Tim Sandefur has an excellent column, The Anti-Slavery Constitution, in National Review magazine that is available online. After a lengthy and accurate summary of abolitionist constitutionalism, here is the payoff last passage:

A year before his death [Frederick Douglass] bemoaned the resurgence of the old canards that the United States was meant only for whites and that blacks should be transported to Africa or somewhere else. “The bad thing,” he said, was that this idea had even “begun to be advocated by colored men.” The “colonization nonsense tends to throw over the negro a mantle of despair,” he said. “It leads him to doubt the possibility of his progress as an American citizen . . . [and] forces upon him the idea that he is forever doomed to be a stranger and a sojourner in the land of his birth, and that he has no permanent abiding place here.”

This Douglass could not accept. Black Americans, he insisted, were citizens, entitled to constitutional protections no less than whites were.

The same words apply with equal force to historians and scholars today who, however laudable their motivation to educate Americans about the history and the legacy of slavery, blithely assert that the Constitution was designed as an instrument of racial oppression by statesmen who regarded black people as categorically excluded from the principles of natural rights. That casual endorsement of the thesis of Dred Scott slights the hard work of anti-slavery leaders who, almost from the nation’s birth, strove to protect the Constitution from the vicious stain of white supremacy and who later rescued it at the price of blood and fire. It teaches black Americans to doubt the possibility of their progress as American citizens and to imagine themselves forever doomed to be strangers in their homeland. And it shamefully betrays the countless ordinary men and women — their names lost to history — who strove to vindicate the right of Americans of all races to their stake in that “glorious liberty document.”

I highly recommend you read the whole thing. Sandefur is the vice president for litigation at the Goldwater Institute in Arizona and the author of Frederick Douglass: Self-Made Man (2018) and The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2015).  I have not yet read his new book on Douglass, but his book on the Declaration is great and shows you do not have to be a law professor to do good and important legal scholarship.  (The other book on the Declaration I recommend is American Scripture: Making the Declaration of Independence by the late Pauline Meier.)

I have been writing about abolitionist constitutionalism for over 20 years.  My first introduction to abolitionist constitutionalism was Lysander Spooner’s The Unconstitutionality of Slavery, which was what first led me to be an originalist. I described his theory in Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation.

I later learned much more about antebellum abolitionist constitutionalist theories as well as their narrative of the Founding. Two years of reading in the field culminated in my article Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, from which Tim quotes. While I am very proud of this piece, I did mistakenly give Salmon Chase short shrift for the initial role he played in developing these arguments.

I corrected the record in my article, From Antislavery Lawyer to Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase. And to honor Chase properly, I created the annual Salmon P. Chase Distinguished Lecture, which is given each year in the courtroom of the Supreme Court and cosponsored by the Supreme Court Historical Society. This is followed by a faculty colloquium at Georgetown Law.

The development of abolitionist constitutionalism is a fascinating story, and largely unknown outside a small group of specialists in history and law. What was once just a personal interest of mine has now become a matter of vital importance for those who wish to defend the legitimacy of the Constitution, and even of the United States itself. As an introduction to the topic, you would do well to start with Tim Sandefur’s super new article.

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2019-09-13 19:00:54

Unbelievable. Available now on Netflix.

The teenager has just been raped—for hours—but now it seems her ordeal is only beginning, at the hands of the policemen she called to report the crime.

Tell your story to a cop. Tell it to another cop. Stand naked on the floor for a set of photos, then again for a second set from behind. Pee in a cup. (Are you bonkers on meth?) Have your mouth swabbed several times to collect DNA, then your arms jabbed with needles to give up multiple vials of blood. And repeat the story you already told twice to the cops, this time to the ER nurse, who is compiling her own bulky case file.

More: Twelve swabs from your crotch. Something unseen but unpleasant with a speculum. Genital dye. A handful of pills for STDs, another in case you were in impregnated. Now, tell it all again to a third cop, and then put it down on paper in your own handwriting.

Netflix’s true-crime drama Unbelievable is many things: a noir crime drama; a character study of battered, and battering, women; a thoughtful examination of rape laws and how they’re enforced, or not; a turn-the-tables twitting of fair-weather civil libertarians. (So this guy maybe raped half a dozen women: Do we really need to mess around with subpoenas for the confidential HR files from his workplace? Couldn’t we just steal them instead? It’s so much quicker.)

But at its heart it’s a police procedural, like a CSI or Law & Order on steroids or perhaps the secret version of Dick Tracy’s Crimestoppers Textbook, a glimpse into the way sexual-battery investigations really work.

This includes: that dismal checklist for rape victims (For rape suspects, add in plucking—roots and all—of pubic hair); cops slogging through hours of surveillance tape of traffic passing a crime scene, then days more trying to match a particular vehicle with a broken mirror to thousands of repair-shop reports; and shuffling through thousands of witness statements and military records and crime-scene forensics in hopes of finding a matched circumstance; the endless fruitless interviews with scum who nonetheless aren’t guilty—”an asshole, just not our asshole” as one disgruntled cop puts it.

If that sounds tedious, it isn’t. Unbelievable, the rare crime drama with no bang-bang and scarcely any on-screen violence of any kind (even the rapes, seen only from the eyes of blindfolded, trussed-up victims, are confused and fragmentary), is still a relentlessly compelling binge-watch event.

