whether one agrees with the views at issue. Academic freedom doesn’t just limit indoctrination in the “anti-racist” ideology reflected in the handout; it equally rules out adopting a critique of anti-racism as institutional orthodoxy. Nor is the point limited to discussions of race (central as they are in our current culture war). It would be just as inappropriate if a conservative-leaning university forced students to sit through a mandatory session on the virtues of capitalism and the evils of socialism, or if a liberal university took the opposite positions.
It’s true that required trainings often touch on issues that have normative dimensions, and controversial ones at that. For example, I would expect a mandatory law school orientation session to discuss the school’s policies on free speech, harassment, sexual misconduct, etc. Each of those policies reflects substantive choices that not everyone may agree with; e.g., some members of the law school community might think that the free speech policy goes too far, or not far enough, and similarly for the other policies.
But DEI training is different than training on existing policies, in two key ways.
First, training on the contents of a policy assumes that a policy actually exists. If a law school (or the university) has already taken a substantive position on some matter of institutional concern, then of course it has to inform the members of the community of the contents of that policy. And if members of the community don’t like the policy, they should argue against it, not against the training informing them of it.
But it’s unlikely that a law school would adopt, as an official policy, the claim that expressing “exhaustion and despair” over racism is itself racist, to take one of the claims in the handout (nor is it clear what it would mean to adopt such a claim as a matter of “policy”).
Second, even where policies exist, training should be limited to making sure that students understand the policy, not pressuring them to agree with it.
None of the above is meant to argue that discussions about race and racism, including the presentation of arguments based on anti-racism or critical race theory or any other school of thought, are inappropriate in a law school class, or even as part of the mandatory 1L curriculum. But a discussion has to be just that: an open-ended exchange of views that recognizes that no one has the right to force anyone else to agree with them when it comes to some of the most controversial debates in modern life.
How to address race and racism in the law school curriculum is an important and hard question. Law schools (and the ABA, which, as the law school noted, requires education on “bias, cross-cultural competency, and racism”) should make sure that, however they approach the problem, they do so in a way that is both effective and consistent with their commitments to academic freedom.
A Michigan couple wanted to start a “green” cemetery, a place where the dead can be buried in a more natural and environmentally friendly manner. Local officials didn’t want that—so they banned all cemeteries within the township.
Instead of pumping bodies full of preservatives like formaldehyde and burying them in wood-and-metal caskets or concrete vaults, green burials involve placing the deceased directly into the ground to decompose naturally into the soil, often in biodegradable wood caskets or cotton shrouds.
Peter Quakenbush tells Reason that he learned about the process while working in wildlife management. “I’ve always been interested in biology and nature, and I have a few degrees in biology,” he says. The idea of preserving a natural green space while simultaneously providing people an environmentally friendly place to be buried—which would, in turn, provide natural nourishment for the forest—struck him as “a really wonderful kind of win-win combo.”
Peter and his wife Annica set about to make the dream a reality. After years of searching, they found a 20-acre parcel of undeveloped land within an hour of Grand Rapids that would make a suitable site. There they planned to establish the West Michigan Burial Forest, developing the land using criteria set out by the Green Burial Council, a private organization that certifies green cemeteries. As of December 2023, the council had certified 333 green cemeteries in the U.S. and Canada.
Specifically, the Quakenbushes wanted to make their site a conservation burial ground, in which they would obtain a conservation easement—limiting what the land could ever be used for—and partner with a conservation organization so that the land could be maintained in perpetuity. Their 20-acre parcel would remain a natural forest, otherwise undisturbed, and their burials would use no unnatural chemicals or non-biodegradable materials. Instead of headstones, they would use natural markers, such as trees or rocks native to the area.
In February 2022, they reached out to zoning officials in nearby Brooks Township to see what they would need to do next. According to the Quakenbushes, zoning official Joseph Selzer gave them a list of paperwork they would need in order to qualify for a land use permit. They started drawing up a site plan and reached out to land conservancies who could partner with them on an easement.
