Wednesday, March 22, 2017

Jill Filipovic's Weak Case Against Neil Gorsuch and Originalism

For some reason, absurd lightweight and "recovering attorney" Jill Filipovic has escaped my comment before, though I've noticed her typings previously; she came to my attention mostly because she thinks men accused of rape need not be accorded due process, having signed on for the idiotic "affirmative consent" concept. (Protip: it does nothing to change the fundamental he-said/she-said nature of determining consent after the fact, unless one gets a signed affadavit at the time. This is not how any human sexual encounter actually operates.) It says a good deal about her personally that she blocked me on Twitter despite our having no prior interactions, which tells me my ID ended up on an automatic blocklist somewhere.

She most recent styled a jeremiad against constitutional originalism generally and Supreme Court nominee Neil Gorsuch particularly. Laden with straw men, half-truths, and orthodoxy, it serves more as a weathervane for a certain subspecies of liberal opinion than any sort of intelligent analysis. In trying to understand Gorsuch the jurist, wouldn't we want to look at some of the cases he was asked to decide? That would seem reasonable, but here we do not deal with a reasonable person — or even someone conversant with the law and why it is as it is.

Filipovic's dedication to postmodernist interpretation ignores actual arguments in the texts of decisions she criticizes, if she even gets that far. Her total failure to understand the majority opinion in Heller v. District of Columbia, her mischaracterization of the judicial history of the Second Amendment prior to that decision, and her claim that Heller represents a revisionist view (despite a fair number of high-profile liberal legal scholars reluctantly agreeing with its historical accuracy) is common enough, if wrong. Her claim that "The framers of the Constitution didn’t offer any instructions for how to interpret the document, nor did they get into specifics on what each of its provisions meant" is ultimately a cop-out on making any effort to find out what that meaning might be. (Apparently, plain English is no longer a requirement in law school.)

Tediously and redundantly making the "living Constitution" argument (she spends three of her nine points on the same thing), she deceitfully claims that "the writers of the Constitution arguably intended for it to be a living document" while ignoring the amendment process they left us to change it. To Filipovic, the Constitution is whatever she wants it to be, a slab of political copper for a legislative majority to hammer into shape on a whim. That is, she subscribes to the same legal regime that delivered unto us Dred Scott v. Sandford, Wickard v. FilburnSmith v. Maryland, and Korematsu v. United States.

In her telling, Gorsuch is merely a damned conservative, a zombie Antonin Scalia "originalist", which according to her, no one really is. (Indeed, Scalia's deference to original intent was rather situational.) It's true that Gorsuch follows Scalia's footsteps in some matters of criminal law, but there one would think liberals might take some solace; he has shied away from strict law-and-order deference to agents of the government. As we have seen thus far in his confirmation hearings, antagonistic Democrats are having a hard go to latch on to a single, clear reason to oppose him.

Filipovic is narrowly right when she observes, "The founders weren’t fortune tellers and couldn’t predict every possible legal issue", but only to the literal extent of that sentence. That is because their intent was that the vast majority of governing would occur at the state or local level; indeed, assent to the Constitution was enacted by the states themselves. The premise and promise of federalism was accountability to those most directly affected by law. One-size-fits-all approaches (e.g. a Federal minimum wage law that sets the floor for rural Wyoming workers as well as Manhattanites, or health care mandates that result in higher prices and fewer choices for people outside the coastal states) have a tendency to backfire. When she writes, "A strictly textual reading of a law isn’t neutral; it also invites in the reader’s own biases and assumptions", presumably she's upset because it isn't her biases and assumptions.

It's not a little ironic, then, when she cites UC Irvine's Erwin Chemerinsky, who rails about the hellscape an originalist legal environment might inflict on his fellow citizens. Among these mostly imagined complaints, he makes the fraudulent, asinine claim that "No longer would the Bill of Rights apply to state and local governments." Do they not teach the 14th Amendment at UCI? The Temperance activists rightly understood that federalism meant they couldn't create a nationwide ban on alcohol without passing a constitutional amendment, thanks to the 10th Amendment delegating most lawmaking to the states. In the post-FDR, "living Constitution" era, the War On Some Drugs can go on with barely a legal peep. Chemerinsky's view of federalism is really the substitution of whatever is most popular at the moment: rights of minorities bear no examination.

There's something odd about her screed appearing in the pages of Cosmopolitan, orthogonal as Filipovic's politics are to Helen Gurley Brown's message of sexual liberation for women. At least Brown understood the risks she undertook (if they frequently turned bitter); Filipovic wants to remake the world into a giant crib — or a jail for men.