Part of the show’s overpowering fascination is the freaky circumstances of the case: a mildly flaky young girl reports a rape, recants, recants her recantation and winds up charged with making a false statement to police. And all the while the rapist—who is very real indeed—is continuing his grim work.

But Unbelievable also features an exceptional array of talent, starting with writer-creator Susannah Grant, whose previous credits include Erin Brockovich and The 5th Wave.  Her main story, skillfully interwoven with red herrings and dead ends, skips nimbly through two timelines without ever losing track of itself.

Her scripts are executed by three remarkable actresses. The most surprising is Kaitlyn Dever, known mostly for her role as the spunky (the word’s gruesome connotations are fully intended and embraced) youngest daughter on the hacky Fox sitcom Last Man Standing.

That role couldn’t be more different than the one she plays masterfully in Unbelievable, that of a wan 18-year-old rape victim named Marie, who has spent a lifetime fighting her way through rocky foster homes and has the physical and emotional scars to prove it. “I don’t need help,” she implores. “I just need bad things to stop happening.”

Raped alone in her apartment by an assailant who tied her up to prevent any struggle, then left a crime scene remarkably free of physical evidence, Marie’s reaction is oddly detached and even at times spacey.

Some details of her account are contradictory—in one version, she dialed her cell phone with her toes to call for help, but in another, she used her hands. The police aren’t the only ones skeptical. One ex-foster mother calls the lead detective on the case to warn him Marie is an attention-seeker, and a former foster dad with whom she was on good terms refuses to be alone with her for fear of a phony cry of rape.

Marie’s response is one she has perfected in a lifetime of giving way to adult aggressors—to give them what she thinks they want. “Do you know how many situations I have been in where grownups want something messed up from me that I don’t want to give them?” she asks a friend. “And they want me to say something that I don’t want to say or do something I don’t want to do? A lot.”

Marie tries to placate the cops with a (false) admission that she made it all up, even though she knows it will end any hope that her rapist is punished and will probably endanger other women. What she doesn’t anticipate is that it will result in criminal charges—against her, for filing a false crime report.

As Marie’s story unfolds, so does that of two women cops 1,300 miles away and two years in the future. Working on separate rape cases for different police departments in different suburbs of Denver, detectives Grace Rasmussen (Toni Collette, The Sixth Sense) and Karen DuValle (Merritt Wever, The Walking Dead) bump into each other and realize they’re chasing the same guy.

Meticulously neat, he binds and blindfolds his victims, snaps their pictures with a pink camera and makes them bathe when he finishes to eliminate any left-behind DNA. Each of his assaults takes place in a different suburb so the various small police departments will never realize they’ve got a serial rapist on their hands. Rasmussen and DuValle forge together a suburban law enforcement task force to pursue their man, but even so, they don’t dare whisper their darkest mutual suspicion: that he’s a cop, whose knowledge of police procedure makes him almost invulnerable.

Collette’s ability to inhabit a role has been visible for years, most strikingly in Showtime’s United States of Tara, in which her multiple-personality suburban housewife character could instantly flash from a sex kitten to a redneck truck driver. But audiences are just beginning to catch on to Wever, whose role as a dedicated but loopy young apprentice nurse in another little-seen Showtime drama, Nurse Jackie, brought light interludes to what was otherwise a bleak study of psychological decay

They’re both excellent here as empathetic but obsessive detectives whose mental strings are tugged to the snapping point by an investigation that piles up evidence but yields no suspects. They pull guns on men guilty of nothing but driving the wrong make and model car, and they conduct lurid phone conversations with other cops from their family dinner tables. Is it any wonder that they can even spot psychosexual clues in old Star Wars movies? If only The Force were with them.

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Whether it’s mountaineering or marijuana, trekking to Everest or tripping on LSD, getting as high as you can has always been central to the Nepal tourist experience. In the 1970s, President Richard Nixon tried to nip communism in the bud by destroying a Himalayan hippie Shangri-La. But in stopping the smokers, he sparked a Maoist blowback.

From the moment Nepal opened its doors to foreign tourists in 1951, popular culture imagined the Himalayan kingdom as a hippie Garden of Eden. Movies, novels, and comic books all dreamed of a far-flung fantasyland of drug trippers, Everest trekkers, levitating lamas, and Himalayan hunts for the ever-elusive abominable snowman.

As the last country on earth to forbid the sale, cultivation, and consumption of drugs, Nepal promised an irresistibly mind-bending trip. But in an era when few could afford round-the-world airfare, frugal flower children took a rougher route to the most far-out destination on the planet.

The Hippie Trail followed the footsteps of the ancient Silk Road. But instead of trading textiles, its travelers swapped the postwar social conformity of the Western world for dreams of enlightenment in the East. Some fled the Vietnam War draft; others came to find themselves. For whatever the reason, from 1965 to 1973, tens of thousands of young people bused or hitchhiked the overland route from Istanbul, Turkey, to Kathmandu, Nepal, annually. And the terminus of the Hippie Trail was a single bustling urban lane called Jhonche, rechristened as Freak Street by its new inhabitants.

Over time, the hippies created their own community in Kathmandu. In a fascinating and comprehensive look at Nepal’s hippie history, Mark Liechty, author of Far Out: Countercultural Seekers and the Tourist Encounter in Nepal, describes Freak Street as a Haight-Ashbury or Greenwich Village on the other side of the world. Hippies knew little of the local language and culture. Instead, they lived in a fantasy Nepal that existed in their imaginations: a land where old rules about drugs and dress, music and sex didn’t apply, where they could live freely and create themselves anew. A culture that was too shocking for 1960s America—”the land of the free”—found a welcome home in a faraway religious monarchy.