They also contacted the district health department, which reviewed their paperwork and visited the site in July to take a soil sample before approving the site in February 2023.
So it came as a shock to the Quakenbushes when, in June 2023, the Brooks Township Board unanimously passed the Township Cemetery Ordinance. Under the ordinance, “cemeteries are expressly prohibited and banned within Brooks Township.” The statute even defined cemetery to include “any conventional cemetery, green cemetery, conservation cemetery, burial forest or forest cemetery.”
The Quakenbushes are suing the township, seeking an injunction preventing officials from enforcing the ordinance, which they say deprives them of due process in violation of the Michigan Constitution. They are represented by the Institute for Justice (I.J.), a public interest law firm.
Shortly after the Quakenbushes reached out to local zoning officials, the township’s legal counsel emailed Selzer to recommend “that new private cemeteries not be allowed within the Township except under certain very limited circumstances.”
Alowing “new small or informal private cemeteries on private properties would likely create significant problems throughout the Township and potential property purchasers in the future,” wrote Brooks Township attorney Cliff Bloom.
Specifically, Bloom worried that “at some time in the future (whether in a few decades or the distance [sic] future), the family members of the deceased individuals will no longer own the parcel involved,” at which point its status as a burial ground “would devalue the property and make it unmarketable or difficult to sell.”
“My response to that is, what does it matter? It’s not your property,” says I.J. attorney Renée Flaherty, who is representing the Quakenbushes.
It’s also a nonissue, says Peter. “That’s where the relationship with the land conservancy, and the certification, comes in,” he says. To be certified as a conservation burial ground, one must “operate in conjunction with a government agency or a nonprofit conservation organization that has legally binding responsibility for perpetual monitoring and enforcement of the easement,” according to the Green Burial Council.
And even in the absence of such an agreement, state laws exist to address the concern. Under Michigan law, private cemeteries must register with the state cemetery commissioner. And before a cemetery can sell its first burial plot, “an irrevocable endowment and perpetual care trust fund shall be created by the deposit of at least $50,000.00 into the fund,” and “each month, not less than 15% of all proceeds received” shall be deposited into the endowment fund.
The Cemetery Ordinance purports to “protect the public health, safety and general welfare,” but Bloom’s email indicates that officials are concerned less about how the Quakenbushes use the property than what may happen if one day the they are no longer able to maintain it.
“It will be cared for in perpetuity as a forest, first by Peter and Annica and then whatever organization they partner with,” says Flaherty. “But the whole point is to preserve it as a forest—that is what Peter and Annica want to do. They want this land to remain a wild forest forever, and they should have the right to make that decision about property that they own. If the town wants to develop it later, like, sorry for them. It’s not their property.”
An anti-porn bill in Oklahoma is so extreme that it could even make sexting outside of a marriage a crime.
The wide-reaching bill would make merely viewing “obscene materials” a felony. It would also restrict “unlawful porn” distribution and production—with enforcement possible through both criminal prosecution and private lawsuits—and make it a misdemeanor to pose for, exhibit, or publish unlawful porn. And of course it would define these terms to include a huge array of sexually charged adult activity (far beyond what many people would consider pornography).
It’s part of a wave of conservative plans targeting a very broad definition of “porn”—First Amendment be damned—that threatens not just “hardcore pornography” but all sorts of erotic expression. Whether or not this particular bill goes anywhere, it represents a resurgent moral panic over porn (more common on the right, but present in more progressive corners too) and associated attempts to restrict it. Sometimes these attempts take the form of pressure campaigns on financial institutions that do business with sex workers or porn companies. Sometimes they involve lawsuits against porn websites or other platforms where porn is shared. A lot of them lately have focused on requiring age verification for porn sites. And sometimes, as with this Oklahoma bill, they attempt to drastically expand what is considered illegal obscenity or pornography.
