Non-State Affirmative Action is Now in Congress's Court

Why, you may have wondered, is the Supreme Court telling Harvard, a private university, that it is bound by the Fourteenth Amendment? Reading the majority's opinion and its eight-page opening summary, you might miss that detail. But it's there, in a footnote:

"Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself."

Justice Gorsuch, concurring, adds: "Without question, Congress in 1964 could have taken the law in various directions."

It still can.

State schools, such as the University of North Carolina, are bound by the Fourteenth Amendment. But the Supreme Court's decision applies to private schools ONLY because of the 1964 Civil Rights Act, which Congress can amend. (Nor does the Fourteenth apply to the federal government, including wholly federal schools, such as the service academies.)

The Court's earlier rulings encouraged a veiled process and some squeamishness about exactly how race was used in permissible affirmative-action programs. But Congress can be as specific or as vague as it wants in adding exceptions to Title VI, to allow, or even to require, affirmative action.

It will be interesting to have this question back in the hands of the elected branches of government, and see if there are solutions that enough senators and representatives can agree on.

Ike: "To preserve his freedom of worship, his equality before law, his liberty to speak and act as he sees fit," a Briton or an American "will fight."

"Yet kinship among nations is not determined in such measurements as proximity of size and age. Rather we should turn to those inner things—call them what you will—I mean those intangibles that are the real treasures free men possess.

 

"To preserve his freedom of worship, his equality before law, his liberty to speak and act as he sees fit, subject only to provisions that he trespass not upon similar rights of others—a Londoner will fight. So will a citizen of Abilene.

 

"When we consider these things, then the valley of the Thames draws closer to the farms of Kansas and the plains of Texas. To my mind it is clear that when two peoples will face the tragedies of war to defend the same spiritual values, the same treasured rights, then in the deepest sense those two are truly related. So even as I proclaim my undying Americanism, I am bold enough and exceedingly proud to claim the basis of kinship to you of London."

From Eisenhower's speech at the London Guildhall, June 12, 1945

Vital Speeches of the Day, Vol. XI, pp. 549-550.

Economic-liberty case Buchanan v. Warley kept segregation from becoming outright, literal Apartheid

Here's the story:

The Party of Jefferson: What the Democrats can learn from a dead libertarian lawyer

By DAMON ROOT in Reason

Libertarians -- Not Utopians, Not Cynics

[Letter to the Editor published in Washington Post ca. Dec. 11, 1993. I was at a conference of libertarians near Washington on the day it was published, but none of them mentioned it to me.]

There is no factual basis for E. J. Dionne's charge that libertarians are "utopians." ["Libertarian Lure," op-ed, Dec. 6] It is an easy label to slap on anyone, and Dionne will get away with it because few readers are familiar with us, but no one who has even glanced at our publications could believe that we ignore "messy realities." Most libertarians think that because reality is so irremediably messy, voluntary cooperation under a strong, impartial common law system is the most practical, flexible way to deal with it. Unprovoked threats, force and extortion tend to have socially mischievous effects, and we think it is foolish to expect better results when well-intentioned governments use them than when private citizens do.

Unlike utopians, we don't hope to transform humans into angels or to make them cogs in some wonderful new system. We simply want governments to stop doing harm, and to let society manage its own problems by lawful means. Human societies have always had ways of looking out for children and old people, helping the poor and making people be responsible. For example, to adapt to the massive changes of the late 19th century, all sorts of voluntary mutual help groups, insurance and pension funds developed. Governments supplanted these (and outlawed some) not because they failed, but because of a Utopian faith in technocrats and large monopolies.

It will take a few years for society to wean itself from government, because much of its immune system, its shock absorbers, its lubrication, its ability to adjust, has been taxed and regulated away. As Meng-tzu observed 2200 years ago, "When taxes exceed 10 percent, the very old and the very young are rolled into canals and drainage ditches." It's especially hard to be generous and tolerant when nothing we own is secure, and everything is up for grabs by one political faction or another.

It seems that when libertarians aren't being called utopian or euphoric, we're accused of being cynics. Actually, we are squarely in the middle on the question of human goodness: we believe that people are pretty much good enough to govern themselves, but not good enough to govern each other very much. That is the view of human nature upon which America's system of government is founded.

John Crouch
Williamsburg, Va.

Longtime ACLU leader champions the right to donate anonymously and bigly in politics:

... Philanthropy: Do you consider private giving a form of free speech? 

Strossen: Absolutely. And, much more importantly, so does the U.S. Supreme Court! In philanthropy, as well as in campaign contributions, what the court has held is that whether it’s on behalf of charitable assistance, some social-justice movement, a policy cause, a political candidate, a publishing platform, whatever, if the government says, “You may only spend X amount of money, and not more than that,” it is limiting your ability to convey your message effectively.

Philanthropy: Do you think donors have a right to be private or anonymous in their giving?

Strossen: Absolutely. And the Supreme Court supported this, interestingly enough, in a case that involved a corporation. Corporations include not just businesses but also nonprofits and other groups where individuals band together. But some critics dislike corporations and ask why they should have free speech, why they should they have the right to spend money in support of their ideas. The Supreme Court, though, has recognized both of those rights, and the right of incorporated groups to do their work anonymously. This came together in a historic case in 1958, involving a corporation some people considered disreputable—the NAACP. Like most other social-justice organizations, like most public-interest organizations all across the ideological spectrum, the NAACP is organized as a not-for-profit corporation.

Back in 1958, Southern governments were upset with the NAACP’s crusade against racial segregation, and they used whatever tools they could to try to stop the NAACP. One of their most potent threats was to require the NAACP to turn over lists of its members and donors. The Supreme Court recognized that if people had to reveal their identities, they would be exposed to hostility from critics, and many of them would have to end their support of the NAACP. If the court had not protected donor anonymity, NAACP and its civil-rights causes would have been completely undermined if not destroyed.

. . . 

Philanthropy: One argument in your book is that when speech rights are curtailed, even on behalf of a vulnerable population, the vulnerable end up suffering for it.

Strossen: Yes. If you allow restrictions on speech where there are sharp differences in viewpoint, then of course over time it’s predictable those who are likeliest to be silenced are marginalized groups. That is exactly the pattern that we’ve seen throughout history and around the world. 

It seems ironic to me that those who support censoring hate speech usually start with the premise that there is overwhelming oppression built into our society—systemic injustice. Well, if they are right, the last thing they should want is to hand over to our government more discretionary powers to discriminate. 

Philanthropy: There was a hearing on Capitol Hill last year titled “How the Tax Code Subsidizes Hate,” asking if “hate groups” should have their charitable status revoked.

Strossen: One person’s hate group is somebody else’s love group. Black Lives Matter has been labeled a hate group. The Southern Poverty Law Center has labeled as hate groups people who just have a different perspective from the Southern Poverty Law Center. 

