Wednesday Writs for 2/20


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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112 Responses

  1. Avatar Oscar Gordon says:

    L3: I have a hard time supporting strikes that are in response to legislative action not directly impactful to the given work force.Report

    • Avatar Em Carpenter says:

      Well, there are other things in the bill affecting seniority and leave. It’s a huge education overhaul- and West Virginia teachers were not consulted. And of course, the money follows the students so charters and ESAs take money from their classrooms.
      The bill would also give them another 5% raise and a tax break for purchasing supplies out of pocket,, but the teachers say theyre striking and willing to forego the raise because they believe it’s bad for the kids.Report

      • Avatar Oscar Gordon says:

        Ah, ok, that makes a difference. Those are things that shouldn’t be part of a legislative action given that there is a Union (unless the Union signed off on those things).

        Striking just because a bill creates charter schools and ESA’s sounds like an attempt to short circuit the normal democratic process.Report

        • Avatar Jesse says:

          There is no such thing as a “normal democratic process,” there’s only norms some people believe are good and others don’t care about.

          I consider groups of strikers a much better expression of the democratic process than frankly, most of what is considered the “normal democratic process” in most of the United States.

          More strikes, less policies being written and determined at a lunch with a lobbyist.Report

    • Avatar Saul Degraw says:

      I disagree here. I think the teachers sincerely think they are working for the best interest of the kids. They even said take back the raises but don’t give public school funds to private and charter schools. Though I suppose this is an ideological disagreement. I’m anti-charter school and certainly anti public school money being given to private schools.

      The strike caused the bill to be defeated. Strikes work.Report

      • Avatar Oscar Gordon says:

        Even though I am pro-charter, etc., I find the idea of using a strike to push against legislative action not directly related to workplace conditions to be a misuse of the power of a strike.

        Would you support Prison Guards striking because a state legislature decriminalized drug usage and possession?Report

        • Avatar Jesse says:

          “Would you support Prison Guards striking because a state legislature decriminalized drug usage and possession?”

          Sure, if prison guards think them striking will affect public opinion, absolutely. Now, I’d think it’d fail, but I support of all workers, even the ones in less than great industries, the right to strike.Report

        • Avatar Saul Degraw says:

          I wouldn’t like it but I would support their right to strike while also speaking against them.

          Anyway, the action by the W.VA legislature struck me as a bit of revenge for the Teacher’s going on strike and winning the first time so I disagree with your linkage claim.Report

          • Avatar Oscar Gordon says:

            I actually walked back my specific linkage when Em pointed out the bill had other things it that were specific to Union concerns. Once she pointed that out, the discussion was merely academic.Report

          • Avatar Em Carpenter says:

            This was absolutely revenge. The teachers won big time last year and the senate president Mitch Carmichael looked like an absolute fool.
            This was his vengeance. This bill was foisted on the legislature, rushed through without normal committee references and debate. This was an ALEC bill and a giant FU to the teachers.Report

  2. Avatar Burt Likko says:

    [L1]: I read the summary of West Virginia State Board of Education v. Barnette and am struck by the harmony of principles at stake in its overturn of Minersville School District v. Gobitis as we’ve seen more recently in the shift from the “laws of general applicability” principle in Employment Division v. Smith leading to RFRA leading ultimate to Burwell v. Hobby Lobby Stores, Inc.

    The thing of it is, we celebrate Barnette (rightly, IMO) as a move towards freedom, but Hobby Lobby is still a partisan rallying cry (albeit one that has muted with so many other partisanized events occurring in the intervening five years). It’s discomforting for me to cheer Barnette and sneer at Hobby Lobby.

    I think that’s my reaction because in Hobby Lobby I see competing freedoms — the freedom of the employee to get contraception through her employer’s health care plan, pitted against the freedom of the owners of the company to not pay for the contraception. And perhaps I’m discomfited because the obvious freedom-maximizing accommodation — let the employee who wants contraception pay a surcharge for it — seems to have not been an option for reasons about which I can only speculate.