Defining Unlawful porn
The measure—Oklahoma Senate Bill 1976—comes from state Sen. Dusty Deevers (R–District 32), who also put forth legislation to repeal no-fault divorce. It’s slated to be formally introduced on February 5, but the text was already filed last week, giving us advance notice about how bad it is.
By and large, the First Amendment protects pornography, though there are some big exceptions. It does not protect porn that depicts people under age 18. And it does not protect “obscenity,” an ill-defined category that’s been the subject of many a court case. But most adult pornography is considered protected.
Decades of First Amendment law notwithstanding, Deevers’ bill attempts to carve out a new category of largely prohibited content called “unlawful pornography.”
His measure defines unlawful porn as “any visual depiction or individual image stored or contained in any format on any medium including, but not limited to, film, motion picture, videotape, photograph, negative, undeveloped film, slide, photographic product, reproduction of a photographic product, play, or performance” when the depiction involves basically any sort of sex act, nudity, partial nudity, or sexual fetish. Unlawful depictions include “sexual intercourse which is normal or perverted,” along with oral sex, anal sex, and masturbation. Also included is any “lewd exhibition of the uncovered genitals, buttocks, or, if such person is female, the breast, for the purpose of sexual stimulation of the viewer”; any depiction of “physical restraint such as binding or fettering in the context of sexual conduct”; and the undefined category “sadomasochistic abuse.”
If this were just a ban on what people call “hardcore pornography,” it would still be bad. But it’s not just about “hardcore pornography.” The unlawful porn definition is broad enough to include all partnered or solo porn photos and videos (even the more tame stuff), and possibly even erotic drawings, strip clubs, burlesque, drag, depictions of domination, and more.
All “unlawful porn” would be off limits to produce or distribute unless it was deemed to have “serious literary, artistic, educational, political, or scientific purposes or value.”
Broad Enough to Target Sexting, Social Media, and More
S.B. 1976 would not just justify lawsuits or charges against porn production companies and websites such as Pornhub. It could also reach adult models, individual performers in porn videos, and even someone who simply sent someone who is not their spouse a sexually charged photo. (The bill says it’s not meant to “prevent spouses from sending images of a sexual nature to each other.”)
It could lead to lawsuits and charges against performers in live shows with sexually charged antics, including strippers, drag performers, and burlesque dancers.
It could also lead to lawsuits or charges against a wide range of distribution platforms. Sure, entities like Xvidoes and OnlyFans could be found liable—or at least tested in court—if they continued allowing access to people in Oklahoma. But so could any social media platform, video app, streaming service, etc., if it fails to stop adult content.
This would incentivize platforms to either block Oklahoma users entirely or—especially if more states follow suit—to start strictly moderating even remotely adult content.
Two means of enforcement
Like Texas’ “abortion bounty law,” SB 1976 would be partially enforced by private lawsuits. “Any person, other than an officer or employee of a state or local governmental entity in this state,” could bring a civil action against anyone they think has produced or distributed unlawful porn, knowingly aided and abetted its production or distribution, or intends to do so.
Those found guilty could be liable for statutory damages of $10,000 for every image or depiction, plus “injunctive relief sufficient to prevent the defendant from violating this section” and the court costs and attorney fees of the person who sued. (Meanwhile, someone who successfully defended themselves against such a lawsuit could not recover court costs and attorney fees from the person who brought it, leaving no downside to filing long-shot lawsuits and a lot of expense even for entities or people eventually exonerated.)
The proposed law would also deploy criminal enforcement. Under S.B. 1976, it would be a crime to “buy, procure, view, or possess” any “obscene materials” (yes, view).
Obscenity under Oklahoma law is defined roughly according to the test set forth in Miller v. California. It includes “any representation, performance, depiction or description of sexual conduct” that, when taken as a whole, is determined to be “patently offensive as found by the average person applying contemporary community standards,” as well as designed to appeal “to prurient interest in sex” and lacking in “serious literary, artistic, educational, political, or scientific purposes or value.”
