The next generation will have its own conceptions of liberty. It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable. And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.
- Judge Carlton Reeves
United States v Bullock
This week's featured post is "Courts are still in session".
This week everybody was talking about the heat
July 4 and 5 weren't just hot days, and they didn't just set records for the highest global average temperature ever recorded. They were the hottest days in the last 125,000 years.
And the problem isn't just the heat, it's how fast the climate is changing. Here's the Intergovernmental Panel on Climate Change's graph of the last 2,000 years' global temperatures relative to some long-term average.
The speed is important: If the climate changes over thousands or tens of thousands of years, species can migrate and interbreed and adjust. But if the same change happens over 100 years, many will just go extinct.
and court decisions
The featured post covers the injunction against Biden officials communicating with social-media companies, a Mississippi judge's argument against originalism, and an appellate court letting Tennessee's ban on gender-affirming care take effect.
In addition, more commentary on last week's Supreme Court rulings has appeared.
The Atlantic's Adam Serwer exposes "The Most Baffling Argument a Supreme Court Justice Has Ever Made": Clarence Thomas' concurrence in the decision that struck down affirmative action.
Being an "originalist", Thomas has to align his interpretation of the 14th Amendment -- that it's colorblind and does not allow race-conscious laws -- with the same Congress' reauthorization of the Freedman's Bureau to look out for the interests of the former slaves.
To square this circle, Thomas insists that the term freedmen was a “formally race-neutral category” and a “decidedly underinclusive proxy for race.”
Thomas is correct that not all Blacks in the former Confederacy had been slaves (only about 90%, Serwer says; today, not all Black people are applicants to universities). But since only Black people could have been enslaved, everyone understood that a "freedman" was Black. So Congress did indeed pass a law to help Black people.
[Thomas'] efforts at reconciliation ultimately illustrate the extent to which “originalism” is merely a process of exploiting history to justify conservative policy preferences, and not a neutral philosophical framework.
Which is more or less the same thing I was saying last week.
You might expect that this responsibility to read the text closely would limit the power of judges to insert their own views into the law, but as practiced by the current justices, it does the exact opposite. Understanding how words were commonly understood at some point in the past is a job for historians, and the justices are not historians. Nor do they typically respect the consensus of the people who are historians.
Instead, we are treated to excursions into history that — voila! — always reach the desired result. If you’ve ever delved deeply into history yourself, you should understand how unlikely this is. History, researched honestly, frequently jars your preconceived notions. But the conservative justices are never jarred off their favored course.
Like almost every other week, there's a new story about Clarence Thomas living the high life, and his rich "friends" footing the bill.
Jamelle Bouie points out something significant in John Roberts' opinions in race cases: He never talks about racism itself.
I want to highlight Chief Justice Roberts's avoidance of racism as a prime example of "racecraft," the term coined by the historians Karen and Barbara Fields to describe the transmutation of a set of actions (racism) into a set of qualities or characteristics (race).
Racecraft, the Fieldses write in "Racecraft: The Soul of Inequality in America," "transforms racism, something an aggressor does, into race, something the target is, in a sleight of hand that is easy to miss."
Linda Greenhouse takes a long-term look at what John Roberts has accomplished for conservatives:
To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.
These goals were hardly new, but to conservatives’ bewilderment and frustration, the court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them.
18 years later, Roberts has achieved them all.
In the featured post, I compare the ambiguity of the social-media injunction to that of anti-critical-race-theory laws, where the proposed applications of the law seem at odds with its text, leaving teachers wondering what is actually legal.
The problem is that it's almost impossible to interpret anti-critical-race-theory laws so that they simultaneously
- make sense
- apply to something real.
A recent flap in Oklahoma illustrates the point: Given Oklahoma's anti-CRT law, can schools teach about the Tulsa Massacre of 1921, in which White mobs invaded a prosperous Black suburb, massacred hundreds of people, and burned 35 blocks of buildings?
Yes, says state superintendent of schools Ryan Walters, but only if you do it right. I quote at length here to be scrupulously fair to Walters:
I would never tell a kid that because of your race, because of the color of your skin, or your gender or anything like that, you are less of a person or are inherently racist. That doesn’t mean you don’t judge the actions of individuals. Oh, you can. Absolutely, historically, you should. ‘This was right. This was wrong. They did this for this reason.’ But to say it was inherent in that because of their skin is where I say that is Critical Race Theory. You’re saying that race defines a person.
Several commentators interpreted Walters as saying that the massacre wasn't really about race, or at least, that we shouldn't tell the kids that it was. That would be a crazy point for Walters to be making, but that's not how I read his words.
To me he seems to be saying that teaching about the massacre only goes wrong if you teach that the White rioters were driven to violence by some inherent flaw in their DNA, i.e., some racist gene that White students in the class likely share. (My initial reading seems consistent with the way Walters followed up: "I am referring to individuals who carried out the crime. They didn’t act that way because they were White, they acted that way because they were racist.")
So if I make that interpretation, I have to agree with him: Blaming some inescapable quality of whiteness would be a terrible way to teach the massacre. It might even convince some White kids that they are "less of a person" because of "the color of their skin". So in my interpretation, Walters' answer passes the "make sense" requirement.
But then we hit the second horn of the dilemma: Has anyone in the entire history of Oklahoma schools ever taught the massacre that way? Has any teacher ever told his or her class that White people are genetically inclined to massacre Black people? I haven't read every anti-racism book out there, but I've read a lot of them. And I've never seen anything like that account of white-on-black violence.