    It may also be because in Barnette I see the government intruding upon a religious belief for the overt purpose of imposing its own preferred beliefs, a governmental objective that seems inherently illegitimate to me. (As Justice Jackson points out, a government that must rely upon compulsory professions of loyalty appears to be doing so because it fears it cannot earn its citizens’ loyalty through its deeds.) In Hobby Lobby I see the government inadvertently intruding upon a religious belief for the purpose of promoting public health, which is a legitimate public purpose unrelated to the mental state, beliefs, or other inner lives of the participants in the program. Yes, I see the argument that the contraception mandate had the effect of intruding upon the owners’ practice of their beliefs, but effect and intent are different things.

    In any event, it’s a reasonably clear picture when we compare the power of the government to the rights of an individual. Barnette did not set a competing individual liberty of some other person against the Barnette family – it set the power of the government against individual people. It’s easy, or at least it ought to be easy, for even someone who thinks the flag is worthy of a profession of loyalty to see that others might disagree for any number of reasons.

    There surely can be a reasonable reconciliation, a balance point, between the need to allow people the latitude and freedom to act as dictated by their consciences, and the need for laws to have compulsory and practical effect, that we may have a government at all.

    Maybe we only get to that place by feeling our way as we go.Report

    • Avatar Em Carpenter says:

      Really good observations, Burt. I knew there was something niggling at me even as I applauded the Barnett decision and I think you pinpointed it. We run the risk of contradiction when in some cases we want the government to stop letting religious beliefs meddle with our rights, but in other cases want the government to stop letting the rights of others meddle with our religious beliefs. Legitimate public purpose, such as public health makes sense. Compare that with the alleged legitimate public purpose espoused in Gobitis of patriotic loyalty and unity. I think that the difference is clearly the specter of forced nationalism is much more problematic and antithetic to rights than an issue of public health.
      Feeling our way as we go, indeed.Report

    • Avatar DensityDuck says:

      “perhaps I’m discomfited because the obvious freedom-maximizing accommodation — let the employee who wants contraception pay a surcharge for it…”

      which, uh, the employee is certainly able to do by purchasing the contraception services over the counter…?

      “In Hobby Lobby I see the government inadvertently intruding upon a religious belief for the purpose of promoting public health, which is a legitimate public purpose unrelated to the mental state, beliefs, or other inner lives of the participants in the program.”

      And as the dissent in the case pointed out, if the government thinks this is a useful service that ought to be provided to citizens, it’s entirely welcome to set up its own program to provide that service rather than require private citizens to do it.Report

      • Avatar Chip Daniels says:

        it’s entirely welcome to set up its own program to provide that service rather than require private citizens to do it

        Which is also vehemently opposed by the very same people who say things like this.Report

        • Avatar Em Carpenter says:

          Beat me to it. That kind of logic is baffling.Report

          • Avatar JoeSal says:

            Could you explain that logic? (I’m not even holding your beer for this one.)Report

            • Avatar Stillwater says:

              Joe, did you mean to write “explain why you think that logic is baffling”? The reasoning she called baffling isn’t *her* reasoning, after all.Report

              • Avatar JoeSal says:

                If she is calling something logic that isn’t logic then wth?

                I mean where do you see it going, because the thing ends up looking like some flavor of :This social construct is requiring that social construct to do this thing because of some twisted sense of social objectivity of ‘X’.

                How are you seeing it?Report

              • Avatar Stillwater says:

                I think she’s just responding to the argument/views DD presented.