One might think that this test would rule out run-of-the-mill commercial pornography or the sorts of images that many people in intimate relationships send one another. But S.B. 1976 specifically states that all of the acts defined as unlawful porn (a category that includes so much as exposing a breast or butt cheek with an intent to titillate) “are depictions of sexual conduct which are patently offensive under contemporary community standards in this state, and have as their dominant theme an appeal to prurient interest in sex.”
Unless that butt selfie is deemed to be a work of serious artistic merit, it would seem to fall under Oklahoma’s definition of obscene materials, which would make it a crime to even so much as look at it.
The buying/procuring/viewing/possessing offense would be a felony, punishable by up to 20 years in prison or a fine of up to $25,000. So would “distribut[ing] any unlawful pornography that lacks serious literary, artistic, educational, political, or scientific purposes or value.”
The bill would also make it a misdemeanor crime to “act in, pose for, model for, print, sell, offer for sale, give away, exhibit, publish, offer to publish, or otherwise distribute, display, or exhibit” content featuring unlawful pornography. Doing so would be punishable by up to one year in county jail or by a fine of not less than $2,000.
The GOP’s Porn Panic
In a sea of statehouse porn panics, this new bill stands out. While a number of states have passed or considered laws relating to pornography being seen by minors, Deevers’ bill goes several steps further and is an especially egregious affront to free speech.
Now, state lawmakers introduce crazy stuff—much of which has no chance of going anywhere—all the time. So it’s tempting just to dismiss this bill as one dude’s personal crusade. But even if that turns out to be true, Deevers’ proposal reflects a broader crusade that is getting legislators’ votes.
The GOP is really obsessed with porn these days. Not long ago, we saw a wave of Republican-controlled legislatures pass resolutions declaring porn a “public health crisis.” Porn age verification bills have passed in Louisiana, Texas, and North Carolina. And despite some initial court rulings against age verification laws, similar measures are gaining steam in other states, with lawmakers in Ohio and Oklahoma alike introducing them just last week. (This newsletter will certainly be keeping tabs on these.)
Some legislators have introduced bills that would ban porn on devices unless users pay a fee. And several prominent conservative activists and politicians have been trying to define a wide range of content related to sexuality and gender identity as pornographic. This has been driving library book bans, restrictions on drag performances, limits on academic freedom, and more.
And it’s not just state Republicans on the porn freakout beat. Such prominent lawmakers as Sen. J.D. Vance (R–Ohio), Sen. Josh Hawley (R–Mo.), and Rep. Paul Gosar (R–Ariz.) have railed against pornography in recent years. Conservative New York Times columnist Ross Douthat has opined that we should ban it.
In 2022, an initiative called “Project 2025“—spearheaded by the Heritage Foundation, with more than 50 conservative groups on the advisory board—released a manifesto on what Republicans should do if they take control of the federal government again next year. Porn “has no claim to First Amendment protection,” writes Heritage President Kevin D. Roberts in the document’s forward, adding that it “should be outlawed” and that the “people who produce and distribute it should be imprisoned.”
Whatever happens with this Oklahoma bill, I don’t think it will be the last we see of such attempts to target all sorts of sexual expression.
Today’s Image
Each week, I’ll end this newsletter with an image from my photo archives. These will generally be the result of Reason work or travel, but not always. Sometimes—like today—they may relate to the subject at hand, and sometimes they may be very random. (I have a lot of cool street art pictures, OK?) Consider this a palate cleanser after reading about all the ways authoritarians right and left want to control what you read, what you post, how you use your body, and how you use the internet.
Billboard at the 2020 AVN conference in Las Vegas (ENB/Reason)
Donald Trump’s lawyers argue that he cannot be prosecuted for his “official acts” as president, which they say included his efforts to reverse Joe Biden’s election. As one judge noted when a skeptical D.C. Circuit panel probed the implications of that position earlier this month, it could literally give presidents a license to kill by ordering the assassination of their political opponents. But even that alarmingly broad understanding of presidential immunity seems modest compared to the position that Trump recently laid out in an all-caps Truth Social post.
