Saturday, October 16, 2021

Still playing with it. The old explaining the new.

We can’t re-fight old battles every time a subject comes up; there are limits to the human capacity for recall. Years after spending time and effort to come to a conclusion it’s the conclusion not the process that sticks in the mind. But that means that no matter how hard we once fought our response now is based on received opinion, even if received from our younger selves. So it’s good occasionally to revisit the past in detail, especially in cases where our relation to the past is the thing under debate. 

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A North Texas school district apologized late Thursday after an administrator advised teachers that if they have books about the Holocaust in their classrooms, they should also include reading materials that have “opposing” perspectives of the genocide that killed millions of Jews. 

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Mr. Döpfner said he plans to grow Politico’s footprint both in the U.S. and overseas by introducing new industry-focused products and services and by broadening the scope of coverage. He said he expects Politico’s main news offerings, now free, to go behind a paywall in the medium term.

He also said he expects Politico staffers to adhere to Axel Springer-wide guiding principles that have raised controversy at times at its German properties—though they won’t be required to sign a written commitment to the principles like employees in Germany. The principles include support for a united Europe, Israel’s right to exist and a free-market economy, among others. 

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It would be an excellent idea to call in respectable, accredited anti-Semites as liquidators of property.

To the people they would vouch for the fact that we do not wish to bring about the impoverishment of the countries that we leave.

At first they must not be given large fees for this; otherwise we shall spoil our instruments and make them despicable as “stooges of the Jews.”

Later their fees will increase, and in the end we shall have only Gentile officials in the countries from which we have emigrated.

The anti-Semites will become our most dependable friends, the anti-Semitic countries our allies. We want to emigrate as respected people.

Efforts by German authorities to clamp down on the Boycott, Divestment and Sanctions (BDS) campaign took a sinister turn recently after a Jewish-German singer and daughter of a Holocaust survivor was warned that a concert in which she is scheduled to perform would be cancelled if she made any remarks in support of BDS.

History needs to be re-argued because without the argument history becomes catechism: anti-historical. 

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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We are being told that in effect the decision of the current President and a House of Congress to investigate a violent assault on the seat of government can be stymied by a former President who led the attack! Indeed, the same former President who was put on trial for the crime and had a big majority of the Senate (57 votes for conviction) vote to convict him. And we are told that this is not because of any legitimate authority or privilege but simply because the courts – which are in essence under the management of the highest echelon of the legal profession – can’t decide things quickly enough. And by quickly enough here we mean they can’t process the question in less than a year.

They say – usually in very different contexts – that justice delayed is justice denied. If Shaub’s prediction is right, that is certainly the case here. And that is a grave indictment of the whole legal profession, especially the elite community of law professors who largely define – on the right and left – how the law functions in our society. The legal profession is one of the groups the Republic relies upon for protection and here it’s pretty clearly and disastrously failed.

Shaub: "As for the bottom line, it seems quite likely that the committee is correct that, as a legal matter, it is entitled to most of the information and testimony it seeks. But, as a practical matter, the committee may never receive it."

Shaub is an academic describing the process of lawyering. Academia tends towards passivity or moralism, two forms of evasion.  Prosecutors don't socialize with defense attorneys, but academics are all of the same tribe. That's Balkin's weakness. It takes a lot to pull him out of his shell.

And again: when a corporation filters information it becomes a publisher of it. Facebook is not a "platform". But Balkin had a point I didn't admit the first time. Targeted advertising based on public information is protected speech, but filtering at the scale of Facebook and Google is a question of access to information; anti-trust solves the problem within accepted constitutional limits. Either break them up or make them public utilities, or both. Give the search engine to ICANN.  And let a thousand flowers bloom. Other smaller networks will thrive.

"Lawyers are the rule of law." Joe Jamail, doing a deposition, and a lecturing at Stanford



The second video documents his conflicts over the relation of professions and business, self-respect and self-interest.

"Doing these cases,” he wrote, “I began to find myself in a dangerous situation as an advocate.  I came to believe in the truth of what I was saying.

Thinking about Balkin's ideas and their relation—or better, his relation—to politics, going back 18 years, but also liberals' confusion. I wrote a new post but decided to add it here, and I've rearranged things a bit.


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More legal academics. Rick Hills, at PrawfsBlawg, in 2011: 

Eric Posner's and Adrian Vermeule's op-ed piece in the New York Times, urging President Obama to raise the debt limit unilaterally, is just a specific application of their general theory, outlined in their book, The Executive Unbound: After the Madisonian Republic, that Presidents should be free of legalistic limits on their power to initiate policies. The basic message of the book is both positive and normative. On the positive side, Eric and Adrian retail Terry Moe's line (more recently pressed by William Howell) that Presidential power to make policy unilaterally is inevitable. The public wants Presidents to respond to crises quickly without waiting for Congress' imprimatur, and Presidents will accommodate this public desire, regardless of legalistic limits, because neither Congress (bogged down with collective action problems) nor courts (lacking information) will stop them. On the normative side, Eric and Adrian retail a kinder, gentler Carl Schmitt: We should not worry about Presidents' unilaterally claiming powers to (for instance) raise the debt limit, because they will be adequately cabined by politics. Presidents want to win re-election or a favorable place in history, so they will try to accommodate opposing views to signal to the public that they are not tyrants. The plebiscitory limit of regular presidential elections suffices to constrain Presidents: We do not need law to do so.