                But now I’m really confused. Who do you think isn’t making logical sense here, DD or Em?Report

              • Avatar JoeSal says:

                I could be wrong, but I’m leaning towards DD as there appears one less layer of social constructs and no implementation of social objectivity, which in my perspective is two fewer layers of Rube Goldberg clusterfish.Report

              • Avatar Em Carpenter says:

                What I meant was that it was illogical for DD to present a solution (government sponsored program for prescriptions) that he knows full well would be fought tooth and nail by the right/GOP/conservatives (one or more subset I assume he belongs to, based on his commentary history) because socialism. If logic is the wrong framework, I could go with “disingenuous bull crap”.Report

              • Avatar DensityDuck says:

                “What I meant was that it was illogical for DD to present a solution (government sponsored program for prescriptions) that he knows full well would be fought tooth and nail by the right/GOP/conservatives ”

                If this is the reasoning that gets me called a bastard, then what are you doing proposing a solution that, as we’ve seen, is equally “fought tooth and nail” and “vehemently opposed”?Report

              • Avatar Em Carpenter says:

                Who called you a bastard?

                Listen, I just don’t like disingenuous arguments. I know you don’t mean it when you say “the government is entirely welcome” to set up a program like that, so why say it?Report

        • Avatar bookdragon says:

          Because of course they object to even the tiniest fraction of their tax dollars going to pay for contraception, just like the Hobby Lobby owners object to paying for insurance that covers general healthcare, including contraception.

          Strangely, none of these folks ever seem to have any sympathy for religious pacifists who might object to their taxes going to military spending….Report

  3. Avatar Saul Degraw says:

    I don’t think there is any amount of behavior that an 11 year old kid can do that justifies how the adults reacted in the Florida pledge case.

    One of the big problems of civil liberties cases is that civil liberties are rarely advanced by saints and boy scouts. For every Sullivan v. NY Times which pushes free speech forward while fighting for civil rights, there are probably 5-10 people whose motives are less pure.

    The case law on standing for the pledge has been settled for over 70 years. The problem is that lots of people like performative patriotism and I’m not sure how to educate against that. Maybe the curse of civil liberties is that it will always be advanced and protected by a well-educated, culturally connected “elite.”Report

    • Avatar LeeEsq says:

      One Supreme Court justice, I forgot who, quipped that “the cause of liberty has generally been advanced by unpleasant people.” Many of the people who fought against the once common and popular obscenity laws were not people you would generally want to hang around. Same with other freedoms. They were misfits and malcontents.Report

  4. Avatar George Turner says:

    The Supreme Court just ruled on Timbs v Indiana, which was a case about civil asset forfeiture and how courts have been using excessive fines and seizures as a revenue stream.

    Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.

    The court’s opinion (pdf)Report

  5. Avatar North says:
    Unnnng… it’s beginning to look like Jussie Smollett fabricated the “homophobic MAGA attack” on himself. If true, this is looking like the Rolling Stone fiasco and the Covington fiasco rolled up in a rainbow flag with a really idiotic self centered gay man in the middle of it. Thank agnostic Jesus that I kept my yap shut when the original story popped out; a lot of lefties have made utter fools of themselves on this one.
    If the allegations are true and the facts on the matter are beginning to look mighty damning, I’d really want to strangle Smollett. Talk about a privileged wealthy gay actor hurting poor and abused LGBT people everywhere throughout time for his own self aggrandizing purposes!
    If it is the way it’s looking I hope they hurtle the book at him and I hope the left pours out their vitriol on him in spades.Report

    • Avatar Jaybird says:

      At least there weren’t any politicians who made sweeping statements about what this attack means.Report

      • Avatar North says:

        As I recall Harris may have weighed in on it.Report

        • Avatar Jaybird says:

          Don’t know if this is good or bad but I thought “lemme google that!” and the first hit for “kamal” autofilled to “Kamala Harris” and the second one autofilled to “Kamala Harris Jussie Smollett”.

          And I thought “well, doesn’t that autofill based on previous searches?” but I’m pretty sure I’ve not searched for her yet.