“A PRESIDENT OF THE UNITED STATES MUST HAVE FULL IMMUNITY, WITHOUT WHICH IT WOULD BE IMPOSSIBLE FOR HIM/HER TO PROPERLY FUNCTION,” Trump shouted on his social media site around 1 a.m. on Thursday. “ANY MISTAKE, EVEN IF WELL INTENDED, WOULD BE MET WITH ALMOST CERTAIN INDICTMENT BY THE OPPOSING PARTY AT TERM END. EVEN EVENTS THAT ‘CROSS THE LINE’ MUST FALL UNDER TOTAL IMMUNITY, OR IT WILL BE YEARS OF TRAUMA TRYING TO DETERMINE GOOD FROM BAD. THERE MUST BE CERTAINTY.”
To some extent, Trump’s rant echoes the argument his lawyers have made in trying to block the federal charges he faces as a result of his attempts to remain in power after he lost reelection in 2020. But “TOTAL IMMUNITY” as imagined by Trump omits two qualifications they allow: that a former president can be prosecuted for “purely private conduct,” and that he can be prosecuted even for “official acts” if they were the basis for an impeachment that resulted in a Senate conviction. The latter exception is hard to deny, since the Constitution explicitly says a president who is impeached and removed from office “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Trump, by contrast, says “ALL PRESIDENTS MUST HAVE COMPLETE & TOTAL PRESIDENTIAL IMMUNITY, OR THE AUTHORITY & DECISIVENESS OF A PRESIDENT OF THE UNITED STATES WILL BE STRIPPED & GONE FOREVER.” The implication seems to be that Trump would be immune from prosecution even if his second impeachment had culminated in a Senate conviction. And that would be true even if the impeachment had involved actions that Trump himself thinks “CROSS THE LINE” between legitimate exercises of presidential power and criminality, such as the scenario that D.C. Circuit Judge Florence Pan imagined when she described a president who “ordered SEAL Team Six to assassinate a political rival.”
Trump’s concerns about the consequences of holding public officials accountable for misconduct extend beyond the prosecution of former presidents. In his Truth Social post, he likened that situation to safeguards aimed at preventing police officers from violating people’s constitutional rights. “YOU CAN’T STOP POLICE FROM DOING THE JOB OF STRONG & EFFECTIVE CRIME PREVENTION BECAUSE YOU WANT TO GUARD AGAINST THE OCCASIONAL ‘ROGUE COP’ OR ‘BAD APPLE,'” he wrote. “SOMETIMES YOU JUST HAVE TO LIVE WITH ‘GREAT BUT SLIGHTLY IMPERFECT.'”
In Trump’s view, remedies for police abuse, such as insisting that officers obey the Constitution or authorizing criminal charges and civil rights lawsuits when they don’t, are dangerous to public order because they threaten to “STOP POLICE FROM DOING THE JOB OF STRONG & EFFECTIVE CRIME PREVENTION.” If tolerating “THE OCCASIONAL ‘ROGUE COP’ OR ‘BAD APPLE'” is the price of fighting crime, he thinks, “SOMETIMES YOU JUST HAVE TO LIVE WITH ‘GREAT BUT SLIGHTLY IMPERFECT.'”
So Trump is not necessarily just trying to save his own skin here: His position on presidential immunity is consistent with his broader attitude toward government power. Just as presidents should not have to worry about criminal prosecution when they “CROSS THE LINE,” he thinks, police officers should not have to worry that they could face charges or litigation simply because they broke the law, and maybe a few heads, while doing their jobs.
Trump has explicitly made that argument in recent campaign appearances. “We will restore law and order in our communities,” he said in New Hampshire last month. “I’m going to indemnify, through the federal government, all police officers and law enforcement officials throughout the United States from being destroyed by the radical left for taking strong actions against crime.”
