Root traces the battle over judicial restraint to a notorious 1873 Supreme Court decision known as the Slaughterhouse Cases. The decision concerned a group of butchers who challenged a Louisiana law that, ostensibly for health reasons, relocated and consolidated the New Orleans slaughterhouse industry into a state-controlled monopoly. The butchers sued, claiming that the law violated their rights as small-business owners. It was the Supreme Court’s first chance to interpret the new Fourteenth Amendment, passed in the wake of the Civil War and guaranteeing citizenship, due process, and equal protection to all people born or naturalized in the United States. But the Court read the great amendment narrowly and rejected the butchers’ claims. Justice Stephen Field dissented and unwittingly became the patron saint of the libertarian legal movement.

Note what has happened here: libertarians claim as their hero a judge who from the outset saw the Civil War amendments as a shield with which white people could protect their property. Of course, the amendment is broadly and grandly worded, and encompasses far more than the antislavery intentions that propelled it into existence. And most observers today agree that Slaughterhouse was wrongly decided. But it is distasteful to raise up Justice Field as the Fourteenth Amendment’s champion: Field, who voted with the majority in Plessy v Ferguson that separate is equal; Field, whose majority vote in the Civil Rights Cases restricted the Fourteenth Amendment’s ability to target the Ku Klux Klan; Field, who outrageously suggested in Slaughterhouse that Louisiana had treated the white butchers as “slaves” under the Thirteenth Amendment. Had Field gotten his way in both Plessy and Slaughterhouse, the Fourteenth Amendment would perversely stand for property rights but not freedom from racial discrimination.

If Field is Root’s hero, then Oliver Wendell Holmes Jr is his villain. This again is a strange choice. Holmes is regarded across the political spectrum as one of the great justices in the history of the Supreme Court. His elegant opinions on subjects from contracts to torts to habeas corpus did more for the development of American common law than those of perhaps anyone since John Marshall. And, alongside Louis Brandeis — another justice whom libertarians disdain — Holmes helped establish a strong First Amendment. Freedom of speech being the most elemental of rights, one would think that libertarians would embrace Holmes. But they dislike him because he was the Court’s leading proponent of judicial restraint; he famously dissented in Lochner. Courts should not dream up constitutional rights where none exist and interfere with legislatures, said Holmes. Yes, they should, libertarians retort.

Root completely misses the reason that Holmes is revered. Unlike most proponents of judicial restraint, Holmes did not let his politics interfere with his judging. It is well and good for a social conservative like Robert Bork to call for a restrained court when the effect of this is to uphold state laws banning abortion and contraception. Those are results that he wanted, making it impossible to tell whether his methodology was in service of his politics or vice versa. But Holmes was the closest thing to an apolitical justice that we’ve had. Root does not mention this, choosing to associate Holmes with the Progressive Movement, but the great jurist’s own economic views were distinctly libertarian. The fact that he refused to write them into constitutional law when he had a chance in Lochner reveals him to be a jurist of rare principle.

This is not the only inconsistency in judicial libertarianism. In a real sense it is a movement on a collision course with itself. Root calls for activist courts to strike down laws that hamper individuals’ freedom of contract. But states pass far more laws than Washington does. And states are supposed to be the laboratories of democracy; libertarians profess to believe in local rather than centralized government. But Root seems to think the more laws the courts invalidate, the better. Here we approach the nihilistic side of libertarianism: less government is better government, wherever the trims are made. Libertarianism, so principled, so carefully thought out, does not appear to have grappled with the conundrum of using courts to shrink local government.

—Michael O’Donnell
SCOTUS Heads Toward the Cliff

No one asked, but here are my thoughts about the Jonathan Chait piece in New York Magazine, Not a Very PC Thing to Say.

I acknowledge the phenomena he is describing is an actual thing. I was on a campus in the 90s and am on the internet now. I’ve seen and occasionally been confronted by principled passion and vitriol in response to what I thought was a mild opinion. I have been flustered at the suggestion that my opinion is simply invalid due to my privilege. I have watched all sides become entrench — their circular arguments tighten into sanctimonious death spirals, as they jockey for grievance status. Sometimes I conclude that many people just want to fight for its own sake; it offers them something; the other is not important.