There is a lot one could say about this briskly written, energetically argued book, but one simple, blog-worthy point leaps out at me: Eric and Adrian are cynical tough guys in dismissing legal limits, but dewy-eyed and naive idealists when it comes to politics. They have a view of presidential politics that I have seen expressed elsewhere only on the more saccharine episodes of "West Wing" (the ones where Alan Alda, the reasonable conservative guy who would not take the Ethanol Pledge in Iowa, was running against Jimmy Smits, the macho but sensitive lefty). They proclaim that voters will be able to distinguish between phony and genuine signals of Presidential trustworthiness, because “[p]eople who seek the office [of the President] have strong incentives to discover and disclose negative information about those in office,” a task in which they are aided by “powerful institutions that are not part of the constitutional structure – most prominently, the media and political parties.” (Pages 115, 119). But this assessment of press and party strikes me as a tad optimistic coming from guys who believe that members of Congress cannot overcome their own collective action problems to stop an aggressive President.

Take, for instance, the press: There seems to be a lot of evidence that the press is the President's Little Helper (to use Jonathan Zaller's phrase). According to this "indexing" theory of reporting, reporters simply repeat -- "index" -- the press releases of the White House, ignoring rival stories offered by scientists and bureaucrats that (for instance) those aluminum tubes imported to Iraq had nothing to do with WMDs. (See Chapter 6 of William Howell's and John Pevehouse's book, While Dangers Gather: Congressional Checks on Presidential War Powers for exhaustive evidence of the "indexing" theory).

There are limits to the "indexing" theory of Presidential omnipotence over the press, but Eric's and Adrian's urging of a unilateral presidency might seem reasonably calculated to destroy those limits. 

Howell, Pevehouse, and Douglas Kriner report, for instance, that, if members of Congress stand up to the President by holding hearings, issuing press releases, and generally making a fuss, then the press reports their opposition, and voters seem to listen. These political scientists do not explain why members of Congress can get public attention that others cannot attract.

Here's a theory of causation: Members of Congress are perceived by the public as being politically relevant actors without whose imprimatur the President cannot lawfully act. Eric and Adrian want to eliminate precisely that perception of Congress by pressing their "legal-authority-does-not-matter" theory. Why would reporters flock to the press conference of a senatorial committee chair whom the President could easily bypass with an executive order? Would not such a blowhard seem just as unnewsworthy as a member of, say, the House of Lords or the European Parliament?

It might be, in short, that constitutional structure has an effect on the behavior of the press. Destroy the structure that makes Congress the preeminent lawmaker, and you destroy the press coverage that members of Congress earn from their constitutional position. 

My reply on the page.
The normative changes over time; it's absurd to say otherwise. The Weimarization of American politics may make Posner and Vermeule's arguments relevant as description, but prescription is another matter.
Can we not find a more direct response to fascist logic than to criticize it as romance? 

"Certainly British journalism is not a profession. Over the years they have tried to make it one. In the United States they have mostly succeeded.... They are taught about the technical skills and the ethics, the heroes of American journalism and its theory. In the process they are moulded and given a protective gloss of self-importance. They have Standards and, in return, they get Status. In Britain it isn’t like this at all. Journalism is a chaotic form of earning, ragged at the edges, full of snakes, con artists and even the occasional misunderstood martyr. It doesn't have an accepted career structure. necessary entry requirements or an effective system of self-policing. Outside organized crime it is the most powerful and enjoyable of the anti-professions."  

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"i'm a journalist, not an american journalist. my job is not to serve as a propagandist for anybody, just to tell stories and my advantage is that i can tell stories that are hard to come by
...imagine if that one taliban commander had not screwed up my plans to go with them when they conducted attacks, and i had seen that too. isnt that interesting? isnt it important to understand who they are? and most importantly, wouldnt it make for a fun read?" 

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Two articles on judicial review in the UK.

"Written​ constitutions? ‘Because of where I came from, these documents seemed profoundly exotic.’"

Vermeule was always a fascist. Now he's a theocrat


Since it's now a topic: the first time I referred to "polling and passivity" was 2006.
The 'naturalization' of the discourse of law, politics, and even culture has resulted in the dumbing down of democracy to the level of polling and passivity. Intellectuals in the mold of Posner do not educate or explain—they have no interest in dumbing down their own discourse by dealing directly with the populace—they collate and presume. And if the first rule of intellectual life is to know oneself, that capacity is the first thing that's lost. The self-absorption of the logician is not too far from that of the autistic child staring at a spinning fan. If the logical system prevails over its creator, there is no need for self to be anything else but the system. Life becomes simple, and perverse.

The third time, in 2010, I linked to Jon Stewart.

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