Nepal accepted these strange foreigners because there were locals who were strange in the same way. Hindu holy men known as “sadhus” shared a similar taste for flamboyant dress, drugs, and a desire to find themselves by leaving the world behind.

But paradise is not of this earth. Two years after President Nixon declared an international “war on drugs,” Vice President Spiro Agnew was dispatched to Asia. Agnew toured every country along the Hippie Trail before arriving in Nepal. Nixon threatened to withhold economic aid from countries that, in his view, held a permissive attitude toward the drug trade. Months later, Nepal enacted the first anti-drug laws in its ancient history.

Surrounded on all sides by India, China, and under mounting pressure from the United States, Nepal needed a strategy to cope with the Cold War. King Mahendra skillfully played the great powers against each other. He maintained cordial relations with all sides while extracting billions in development cash that would modernize the country, prop up the monarchy, and, for a few more generations, stave off revolution. In return, Nepal would play by international rules. And that meant the drugs and hippies had to go.

Kathmandu’s hashish shops were closed. American narcotics agents roamed Freak Street, surveilling drug takers and draft dodgers for arrest on their arrival back in the United States. And in a move that would have consequences for decades to come, Nepal’s marijuana fields were torched.

The hippies weren’t the only ones angered by prohibition. In western Nepal, far from the capital city of Kathmandu, hashish cultivation was the main source of income. Sellers and growers were arrested. Private property with marijuana growing on it was forfeited to the state. Tens of thousands of farmers were pushed to the brink of starvation. Promised development aid to the region never materialized.

Seeing political opportunity in economic collapse, the Communist Party exploited local grievances and persuaded residents that only a violent overthrow of the government would solve their problems. The Maoists vowed to overthrow the monarchy and fly the hammer and sickle atop Mt. Everest. Nixon’s global war on drugs was fueling the communist ideology it was trying to contain. 

By the “just say no” Reagan era, drug prohibition had opened new opportunities for corruption that lead all the way to Nepal’s royal family. A blockbuster 1986 report by Nepalese journalist Padam Thakurathi implicated top aides to the king’s brothers in Nepal’s booming heroin trade. Days later, in the middle of the night, a bodyguard of the royal family entered Thakurathi’s home and aimed a gun 18 inches from his head. Shot in the face, Thakurathi survived the attack. He lost an eye but lived to expose the royal family’s involvement in black market heroin.

By 2006, the Maoists controlled 80 percent of the country. The insurgency based in the agricultural heartland had grown into a national political force that paralyzed the nation with a series of national strikes and armed resistance to the king. After a decadelong civil war that claimed 17,000 lives, Nepal’s monarchy was abolished and the communists were elected to power.

Today, the civil war is long over, but Nepal’s war on drugs continues. It remains a thriving hub for heroin and hashish, with stories of drug busts, addiction, and violence, mainstays of Nepal’s television news coverage.

Freak Street is looking a little lonely. The erstwhile hippie haven is now a hangout for hipsters. Artisanal coffee shops outnumber head shops. The old Eden Hashish Centre is just an ordinary budget hotel. Kathmandu’s hippie past is running high on nostalgia and low on foot traffic.

Despite a small political movement to legalize hashish, marijuana is legal one day a year for religious purposes only. The rest of the time, locals and tourists take their chances on the black market.

With its wild days behind it, Freak Street has mostly dropped the drug trade and reinvented itself as a destination for mountain trekking.

These days, the real action has moved to Thamel. A short walk from Freak Street, Kathmandu’s thumping nightlife hotspot offers visitors every kind of indulgence that was available during Freak Street’s heyday and many more that the hippies couldn’t have imagined on their wildest trip.

Produced by Todd Krainin.

Music licensed under Creative Commons, CC BY-NC-SA 3.0 US.

“Malashree Dhun” by Sringar Nepal.

“Bass Bansuri” by Hamsadhwani.

“Eastern Thought” by Kevin MacLeod.

“Holiday (instrumental)” by Silence is Sexy.

“Aspirato” by Kai Engel.

“Long Time Gone” by Amaya Laucirica.

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2019-09-13 17:55:21

Remember the police officer in Vallejo, California, who made national headlines in January for tackling a man who’d been filming him on a cell phone? Now he’s being sued for beating someone in a separate incident.

In a federal civil rights lawsuit filed Wednesday, Santiago Hutchins alleges that Officer David McLaughlin, who was off-duty at the time, held him at gunpoint following a verbal altercation outside a pizzeria in 2018 and then used unconstitutional and excessive force to arrest him. Cellphone footage obtained earlier this year by local news station KTVU shows McLaughlin punching and elbowing Hutchins while two other officers hold Hutchins down.

Santiago Hutchins being treated after a violent arrest.

According to the lawsuit, Hutchins suffered “a concussion, right eye hematoma, facial pain, headache, swelling in the head, face contusions, face lacerations muscle strains, and rib contusions” as a result of the beating.