It was ever thus online, however, as it was ever thus in every smelly college coffee house ever. There are toxic, pointless arguments all over the internet since internet began. Social justice is just one flavor of contentiousness. But I will say that the “PC” critiques, even at their most infuriating to me, almost always make me think and yes check my privilege. I’d never heard of cisgender until it had been hurled at me as an invalidating insult on Twitter. I bet it’s true for Chait too. But I am glad I know it now; I am glad to give these issues thought. It enlarges me to be called out, even when I conclude the caller is a troll, and especially when it’s by a person I respect.

Jonathan Chait offers very little evidence against this form of contentiousness, other than the anxiety and hurt feelings of some colleagues. To suggest that somehow this discourse is hurting its own side has a name: concern trolling. But I don’t want to invalidate his argument. Rather, I want to make a counter argument of my own. If Chait and heroes of mine like Andrew Sullivan [!?] want to make common cause against SJWs with gamergate that’s fine.

But I’ve avoided discussing gamergate out of fear of being drawn into a speech war that has had real world consequences on both sides. Because there are those who truly monitor and punish speech with doxing threats and harassment — from every philosophical spectrum. I’ve never had an exchange with the so called SJWs that I couldn’t shrug and move on from — sometimes smarter for it. I’ve learned tons from contentious folks of other stripes of Internet warriors as well: gamergate, MRAs, far right wing.

But when expression of opinion is met with real world attacks, the occasional harangue of the politically correct feels small to me.

—John Hodgman
My minor edit of his 22 twitter response
Compiled by German Lopez at Vox

It is most likely that from the elections of January 25 will emerge a Syriza-led government, the main uncertainty being how large a coalition Alexis Tsipras will have to gather to obtain a comfortable parliamentary majority. This is seen with a fair deal of preoccupation in Europe. A preoccupation that does not seem warranted. Syriza is no longer the radical party of the beginning, which called for the exit from the euro and for a default on Greek public debt. Today it is party whose program can hardly be defined revolutionary, and whose label of “radical” left is justified mostly by the drifting of other social democratic party in Europe (for example in Italy and in France) towards the center of the political spectrum, and towards a de facto acceptance of the European macroeconomic orthodoxy. Syriza’s leader, Tsipras, as the prospects of victory become more concrete, has further softened his tones and is already actively negotiating with the Commission and with the major countries, in view of a compromise on the key points of his program. However, some of the media and some political leaders around Europe continue to present the Greek elections as an incoming Armageddon, and the possibility of a Syriza victory as the beginning of the end for the monetary union…

On closer inspection, it seems far more radical the position of those who, despite having grossly underestimated the negative effects of austerity, ask for more of the same; of those who insist on advocating supply-side reforms to cope with a chronic lack of demand; and of those who boast having achieved a balanced budget one year ahead of forecasts, when Europe would benefit from a recovery of domestic demand in Germany…

Europeans should stop worrying and let democracy play its role. A Syriza-led government (possibly forming an alliance with George Papandreou’s To Kinima) would not cause an earthquake. Rather the contrary, it could help stirring things up, and bring within the European debate discussion about measures the need for which is now obvious to all except to those who will not see.

—Francesco Saraceno
Who are the Radicals in Europe?

Obama’s failure to reconcile words to deeds detracts mightily from the grab bag of ideas he offers under the catchy title “middle class economics.” As noted, these policies could really improve people’s lives. But while he’s out thumping for them, he’s in hot pursuit of what he hopes will be his last coup, approval of the Trans Pacific Trade Partnership. It’s such a popular idea he chose not to breathe its name in his speech. What he did say was worth sampling if only to savor its cleverness: “China wants to write the rules for the world’s fastest-growing region. We should write those rules… That’s why I’m asking both parties to give me trade promotion authority to protect American workers, with strong new trade deals from Asia to Europe that aren’t just free, but fair.”

He doesn’t want another free trade fiasco like that awful NAFTA, just “trade promotion authority to protect American workers.” Surely we can all be for that.

Nearly all left-leaning Democrats oppose the TPTP: Paul Krugman, Joe Stiglitz, Bob Reich, Elizabeth Warren. One can’t imagine Obama changing his mind on it any more than one imagines him asking any of them to help craft his new populist agenda. As he likes to reassure his donors, “I’m a market kind of guy,” meaning he comes as close as a Democrat can to being a market ideologue. And yes, there is such a thing.

Market ideologues aren’t the sort to throw bombs or ruin dinner parties but they’re ideologues nonetheless. Their solution for every problem known to mankind is to adopt “market principles.” Their influence on Obama’s generation of Democratic elites has been profound. It’s why so many of them apply market theory to issues to which it is ill-suited, such as carbon reduction, health care and public education.