That proposal ignores the fact that police officers already are routinely indemnified by their employers when they face civil rights lawsuits. Worse, it reflects a judgment that the threat of legal liability is intolerable because it supposedly has a paralyzing impact on law enforcement. Police officers must be shielded “against any and all liability,” Trump argues, because otherwise they will be “forced to let a lot of bad people do what they want to do.” As Trump sees it, accountability is the enemy of effectiveness.
The same authoritarian impulse is evident in Trump’s distaste for police restraint. In a 2017 speech at Long Island’s Suffolk County Community College, he derided officers who protect handcuffed arrestees from injury by pushing down their heads while placing them in squad cars. “You can take the hand off,” he said. The Suffolk County Police Department responded with a statement saying it takes procedures aimed at protecting arrestees “extremely seriously,” adding that “we do not and will not tolerate roughing up of prisoners.”
Trump’s implicit endorsement of roughing up prisoners is of a piece with his oft-repeated support for executing drug dealers and his admiration for brutal rulers in China, Russia, North Korea, and the Philippines. Republican presidential candidate Nikki Haley remarked on that affinity in the run-up to Tuesday’s primary in New Hampshire. Trump had a “bromance with Putin,” exchanged “love letters” with Kim Jong Un, and praised Xi Jinping “a dozen times after China gave us COVID,” she said. “When you are talking about contrasts in foreign policy, you don’t praise dictators and thugs who want to kill us.”
Whatever the relative merits of Haley’s foreign policy positions, the pattern she noted is further evidence of Trump’s view that strong leaders must be free to take decisive action, unencumbered by the law. That is the plain meaning of his position on presidential immunity. The “CERTAINTY” he demands is “GREAT” for dictators but more than “SLIGHTLY IMPERFECT” for the rest of us.
Retiring Ron DeSanctimonious: Roughly 48 hours before the New Hampshire primaries, Florida Gov. Ron DeSantis dropped out of the race for the Republican presidential nomination, leaving the contest to former South Carolina Gov. Nikki Haley and former President Donald Trump.
DeSantis ran a disappointing campaign all around, failing to do much with his admittedly solid anti-lockdown reputation, choosing to enjoy the pitched battle of the culture war instead and positioning himself as further right on many issues than Trump. Many political analysts have theorized that he misread demand for such a candidate and that his timing was off—the COVID era was just slightly too long ago for him to realistically tout his record to any effect. He also seems to have picked a particularly bad and far-too-online team of campaign advisors, who were plagued by scandal.
“The political stock of DeSantis rose considerably during the pandemic. He benefited from having recognized earlier than most that the massive restrictions imposed on society in the name of fighting Covid did more harm than good,” writesNational Review‘s Philip Klein. “Add this to his legislative wins on traditional conservative issues (taxes, school choice, gun rights, and life), his demonstrated competence during hurricanes, and landslide reelection, and there was reason to believe that he was somebody who could cobble together a winning coalition in a Republican presidential primary.”
“Rather than trying to out-flank Trump with the too-online fringe of the GOP, DeSantis could have courted the much larger segment of Republicans who were disgruntled by the government’s handling of the pandemic, unsettled by inflation (which was triggered in part by overspending), and unsure about Trump’s ability to overcome all that baggage,” writesReason‘s Eric Boehm, adding that this “would have required a willingness to target Trump’s faults and failures directly—something DeSantis often seemed unwilling to do, lest he alienate Trump’s legions of fans.”
DeSantis’ campaign was like “we’re the most online people alive and we’re going to performatively use the state to hurt people you don’t like, just tell me the group and I’ll go hurt them” and a bunch of people who should have known better said “hell yes”
Trump makes weird promises to voters: On the campaign trail in New Hampshire, Trump is telling the good people that their energy prices will be halved one year after he takes office. (This seems unlikely to happen.) He also spent the weekend claiming he’ll tell the U.S. Navy to do a “full fentanyl blockade” (again, the mechanism by which this will happen is totally unclear) and said that, if elected, Haley will fail to “secure the border or stop the fentanyl that is killing thousands of New Hampshire citizens.”