Hutchins was arrested on suspicion of disturbing the peace, according to the East Bay Times, but the charges were later dropped. On October, Hutchins’ attorney filed an internal affairs complaint with the Vallejo Police Department on Hutchins’ behalf. According to Hutchins’ lawsuit, neither Hutchins nor his lawyer ever received a response to the complaint.

Hutchins also filed a claim for damages against the city, a precursor to a civil rights lawsuit, against Vallejo. In April, Vallejo rejected his claim, on the grounds that McLaughlin was not on-duty as a city employee when the incident happened.

Six months after Hutchins’ violent arrest, McLaughlin got into an altercation with Vallejo resident Adrian Burrell, a documentary filmmaker and former Marine. Burrell was standing on his porch filming the traffic stop of his cousin with his cell phone.

I am a Black man born and raised in Oakland, California who was physically attacked by Vallejo PD officer David McLaughlin, last Tuesday. In researching my situation, I learned that Mclaughlin has been involved in lawsuits related to his brutality including the fatal shooting of on August 3rd, 2018. Mclaughlin grabbed me, smashed my face against the wall and then swung my body, knocking my head into a wooden pillar causing a concussion. He put handcuffs on my wrists so tight they broke the skin and caused my fingers to go numb. All while telling me “stop resisting” to my reply, “I’m not resisting.”I’m a Marine, and was honorably discharged when I completed my service. I have no convictions on my record; I’m not on parole or probation. I own my home, I was on the porch of this home when McLaughlin pulled his pistol on my cousin, saying my cousin looked like someone who he saw speeding earlier. My cousin was sitting on his motorcycle in front of my house. A gun had been pulled on him because he “looked like someone” the officer had seen speeding earlier. Obviously, the situation concerned me. From roughly 20 ft away, with a railing between myself and the officer, I started filming with my phone. You have the right to film a police officer in action as long as you’re not a threat or preventing him from doing his job. The officer told me to go in my house. I chose to stay on my porch and film because the situation was concerning. My camera panned and tilted, but I did not take one step off of the porch. At that point, officer Mclaughlin approached me as you see in the video. He said I was going to jail and detained me in the back seat of his car. Would I have gone to jail if I weren’t a vet with no criminal record? When the officer realized I am a Marine, he told me if I wasn’t a vet I’d be going to jail. Does that mean that if I had not been a vet, he would have put me in jail for not breaking the law? Because I am a vet, does that mean my life is more valuable? Military service does not warrant special treatment. Lack of military service does not justify mistreatment?Why holster your gun to come put your hands on me, if my cousin and I are a threat?This unfortunate circumstance put me in a situation where if I was to defend myself, then I would have been a hashtag. Or worse, my death would have been ignored or excused on the premise of Mcglaughlin’s irrational fear.Officer McLaughlin should not be allowed to continue abusing his power.This is a true story and I feel it’s my responsibility to share it.Police need better training on implicit bias. They need tougher disciplinary actions taken when patterns of misconduct become frequent and are being reported from multiple sources.#Share #repostfamilyandfriends

Posted by Adrian Burrell on Thursday, January 31, 2019

When McLaughlin saw Burrell filming him, he ordered him to get back, although Burrell was standing about 20 to 30 feet away. Burrell refused.

“You’re interfering with me, my man?” McLaughlin asked as he holstered his gun and approached Burrell. “You’re interfering, you’re going to get one from the back of the car.”

Although filming the police is protected under the First Amendment as long as it doesn’t interfere with police duties, McLaughlin walked up to Burrell, swept him to the ground, and placed him under arrest.

Burrell was detained in the back of a squad car but eventually released, allegedly after police discovered he was a Marine veteran. He says he suffered a concussion as a result of being thrown to the ground.

Reason reported on Hutchins and Burrell’s cases earlier this year as part of a larger story on the Vallejo Police Department. Despite its relatively small size, the department has generated a large number of civil rights lawsuits and settlement payouts:

Like many recorded instances of police misconduct over the past five years, Burrell’s cellphone footage, uploaded to Facebook, went viral, sparking national media coverage. But it was only one of a string of high-profile police incidents in recent months that have inflamed long-running tensions in Vallejo—a diverse, blue-collar city north of Oakland, California—between the city’s police department and its citizens. Almost all of the recent incidents have been caught on cellphones or police-worn body cameras. Local activists say they finally show what lawsuits and protesters have complained of for years.

Vallejo has paid out millions of dollars to settle civil lawsuits alleging wrongful deaths, brutality, and misconduct over the past decade. According to Claudia Quintana, Vallejo city attorney, there are currently 35 pending claims and lawsuits in connection with the Vallejo Police Department, 16 of which allege excessive force. There have been accusations of police retaliation against victims who have come forward, the police chief resigned in April, and the mayor has asked that the Justice Department come to town to try to mend the frayed relationship between police and the community.

McLaughlin was put on leave on February 4, three days after local reporters obtained footage of Hutchins’ beating and reported that he was the same officer from the Burrell incident.

Burrell has not yet filed a civil rights lawsuit. Last month, the City of Vallejo denied his claim as well.

The City of Vallejo did not immediately respond to a request for comment. Reason has been waiting more than six months to receive public records from the Oakland and Vallejo police departments on McLaughlin’s misconduct history.

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2019-09-13 17:03:21

I’m delighted to report that my colleague Joanna Schwartz, who has written extensively on policing and on litigation against the police, will be guest-blogging this coming week about her forthcoming Columbia Law Review article, After Qualified Immunity. I much look forward to her posts!