          Good news, I guess. All of the news sites talking about her response to being asked about Jussie are the partisan ones like Fox, Daily Caller, and Warshington Times. Real news organizations are ignoring it.Report

        • Avatar Saul Degraw says:

          Meanwhile Tucker Carlson had a bit of a meltdownReport

          • Avatar North says:

            When doesn’t he?
            But it’s looking like the police are charging Smollett. That god(ess) damned idiot.Report

            • Avatar Saul Degraw says:

              But the problem with Smollett is that the right-wing screams we are all on his side when there was skepticism and little coverage from Day One.


              The lazy and/or dishonest reaction to the Jussie Smollett affair is that “the Left” instantly and collectively leapt to the conclusion that the incident proved that Trumpism is inciting bigotry in America, and that was a bad thing to do because he made the whole thing up and now we’re just going to have to go out and look for new evidence that Trumpism is racist after all.

              I did a Nexis search of coverage of the Smollett incident in the week following his report that he had been attacked, and found the following:

              Almost no even slightly prominent liberal or left blog commented on the incident at all. (Wonkette had one piece).

              But we always give the benefit of the doubt to the Covington kids and the right-wingers. I will admit that I’ve been pretty angry recently when it comes to politics and I do think Jaybird soft-peddles and apologizes for the worst right-wing selfmyths about themselves.Report

              • Avatar Jaybird says:

                Almost no even slightly prominent liberal or left blog commented on the incident at all. (Wonkette had one piece).

                This is somewhat weasel wording.

                “slightly prominent”, “blog”, and “liberal”, for example, don’t really allow for stuff like this article from GQ to count.

                Ah! You may say. That’s not a BLOG! Or, I suppose, that’s GQ! It’s not *LIBERAL*!

                And you can be pleased that your original statement remains technically true… I guess…

                Pity about what happens to the point you were attempting to make with that technically true statement, though.Report

              • Avatar Em Carpenter says:

                …if GQ is neither “liberal” nor a blog, then I would say it does nothing to undermine his point.Report

              • Avatar Jaybird says:

                I guess I need to hammer out what the point actually is, then.

                Because if we’ve got two groups of people arguing for two different points, and pointing at the same evidence and yelling “QED!”, maybe we’ve got a problem that can be solved by people saying “hold up, wait a second”.Report

              • Avatar Stillwater says:

                Because if we’ve got two groups of people arguing for two different points, and pointing at the same evidence and yelling “QED!”, maybe we’ve got a problem that can be solved by people saying “hold up, wait a second”.

                This is a very amusing comment from a person who claimed CNN and MSNBC were promoting a “Bernie shouldn’t run” narrative based on a single piece of evidence.

                Just pointing that out.

                If the criticism here is that people are locked into an epistemic look perpetuating their own narratives, then that criticism applies with equal legitimacy to people who are locked into perpetuating their own meta-narratives.Report

              • Avatar Jaybird says:

                We need a better meta-meta-narrative.Report

              • Avatar Stillwater says:

                That’s certainly an exciting prospect. Or we could go the other way.Report

              • Avatar Aaron David says:

                Democrat POTUS hopefuls Booker, Harris, and Gillibrand all commented on it, using some variation of “modern” and “day” and “lynching”. But they aren’t blogs, and maybe none of them are liberal?Report

              • Avatar North says:

                In fairness the post Saul links to addresses that. It also points out that Trump condemned the “attack” too so politicians are going to politician.

                I’m heartened that l’affair Smollett wasn’t as widespread across the left as righties imply but that doesn’t dampen my ire towards Smollett himself.Report

              • Avatar Brandon Berg says:

                But the problem with Smollett is that the right-wing screams

                You’re doing it again.Report

          • Avatar J_A says:

            I’m looking forward to his newest fanboy, Rod Dreher, to complete ignore thisReport

    • Avatar Saul Degraw says:

      I’m still not convinced that Covington is a fiasco especially because the kid decided to sue the Washington Post for 250 million dollars (the amount Bezos paid for it) and the Washington Post was one of the more moderate reportages on the whole deal.