Tuesday, March 14, 2017

The Frauds at PUPscan

I forgot to mention Carol Beuchat's excellent two-part series on PUPscan (part 1, part 2). Mostly, what they appear to be doing is taking the public's money and playing with an ultrasound imaging device. As Carol writes in her second piece, "A published, peer-reviewed study failed to find any evidence that ultrasound examination of young puppies was predictive of the development of hip dysplasia as adults."
We don't know what they are measuring. We don't know if they have any evidence that these mystery measurements tell us anything about hip dysplasia. We don't know how measurements of a structure that is cartilage in a puppy can tell us something useful about what to expect in the adult dog after it has been converted to bone. We don't know why they think they can ascribe to genetics any problems they see in their ultrasound examination.

As far as I can tell, they have no data that link whatever they are measuring to a diagnosis of or predisposition to hip dysplasia. If that's the case, then this is essentially a research project (and note that they call it the "PUPscan Project") in which the owners of the dogs will pay for collection of data that may or may not be useful, and at best it will be several years before they will even be able to say.

What I find especially disturbing is the fact that they are leading people to believe that they are providing useful information and "new hope for breeders of 'dysplastic' dogs", as in the title of their published article. Unless they can provide answers to the very basic questions I have asked them, I don't see that they have anything useful to offer.
But they still want your money, I'm sure.

Thursday, March 9, 2017

Shelby Steele On The Exhaustion Of American Liberalism

One of the better writers on the subject of race, Shelby Steele, earned a great deal of notoriety with his The Content Of Our Character (1998). He returns with an essay appearing in the Wall Street Journal on that same subject, "The Exhaustion of American Liberalism". Key passage (emboldening mine):
White guilt is not actual guilt. Surely most whites are not assailed in the night by feelings of responsibility for America’s historical mistreatment of minorities. Moreover, all the actual guilt in the world would never be enough to support the hegemonic power that the mere pretense of guilt has exercised in American life for the last half-century.

White guilt is not angst over injustices suffered by others; it is the terror of being stigmatized with America’s old bigotries—racism, sexism, homophobia and xenophobia. To be stigmatized as a fellow traveler with any of these bigotries is to be utterly stripped of moral authority and made into a pariah. The terror of this, of having “no name in the street” as the Bible puts it, pressures whites to act guiltily even when they feel no actual guilt. White guilt is a mock guilt, a pretense of real guilt, a shallow etiquette of empathy, pity and regret.

It is also the heart and soul of contemporary liberalism. This liberalism is the politics given to us by white guilt, and it shares white guilt’s central corruption. It is not real liberalism, in the classic sense. It is a mock liberalism. Freedom is not its raison d’ĂȘtre; moral authority is.
"Mock guilt" is what drives the "check your privilege" nonsense, words mouthed to evade actual accountability for the things real world encounters with politics inflict on people. Here, I am thinking of David Simon's inexplicable, apparently branding-driven endorsement of the execrable Martin O'Malley, or the belief of Hillary voters in her moral superiority on matters of race. Privilege (despite the absurd and obvious problems with its explanatory power) in this reading is merely a catalyst for public displays of guilt  — but one need never actually do anything about whatever it is that makes one guilty.

Steele's essay is not without its flaws, and it has some gaping ones, particularly his insistence that "we all... know that [Donald Trump] isn’t [racist]". Trump's handling of his father's apartment complexes is enough to excite the charge, at least, and the Nixon-era DOJ was hardly radical. But overall, some excellent points.

Saturday, February 25, 2017

Laurie Penny's Spiteful, Censorious Take On Milo

As I hope I made clear Wednesday, Milo Yiannopoulos has earned the social opprobrium that has resulted in rather severe commercial consequences for his career, i.e. it appears extinct. Yet whenever I read anything by Laurie Penny and agree with large parts of it, my immediate reflex is to ask whether I've missed something. I can answer that now with a "no" with respect to Milo's behavior, but in nearly every other aspect, Penny's analysis is plainly wrong.