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Thursday’s debate between the 10 leading Democratic presidential candidates showed that many of them are still struggling to define how they would handle trade policy differently than President Donald Trump.

Entrepreneur Andrew Yang—who otherwise had an excellent debate, and whose response to a question about immigration was the standout moment of the night—provided the best illustration of the Democrats’ struggles. He had the first shot at responding to moderator George Stephanopoulos’ question about whether the candidates onstage would repeal Trump’s tariffs on their first day in office.

Yang fumbled the answer.

“I would not repeal the tariffs on day one, but I would let the Chinese know that we need to hammer out a deal,” said Yang. He did acknowledge that Trump’s trade war is “pummeling producers and farmers in Iowa who have absolutely nothing to do with the imbalances that we have with China,” but apparently a Yang administration would force those same people to keep suffering in pursuit of “a deal that addresses the concerns of American companies and American producers.”

That sounds good, but it’s unclear how tariffs will help make it happen. Trump’s year-long experiment with using tariffs to get China to negotiate has accomplished nothing so far.

Mayor Pete Buttigieg had the second crack at the tariff question, and he opened with the most obvious of observations. “Well, the president clearly has no strategy,” he said.

But what would Buttigieg do differently? He would, uh, have a strategy.

“I would have a strategy that would include the tariffs as leverage, but it’s not about the tariffs,” Buttigieg said. “Look, what’s going on right now is a president who has reduced the entire China challenge into a question of tariffs, when what we know is that the tariffs are coming down on us more than anybody else and there’s a lack of a bigger strategy.”

He’s right that there is more to a trade negotiation than merely taxing imports and expecting that to change behavior, and that the current administration’s strategy is severely lacking. But Buttigieg’s answer was also a reversal from his promise in May to lift the “counterproductive tariffs” if elected. Now, rather than seeing the tariffs as “counterproductive,” he apparently would use them for leverage?

Sen. Amy Klobuchar (DFL–Minn.) has previously defended Trump’s decision to put tariffs on imported steel—Minnesota is home to a significant iron ore mining industry—and in 2106 she sponsored legislation to impose a 226 percent tariff on Chinese-made steel. That’s why it’s hard to take her seriously on trade, though she did make a good point about the importance of American exports, which have been crushed by the trade war.

Sen. Bernie Sanders (I–Vt.) said Trump “doesn’t have a clue” about trade but gave little indication that he does. Former Vice President Joe Biden continued to back away from his pro-trade past, saying he would “organize the world to take on China.” Julian Castro said he would “negotiate with China” but had little substance beyond that. Sen. Cory Booker (D–N.J.) said he would work with America’s allies to change China’s behavior—which is a good idea, but also incomplete. And Sen. Kamala Harris (D–Calif.) declared that she is “not a protectionist Democrat,” which would have been a more noteworthy moment if she didn’t follow it up with a strange, half-finished thought comparing Trump to the Wizard of Oz.

That leaves Sen. Elizabeth Warren (D–Mass.), who continues to be the only Democratic candidate with a fully developed trade policy—one that, essentially, promises to more competently impose Trump’s protectionist ideology.

On Thursday night, Warren used her time to demagogue against “giant corporations” writing trade policies and reiterated her own plans to impose what she’s previously called “economic patriotism.” In response to the actual question—about whether she would tariffs as leverage—Warren sounded almost Trumpian.

“Are you kidding? Everybody wants access to the American market,” Warren said. “That means that we have the capacity to say right here in America, ‘You want to come sell goods to American consumers? Then you got to raise your standards. You’ve got to raise your labor standards. You’ve got to raise your environmental standards.'”

But other countries’ environmental and labor standards improve because they trade with more developed nations. And Warren’s plan to extract better terms for American workers by withholding access to the American market would be a disaster for consumers.

Why are the Democratic candidates not doing more to appeal to the pro-trade part of the electorate? I think there are three reasons.

First, they likely assume that polls showing that Democratic voters favor trade can be ignored without negative consequences. Those poll numbers are driven at least in part by negative partisanship—if a Republican president is being protectionist, Democratic voters say they want the opposite—rather than deeply held convictions. In other words, the Democrats are betting that being the not-Trump candidate in the general election probably carries more weight with those newly pro-trade Democratic voters than any specific stances on trade issues.

Second, Democrats hoping to unseat Trump probably see the Rust Belt as key to winning a close election, since that’s how Trump narrowly won the White House in 2016. They may think that taking an unabashedly pro-trade stance would give Trump another opportunity to rouse support from disaffected factory workers, and would allow the president to demagogue against trade as being a threat to American industry. But Trump is likely to do that anyway, no matter how much protectionism his general election opponent promises. Indeed, he’s already started doing it.

Finally, there is Trump’s scrambling of traditional political alignments. Republicans did flirt with protectionism under both Ronald Reagan and George W. Bush, but the GOP has generally been a more pro-trade party in recent decades than the Democratic Party. Warren might be ramping things up to a higher level, but hearing a leading Democrat call for restricting trade based on environmental and labor standards in other countries is far more ordinary than having a Republican president who so openly disdains global trade.

Trump has stolen the Democratic playbook on this issue, and that has left the left scrambling to figure out how to respond. Thursday night made clear that the leading candidates still have work to do.

