The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination ... But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. ... Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
- Supreme Court Justice John Marshall Harlan,
Jacobson v Massachusetts (1905)
This week's featured post is "On Doing Your Own Research".
This week everybody was talking about Biden's vaccine "mandate"
Which is not even actually a mandate; a company that isn't a government contractor can avoid penalties by instituting weekly testing for its unvaccinated workers. Anyway, here's what President Biden announced in his speech Thursday.
- Federal employees and contractors have to get vaccinated to keep their jobs and contracts. "If you want to do business with the federal government, vaccinate your workforce."
- Workers at health-care facilities have to get vaccinated if the facilities receive government funds (i.e., Medicare or Medicaid). "If you’re seeking care at a health-care facility, you should be able to know that the people treating you are vaccinated."
- Even companies that don't do business with the federal government (if they have more than 100 employees) have to mandate vaccines for their workers. Workers can claim a religious or health exemption, but if they do, they have to be tested for Covid weekly.
In all, about 100 million Americans will be affected by the order. If we assume that they're typical of the total American adult population (about 75% vaccinated already), that would mean that 25 million unvaccinated Americans are now facing the options of (1) get vaccinated (and maybe save your own life); (2) get tested every week; or (3) look for a job at a smaller company.
Republicans, who in general have fought any effort to control the virus, were quick to denounce Biden's move.
Mississippi Governor Tate Reeves, for example, said the mandate was "tyranny" and "unconstitutional". He charged that Biden was only doing it to distract attention from Afghanistan. (Because why else would an American president respond to a plague that had killed 677,000 Americans and was adding to that total at the rate of 3K every two days?)
Arizona Governor Doug Ducey called it "dictatorial" and predicted "This will never stand up in court." South Dakota Governor Kristi Noem was one of several GOP governors pledging to challenge the rule in court. When asked about these threatened lawsuits, Biden said, "Have at it."
Assuming that the Supreme Court will uphold the laws and long-established precedents -- always a dangerous assumption with this highly political court -- Biden is on pretty firm ground.
The authority for the mandate comes from the Occupational Health and Safety Act of 1970 (which was signed by that flaming liberal Richard Nixon). OSHA has never been used to mandate a vaccine before, but gives the government broad powers to enforce workplace safety.
As to whether individuals have an inherent right to refuse vaccination, that was decided back in 1905, when Massachusetts (among other states) mandated a smallpox vaccine. Supreme Court Justice John Harlan (the greatest justice you've probably never heard of; among other claims to fame, he was the lone dissenter in both Plessy v Ferguson and in the Civil Rights Cases that opened the door for Jim Crow) reasoned that a community's power to protect itself against an epidemic would violate an individual's 14th Amendment rights only if it went "far beyond what was reasonably required for the safety of the public".
In order to prevail, then, a challenge would have to argue on fairly narrow grounds. Either:
- Individuals have more extensive rights to resist a federal mandate than a state mandate.
- OSHA's sweeping grant of power to regulate workplace safety has an invisible vaccine exception.
- Increasing vaccinations does not increase workplace safety, and is not a reasonable measure to protect the public from Covid.
- OSHA itself is unconstitutional.
CNN reports that corporate America is actually pretty pleased with this government interference: Companies want a vaccinated workforce, but don't want to appear heavy-handed. So they're happy to demand vaccination and blame Biden for it. That's why groups like the Chamber of Commerce and the Business Roundtable, who are knee-jerk opponents of all other government regulation, are on board.
This Texas Dad creatively lampoons the masks-violate-my-freedom crowd by stripping down during a school board meeting. Who's free now?
With characteristic cruelty, anti-maskers laugh at a teen as he talks about his grandmother dying of Covid.
Last week I was uncertain whether the new-case numbers were peaking, or if Ida had disrupted the statistics. This week confirms the peak. New cases are down 7% over the last two weeks, though deaths (which usually run two weeks behind new cases) are still increasing. New cases are averaging 145K per day in the US, and deaths are averaging 1648 per day. The total American death total since the start of the pandemic is up to 677,988.
I continue to be amazed at the reactions of people who resist vaccines and masking and anything else that might mitigate the spread. 677K Americans are dead, with three thousand more every two days. You'd think that kind of impact would justify a little inconvenience. But no.
and the 20th anniversary of 9-11
The anniversary was Saturday. I noticed two main trends in the commentary. First, acknowledging again the human impact: the losses people suffered on that day, the long-term suffering of people exposed to whatever got into the air, and the heroism of people who tried to help others at great risk to themselves.
The second major trend was to take a step back and recognize just how badly we screwed up our national response. After 9-11, the public was united in a way it hadn't been since World War II. The country wanted to do something, and even people who believed that George W. Bush hadn't legitimately been elected the previous November recognized that he was the only leader available to rally behind. For the next year or two, President Bush could have done just about anything he wanted, if he could claim it had some reasonable connection to 9-11.