First, it's important to lay out the areas of agreement. They are two:
But that is the end of it. The serial misandrist employs the worst epithet in her arsenal against his camp followers, labeling them "sweaty teenage trolls". Men are bad enough, but in their protean form, intolerable, something she emphasizes with a snide, cheap shot at Dungeons & Dragons players. She imagines a deeply, obviously wrong reason why an openly gay man might find acceptance among religious conservatives — "for all that the American right likes to show off pet homosexuals to prove its modernity, it turns out that it still hates gays" — which fails to consider how it is that such a flamboyantly open homosexual could have gotten where he is in the first place. (Walter Olson's explanation makes the most sense of any: briefly, Yiannopoulos confesses his sin but embraces the mother church, which plays better with certain religious conservatives than culturally-conservative-but-not-sinning Log Cabin Republicans.) She looks deep into the soul of a Milo fan, and sees only bigotry (emboldening mine, as usual):
It is horribly ironic that of all the disgusting nonsense Yiannopoulos has said — about women, about Muslims, about transgender people, about immigrants — it is only now that the moderate right appears to have reached the limits of what it will tolerate in the name of free speech. The hypocrisy is clarion-clear: This was never, in fact, about free speech at all. It was about making it OK to say racist, sexist, transphobic, and xenophobic things, about tolerating the public expression of those views right up to the point where it becomes financially unwise to do so.
How is it that the "moderate right" was responsible for expelling him from a CPAC address? Were they the same ones who threatened to resign from Breitbart if he didn't?  In the end, it's just another label for her to feel superior to, just as she declares "Milo Yiannopolous [sic], possibly alone of all the smug white people in the world, is not a racist", as though the rest of them are. (Presumably, Penny feels guilty about her racism, and of course we need not ask her about sexism.) Too, she fails at understanding what it is that finally felled Milo. She chalks it all up to moral conservatism, rather than Milo's ambiguity and indifference to appearance. Even in apology, he failed to understand what he appeared to defend.

But what is most puzzling about that passage is her claim that Milo was never about free speech. We see this directly here:
Rewind two weeks. It’s a wet night in Berkeley, California, and Yiannopoulos is running away from the left. He was scheduled to speak at the University of California–Berkeley, but the event has been shut down. It was shut down because thousands of anti-racist and anti-fascist protesters decided that there should be no platform for what they called white supremacy. They are marching to say that free speech does not extend to hate speech, that the First Amendment should not oblige institutions to invite professional trolls to spout an auto-generated word-salad of Internet bigotry just for fun, and that, if the institutions disagree, students and allies are entitled to throw fireworks and smash things until the trolls run away. Which is exactly what has happened.
 People actually smashing things, exercising the heckler's veto, silencing the "trolls" — these people receive not a word of vituperation or contempt from her, unlike everyone else in this essay. Does her conception of "free speech" include "hate speech", whatever that is? For all she claims she opposes "no platforming", she clearly granted herself some wiggle room when she wrote, "I think no-platforming is a bad tactic in almost all circumstances." Almost all. We do not know the precise dimensions of that space, but we can guess them, and they fill a void near the size of Milo Yiannopoulos. Why does she think she should be able to demand, at some website where the user base clearly opposes her opinions (viciously and crudely), she should be able to moderate comments out of existence she finds offensive? Hers is the voice of an expansionist and totalitarian view of speech that uses "safe spaces" as a sword; it is not the voice of tolerance. As with Anita Sarkeesian, whose censorious tendencies only became explicit censorship advocacy through her work with the ITU, the answer may come eventually, whenever an opportunity arises.

Update 2017-02-27: this is good:
So why are conservatives cozying up to such hideousness? The best explanation they offer is that inviting someone so beyond the pale will shatter the tight boundaries drawn by political correctness and open the space for a wider airing of ideas. But the problem is that by using a stink bomb like Yiannopoulos they'll make their own ideas malodorous. Who will take conservative praise of civility, tradition, family values, manners, honor, moderation, and dignity seriously if a 31-year-old, out-of-control adolescent is their champion?

Wednesday, February 22, 2017

Freddie deBoer Vanishes

I was greatly disturbed to see that Freddie deBoer has purged all his old tweets from Twitter (without, so far, eliminating the account) and has removed the entire contents of his blog. I am very much saddened by this. We disagreed deeply about many things politically: he is an unalloyed socialist at heart, his views on the intersection of copyright and the Internet are deeply naive, as is his odd belief that Kickstarters are inevitably scams. Despite these differences, he was also honest about the increasingly neglected work of convincing others politically, and knew how to craft a well-assembled argument, even if you disagreed with key parts of it. His refusal to engage in snarky personal attacks, the house style at Gawker and so many other Internet-era publications, set him above all of them and made his writing worth reading. I'll miss him, and I hope he finds another online home soon.