Obama doesn’t get that free trade can be as good as he says for business and still be a terrible deal for workers. He doesn’t get that markets by their nature do a great job of creating wealth and a poor one of distributing it; that absent a strong government to encode and enforce a social contract there is no middle class; that pitting our workers against those lacking such support will eventually impoverish them. It’s why he opposed raising the minimum wage when he had the votes to do it in his first term. It’s why he bailed out banks but not homeowners, and abandoned the public option.

—Bill Curry
Let’s Not Morph Obama Into Elizabeth Warren Quite Yet

This disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition, though necessary both to establish and to maintain the distinction of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments. That wealth and greatness are often regarded with the respect and admiration which are due only to wisdom and virtue; and that the contempt, of which vice and folly are the only proper objects, is often most unjustly bestowed upon poverty and weakness, has been the complaint of moralists in all ages.

We desire both to be respectable and to be respected. We dread both to be contemptible and to be contemned. But, upon coming into the world, we soon find that wisdom and virtue are by no means the sole objects of respect; nor vice and folly, of contempt. We frequently see the respectful attentions of the world more strongly directed towards the rich and the great, than towards the wise and the virtuous. We see frequently the vices and follies of the powerful much less despised than the poverty and weakness of the innocent. To deserve, to acquire, and to enjoy the respect and admiration of mankind, are the great objects of ambition and emulation. Two different roads are presented to us, equally leading to the attainment of this so much desired object; the one, by the study of wisdom and the practice of virtue; the other, by the acquisition of wealth and greatness. Two different characters are presented to our emulation; the one, of proud ambition and ostentatious avidity. the other, of humble modesty and equitable justice. Two different models, two different pictures, are held out to us, according to which we may fashion our own character and behaviour; the one more gaudy and glittering in its coloring; the other more correct and more exquisitely beautiful in its outline: the one forcing itself upon the notice of every wandering eye; the other, attracting the attention of scarce any body but the most studious and careful observer. They are the wise and the virtuous chiefly, a select, though, I am afraid, but a small party, who are the real and steady admirers of wisdom and virtue. The great mob of mankind are the admirers and worshippers, and, what may seem more extraordinary, most frequently the disinterested admirers and worshippers, of wealth and greatness.

—Adam Smith
The Theory of Moral Sentiments

H/T: Stumbling and Mumbling.

The known facts from this latest case seem to fit well within a now-familiar FBI pattern whereby the agency does not disrupt planned domestic terror attacks but rather creates them, then publicly praises itself for stopping its own plots.

First, they target a Muslim: not due to any evidence of intent or capability to engage in terrorism, but rather for the “radical” political views he expresses. In most cases, the Muslim targeted by the FBI is a very young (late teens, early 20s), adrift, unemployed loner who has shown no signs of mastering basic life functions, let alone carrying out a serious terror attack, and has no known involvement with actual terrorist groups.

They then find another Muslim who is highly motivated to help disrupt a “terror plot”: either because they’re being paid substantial sums of money by the FBI or because (as appears to be the case here) they are charged with some unrelated crime and are desperate to please the FBI in exchange for leniency (or both). The FBI then gives the informant a detailed attack plan, and sometimes even the money and other instruments to carry it out, and the informant then shares all of that with the target. Typically, the informant also induces, lures, cajoles, and persuades the target to agree to carry out the FBI-designed plot. In some instances where the target refuses to go along, they have their informant offer huge cash inducements to the impoverished target.

Once they finally get the target to agree, the FBI swoops in at the last minute, arrests the target, issues a press release praising themselves for disrupting a dangerous attack (which it conceived of, funded, and recruited the operatives for), and the DOJ and federal judges send their target to prison for years or even decades (where they are kept in special GITMO-like units). Subservient US courts uphold the charges by applying such a broad and permissive interpretation of “entrapment” that it could almost never be successfully invoked. As AP noted last night, “defense arguments have repeatedly failed with judges, and the stings have led to many convictions.”