One organization I’m very familiar with is the Alliance Defending Freedom. ADF has been on the opposite side of the ACLU in many cases, and we could not disagree more strongly on some key issues. But I oppose their being labeled as a hate group. The idea of the IRS having the power to label hate groups is really frightening. It’s giving the government the power to suppress citizen action on the basis of ideological agreement or disagreement, which is really, really frightening.

"Interview with Nadine Strossen," Philanthropy, Fall 2020

Why are liberals liberal?

I don't think it makes sense to trace a single psychological/character/personality trait as the cause of political beliefs. How do you like it when they do that to us?

Progressives have a lot of notions in common, but they can arrive at them for various personal and environmental reasons, including that that's what the people around them and raising them believed. The most common thread seems to be a belief that sublime, transcendent abstract entities like "society" or "the international community" are not merely metaphoric tools for describing people's interactions, but are actually more real and more important than real live individuals; that these abstractions have more agency and authority than all individuals put together.

This is supported by the common sayings, valid in some ways and dangerously wrong in others, that things are "greater than the sum of their parts," and that people should live for "something larger than themselves."

A contempt for individuality, for individual rights and responsibilities, is more a result of this than a cause, and for some liberals it presents an irrepressible conflict with other truly liberal beliefs that they have drawn from their patriotism, religion, or just from being thinking and humane people. That's the stage I was at for a while, when I didn't know anything about economics, but I could tell that the government wielding economic power over people would constrain their political freedom.

-- John Crouch, responding to the great Robert Bidinotto, who wrote:

UNDERSTANDING THE LEFT. After nearly six decades of direct experience, observation, and study, I have come to some firm conclusions about the ideological left (as opposed to those "liberals" who are simply compassionate toward others). I think it all revolves around the left's war on self-responsibility. They HATE that concept. In their worldview, if you create something good in the world, "You didn't build that"; but if you do something bad, "You couldn't help it." Either way, they HATE the notion that anyone (meaning: themselves) should be held accountable for their status in life. ... Ideological leftism is all, only, and *always* about advancing the Narrative of Personal Irresponsibility. It is the morality play that holds individuals responsible for every other man, woman, child, tree, plant, animal, or degree of temperature on the planet...but not for *themselves* as individuals.

 

To See How "Hate Speech" Came to Mean "Speech People Hate," Read Haidt.

The definition of a "hate" group has been in constant flux, no, expansion, for so long now that it's easy to forget that it was stable for generations. I always thought that the standard use of it for Nazis and other organized racists was unimaginative, and risked underestimating how dangerous they actually were, but at least everyone knew what it meant. American Nazi Party leader George Lincoln Rockwell used it to describe his group's product as least as far back as the early 1960s, when he founded Hatenanny Records. In a 1991 college newspaper column titled "Bad Words to be Purged from the Language," I wrote,

"Hate speech, groups etc. As angry as they make us, Doug H. [prominent campus racial slurster] and friends are still expressing opinions, not hate. They probably have feelings of superiority, entitlement, self-pity, fear, envy, and contempt, but I doubt that many racists are possessed by hate or anything else unknown to the rest of us. The ones I know espouse sociological theories that were dominant until the 1940s, and think their own experiences empirically support them. They don't even dislike minorities, as long as they stay in their familiar and inferior "place."

With more space or forethought, I would have added that they often aren't expressing anything, they're just looking for words that will hurt, humiliate and enrage whoever they're using them against, or they're just trying to fit in with others, or show them that they can think of something powerful to say, and so on.

But this was still a "sidelines" kind of comment -- it wasn't about anything that was threatening me, or people I respectfully disagreed with, or any core values. It was just at that stage where you sense something "off" about someone's word choice, something that bespeaks some unknown, idiosyncratic, quirk in how they process the world, that might suddenly turn vicious under pressure if you had to trust or rely on them.

But now, Lord, ain't we got fun! At some point in the gay marriage movement, which itself had been outside the Overton Window of acceptable opinion until the early 90s, someone decided to label its opponents as "hate" advocates. Never mind that those opponents included Senators Clinton and Obama, at least officially. And now that the monopoly on "hate" victim status is broken open, everybody wants a piece of it.

In 2012, Randall Parker broke this ongoing process down in "On Labeling Opponents Of Multiculturalism As Hateful", citing and building on Jonathan Haidt's study showing why "The right gets the left better than the left gets the right":

That the Obama Administration would label a video that lampoons a religion as hate demonstrates why I so distrust Barack Obama. The primary use of the term "hate" is to label someone as outside of civilized discourse and deserving of pariah status. But lets get to root causes. Why use the term "hate" for this purpose? The role of hate looms so large in the elite liberal mind in large part because liberals lack the ability to understand non-liberal minds. The left has elevated their own psychological blindness and misunderstanding into a campaign of marginalization where they label their opponents as hate groups. This blindness of liberal minds to half the moral considerations used by conservative minds creates a condition very much like the Dunning-Kruger Effect where someone lacks the ability to detect the extent of their own misunderstanding, ignorance, and incompetence. ... This is the part that scares me. Will multi-culturalism and the desire to placate ethnicities at home and abroad cause an even larger reduction in freedom of speech than it already has? Speech codes in workplaces are already left-liberal. I'm expecting them to become more strictly enforced and for that enforcement to extend beyond the workplace.

The reason for this, as revealed in Haidt's study and vividly described by John Faithful Hamer:

Jonathan Haidt has found that when you give conservatives a questionnaire and ask them to answer it like a liberal, they’re able to do so with ease. When you ask them to answer like a libertarian, they’re able to do that too. Libertarians aren’t nearly as adept as conservatives, but they’re still fairly good at imagining how a conservative or a liberal might answer the questionnaire. Alas, the real outliers are the liberals.

In numerous studies, with respectable sample sizes, Haidt has demonstrated that liberals simply don’t have a clue. When you ask them to answer the questionnaire like a conservative, they answer it like a fascist. When you ask them to answer it like a libertarian, they answer it like a sociopath. The liberal conception of what makes the average conservative or libertarian tick is, Haidt concludes, way off.

Are liberals less imaginative than conservatives and libertarians? I highly doubt it. The virtues and vices are, it seems, to be found everywhere to varying degrees. Why, then, do liberals do so terribly on this “ideological Turing test”? And why do conservatives do so well? Haidt maintains that conservatives do well because they base their moral thinking on all six of the moral foundations (Loyalty, Authority, Sanctity, Liberty, Care & Fairness). Liberals do poorly because they base their moral thinking on only two of them (Care & Fairness).