What he did, largely under the influence of Vice President Cheney, was to start two wars that were unwinnable because they lacked reasonable goals. American military power could topple the the Taliban and Saddam governments fairly quickly, but Bush and Cheney had no clear notion of how to replace them, or what they wanted out of the new governments.
Many of the prisoners from those wars wound up in a lawless zone in Guantanamo, where they were tortured in violation of both our treaty agreements and longstanding American values. Once introduced, torture spread to other US facilities. In addition, the US government claimed enormous new powers to spy on its own citizens, and even to whisk them into military brigs indefinitely by declaring them "enemy combatants". Internationally, America claimed the right to launch attacks on the soil of any country where we believed terrorists were hiding.
Subsequent administrations could have reversed these policies, but didn't (unless forced to by the Supreme Court). They could have leveled with the American people about how little we were accomplishing in Iraq and Afghanistan, but didn't.
The mainstream media was largely complicit in these efforts, and remains complicit today -- as we saw recently when it savaged President Biden for ending the Afghan War. Twenty years of wasting money and misusing power never aroused a fraction of the ire that was unleashed when a president reversed that foolish course.
And while our troops are no longer fighting in Afghanistan, and President Biden claims the combat mission of our remaining 2500 troops in Iraq will end this year, the internal spying powers remain, and 39 prisoners are still at Guantanamo. The Biden administration may have tightened up control over drone strikes, but, like all post-911 administrations, it claims the right to attack anywhere in the world on a moment's notice.
Every surviving president but Carter appeared at ceremonies to mark 9-11. Biden, Obama, and Clinton were all in New York, and Biden and Bush were at the Flight 93 Memorial in Shanksville, Pennsylvania.
Carter's absence is understandable. He's 96 and has a variety of health problems. Also, his presidency ended two decades before 9-11, so he neither caused nor responded to it.
Trump took heat for not attending, and for marking 9-11 at the Seminole Hard Rock Hotel in Hollywood, Florida, where he was a guest commentator for a boxing match. He did, however, address by video a Day of Prayer event on the National Mall organized by the Let Us Worship organization. Trump never tried to be the president of all the people, so it's not surprising that he acts as ex-president only for crowds of his supporters.
In The Guardian, Harvard Professor Linda Bilmes examines where the $5 trillion spent on Afghanistan and Iraq went: mostly to military contractors.
Ross Douthat owns up to being part of a misguided post-911 consensus, and now sees the War on Terror as a 20-year distraction from our real foreign-policy challenge: the rise of China.
Kurt Andersen notes that the 20th anniversary of Pearl Harbor was not a big deal.
Paul Krugman recalls how willing Republicans were to exploit 9-11 to push an unrelated political agenda (“Nothing is more important in a time of war than cutting taxes," said Tom DeLay), and how this foreshadowed the party-over-country trend that has characterized the GOP ever since.
and the Texas abortion law
After a week of speculation about how the Biden administration would respond to the law, Attorney General Merrick Garland announced a lawsuit. (The text of the suit is here.) The approach AG Garland chose was to sue the State of Texas in federal court, seeking "an order preliminarily and permanently enjoining the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B. 8."
Because SB8 specifically does what Supreme Court precedents say laws cannot do (substantially burden a woman's right to choose an abortion before a fetus is viable), the suit says SB8 is "in open defiance of the Constitution".
The United States therefore may sue a State to vindicate the rights of individuals when a state infringes on rights protected by the Constitution. ... The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review.
The suit notes that while Texas executive-branch officials may not be involved in enforcing the law, Texas judges are.
while Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role.
And when private individuals file suit to enforce the law, they also become agents of the state "and thus are bound by the Constitution". (One indication of their state-actor status is that the people who sue under SB8 can collect a payment even though they have not personally suffered damages. Clearly they are not suing in their private capacity.)
The suit also notes an impact on the federal government: Whenever a government program requires it to cover someone's health care, the government might wind up paying for an abortion -- and thus itself being liable for damages under SB8. (Job Corps, Refugee Resettlement, Bureau of Prisons, Office of Personnel Management, Medicaid, and Department of Defense are examples.)
AP reports that yesterday Supreme Court Justice Amy Coney Barrett "spoke at length about her desire for others to see the Supreme Court as nonpartisan".
Maybe she should worry first about what she is, and then worry about how she appears.
Texas Governor Abbott was asked about forcing women to have their rapists' babies, and he responded in ways that make it clear he doesn't take the problem seriously: First, he claimed the law gives women "six weeks" to get an abortion, when most women will not know they are pregnant by then, and most pregnancy tests are unreliable until after a missed period. And then he went to Fantasyland:
Rape is a crime and Texas will work tirelessly that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.