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2019-09-13 15:34:11

A funny item from the Complaint in Villa v. Target Corp., where plaintiff is alleging that Target wrongly (and grossly negligently) identified her as a suspected shoplifter:

 

 

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2019-09-13 14:12:02

What happens when the Democratic presidential candidates stop being polite and start getting real? The most substantive and watchable debate yet, apparently.

Last night’s Democratic Party showdown on CNN saw plenty of candidates (and debate moderators!) calling each other out for past missteps. But candidates also seemed more intent on singling themselves out. Rather than simply agreeing to support slogans popular on the left—”Medicare for All,” for instance—many offered at least some details on how their preferred policies would work and specified ways in which these plans differed from those of their colleagues.

I watched the debate from the Reason DC office along with a gaggle of other staffers. We were pleasantly surprised by Andrew Yang; stunned (but pleased) by the poor performance turned in by Sen. Kamala Harris (D–Calif.); and happy to hear so many candidates at least pay lip service to getting out of Afghanistan and ending America’s endless wars.

To me, one of the biggest takeaways of the night was how much the various candidates differ in their trust of individuals. Again and again, candidates kept coming back (implicitly and explicitly) to the idea of trusting Americans to make decisions for themselves versus trusting politicians to know what’s best for everyone. Libertarians obviously appreciate the former. And while none of the candidates are perfect in this regard, Yang, Pete Buttigieg, and to some extent Cory Booker seem to fall into the trust people camp, with Sanders, Harris, and Warren falling most strongly in the “no, trust us” camp.

This divide was most on display in a discussion about health care. Here are some of the high and low points from that exchange:

• Former Vice President Joe Biden’s plan was the easiest to understand. He stressed that it will build on Obamacare, not tear it down; that there will be an option for government-run plans, but people can still choose private insurance; and that it will cost a lot less money than grander plans from other candidates. He also noted that he has actually specified “how we’ll pay for it”—in contrast to other candidates who dance around direct questions about their health care proposals and their costs.

• Sen. Elizabeth Warren (D–Mass.) said how we’ll pay for Medicare for All is simple: We, as a whole, won’t. No, she’ll make “the rich” pay. When a moderator asked if taxes will go up for the middle class, Warren evaded the question, instead rambling about how lowering point-of-service health care costs is what families really care about. She seems to hope Americans are too dumb to realize that they would have more money for out-of-pocket costs if the government took less money from their paychecks.

• Sen. Bernie Sanders (I–Vt.) shouted about the pharmaceutical industry again and championed his version of Medicare for All.

• Sen. Amy Klobuchar (DFL–Minn.) bashed Sanders’ plan as not a “bold idea” but a “bad idea.” She pointed out that it would abolish private insurance within four years. She was striving hard to position herself as The One True Moderate up there.

• Pete Buttigieg said Sanders’ bill doesn’t put enough trust in the American people. “I trust the American people to make the right choice for them, why don’t you?” he asked. (Sanders’ response was, essentially, that people will like Medicare for All and they can still choose between government-approved doctors so who cares.)

• Kamala Harris took her usual all-sides approach—we should have “Medicare for All” but also “choice”—and then launched into a tirade about President Donald Trump. (Nearly every time she was called to talk during this debate, Harris tried to turn it into a referendum on Trump. It got tedious.) Harris also talked about how everyone on stage wanted good things for health care and they shouldn’t fight on stage about policy specifics, saying that the “discussion is giving the American people a headache.” It felt like the wrong move—a condescending, elitist bid for the masses to just trust that these benevolent leaders have their best interests at heart and not worry about who provides their insurance, who provides their care, who will pay.

• Andrew Yang made the bold choice to lead with an ethnic joke (“I am Asian, so I know a lot of doctors”) and then talked about needing to trust people to make their own health care decisions.

• Former HUD Secretary Julián Castro praised Obamacare but went on to bash Biden, implying the vice president was losing his memory and saying he would be better at representing Obama’s legacy on health care than Biden is.

• Sen. Cory Booker (D–N.J.) and former Rep. Beto O’Rourke (R–Texas) both tried to be uniters, talking about supporting universal health coverage policies that still preserve choice.

The debate stage saw some (but too little) criminal justice reform commentary, with Castro and Booker bringing up the need for reform policing and roll back mass incarceration. Then moderator Linsey Davis threw Harris a question about her criminal justice past:

You used to oppose the legalization of marijuana, now you don’t. You used to oppose outside investigations of police shootings, now you don’t. You said that you’ve changed on these and other things because you were, quote, “swimming against the current and thankfully, the currents have changed.” But when you had the power, why didn’t you try to affect change then?

Harris called these “distortions” of her record. C.J. Ciaramella explains why that’s not true. (If you want a deeper dive on all that, see Reason‘s July cover story).

Harris was shaky—seriously, she literally appeared to be slightly shaking—and stumbled over her words during this answer, and some subsequent ones. At one point, she said Trump reminds her of “that guy in the Wizard of Oz” behind the curtain (that would be the wizard) and then broke into a strange fit of giggles. She had this bizzare exchange with Biden about executive orders:

“Let us not now pretend that Joe Biden brought anything like coherence to [the debate],” writes Reason editor-at-large Matt Welch in a recap this morning. But Biden was perhaps the only one who seemed at all concerned with constitutional “constraints on the executive branch carrying out the domestic policy whims of the Democratic electorate.”