Haidt’s explanation is fascinating. But it’s got way too many moving parts and a fatal flaw: namely, it implicitly presumes that liberals are somehow spectacularly deficient in imagination. I find it hard to believe that any sizable group of human beings could be spectacularly deficient in any virtue (or vice). That’s why I’ve come up with a simpler explanation for Haidt’s robust findings: liberals suck at this test because shutting down certain parts of your imagination has become central to what it means to be liberal.

Liberals haven’t just demonized their political opponents, they’ve demonized the very act of trying to think like their political opponents. Trying to sympathize with, say, a Trump supporter, has come to constitute a kind of thought-crime for many liberals (and almost all progressives). So it’s not that liberals have less imagination than conservatives or libertarians; it’s that they’ve set up mental firewalls that actively prevent them from even going there. Just as Odysseus’s men stopped up their ears with wax so they wouldn’t be tempted by the seductive song of the Sirens, many liberals have, it seems, set up taboo boundaries which more or less ensure that they’ll never have to empathize with a conservative or a libertarian. This is decidedly unwise, as it often leads to group polarization.

...

Just as the violent suppression of the labor movement pushed a lot of good people into the communist camp in the twentieth century, I fear that the outrageous attacks on nonconformists like Jordan Peterson may radicalize a lot of middle-of-the-road moderates in the twenty-first century. As Malcolm Gladwell makes clear in David and Goliath (2014), when you crack down on terrorism by demonizing an entire community, you invariably end up strengthening support for the terrorists; and when you crack down on the civil rights movement in a draconian fashion, you invariably end up strengthening support for the civil rights movement. What’s happening on the left at the moment is striking similar. Demonize everyone who seems to disagree with you and you’ll invariably end up strengthening support for those who actually disagree with you.

Telling people off on Twitter and preaching to the choir on Facebook can be fun. But it’s a dangerous kind of fun. Because you get intellectually lazy. Because you start speaking in a specialized jargon that no one outside of your safe space can understand. Because you develop a contempt for everyone outside of your élite group of cool kids that frequently leads you to dehumanize those who disagree with you. Live in your little bubble long enough, and you’ll become downright delusional, like the emperor in that Hans Christian Andersen tale.

-- John Faithful Hamer, "In Praise of Listening", also published in Hamer, Social Media Land, 2020

More:

• "Why Won’t They Listen?" by William Saletan, NY Times, March 23, 2012
• "Hateful speech on hate groups" by Dana Milbank, Washington Post, August 16, 2012

 

The Final Wedge Cleaving Liberals from Progressives: Justice Alito's Speech and the "Two Minutes' Hate" Reaction.

"If you step on my foot, don't get angry when I . . . say 'Ouch!'" -- Minister Don Muhammad

---

When I was a campus ACLU leader in the 80s and 90s, I agreed with everything U.S. Supreme Court Justice Samuel J. Alito said in his speech to the Federalist Society last week. (Transcript here; video here, substance of speech starts at 17:30.) I still do. I realized even back then that some of my farther-left collaborators didn't agree with all of it, just most of it. But now, many of them don't agree with hardly any of it, especially suddenly controversial ideas like freedom of speech, freedom of religion, freedom of conscience, and an independent judiciary. In case there was any doubt, they made that clear in their instant reactions to Justice Alito's speech. No longer "liberals," they now call themselves "progressives," after the late-1800s-early-1900s reformers who declared that democracy and constitutional limited government were outmoded, and that a nonpartisan expert elite should rule instead.

In college, we were taught what was called a "Marxist" critique of the "progressives": Whether foolishly or intentionally, they viewed their own cultural and economic elite interests as impartial, non-political, universal, benevolent and scientific. They were politically, culturally and economically anti-democratic. Back in the 1970s and 80s, it was a liberal and generational imperative to make sure that everything was done absolutely democratically and inclusively. But sometime in the 90s, this was replaced by a new prime directive: to be in harmony with "the international community" of unelected, unaccountable elites.

So the Progressives are back now, in force, and apparently trying to prove the truth and urgency of everything Justice Alito said about them. Kind of like threatening violence against someone who calls you violent. He criticized the growing intolerance of even mainstream beliefs, and thousands of tweeters and Facebookers responded by calling for him to be impeached for it. He criticized five Senators who had openly threatened to "restructure" the Court* if it did not rule the way they wanted, pointedly mentioning a foreign judge who told him about having judicial independence on paper, but with a tank pointing at his courthouse -- and Senators responded with more threats, saying he shouldn't be allowed to criticize them because that's "political." ( *Well, they now say they didn't say "restructure," their amicus brief just happened to quote a poll of people who said the court should be "restructured.")

Senator Elizabeth Warren tweeted: "Supreme Court Justices aren't supposed to be political hacks. This right-wing speech is nakedly partisan. My anti-corruption bill restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow." Looking at her summary of the bill, that may be the only thing the bill does that is harmless or constitutional -- for now. But what she probably intended it to impose is a proposed reform to the judicial ethics rules, now withdrawn (for now), banning judges from the Federalist Society but not the American Bar Association. Because of course, in the fine old Progressive tradition, the ABA considers itself nonpolitical while advocating for thousands of left-wing public policies.

Los Angeles Congressman Jimmy Gomez tweeted, "Homophobic rhetoric isn’t a matter of free speech. It’s a matter of hate speech. These are stunning, harmful words from Justice Alito." To be clear exactly what he was calling homophobic, Constitutionally-unprotected "hate speech," he quoted the Justice: “'You can’t say that marriage is a union between one man and one woman' any more, Justice Alito said. 'Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.'” 

Which part of that do Congressman Gomez and the other critics even disagree with? That "you can't say" it? That the vast majority agreed with it until recently? That it's considered bigotry? If anyone would disagree with that, wouldn't it be the "religious right"? Are they still around?

Many of the instant reactions seemed to be reacting to what people imagined Alito might say, not anything he actually said. For example, that he was against masks and shutdowns. Some headlines quoted his sentence, "The pandemic has resulted in previously unimaginable restrictions on individual liberty," as if that meant that he must be denouncing all such restrictions, not just stating a universally-recognized historical fact. Actually, he criticized a recent court decision that let a state single out churches for much stricter limits than casinos and other businesses. And more broadly, he warned that the now-necessary restrictions, and the executive branch's authority to impose them, were still subject to judicial review, and should not become permanent once the pandemic is over. The Young Turks, oddly, played a clip that included him saying that he was not criticizing most of the restrictions, and only questioning the legality of a very few of them, but then they spent ten minutes responding as if he had criticized mask mandates, calling him "insanely irresponsible."

An article titled "Jurists Shocked by Justice Alito's 'Wildly Inappropriate' Attack on LGBTQ Equality, Reproductive Rights, and More" merely played a game with the common versus the obscure meanings of the word "jurist" --

"Although it means any attorney or legal scholar, jurist popularly refers to a judge." West's Encyclopedia of American Law.  