Trump also congratulated DeSantis on running “a really good campaign”—yet another Trump lie!—and said he’d retire that “DeSanctimonious” nickname at long last. (Probably related: DeSantis threw an endorsement Trump’s way.) Magnanimous!
Scenes from New York: Passover needs to CENTER (clap) MORE (clap) PEOPLE OF COLOR (clap) apparently.
In another gem from NYT where the author complains that Passover is too Jewish centric! pic.twitter.com/o3VeBDRx8e
Welcome to the USA, where our national legislature debates rodent glue traps and the Berkeley City Council passes Middle East resolutions https://t.co/2xndSVun5g
Team Biden/Harris is touring the country to celebrate the 51st anniversary of Roe v. Wade and to tout the administration’s staunchly pro-abortion-access record. Harris’ first state on the tour is Wisconsin, not coincidentally an important state for Biden to win.
Political turmoil brewing in Germany. (I’ll be in Berlin next week and will report back if I notice anything interesting on the ground, provided my faculties haven’t been altered.)
Your daily dose of sanity, in the form of Camille Paglia:
Two U.S. Navy SEALS “vanished during a Jan. 11 raid in which the U.S. military seized a cache of Iranian-supplied missile parts and other weaponry bound for Houthis—which CENTCOM has said the rebels have used previously to conduct attacks on commercial shipping vessels in the Red Sea that have severely disrupted the global supply chain,” reportsAxios. This was off the coast of Somalia, where piracy has long been a huge problem. They were declared dead yesterday, per U.S. Central Command (CENTCOM).
Later in the thread: "Workers and peasants assumed leadership of the country."
No. Intellectuals and sociopaths assumed leadership of the country, and ultimately enjoyed a parallel society with their own well-stocked shops, spacious apartments, and dachas in the countryside. https://t.co/XA3ehmqBC6
One of the best things about National School Choice Week (celebrated this year from January 21–27) is watching people take advantage of the growing range of options that allow them to opt out of public schools, often while taking per-student funding with them to pay for preferred alternatives. From panicked supporters of government schools to relieved parents and joyful choice advocates, the shift in education is showing up across American society.
Where Are the Public-School Students?
“Fresh from the academic struggles that followed the pandemic, and with federal relief funds soon to run out, [public school district leaders] now confront a massive enrollment crisis,” Linda Jacobson wrote January 9 for education-oriented The74.
Her piece cites recent research from the Brooking Institution, finding that “over a four-year period that includes the pandemic, about 12% of elementary schools and 9% of middle schools lost at least one-fifth of their enrollment.” While there were enrollment declines in public schools pre-COVID, the pandemic marked a significant change, resulting in pressures to close public schools and reduce programs.
But while Jacobson’s article focuses on the struggles of traditional public schools, Brookings researchers have a broader scope. Importantly, they find that part of the explanation is found in kids still happily learning, but through a variety of approaches outside the doors of public-school buildings.
“Declining enrollment in traditional public schools may reflect demographic shifts, migration, and school choice to some extent,” Eloise Burtis and Sofoklis Goulas of the Brookings Institution point out in an October 2023 paper. “For example, families may have tried out various schooling alternatives during the COVID-19 pandemic, such as homeschooling, and may have found that these options worked well for their children or wanted to avoid a transition to a more typical learning setting after COVID-19.”
“At the start of the pandemic, in 2019–20, roughly 84 percent of school-age children were enrolled in traditional public schools,” they add. “This number dropped by 2 percentage points to roughly 81 percent in the 2020–2021 school year, and another 2 percentage points to 79 percent in the 2021–2022 school year.”