I missed most of the debate exchange on guns, as we discussed what the heck was going on with Harris and then dealt with rumors of a rodent by the Reason TV desks. (False alarm, phew.) Then came the immigration portion (and the Biden pile-on).

• The former vice president presented an overly rosy picture of immigration policy during the Obama years, and Castro rightfully (and forcefully) calls him out on it. Castro also accused Biden of taking credit for all the good parts of the Obama years while keeping his distance from all the bad parts.

• Warren blamed a lack of U.S. aid to Central America for the current “crisis at the border.” (Even on this, she can’t help but making her big solution to just get the government to pay for more things.)

• Buttigieg gave a good answer, which included proposing “community renewal visas” that would draw immigrants to rural and small-town areas suffering from population decline. He complained that the last real reform and new ideas on immigration came in the ’80s.

• Yang offered possibly the best answer on immigration, one that didn’t let bad policies off the hook but also didn’t dwell solely on the plight of the most misfortunate immigrants or the blame owed to the Trump administration. “My father grew up on a peanut farm in Asia with no floor and now his son is running for president. That is the immigration story that we have,” he said, adding some numbers on how many immigrants start their own businesses. He thinks we need to tell Americans more positive stories about immigrants and their contributions to this country, and to give potential immigrants a more positive image of America as a good place for businesses and families.

“I don’t hate Yang,” Peter Suderman said at this point, and we murmured in agreement. (More here on Yang’s performance last night and his announcement that his campaign will hold a contest to give people money.)

On trade, most of the candidates condemned Trump’s tariffs and the trade war with China but varied on how much economic protectionism they would employ themselves.

• Klobuchar talked about Middle American soybean farmers, because she is incapable of answering a question without reminding us she’s from the Midwest.

• Castro said he would “ratchet down” the trade war with China but use U.S. leverage to force countries like China and North Korea to address human rights abuses.

• Harris condemned Trump conducting “trade policy by tweet” and said, surprisingly directly, “I am not a protectionist Democrat.”

• Sanders touted his opposition to free trade agreements and said “what we have got to do is develop a trade policy that […] understands that if a company shuts down in America and goes abroad, and then thinks they’re going to get online to get a lucrative federal contract, under Bernie Sanders, they got another guess coming.”

• Booker made a bald joke—”I’m the only person on this stage who finds [Canadian PM Justin] Trudeau’s hair very menacing”—in service of condemning Trump “using a national security waiver to put tariffs on Canada.”

• Biden said “the fact of the matter is, China—the problem isn’t the trade deficit, the problem is they’re stealing our intellectual property.”

• Warren condemned U.S. companies who move operations abroad and said she wants to negotiate trade with unions, environmentalists, and farmers “at the table.”

“She is genuinely worse on trade than anybody,” said Shikha Dalmia, to a collective mmmm-hmmm from the table here.

Finally, we got around to some foreign policy talk.

• Warren had her best moment of the night here, in my opinion. She said she had asked a lot of military leaders what winning would like like in Afghanistan, and their response was [nonsensical mush-mouthed noises]. “We are not going to bomb our way to a solution with Afghanistan,” she continued. “The problems in Afghanistan are not problems that can be solved by the military. We need to work with the rest of the world.”

• Yang said “we have to start owning what we can and can’t do. We’re not very good at rebuilding countries.”

• Buttigieg said “we have got to put an end to endless war,” mentioned that troops serving in Afghanistan today may not have even been alive during 9/11, and said that the best way to not be in bad wars is “to not start them” in the first place. He called for three-year sunsets on congressional authorization for use of military force.

• Sanders criticized military spending (“I don’t think we have to spend $750 billion on the military when we don’t even know who our enemy is”) and got in a good dig at Biden: “One of the differences between you and me — I never believed what Cheney and Bush said.”

• Biden gave a confused answer that downplayed his previous support for military interventions.

The night ended with the candidates 1) doing that thing where they all compete to have the most simultaneously sad and relatable origin story, and 2) talking about what this election means. Booker said the election wasn’t a referendum on Trump but “on us and who were are going to be together.” Biden inexplicably quoted his dad and Kierkegaard.

The candidates also talked about everything from education (“most of the Democratic debate participants had one big idea: throw more money at public schools and public school teachers,” writes Robby Soave) to factory farming, climate change, Venezuela, guns (O’Rourke wants yours), child care, reparations for slavery, racism, and much more. You can see a transcript of the whole thing here.

Noticeably absent was any discussion of abortion, birth control, or other reproductive issues. Nor was there much talk about drug policy, prison reform, or overcriminalization. Aside from Buttigieg telling his coming out story, little was said about LGBTQ rights. And nobody asked about vaping panic or (and thank goodness on this last one) Russian collusion.

None of the candidates proved perfect (or even especially good) in their willingness to put more trust in the American people than in politicians and bureaucrats. But at least some candidates were willing to entertain the idea. Alas, those are the same candidates that consistently go nowhere in the polls.