It quoted no judges, only two prominent legal journalists with law degrees, one lawyer/commentator, one law professor/former prosecutor, and the director of strategy at a "legal advocacy group." People certainly qualified to opine, but whose job is politics and advocacy -- very different from the impartial eminence "jurist" connotes.

Journalists who know better, or their editors who at least officially don't, began piling wild-eyed adjectives and warlike metaphors onto sometimes otherwise objective and balanced stories about the speech.  CNN called it "ireful ... infuriated" with a "gnashing ideological tone ...". Roll Call, more subdued, said he "stepped into the ring ... to throw a few punches ..." and "targeted Sen. Sheldon Whitehouse." The New York Times called it "unusually caustic and politically tinged," but admitted that it did not violate any rules and reflected his already published "judicial opinions, which have lately been marked by bitterness and grievance,"  and that several experts "said it was unexceptional for justices to describe positions they had already taken in their judicial work." 

Slate, though, was in a class by itself, taking great pains to misrepresent the speech as unethical. It led with "Grievance-Laden, Ultrapartisan" ... "railed against COVID restrictions, same-sex marriage, abortion" [uh, no, he didn't actually criticize any of those, except for the restriction that singled out churches] and put an URL ending in "insane.html" on its article. "These comments revealed early on that Alito would not be abiding by the usual ethics rules, which require judges to remain impartial and avoid any appearance of bias" ... "a bitter partisan out to settle scores with the left. Flouting his ethical obligations, Alito waded into fierce political debates" ... "notoriously cranky, but he seemed to be in relatively good spirits ...".

Hundreds of Facebook commenters immediately called for impeaching him, some saying to throw in the Black guy while we're at it. Many claimed that the speech "revealed his bias," and they really seemed to believe that now that he had publicly revealed his beliefs about the issues he has ruled on, that that actually justified impeaching him, or demanding his resignation. Some said that he must be gay, sometimes using pretty graphic terms. Some demanded that the Federalist Society, too, must be abolished. Basically, there are a lot of fascists (I'm sorry, I mean "progressives")  out there who believe -- or who pretend to believe so hard that they may actually come to believe -- that having conservative, libertarian, or mainstream-liberal-but-not-progressive beliefs should legally disqualify one from public office, and that actually advocating or working to implement such beliefs should be illegal.

I wonder what would happen if Senator Warren and the rest of the ProgMob found out that judges and Justices not only give speeches about the Bill of Rights and the need for an independent judiciary, and bristle at threats from politicians -- they actually write long opinions about every case they decide, even ones that involve political or controversial ideas, and the government actually publishes them! And they've been getting away with it for almost 700 years!

Clarification: was joke. Senator Warren was a professor at America's best law school, so of course she knows better. She just thinks that if enough of us pretend not to, for just long enough, we can pretend to rationalize court-packing by claiming the other side broke all the norms and packed the court first. And as a progressive, she honestly believes that only other people have ideologies or politics.

Before I had even finished watching the speech, my Facebook filled up with progressives suddenly convincing themselves that of course, we have always known that Justices aren't allowed to make speeches about Constitutional issues, evidently suppressing all their memories of a once-celebrated Justice named Ginsburg:

• "How can anyone have a fair hearing in front of this justice? He does not belong on the Supreme court. Who can take him on?"
• "He has abdicated his credibility and moral authority as a judge and must resign."
• "He doesn't even pretend to be impartial. Judicial sleeze."
• "Get rid of the Federalist Society."
• "They should never be allowed to put there personal ideas out publicly ...."
• "Omg....wow....what a nutcase! ... He, along with Trump, should be charged with murder for all these deaths."
• "Alito should be removed from the bench. He is making a political statement with his words about infringement of freedom."
• "Alito Outs Himself as Total Whacko."
• "He must recuse himself on all arguments involving these issues. He has revealed his bias!!"
• "Start the Impeachment process immediately. His ideas are too bias for his position."
• "Another one who could use a good boot in the neck."
• "Alito outs himself as full-on partisan crusader." -- U.S. Sen. Sheldon Whitehouse
• "Such prejudicial opinions should disqualify him to sit as a Supreme Court Justice."
• "Time for partisan Supreme Court justices to be elected by the people rather than appointed for life."
• "Alito should be censured and removed from the Court. He violates his position."
• "Republicanism is a mental and social disorder. Alito needs to be impeached for speaking to a Republican Nazi organization like the "Federalist Society." They should be declared a domestic terrorist organization like the GOP, NRA, and a dozen others."
• "It shouldn’t be permissible for a sitting Supreme Court (or any other) justice to speak to radical organizations like the Federalist Society."
• "Appalling and sickening ... There really should be ways to remove justices with mindsets that are contrary to the very core of the Supreme Court's Constitutionally mandated role."
• "When a Chief Justice in the Supreme Court feels like he has to publicly make a political statement, he should lose his seat. That is not seperation of Church & State."
• "Religion is a lifestyle choice. Sexuality isn't."
• "'Justice Alito's wildly inappropriate speech is a reminder that Republicans have packed the Supreme Court with extremist politicians in robes -- and they're planning a partisan revenge tour,' said Aaron Belkin, director of Take Back the Court, a progressive group advocating court expansion."
• "'If there were enforceable recusal standards at the high court, this would be a ripe opportunity for a motion to disqualify,' said Gabe Roth, executive director of Fix the Court, a nonpartisan independent watchdog group ..."
• "How can he continue on the court with such a publicly revealed bios! I believe this is impeachable for an associate justice!"
• "Diarrhea of the mouth with prejudice aplenty!"
• "He needs to get the fuck out of OUR Supreme Court!"

 

Biden: Court-packing, even by the good guys, is "imperialist," "corrupted by power," "will lead inevitably to autocratic dominance."

"Levy's Law: When the One offers the Many an alliance against the Few, it is not for the purpose of benefiting the Many." -- Jacob T. Levy

---

"Sometimes the Senate has had to stand strong and toe the line against imperialist Presidential leanings.

"...  The Senate .. stood firm in the 1805 impeachment of Supreme Court Justice Samuel Chase. President Jefferson’s party had majorities in both the House and the Senate, and Jefferson set his sights on the Supreme Court. Specifically, he wanted to remove Justice Chase, a committed Federalist and frequent Jefferson critic, from the Court. Jefferson was able to convince the House to impeach Justice Chase on a party-line vote, and the President had enough members of his party in the Senate to convict him. But members of the President’s own party stood up to their President; the Senate as an institution stood up against executive overreaching. Justice Chase was not convicted, and the independence of the judiciary was preserved.

"The Senate again stood firm in the 1937 court-packing plan by President Franklin Roosevelt.