So: Nothing to worry about, because there aren't going to be any more rapes in Texas. Sadly, though, Texas had nearly 15,000 reported rapes in 2019 (the most recent numbers I could find), and some unknown number of unreported rapes. Abbott did not reveal his magic plan to eliminate rape, or explain why he has not implemented it during the six years he has been governor. And what will he do when accused rapist Donald Trump comes back to the state?
And so Abbott joins the long list of Republican politicians who have said stupid and/or heartless things about rape.
and Lee's statue
A giant Robert E. Lee statue came down in Richmond Wednesday, provoking all kinds of discussion of Lee's place in history.
Probably no American historical figure has been as thoroughly mythologized as Lee, who in Southern hindsight became the great saint of the Lost Cause. The glorification of Lee was so extreme that in 1996 a biography was titled Lee, Considered because it claimed that the Southern general had never been realistically evaluated by historians. So "considered", not "reconsidered".
The two main points of contention are (1) Lee's relationship to slavery, and (2) how good a general he really was. The first was discussed by Gillian Brockwell in the Washington Post. As for the second, Lee, Considered makes a convincing case that Lee was a brilliant tactician, but not much of a strategist.
As Rhett Butler explained in Gone With the Wind, the South went into the war over-matched in manufacturing capacity and potential manpower. So there were basically only two ways the South could have defeated the North:
- A "bloody nose" strategy, where a quick Southern strike would convince the North that it didn't really want to pursue this war.
- A Fabian strategy that would avoid pitched battles, drag out the war, and frustrate the North's desire for a decisive victory until its electorate lost patience.
But no matter how clever its generals were from battle to battle, the South couldn't possibly win the kind of war Lee got them into: a multi-year war of attrition. Bad strategy. The strategy by which Grant ultimately defeated Lee was to stop worrying about his own casualties and focus instead on inflicting as many as possible. Grant understood that he could replenish his forces, but Lee couldn't.
How the South ultimately did win (in 1877) was through an endless terrorist campaign, not a second try at Gettysburg.
Connecting this note with the 9-11 retrospective: If Americans understood our own history, we would never have tried to remake Afghanistan. Even after the victories of Sherman and Grant, and a decade of military occupation, the North was never able to remake the South in its own image. Like the Taliban, the White supremacist aristocracy reestablished itself as soon as the Union troops left.
and you also might be interested in ...
Tuesday is election day for the California recall. Polls on recalling Newsom were tight a month ago, but Keep now has a wide lead over Remove. Consequently, Republicans are already preparing to accuse Governor Gavin Newsom of fraud, because no elections they lose can possibly be legit.
Someday I want to hear their theory on how Newsom managed to coordinate this election fraud with all the polling operations.
Nate Silver does a quick analysis of the decline in President Biden's approval rating. It corresponds to two events: the Afghanistan withdrawal and the rise in Delta variant cases. Like Nate, I think the Afghan situation will either fade from public attention or look better in hindsight. If this Covid wave is also peaking, Biden might bounce back, though Nate isn't sold on that as a likelihood.
The negotiations over the Democrats' reconciliation infrastructure package is getting serious, with Bernie Sanders on one side and Joe Manchin on the other.
James Fallows describes efforts to rethink college rating systems. The traditional US News approach measures inputs: how accomplished students are when they enter college. It would be better to measure what students gain while they're there.
In line with this week's historical themes, an actual historian debunks the Molon Labe slogan favored by gun-rights extremists. After all, according to the story, the Persians did come and take the Spartan weapons, after killing the Spartan king and all his warriors. Persian casualties were likely larger, but Thermopylae was merely "a speed bump under the wheels of the Persian war machine", which went on to burn Athens before losing the naval battle of Salamis.
Probably, though, the whole Thermopylae myth was Greek propaganda intended to spin a disastrous defeat as a moral victory. (The Alamo myth serves a similar purpose.) It persists today for a different reason:
[The pro-gun] right-wing fringe favors Molon Labe, and by extension the larger toxic myth of Spartan badassery, primarily because it dovetails with other ideas they favor—namely, the advancement of anti-immigrant and anti-Muslim causes. ... In the film version, a hunky 36-year-old Gerard Butler (the real Leonidas was 60 at the time of this battle) led a tiny, beleaguered force composed entirely of musclebound white men to defend the gates of Europe against a brown-skinned tide of decadent foreigners. This wildly false take on Thermopylae, and by extension Sparta, has become a constant reference point for right-wing fringe groups in slogan after poster after stump speech.
and let's close with something wild
Back in 2015, Paul Joynson-Hicks and Tom Sullam started the Comedy Wildlife Photography Awards. Last year's winner was "Terry the Turtle flipping the bird".
This year's finalists are now posted. The whole gallery is worth a look, but my favorite is this undersea choir.
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