We-ness Envy

Lillian Gish in D.W. Griffith's A Romance of Happy Valley, 1919, via Giphy.

So world-famous moral philosopher David Brooks is really pissed off with Anthony Kennedy: not, of course, because Kennedy suddenly decided to retire from the Supreme Court last week, giving Trump a second opportunity to name a Supreme Court justice and reshape the court in the Federalist Society image for the next 30 or 40 years, but for something Kennedy did 26 years ago ("Almira Gulch, for 26 years I've been dying to tell you what I think of you!"), when he single-handedly turned the philosophical collectivism of our Founding Fathers into the amoral, dog-eat-dog philosophical jungle we've been living in ever since, which you may not have noticed but it looks pretty serious ("Anthony Kennedy and the Privatization of Meaning"):

America’s founders certainly believed in individual liberty, but they believed that liberty happens within a shared community. They began the Constitution with the phrase, “We the People.” We are all one thing — a people, a nation, a collective.

Yes, instead of starting off the Preamble with "I James Madison, I Alexander Hamilton, I William Samuel Johnson, I Rufus King..." as you would have expected, though it would have made the Preamble kind of long, they just used the plural, quietly inventing the great American concept of corporate speech.

Keep calm: Postscript

On December 6 2010 Tom Christina of the American Enterprise Institute gave a presentation detailing his hopes for overturning the Affordable Care Act by judicial means. In his PowerPoint presentation, he noted the main criteria:

He found himself gravitating to questions of the state and/or federal government-run health insurance exchanges as an "attractive target", wondered if religious exemptions could provide an issue, and noted, just in passing, an odd little missing thing in Section 1401:

Old Cognitive Dissonance got me

I'm really happy about marriage equality, honest, and yet...

It's just the fact that it's written by somebody who 24 hours earlier stood for the destruction of the Voting Rights Act. What's up with that?

Kennedy can imagine what it's like to feel there's just one person in the world you want to marry and they have the same naughty bits as you do, but he can't imagine what it's like not to have a state-issued photo ID. I can only assume it's because the first is within the experience of wealthy people. After all, the Windsor case itself wasn't a heart-wrencher about hospital visitations—it was about the right not to pay what Republicans call a "death tax" of $363,000, a problem most of us, gay or straight, will never have to suffer through.

Swing vote.  Taylor Jones via Cagle Cartoons.

Quick round of Which Would You Rather:

Owe $363,000 in estate taxes or be deprived of the right to vote? I'd want to know if I take the first one, how much will I have left over? No, wait, I don't think that will be necessary. Though if the only reason was my sexual orientation it would be extremely unfair. But I can't believe that constitutional principle demands option 2.

A moment of Burkean minimalism and self-control

I have half a mind to congratulate myself—some friends say that's all the mind I have for any purpose whatever—on Monday's post where I called the Roberts ruling on the PPACA. But it will make me prouder if I handle this with Burkean minimalism and self-control, listening to what others have to say.

Here, incidentally, is some minimalist language from Edmund Burke, on the subject of the ex-Governor General of India, Warren Hastings, whose impeachment Burke was leading in the Commons: he

called Hastings the 'captain-general of iniquity'; who never dined without 'creating a famine'; his heart was 'gangrened to the core' and he resembled both a 'spider of Hell' and a 'ravenous vulture devouring the carcases of the dead'.

Shrill!

James Nixon (1741-1812), The trial of Warren Hastings. From 1st Art Gallery.

David Brooks:

Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of Burkean minimalism and self-control.... [jump]

Rectum? Damn near killed 'em!

Updated 4/4/2012

The headline is one of my dad's little lines.

From stitchrippers.com.

On that strip-searching ruling by the Supreme Court, I just wanted to ask a couple of questions about Justice Kennedy's anecdotes in defense of the argument that dangerous persons are often arrested for minor infractions and that therefore everybody may need to take 'em off for the cops:

First,  how many mass murderers or terrorists have been busted on inaudible bicycle bell charges?

Second, about that Timothy McVeigh? Are you saying he was strip-searched after they picked him up and they found some evidence that he was the Oklahoma City bomber, or that he was carrying a weapon that would have threatened them, or anything else that would have made it a reasonable thing to do?

Third, as far as the 9/11 terrorist who was stopped for a traffic violation? Are you saying he wasn't strip-searched and that if he had been they would have found something that would somehow have prevented the destruction of the World Trade Center?

That's what I thought.

As for the guy of whom

Justice Kennedy said one person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity,”

 all I can say is if that guy is ruining my argument then I think he's just a total asshole.

Update:
Looks like Justice Breyer asked some of the same questions as me, and got answers:

The New York Federal District Court, to which I have referred, conducted a study of 23,000 persons admitted to the Orange County correctional facility between 1999 and 2003.These 23,000 persons underwent a strip search of the kind described. Of these 23,000 persons, the court wrote, “the County encountered three incidents of drugs recovered from an inmate’s anal cavity and two incidents of drugs falling from an inmate’s underwear during the course of a strip search.” The court added that in four of these five instances there may have been “reasonable suspicion” to search, leaving only one instance in 23,000 in which the strip search policy “arguably” detected additional contraband.

[...] After all, those arrested for minor offenses are often stopped and arrested unexpectedly. And they consequently will have had little opportunity to hide things in their body cavities. (Adam B at Kos)

Constitutionally incapable

There was the strangest little panic swarm of emoprogs—I think—over at Kos this morning, around an extremely well-made guide by Armando to today's Supreme Court arguments. They all seemed to have just heard for the first time about the Republican theory of the individual health insurance mandate being unconstitutional because what part of the interstate commerce clause says government can force everybody to buy stuff? and to have been totally taken in by it, thunderstruck and terrorized.

Schrödingers Katze. By Niklas Pix Bodin, at Kunstnet.

It could be one of those beyond-left-and-right things I'm too old to understand, where there's some similarity that escapes me between bombing Afghan wedding parties and providing universal health insurance; but then they seemed to have a pretty weak understanding of the Constitution—one of them wrote,

Bill of Rights Was not part of original Constitution. Any understanding of Congressional limits has to apply pre-amendment

under the apparent impression that the amendments were just added to confuse us; and another,

There has to be a rational basis for all laws.  Unless a state or the federal government can articulate one, the law is unconstitutional

which is a remarkable theory indeed.

Anyhow, it struck me that this is another of those crypto-Heisenbergian cases where we may be observing things faster than they are actually happening, in ways that could tend to have unpredictable effects on the way they turn out.

Indeed, as the day wore on, it was fun to watch the interpretations bend, starting with this morning's inexplicable Times fluff piece on Randy Barnett, the originator of the most idiotic argument against the mandate (that Congress has no power to "regulate inactivity") biasing the punters in his favor (they're thinking, if Cheryl Gay Stolberg and Charlie Savage both take him seriously, won't Kennedy take him seriously too?).  Through the afternoon, the pro-mandaters were sinking gradually into despair, as Kennedy seemed to vibrate, so to speak, at a Barnettian frequency, but by the end of the day Think Progress had found a classically sour liberal compromise between hope and rage: Kennedy was going to vote for the mandate, they figured, but for completely wrong reasons.

But the Times is still dubious as bedtime approaches, and wonders whether there's a plan B. My plan B is, we know it's constitutional for the government to force people to buy insurance if it's government-run insurance (unemployment, workmen's comp, Medicare,  social security), so if Justice Kennedy really wants us to go with the German plan, that's fine with me. Bend that observer's paradox my way!

 Plus a cheery goodnight from Brian Beutler at TPM.