"This particular example of Senate resolve is instructive for today’s debates, so let me describe it in some detail. It was the summer of 1937 and President Roosevelt had just come off a landslide victory over Alf Landon, and he had a Congress made up of solid New Dealers. But the ‘‘nine old men’’ of the Supreme Court were thwarting his economic agenda, overturning law after law overwhelmingly passed by the Congress and from statehouses across the country.

"In this environment, President Roosevelt  — and remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view,* unveiled his court-packing plan—he wanted to increase the number of Justices on the court to 15, allowing himself to nominate these additional judges. In an act of great courage, Roosevelt’s own party stood up against this institutional power grab. They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism. [* Italics above are words that were in spoken version but not printed.]

"In May 1937, the Senate Judiciary Committee—a committee controlled by the Democrats and supportive of his political ends—issued a stinging rebuke. They put out a report condemning Roosevelt’s plan, arguing it was an effort ‘‘to punish the justices’’ and that executive branch attempts to dominate the judiciary lead inevitably to autocratic dominance, ‘‘the very thing against which the American Colonies revolted, and to prevent which the Constitution was in every particular framed.’’

"Our predecessors in the Senate showed courage that day and stood up to their President as a coequal institution. And they did so not to thwart the agenda of the President, which in fact many agreed with; they did it to preserve our system’s checks and balances; they did it to ensure the integrity of the system. When the Founders created a ‘‘different kind of legislative body’’ in the Senate, they envisioned a bulwark against unilateral power—it worked back then and I hope that it works now.

"... In the end, Roosevelt’s plan failed because Democrats in Congress thought court-packing was dangerous, even if they would have supported the newly-constituted court’s rulings."

Sen. Joseph Biden, CONGRESSIONAL RECORD, April 27, 2005, pp. S4362-S4363

Human and political rights, as defined 330 years ago today by England's Parliament, King and Queen

... 

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;

By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;

By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

By violating the freedom of election of members to serve in Parliament;

By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;

And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;

And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;

And excessive fines have been imposed;

And illegal and cruel punishments inflicted;

And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;

All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

. . . 

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; ...

From English Bill of Rights 1689: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown

Happy Birthday to the self-deprecating vice-president who saved the Supreme Court and the independent judiciary

My cousin and contemporary John Nance "Cactus Jack" Garner III (born November 22, 1868, d. 1967 when I was three weeks old) is known only for saying the vice-presidency "isn't worth a bucket of warm spit," or something like that. But he is actually one of the most important vice-presidents. In 1937, FDR relied on Garner, a former Speaker of the House and legendary back-room politicker, to get his "court packing" bill through Congress. The bill would have let the President appoint enough additional justices to create a compliant majority on the court. But 

"From the start, Garner loathed the plan and thought that it would be a threat to party harmony. He began covertly to rally the opposition."

-- "Court-Packing Plan of 1937," by Lionel V. Patenaude, Texas State Historical Association, citing Lionel V. Patenaude, "Garner, Sumners, and Connally: The Defeat of the Roosevelt Court Bill in 1937," Southwestern Historical Quarterly 74 (July 1970). Lionel V. Patenaude, Texans, Politics and the New Deal (New York: Garland, 1983). Bascom N. Timmons, Garner of Texas (New York: Harper, 1948). 

Garner and his allies managed to make the environment for the bill so toxic that he finally was able to tell FDR he had to withdraw it. "Eventually, Garner was given credit for smoothing over the crisis, but he had also rendered himself persona non grata with the administration." So we have John Nance Garner to thank for the U.S.'s independent judiciary, which has given us everything from racial integration to gay marriage.

When incorporating was a privilege, only the privileged got to incorporate and do business. Do we really want to go back to that?

The Warren Plan and the History of Corporate Chartering

By WALTER OLSON at cato.org, citing

 

Elizabeth Warren’s Surreptitious Socialism

by Richard A. Epstein

See also

Elizabeth Warren’s Batty Plan to Nationalize . . . Everything

By KEVIN D. WILLIAMSON in the National Review

 

and

Elizabeth Warren's Big Power Grab

Not only has it failed every time it's been tried, it's also most likely unconstitutional.

By Walter Olson at the Foundation for Economic Education

 

 

POLITICAL CORRECTNESS IS A THING OF THE PAST. AND THE FUTURE.

By John Crouch in the Brown Daily Herald , Brown University, Providence, R.I., 1991

"Because I do not learn their words, I am called a heretic."

--St. Jerome

I once tried to compile a history of "PC." As a Southerner, I knew that the highest form of history is genealogy, so my inquiries first led me to some ancestors who were Presbyterian Covenanters. They were having some differences with the Puritan Commonwealthmen, led by Oliver Cromwell. Each of these sects had an exclusive contract with God, stating that the other was headed for a bad place and should be expedited there. (Think about it: these covenants were not contradictory, but complementary. God knew what he was doing.) After a pitched battle, Cromwell suggested that everyone should come together and cooperate with him in an exciting new broad-based ecumenical venture known as Persecuting Catholics. He offered my forebears exciting public service jobs as military policemen in exile. They agreed, and in return he deferred his natural inclination to confiscate their heads. 

Soon they were in Ulster, doing the Lord's work. Then it was off to Barbados to practice their techniques on rebellious slaves, and then to Maryland, to do it to the Indians and Catholics. In time they settled down and became highly useful members of the community, raising tobacco and sailing to Africa to buy slaves. In occasional fits of public-spiritedness they would lynch a papist or two, but they mostly minded their own business for six generations until some outside agitators built Washington, D.C. in their neighborhood.

A more recent forefather of PC and related irritations was Horace Mann '19, who dominated the debating societies of Manning Chapel. These groups combined the functions of class discussion sections, dorm unit "workshops", the student government, and the Herald letters page. Kathleen Kendall, a rhetoric professor, wrote that Mann proved his points with "overstatements," "name-calling," "sophistry," "chest-thumping chauvinism," and "an abundance of star-spangled prose ... No one challenged his sweeping generalizations or lack of pertinent evidence." Doubtless the alumni pined for the grand old days of discipline, morality, and western culture.

Then again, Brown's administration didn't set a very mature example for Mann. They once fined him for violating their ban on Independence Day observations. This holiday was considered disruptively democratic, divisive, and deeply offensive to the Federalist community, which always felt left out.

Brown has a venerable tradition of expelling the politically incorrect, including President Bennie Andrews '70. Wildly popular, he was especially admired for his success in exhorting students to fulfill their human potential by volunteering for the Spanish-American War (once fabulously PC). So the trustees were especially shocked when he began advocating silver coinage. A man who believed in that could be neither sane nor moral, so they had to banish him before he poisoned the whole community. 