—Glenn Greenwald
Latest FBI Claim of Disrupted Terror Plot Deserves Much Scrutiny and Skepticism

They knew about it all the way up to the top. I remember sitting at a meeting with one of the top three officials at the CIA when the program was approved. And throughout the conversation, he kept on saying, “I can’t believe the president signed off on that program. I can’t believe it.” He kept saying it. Because it was so radical and violent that even internally we didn’t think there would be permission forthcoming. And there was. And it got out of hand, and it was a slippery slope and the ball kept rolling down the hill. And the next thing you know, we’re killing people…

When their obituaries are written, their obituaries are going to be about torture and their role in it. And they’re desperately trying to spin the story to make it seem like they were patriots and not criminals. It’s utterly nonpartisan. The Senate Committee on Intelligence used primary source information. They used the original CIA cables to come up with this report. Those cables are not partisan, those cables don’t tell one side of the story. The cables are the actual information written as it was happening. So to call it partisan is just simply untrue. It’s not partisan. What’s partisan is that a certain group of political leaders doesn’t want the organization, the agency, to take responsibility for their actions.

—John Kiriakou
Prison Dispatches From the War on Terror

I’ll always be an outsider. That’s how I understand the world. There’s a real benefit to being clear about this. I know why I’m here. I think about this every morning before I open my eyes, and I’m still thinking about it every night when I go to sleep.

—Elizabeth Warren
Elizabeth Warren Keeps Pressure on Hillary Clinton and Democrats Ahead of 2016

A common misconception is that polarization goes hand-in-hand with lobbying and special interests. On the contrary, corporations and industry groups typically pursue bipartisan strategies. In fact, contributions from industry PACs, corporate executives, and lobbyists flow more freely to the ideological center than to the ideological extremes. For better or worse, lobbyists and interest groups seek to build coalitions, and this often requires engaging the lawmakers most likely to be pivotal.

Political contributions are often portrayed as a means by which special interests hash out quid pro quo deals. In truth, they more closely resemble a form of expensive targeted advertising. Lobbyists value lawmakers who can understand, internalize, and act on their concerns. This puts a premium on lawmakers who obtain positions of power on important committees or establish themselves as policy experts, but lobbyists will ultimately attempt to persuade anyone willing to listen.

Fund-raising from small donors calls for a different set of talents. The most successful small-money fund-raisers mix media exposure with partisan taunting and ideological appeals. Fund-raising superstars Alan Grayson and Michele Bachmann have demonstrated this. During the 2010 election cycle, small donors (those who contribute $200 or less) gave $3.4 million to Grayson and a record-shattering $7.5 million to Bachmann. Overall, ten percent of House candidates raised over fifty percent of small-donor dollars. Moderates were less successful in attracting small donors. In fact, Bachmann alone raised more from small donors than the combined amount raised by all 48 Blue Dog Democrats running for reelection.

—Adam Bonica
Leadership, Free to Lead

According to the recent Times coverage, Bush is a “moderate” and “centrist” who wonders “whether he can secure the Republican nomination without pandering to the party’s conservative base,” as it explained in one story, and “whether he can prevail in a grueling primary battle without shifting his positions or altering his persona to satisfy his party’s hard-liners,” as it explained in another. Reporter Jonathan Martin adds: “Though [Bush] is deeply conservative on some issues such as taxes and abortion… he has pushed for an immigration overhaul that would include a path to citizenship for people who are here illegally.” In fact, Bush did do this, before changing his mind because of opposition from Republican crazies and deciding that “permanent residency” for unauthorized immigrants “should not lead to citizenship,” calling that “an undeserving reward for conduct that we cannot afford to encourage.” …

On economic matters, Bush endorsed Paul Ryan’s punitive budget that seeks to zero out virtually all federal assistance to the poor. He also supported George W Bush’s deeply unpopular plan to privatize Social Security. On social matters unrelated to abortion, Jeb sees “very strong justifications” for restrictive voter-ID laws that are transparently designed to reduce minority participation. He not only opposes gay marriage but says he “personally” believes that gay couples should be denied legal adoption rights; he also opposes all legal protections for LGBT people, calling them “special rights.” He happily signed the NRA’s “stand your ground” legislation, which led to the legal murder of Trayvon Martin. Regarding science, he has moved from the completely ridiculous position of disputing the fact of global warming to the only slightly less ridiculous one of questioning whether it is “disproportionately man-made” — a position that puts him at odds with approximately 97 percent of the world’s qualified climatologists. On Cuba, he has also sided with the crazies. The list continues almost indefinitely.

True, Jeb Bush may be a “moderate” or “centrist” in a context where one of America’s two political parties has all but gone insane. But without such context, those labels are a lie…

—Eric Alterman
A Great Newspaper’s Shame