Summing up: If you define CRT in such a way that it's obviously objectionable, then your ban doesn't ban anything that is actually taught. Conversely, if you define CRT so that it applies to things that are actually taught, then it's not all that objectionable.
Teachers, principals, and superintendents don't want to take the risk of interpreting the laws literally, because that means the legislature was just wasting its time and didn't actually intend to ban anything. And so they are left to imagine what the law will mean in practice, and to self-censor accordingly.
and Moms for "Liberty"
You probably didn't pay much attention to the Moms For "Liberty" national summit in Philadelphia a little over a week ago, which drew most of the top Republican presidential candidates, including Trump and DeSantis.
One night's keynote speaker was less famous: right-wing talk show host Dennis Praeger. But I think this quote explains a lot:
God made order out of chaos, and the left is making chaos out of order. The notion that there is no such thing as a male or a female human being is chaos. It is a gigantic lie, but it is more than a lie, it is chaos. ... [O]rder reflects God, the Creator.
One of the things I always wonder, when MFL-type people respond with near-violent anger to trans youth or drag queens or some other manifestation of gender ambiguity is "Why do you care?" If somebody you perceive as a guy wants to express his liberty by wearing a skirt or eye shadow, or holding hands with another guy, what's it to you? How does that ruin your day?
I think the Praeger quote explains it: An authoritarian world with clear rules and clear categories comes with an implicit promise of safety for those who obey and conform. So that nonbinary kid on the subway whose gender you can't quite identify -- it's not that they're going to attack you themselves. It's that they represent a crack in the "safe" world order, a manifestation of Chaos. And as those cracks grow, who can predict what demons will spill into the world?
Of course, obedience and conformity are the exact opposite of the Liberty the group is supposed to stand for. But I guess Moms For Obedience and Conformity just doesn't have the same ring.
Anyway, this explains how Trump can say weird stuff like "Democrats hate God" -- as he did in his conference speech -- and not be sedated and sent to a mental ward for his own protection. It's all part of the "spiritual warfare" that increasingly justifies right-wing violence.
Some background: MFL has largely followed the model of the Tea Party from 2009-10: a group organized around local chapters that can expand rapidly because it has access to large amounts of dark money, making it a blend of grassroots and astroturf. Peter Greene describes it like this:
While the movement is not exactly fake, it’s not exactly real, either. Conservatives who argue that this is just a grass roots groundswell are ignoring the deliberate moves made to ramp up this controversy, most notably by Christopher Rufo
Leading anti-wii groups like Moms for Liberty and Parents Defending Education are operated by professional communications folks and seasoned political operatives, but that doesn’t mean they haven’t activated and harnessed actual anger and upset among people on the ground.
Historian Nicole Hammer places them in the tradition of 20th century right-wing women's groups.
These mothers’ movements, from the WKKK, to massive resistance to Save Our Children, all relied on the image of mothers protecting children. But they were in service of a much larger political project: shoring up traditional hierarchies of race and sexuality. They were about motherhood and education, but as a means to an end. Moms for Liberty operates in precisely the same way, building on this century-long tradition. The book bans, the curricula battles, the efforts to fire teachers and disrupt school board meetings — little here is new.
and you also might be interested in ...
Who could have anticipated this? Launching Trump's "Truth Social" Twitter clone involved a securities fraud that has led to an $18 million civil settlement with the SEC. How does such a straight-shooting, tell-it-like-it-is guy keep winding up in the middle of fraud? Just bad luck, I guess.
In the previous section, I discussed the conservative tendency to see liberals as demonic. I confess I'm tempted to do something similar when I see articles like this one: "House Republicans target the Pentagon's use of electric vehicles".
The generals note some tactical advantages of electric vehicles: They're quieter and cooler, so they'll be harder for the enemy to detect.
But of course, electric jeeps and tanks would also make the world a better place by limiting carbon emissions, and that can't be tolerated.
Paul Waldman interprets the "Freedom" Caucus' attempt to expel Marjorie Taylor Greene: Greene and the Caucus have conflicting views on how to gain and wield power.
Soraya Chemaly discusses Josh Hawley's book on masculinity, which I have not yet steeled myself to read. One trait I'm coming to appreciate in arguments is a willingness to restate what the opponent gets right, as Chemaly does here:
A recent study conducted by Equimundo Center for Masculinities and Social Justice indicates that Hawley’s onto something and identifies the important connection between manhood and a sense of purpose. While boys and men in America are diffusely struggling to understand masculinity and changing gender roles, the study finds, one cohort of boys and men is not struggling to find meaning: those with the most conservative and traditional beliefs.
The challenge, Chemaly rightly (IMO) observes, is to come up with a vision of male purpose that doesn't assume male dominance, as traditional beliefs do. I mean, me-running-everything is a vision of my purpose that I can easily accept, but I don't see why anyone else should accept it.
The increasing gender equality of recent decades has upset a vision of male purpose that relies on male dominance. One solution -- Hawley's (though he would probably deny it) -- is just to undo it all and let men dominate again. That's conceptually simple, but I can't believe there's nothing better.
and let's close with something scenic
I love photo contests. It's not just the beauty or poignancy of the image itself, but also the fantasy of traveling to exotic locations, finding the perfect spot, and knowing exactly when to push the button.
So while I have no idea who Prince Albert II of Monaco is, I am grateful to his foundation for establishing an environmental photography award. This year's winners were announced last month. Here's a shot of an ice cave in Iceland.
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