PC flourished in Athens at the same time the Spartans were perfecting communism, so I hardly think either idea can have permanently "died" in the past year. It is true that, like Stalinism and McCarthyism, it had lost its real power before mainstream liberals began anathematizing it, or even giving it a name. (Four years ago, "PC Person" was a classist, fattist, WASPist, smartist term for a typical scholar at Providence College.) But while political circumstances change quickly and unpredictably, human nature changes too slowly to measure. Like some observers of political savagery in past decades, I would blame PC's inhumanity not on the counter-culture, communism, anti-communism or fundamentalism, but on certain strains of the human personality: control freaks, conformists, trendies, groupies, and opportunists. At least in my experience here, the intolerance that provoked so much resentment and ridicule was practiced not by political activists, but by encounter-workshop facilitators and a few administrators. Likewise, it should be obvious that Dartmouth's persecution of conservative journalists, and the Brown administration's rudeness toward liberal protestors and union organizers, relate not to the politics of left and right but to simple institutional self-interest.

But some cultures and ideologies may prove more PC-resistant than others. By "culture," I mean something we each help shape, not a genetic heritage that pre-determines us. Many people presume there is a certain inviolable space around individuals, and that all are equally human. In cultures that take such ideas seriously, certain rules develop: People are to be persuaded only by reason, and not manipulated, lied to, or forced around at gunpoint. People are given the benefit of the doubt, and not charged with unworthy motives or mental infirmity without proof. But at the same time, they are seen as ultimately responsible for their beliefs, having reason and free will. At times, concepts of "gentlemanliness" and "sportsmanship" have been current (and it is worrisome that our new less-sexist language has no words for them yet). They advise that an unfair advantage should not be pressed, that abandoning the moral high ground only hurts you in the long run, and that no disagreement may break the bonds of civility and charity. Where most people are willing to defend such standards, the PC might abandon their own tactics as counter-productive. In such a culture, Horace Mann went on to show that one can outgrow PC in the course of a mentally active life.

Our present culture, though, admires a no-holds-barred 100% dedication to one's chosen cause, fad or crisis, overriding all rules and distinctions, by any means necessary. So we should be grateful for our PC education -- it's probably excellent preparation for success in American politics, media, and business.

Yes, Virginia, "You, too, will meet the secret police!"

-- So Jello Biafra sang on his Spoken Word Album, which he gave me several copies of when my ACLU chapter had him come speak to an unexpectedly huge and raucous crowd at my college. But I never thought we would actually have entirely secret police in Virginia, where the Bill of Rights was invented. 

Virginia bill to keep officers' names secret would be first in the nation, experts say

By Gary A. Harki and Patrick Wilson, The Virginian-Pilot

Jefferson is why the modern world values equality, democracy, and human rights

By John Crouch

On his 275^th birthday, Thomas Jefferson is in danger of getting run out of town on a rail, his statues teetering on a slippery slope which we had been told would become dry and level as soon as Robert E. Lee was cast down it. We already knew he was a slaveowner and probably a race-mixing unwed father, but lately we’ve been confronted with the inhumane cruelties that slavery involved even at Monticello, and some are calling him a rapist and a child molester because Sally Hemings was a slave and was 16 when she first became pregnant.

But at the  same time, without Jefferson, we would not have today’s movements for racial equality and other human equality, we wouldn’t have had the Civil Rights movement and its imitators, and even Abolitionism would have been very different and less popular. Now, it’s well known that he is where Americans think that we get most of our ideas about liberty. But what we forget, in these days when we’re focused on a mostly false opposition between liberty and equality, is that he is much more uniquely, and crucially, the source of our beliefs in equality, democracy, and universal human rights. As the author of the Declaration of Independence, as the founder of the Democratic Party, and as a powerful, lifelong agitator for expanding political liberty and equality.

Without him, the American Revolution, and the American idea, would likely have been about defending the hereditary rights of free-holding Englishmen. Perhaps inspiring enough to achieve independence, perhaps not. But not much of an inspiration to the rest of the world, and far less appealing to Christians and philosophers than declaring our independence by announcing:

"That all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

This ideology and theology of radical human equality was not Jefferson’s invention: it had colorful, eccentric champions during the English Civil War and Commonwealth era (1640s-50s), Quakerism seems consistent with it if not based on it, and Hobbes and Locke used it in different ways as a starting point for their philosophies. The idea had recently been expressed in Thomas Paine’s Common Sense, and in George Mason’s Virginia Declaration of Rights. But Jefferson put it at the top of America’s founding document, its public statement of what its war was about, where everyone read it or had it read to them.

And Americans would not have their wide and deep belief in equality and democracy if it were not for the ongoing work of Jefferson and the political party he founded, which was always the democratic party even when it was still named “Republican” or “Antifederalist.” Even when it fostered and exploited racism, it did so using democratic rhetoric that ultimately arcs towards equality for all. Even now and in the days of Woodrow Wilson when it seems like the more elitist and “Progressive” party, it pays truly valuable lip service to democracy and believes it can reconcile all such contradictions; it contains multitudes with more consistently democratic impulses, which they carry with them to other parties if they leave the party in disgust, fear and sorrow. Even the Whigs and the modern Republican party inherited more from it than from the old, aristocratic Federalists.

Lately both the elitist Progressives, and a few loud, immature, shallow Libertarians, like to pit liberty and equality against each other. They envision a wealthy and antisocial Individual exercising individual liberty for his own amusement and benefit, at the expense and indulgence of a democratic government that seeks to constrain him for the common good of the many and the poor. But that wasn’t the situation in Jefferson’s time, nor for most of our history, nor today. Jefferson and generations of his contemporaries feared governments that suppressed individual rights in order to suppress the majority and subvert or prevent democracy. They saw absolutist governments create privileged elites, not equality. They knew that democracy can’t function as democracy if individuals aren’t free to express their actual beliefs, spread news, and try to persuade each other and their representatives. Nor without the other freedoms in our Constitution. And they fought for individual liberty, not because it let them do selfish things or express their unique selves, but to be free to do what they thought was their duty to God and to society.

On Jefferson’s birthday, we remember that he was far from perfect on issues of liberty and of equality. But he worked to expand both of them, and so should we.

"Investigating" citizens who lobby against you (AKA "petition for redress of grievances") has a long and un-American history

"At the behest of the Roosevelt administration in 1935, the U.S. Senate established a special committee to investigate lobbying activities by opponents of the ... Public Utility Holding Company Bill. Chaired by Hugo L. Black (D-Ala.), the “Black Committee” expanded its mission into a more general probe of anti–New Deal organizations and individuals. The committee used highly intrusive methods, notably catch-all dragnet subpoenas, to secure evidence. It worked closely with the IRS for access to tax returns and with the FCC to obtain copies of millions of telegrams. When the telegram search became public information, there was a major backlash from the press, Congress, and the courts. Court rulings in 1936, resulting from suits by William Randolph Hearst and others, not only limited the committee’s powers but provided important checks [on] future investigators, including Senator Joseph McCarthy."