They’re Learning Elsewhere
Burtis and Goulas saw gains in kids attending charter schools, virtual schools, and, especially, a grab-bag category “attending private schools, being homeschooled, or out of school entirely.”
That’s helpful-ish, but not as much as an Urban Institute report from earlier in 2023. Author Thomas S. Dee wrote that “over the first two school years under the pandemic, K–12 enrollment in public schools fell by more than 1.2 million students” and that over the same period of time “private school enrollment was 4 percent higher while homeschool enrollment was 30 percent higher.”
In December, the National Center for Education Statistics data reported private school enrollment remaining constant in terms of raw numbers from 2019 through 2022 and growing for younger kids. “Contrary to the increases in the lower grades for private school enrollment, between fall 2019 and fall 2021, public school enrollment decreased by 3 to 6 percent in grades K–7.”
In October, The Washington Postreported homeschooling soared after the appearance of COVID-19 and the closure of many public schools, before settling to a 51 percent gain over pre-pandemic practices. Amidst much fretting over the “largely unregulated” educational approach, the authors labeled homeschooling “America’s fastest-growing form of education” and estimated “there are now between 1.9 million and 2.7 million home-schooled children in the United States.”
Why the disparity in numbers? Not all states obsessively track kids’ activities. Many leave it to parents to watch out for their children. Some that require notification may weakly enforce the rule; it was years before I bothered telling Arizona authorities my son was homeschooled. I knew my wife and I did a better job than they could and felt no obligation to defer to officials.
Also, as options proliferate, they sometimes overlap. In what category is a child mostly educated at home, but studying drama at a public high school, chemistry at a community college, and Spanish from an online private school? Data geeks care, but families just want their kids to learn.
Some Kids Were Just Failed by the System
Unfortunately, the explosion of options doesn’t fully explain the disappearance of students from traditional classrooms. “More than a third of the loss in public school enrollment cannot be explained by corresponding gains in private school and homeschool enrollment and by demographic change,” writes the Urban Institute’s Dee.
A big part of the problem lies in the monolithic and remarkably unresponsive public schools that still dominate the education landscape. In response to the COVID-19 pandemic, many closed their doors for extended periods of time while they fumbled attempts to offer online instruction.
“Some parents, unimpressed by what instruction consisted of during remote learning, didn’t see missing school as that consequential,” Alec MacGillis recently wrote for The New Yorker. “Some simply liked having their kids around.” As a result, school “became optional.”
“On a national level, based on most recent data: 1.9% of students are utilizing an educational choice program. 6.8% attend private school by other means. 74.6% attend a traditional public school. 4.9% attend a magnet school. 6.6% attend a charter school. 4.7% are homeschooled,” according to numbers published last week by EdChoice, which supports education freedom.
“It’s little secret 2023 was a transformative year for education,” notes EdChoice research associate Colyn Ritter. “Eight new states joined Arizona and West Virginia in making school choice available to all or nearly all students within their borders. Today, approximately 36% of students have access to educational choice.”
More Choice for Everybody
Extending education choice to more students and families may offer new hope to even those kids who’ve been turned off to learning by the failure of their old schools. Flexible and more impressive approaches to education than what they experienced before might entice them back and give them better knowledge and skills on which to build their lives.
When asked if they want school choice, Americans overwhelmingly say “yes” by 70 percent or more. When offered education options, American families take them. By their actions they demonstrate that the best way to mark School Choice Week is for us to make our own choices about learning.
Police in Ontario have dropped charges against a reporter arrested while trying to ask Finance Minister Chrystia Freeland a question, saying “no credible security threat existed.” Video showed Freeland was walking down a public sidewalk when David Menzies approached her with a microphone and began walking alongside her, asking about the government’s decision to leave the Islamic Revolutionary Guard Corps off its designated terrorist list. An officer stepped into Menzies’s path, and Menzies appeared to bump into him. The officer then grabbed Menzies, shoved him against a wall, and told him he was under arrest for assault.