QUICK HITS

  • In case you haven’t yet tired of reading about David French, Sohrab Ahmari, and “the future of conservatism.”
  • Reason‘s resident cocktail snob evaluates White Claw:

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2019-09-13 11:30:18

In a post yesterday about my class on Trump and the Constitution, I noted the existence of an archive of hundreds of free, publicly accessible primary documents in the history of American constitutionalism that Howard Gillman, Mark Graber, and I have produced over the past few years as a companion to our casebooks. The materials are all edited and include an introductory statement. Although a new cache of materials should be going live in a few days, a current index of the available materials relating to constitutional structures and powers can be found here and an index of materials relating to rights and liberties can be found here. Both the casebooks and the online companions reflect our interest in expanding our thinking about American constitutionalism to include all of American history, from the colonial era to the present, and to include extrajudicial debates over constitutional meaning and practices as well as judicial pronouncements. Everything from James Otis on the writs of assistance to Frederick Douglass on the anti-slavery Constitution to Robert Jackson on executive privilege over investigative files to the 2nd Circuit on state regulation of teeth-whitening procedures.

I have created a similar archive of dozens of free, publicly accessible primary documents in American political thought, which serves as a companion to my reader. A topical and chronological index of those materials can be found here. These materials are also edited and include an introductory note, and new items are gradually added over time. The “to do” list is long on that one, but suggestions are welcome. If Oxford University Press continues to support it, and time permits, I hope that archive too will grow to include hundreds of items. Somewhat unusually, the collection includes items in the history of American thought on political economy and American foreign policy, as well as materials on more traditional topics like liberty and democracy, equality and status, and citizenship and community. Everything from John Cotton on the virtues of religious intolerance to Benjamin Tucker on individualist anarchism to William James on the moral equivalent of war to Donald Trump’s speech to the people of Poland.

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This post is the fourth in a series on The Mischief Rule. By this point, you’re probably wondering what exactly the mischief rule does, and you’re wanting some examples. So here are three–two are decisions of the Supreme Court from the last decade (CSX, Yates), and the other is a case in which the Supreme Court will hear argument next month (Zarda). If you’re wanting footnotes, read the article. And if you’re wondering whether the mischief rule is purposivism by another name, stay tuned–that question is up next. Here, then, is more from the introduction:

The mischief rule serves two functions. First, a stopping-point function: it offers a rationale for an interpreter’s choice about how broadly to read a term or provision in a legal text. Second, a clever-evasion function: it allows an interpreter to read a legal text a little more broadly to prevent a clever evasion that would perpetuate the mischief.

The stopping-point function is useful because any, or at least almost any, legal text is susceptible of being read with different degrees of breadth. The famous hypothetical statute of medieval Bologna prohibited shedding blood in the municipal palace. It could be read to prohibit all shedding of blood, including when a barber accidentally cut someone while shaving his face; or it could be read more narrowly as prohibiting violentshedding of blood. If the mischief were a recent spate of violence in the palace, the interpreter has a reason to choose the narrower interpretation. Conversely, if the mischief lay in a popular belief that the presence of any shed blood would make the palace, and thus the city, ritually unclean, the mischief rule would suggest a different scope; the case of the maladroit barber would be covered. This is the stopping-point function of the mischief rule: it gives the interpreter a reason to stop here instead of going further (or stopping short).

The mischief rule might lead an interpreter to choose a broader or narrower scope. But as time passes, and as a statute is pressed into service to answer questions never dreamed of at the time of its enacting, the mischief rule will tend to serve this stopping-point function by offering a narrower reading of the statute. In other words, it will encourage the court not to update the statute, and to leave to the legislature the task of passing a new bill to address a new situation. By contrast, the clever-evasions function is typically served by choosing a modestly broader scope.

Consider three recent examples of the stopping-point function. First, CSX Transportation, Inc. v. Alabama Department of Revenue is a dispute that made two trips to the U.S. Supreme Court. A federal statute prohibited discriminatory state taxes on interstate railroads, and the first three provisions of the statute explicitly indicated that the relevant comparison was to general commercial and industrial taxpayers. The fourth provision of the statute did not have that explicit comparator, and referred simply to “another tax that discriminates against a rail carrier.” Should the fourth provision be given a narrower interpretation—discrimination relative to general commercial and industrial taxpayers? Or should it be given a broader reading—discrimination relative to any taxpayers? In both cases, a majority of the justices chose the broader reading, and the authors of the majority opinions (Justices Kagan and Scalia) made standard textualist moves. In both cases, Justice Thomas dissented (joined by Justice Ginsburg), arguing among other things that it was important to adopt the narrower reading so the fourth provision would have “a reach consistent with the problem the statute addressed.”

Second, in Yates v. United States, the U.S. Supreme Court considered a provision in the Sarbanes-Oxley Act that makes it a federal crime to destroy, conceal, or falsify “any record, document, or tangible object.” The Court held that a fish—more specifically, an undersized grouper—did not count as a “tangible object” within the meaning of the statute. The plurality opinion of Justice Ginsburg repeatedly hints at the mischief to which this provision in the Sarbanes-Oxley Act was directed. Although Justice Ginsburg said only that she was “[m]indful of” the problem preceding the statute, the mischief rule justified the stopping point she chose.

Third, consider Zarda v. Altitude Express, Inc., one of the recent cases about whether Title VII’s prohibition on discrimination on the basis of “sex” includes within its reach discrimination on the basis of sexual orientation. The Second Circuit, sitting en banc, said yes, but Judge Lynch dissented, appealing to among other things the “political and social history” that was the context for Title VII. His dissent shows a strong grasp of the mischief rule.

The mischief rule offers the organizing and justificatory principle for what Justice Thomas in CSX, Justice Ginsburg in Yates, and Judge Lynch in Zarda all sensed was the right reading.

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