New Deal Mass Surveillance: The “Black Inquisition Committee,” 1935–1936

 

David T. Beito, Journal of Policy History,Volume 30, Issue 2, April 2018 , pp. 169-201

Other formats, publication info and abstract

How "Snowflakes" Cause Police Shootings, Lynchings, Witch Burnings ... But Only Because Our Culture & Institutions Encourage Them

Not the Onion. Not "Reno 911". This is why hypersensitive "snowflakes" are such a serious problem. They make completely innocent, ordinary people get treated like dangerous criminals. In the old days it led to witch burnings, then lynchings, and nowadays police shootings. I was reminded that "snowflakes" are so deadly when I saw a timely article about lynchings, including some men and boys who were lynched for "frightening" white women and girls. One was a Leesburg, Virginia teen who put a bag over his head to startle a white friend. Another is merely reported to have "acted peculiarly."

These days, as a Charlottesville, Va. area farmer recently explained, it's "Nervous white women in yoga pants" who "see something, say something" when they see a black man where they don't expect any to be. Over 12 times, "police would 'happen by' and sometimes even question me five or ten minutes after I got a strange look from a passerby ... I know to smile and give them the non-threatening black guy kind of thing, but all it really takes is for one of us to have a bad day and I could end up another tragedy in the street." 

But back to the lady in this incredibly credulous news story and viral youtube craze. She saw four people in different places doing stuff like walking down the street or sitting in their cars, and just KNEW they were a gang of sex-slaver kidnappers. And she still hasn't been evaluated for paranoid schizophrenia. She's too busy being lauded as a hero on Facebook for "surviving" it and "raising awareness." Got 2900 likes, 5200 shares so far.

 THAT WAS MY ORIGINAL FACEBOOK POST. BUT HERE'S MY LATER CAVEAT.

I had a great post ready to go, but I thought I had better listen to her whole miserable 13-minute video about it first. There were a couple key facts the original news article, though sympathetic to her sick crusade, left out, which make her fears about the first guy subjectively reasonable.

1. He was walking behind them and she slowed down so he'd pass them, and he slowed down too. Either because he was a stalker, or because her family took up a lot of the sidewalk and he couldn't get past them without brushing too close, which would reasonably give offense and alarm.
2. They U-turned, and he U-turned too. Either because he was a stalker, or because he wanted to ask her husband something -- which he, in fact, did. She doesn't say what he asked her husband.

After that, she was running on fear, and that's why she saw fellow-conspirators everywhere, including one guy who looked over her 5-year-old daughter like a man looks at a woman, as we used to say before it became dicey for a man to look at a woman that way. She saw him do that, although her perception may have been warped by her fear, and in my experience people often read way too much into what they think they see on people's faces and eyes.

And then she talked to people who specialize in working with sex traffic victims. And they, like all specialists in any particular social problem, saw that problem everywhere. Whatever she described,  they said it was something sex traffickers had been known to do.

So she wasn't actually the most dangerous, paranoid-schizo snowflake in the blizzard, but to apply her logic, she MIGHT'VE been, and we need to "raise awareness" about such people.

But while we're at it, let's raise awareness of the things we do that fan the flames, I mean fan the snow machines, and figure out how to do better.

"Reno mom reports close call with child sex traffickers: ‘Something’s not right'"

"Mom's Run-In with Alleged Sex Traffickers Goes Viral. But Nothing Happened."

"It could happen to you, whatever 'it' is."

By Lenore Skenazy in Reason

PC "Call-out Culture" Terrifies Its Own Activists. But That's What It's FOR! Also, Great Ideas From the Left that PC Shuts Down.

PC's main function is to keep the foot soldiers of the Left in line, and make them afraid to express any original thought or to even suggest being more tolerant or respectful of the enemy, or acknowledging any common ground. So if its own people fear it, as author Frances Lee does, that just means it's working as designed. Same reason infantry officers carry revolvers, not rifles. Perfect example from Lee's article:

"In response to the unrestrained use of callouts and unchecked self-righteousness by leftist activists, I spend enormous amounts of energy protecting my activist identity from attack. I self-police what I say when among other activists. If I’m not 100 percent sold on the reasons for a political protest, I keep those opinions to myself—though I might show up anyway. On social media, I’ve stopped commenting with thoughtful push back on popular social justice positions for fear of being called out. For example, even though some women at the 2017 women’s march reproduced the false and transmisogynistic idea that all women have vaginas ..."

Sounds like what I learned as a left-liberal would-be activist in college, except for that last bit. Great read though, and I'm glad this distress call made it through the censors -- for now. I'm including the whole text in case it somehow gets taken down in the future, if and when they get Lee to apologize, accept discipline and love Big Brother.

The article has many other uniquely well-expressed points about truly engaging and respecting adversaries based on common humanity instead of teh rhetoric of irreconcileable differences, knowing when to be soft and when to be hard, and owning one's own imperfection and responsilbilty for oppression without ceding one's right to talk about those things to others who claim absolute purity.

 

Why I’ve Started to Fear My Fellow Social Justice Activists

We are alienating each other with unrestrained callouts and unchecked self-righteousness. Here’s how that can stop.

 

By Frances Lee at yesmagazine.org

 

Callout culture. The quest for purity. Privilege theory taken to extremes. I’ve observed some of these questionable patterns in my activist communities over the past several years.

As an activist, I stand with others against white supremacy, anti-blackness, cisheteropatriarchy, capitalism, and imperialism. I am queer, trans, Chinese American, middle class, and able-bodied.

Holding these identities scattered across the spectrum of privilege, I have done my best to find my place in the movement, while educating myself on social justice issues to the best of my ability. But after witnessing countless people be ruthlessly torn apart in community for their mistakes and missteps, I started to fear my own comrades.

As a cultural studies scholar, I am interested in how that culture—as expressed through discourse and popular narratives—does the work of power. Many disciplinary practices of the activist culture succeed in curbing oppressive behaviors. Callouts, for example, are necessary for identifying and addressing problematic behavior. But have they become the default response to fending off harm? Shutting down racist, sexist, and similar conversations protects vulnerable participants. But has it devolved into simply shutting down all dissenting ideas? When these tactics are liberally applied, without limit, inside marginalized groups, I believe they hold back movements by alienating both potential allies and their own members.

In response to the unrestrained use of callouts and unchecked self-righteousness by leftist activists, I spend enormous amounts of energy protecting my activist identity from attack. I self-police what I say when among other activists. If I’m not 100 percent sold on the reasons for a political protest, I keep those opinions to myself—though I might show up anyway.