The End Of Milo Yiannopoulos

I probably shouldn't even bother with this one; Milo Yiannopoulos has finally supplied the rope for his own hanging, which in the end was unsurprising. It's unlikely I will get everything right about this story, filled as it is with lurid but stupid details, ones that in the end are deeply boring, precisely because Milo is at heart a troll. Whatever it is, he's throwing bombs for public attention, never more so than with his "daddy Trump" nonsense during the late election cycle. It was inevitable that one of those bombs would detonate on the maker.
Yiannopoulos, who was recently credentialed for a White House presidential briefing, once penned a Breitbart column to blame the left for defending pedophilia. Now, this newly released audio reveals him endorsing the practice (and praising priests who molest underage boys). In the clip, he describes a disturbing scenario, which prompts an unnamed person to remark, “It sounds like Catholic priest molestation to me.”

He receives this response from Yiannopoulos: “But you know what? I’m grateful for Father Michael. I wouldn’t give nearly such good head if it wasn’t for him.” Here’s more of what he said about pedophilia:
“We get hung up on this sort of child abuse stuff to the point where we are heavily policing consensual adults … In the homosexual world, particularly, some of those relationships between younger boys and older men — the sort of ‘coming of age’ relationship — those relationships in which those older men help those young boys discover who they are and give them security and safety and provide them with love and a reliable, sort of rock, where they can’t speak to their parents.”
 His response to this own goal error was at first to declare it a "witch hunt", adding an unhelpful non-clarification addressing anyone who found his earlier remarks distressing as "A note to idiots". This raised a lot of irrelevancies, did nothing to dispel his earlier remarks, and smeared anyone who might reasonably find in his comments support for pederasty. It's a poor workman who blames his tools, and Yiannopoulos' refusal to acknowledge his own failings was a huge missed opportunity. It might be his last. Having lost his book deal with Simon & Schuster, he's also had to resign from Breitbart amid stories circulating that other staffers would resign en masse if he didn't.

There are kinder takes on Yiannoupoulos, for instance this unsigned piece on Rare ("The Internet bully is himself a victim; perhaps the two are related"), or this essay from Current Affairs which treats his remarks about sexual contact with an older man in the context of historical gay man/young teen sex:
Yiannopoulos may not have made his point very well. But there’s something nuanced and defensible here. First, he’s saying that the relationships between gay men and teenage boys (according to their own accounts) have historically been messier than simple categories allow for. And second, it’s absurd to say that he can’t make dark or crass jokes about his priest if it’s his way of dealing with what happened to him.
One might agree with that if he were a better communicator. To accept that, you have to excuse his lack of clarity: which is it? Was his giving head to a priest at 13 a terrible thing? Or was it good in hindsight? We still don't know, and we have Milo the bomb-thrower's imprecision to thank for it. Ultimately, the problem with Yiannopoulos is he stands for nothing, only in opposition, i.e. he is largely if not entirely a reactionary.

Monday, February 6, 2017

Audi's Wage Gap Pratfall

I've treated the mythical "wage gap" multiple times before, but yesterday's Audi ad during the Superbowl was a sort of tour de force of unrepentant cant:


Of course, with an organization as large as Audi, it's almost impossible to keep everyone within the organization on message:

You've gotta wonder about ends of the organization that came to such wildly differing conclusions about the role and pay of women in the workforce. What are they saying with that film? That everyone else in society is the bad guys, but Audi isn't one of them? Oh, and, do these faces look terribly female to you? (Notwithstanding Jeri Ward, who was presumably in charge of this fiasco, and HR director Christine Gaspar.) The story about how this ad came to be made would be an interesting one, and is lightly touched upon in an Ad Age piece issued contemporaneously with its release:
What is notable about Audi's spot is that it was directed by a woman -- Aoife McArdle, a top director repped out of Somesuch and Anonymous Content who has directed big-brand work for the likes of P&G (Secret), Under Armour, Honda and Samsung. Last year, Ms. McArdle directed a spot for Secret that also carried an equal pay message.

Gender inequity remains a huge issue in the ad production business. Women comprised only 9.7% of the rostered directors of the production companies that made Ad Age and Creativity's Production Company A-List in 2015, according to an analysis Mashable did of the list for a story published last year.
Previously, the Ad Age story mentions a "Free The Bid" initiative to address the lack of women in the field, but it takes with it the cast that women are in need of special protection from the same environmental hazards men are, i.e. it perpetuates women as "damsels in distress".

Keeping everyone on the same page is a tough thing, especially as your company gets larger. This disjoint fiasco shows why.