On social media, I’ve stopped commenting with thoughtful push back on popular social justice positions for fear of being called out. For example, even though some women at the 2017 women’s march reproduced the false and transmisogynistic idea that all women have vaginas, I still believe that the event was a critical win for the left and should not be written off so easily as it has been by some in my community.

Understand, even though I am using callouts as a prime example, I am not against them. Several times, I have been called out for ways I have carelessly exhibited ableism, transmisogyny, fatphobia, and xenophobia. I am able to rebound quickly when responding with openness to those situations. I am against a culture that encourages callouts conducted irresponsibly, ones that abandon the person being called out and ones done out of a desire to experience power by humiliating another community member.

I am also concerned about who controls the language of social justice, as I see it wielded as a weapon against community members who don’t have access to this rapidly evolving lexicon. Terms like “oppression,” “tone policing,” “emotional labor,” “diversity,” and “allyship” are all used in specific ways to draw attention to the plight of minoritized people. Yet their meanings can also be manipulated to attack and exclude.

Furthermore, most social justice 101 articles I see online are prescriptive checklists. Although these can be useful resources for someone who has little familiarity with these issues, I worry that this model of education contributes to the false idea that we have only one way to think about, talk about, and ultimately, do activism. I think that movements are able to fully breathe only when there is a plurality of tactics, and to some extent, of ideologies.

I am not the first nor the last to point out that these movements for liberation and justice are exhibiting the same oppressive patterns that we are fighting against in larger society. Rather than wallowing in critique or walking away from this work, I choose a third option—that we as a community slow down, acknowledge this pattern and develop an ethics of activism as a response.

I believe it’s sorely needed as we struggle to mobilize in a chaotic and unjust world.

What might an ethics of activism look like?

Knowing when to be hard and when to be soft

I believe that when confronting unjust situations and unjust people, sometimes hardness is necessary, and other times softness is appropriate. Gaining the discernment to know when to use each is a task for a lifetime. I have often seen a burning anger at the core of activism, especially for newer activists. Anger can be righteous, and it often is when stemming from marginalized peoples weary of being mistreated. And yet, I want to use my anger as a tool for reaching the deeper, healing powers I possess when carving out a path of sustainable activism. Black social justice facilitator and doula adrienne maree brown writes of her oppressors, “What if what’s needed isn’t sexy, intimidating or violent? What if what is needed is forgiveness?” I’ve spent a good deal of energy exercising my ability to speak truth to power and boldly naming my enemies. Perhaps it is time to massage my heart so that I can choose to be soft toward someone in community who is hurting me, and open up the possibility of mutual transformation.

Adopting a politics of imperfection and responsibility

I have been mulling over sociologist Alexis Shotwell’s call for the left to adopt a “politics of imperfection and responsibility” as one way to move forward toward action and away from purity. A politics of imperfection asks me to openly acknowledge the ways in which my family and I have benefited and continue to benefit from oppressive systems such as slavery, capitalism, and settler colonialism. This is an ongoing investigation into my own complicity.  I am a Chinese American with immigrant parents, and my family has built economic stability by buying into the model minority myth, which is based largely in anti-blackness. As uninvited guests and visitors to this part of the world, we have claimed our new home on lands stolen from indigenous peoples. A politics of responsibility means that as I am complicit in harmful systems, I also possess full agency to do good. This allows me to commit to dismantling these systems and embracing centuries-long legacies of resistance. It means I am accountable in community spaces and do not destroy myself when others call me out on my errors. It means I practice a generosity of spirit and forgiveness towards myself and others. To do all this, I must publicly claim both imperfection and personal responsibility as an activist.

Tapping into our shared humanity

Marginalized people ask that privileged people look at them and see a human being, not a lesser-than being. Oppressive systems operate by systemically dehumanizing some groups for the benefit of others. On the flip side, I believe people with privilege are dehumanized when internalizing their societal supremacy over others. For example, the ethnographic studies that have been conducted to explain the election of Donald Trump have revealed the mass identity crisis in white America. We have seen poor and working class white Americans denounce people of color and diversity efforts because, sadly, they perceive them as threats to their historically established power and access. Rather than base cultural identities solely on power, could we tap into what we all have in common: our humanity, no matter how trampled it is? Black public theologianChristena Cleveland practices envisioning the humanity in those who challenge and attack her. According to her, training herself to cultivate love for her enemies makes it more effective for her to communicate and speak her truth into their hearts. She is as concerned about her well-being as she is about transforming antagonistic people in her life into “liberated oppressors.” Black elder activist Ruby Sales firmly tells her oppressors, with unyielding love in her voice: “You can’t make me hate you.”

These are suggestions that have aided me in navigating toxic social justice environments. In testing them out, I try to stay open to new tactics while understanding that I must remain flexible and responsive to the variable stages of justice work. If we as activists do not feel safe in our experimental microcosms of justice and liberation, what can we attempt to replicate across larger society?

"Corporations are people" is irrelevant to "Citizens United" and other federal-law cases -- just read the case's name!

The phrase "corporations are people" deliberately conjures up images of huge money-grubbing businesses that don't care about people, getting favors from a government that cares more about them than people.  It's widely known to come from from early, "Gilded Age" pro-business interpretations of the 14th Amendment. And yet the very name of the "Citizens United" case should be a giveaway that the freedom of non-profit groups of citizens, advocating about political issues, was at stake in the case. Do those who scoff at Citizens United, for supposedly saying corporations are people, really believe that civil rights groups, women's groups, antiwar groups, veterans' groups, and religious groups, have no Constitutional rights?

The second half of the case's name, "v. Federal Election Commission", is a big clue that 14th Amendment case law about "persons" has nothing to do with it. The part of the 14th Amendment about persons and rights, Section 1, solely restricts what states can do to people or "persons". It reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But the First Amendment, which works directly on the federal government, and indirectly on states through the 14th Amendment, focuses on prohibiting the government from violating freedom of speech, press, or religion, with absolutely no exceptions concerning who or what is speaking, publishing, etc.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; ...

There is a reference to "the people" in the second half of it:

"... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Justice Kennedy's majority opinion in Citizens United does not say corporations are people. Instead it points out that the First Amendment does not make exceptions for who is doing the speaking or publishing; that all effective speech costs money, and that an argument that "corporations aren't natural persons" is not wrong, but irrelevant to the First Amendment.

Joe Albanese pointed out this crucial but apparently never-noticed distinction today, reveling in the irony of Ben & Jerry's using its free-speech rights to argue against corporations having free-speech rights, in "Is Big Ice Cream Trying to Hijack Our Democracy?" Former Federal Election Commission member Brad Smith says more about groups' free speech rights, and another threat to them, in "Tester’s assault on corporate rights is an assault on people’s rights."

I wish people would read the case opinion before criticizing it, but if you don't do that, you could at least read the case's name and the most important sentence in our Constitution.