      Now they didn’t like the little private school shit look like an angle like the lickspittles at Today but….Report

    • Avatar Jaybird says:

      Welp. The twitters are saying that the cops have announced that he’s been charged with Felony Disorderly Conduct.Report

      • Avatar North says:

        That fishing imbecile! I hope they throw the God(ess) damned book at him!Report

        • Avatar Jaybird says:

          (And, on top of that, he apparently committed Mail Fraud a month before this particular incident in creating a fake death threat that failed to go viral and there may be books being thrown at him regarding that too.)

          I’ve seen two main responses to this sort of thing. One that focuses on the individual, one that focuses on Us As A Society. (Or maybe it’s the other way around.)

          The first one is that the dude is obviously crazy and needs help. The argument is somewhat circular because it points out that only someone who is obviously crazy and needs help would do this, he did this, so, therefore, he is obviously crazy and needs help. I mean, someone *SANE* would not do this. Therefore, he is insane. Q.E.D.

          The second one is that the guy was committing, for lack of a better term, blood libel. They point out that the cops came to him and said “we’re pretty sure we caught the two guys who jumped you, do you want to press charges?” and he was enthusiastic about pressing charges. Then the cops showed him that the two guys that they caught were the two brothers (and *NOT* two random white guys from the area). When he was showed this, he immediately said that he did not wish to press charges. This is given as evidence that he would have been happy to use the power of the state to attack/destroy two random guys who merely fit the description that he made up. As such, he needs to not only be charged with Felony Disorderly Conduct, but with stuff like Conspiracy To Commit something or other.

          I have no idea what the proper response is. We want to dissuade future people from doing this sort of thing but I find myself wondering how we got into a situation where it would be in the same ballpark as reasonable to try a stunt like this in the first place.Report

          • Avatar North says:

            Well he’s going to lose his lucrative job and, hopefully, have trouble finding more lucrative jobs. And if the left has the sense that god gave a gnat he’s going to get viciously dragged across the left-o-sphere. With his case history he might well get slapped with a bit of jail time. And that’s the bare minimum of what he deserves.Report

            • Avatar Jaybird says:

              One theory I’ve seen kicked about was that he was being written off of the show and this was an attempt at creating a situation where he would have to not be written off the show.

              To be honest, had he not done this, I think his chances of being picked up by a completely different show next year would have been higher.Report

              • Avatar North says:

                He is a highly attractive talented actor and gifted singer though obviously he’s pretty stupid/oblivious or both. Had he not done this horrific idiotic thing that harmed his entire community he’d probably have found plenty of other work.
                Now I hope he has to scratch and claw to get a gig at the local dinner theater.Report

              • Avatar Jaybird says:

                SMOLLETT CASE
                Per Chicago PD Commission Johnson,
                -Injuries to Smollett were self-inflicted scratches.
                -Smollett wrote a $3,500 check to the brothers to stage the attack.
                -Attack was done to promote his career.
                -Smollett sent the threat letter.
                -Smollett "orchestrated this"

                — Andrew Blankstein (@anblanx) February 21, 2019


              • Avatar Brandon Berg says:

                Turns out he’s a better actor than producer.Report

              • Avatar North says:

                *snort!* It’s a good thing he’s cute because he clearly isn’t going to survive by his wits alone.Report

              • Avatar Brandon Berg says:

                On a related note, do you remember that noose found hanging on the doorknob of a professor’s office at Columbia University about ten years ago? It later turned out that that professor—Madonna Constantine—was, at the time, under investigation for plagiarism charges which ultimately culminated in her firing.

                The mystery of the noose was never publicly resolved, even though Columbia supposedly had security tapes.Report

              • Avatar Jaybird says:

                If you want more of a thing, subsidize it.
                If you want less of a thing, tax it.Report

              • Avatar JoeSal says:

                “They navigated by the light of the dumpster fires.”Report

          • Avatar Chip Daniels says:

            As long as we are stroking our chins and wondering things, we could also wonder how we got in the situation where, half a century after the Civil Rights campaigns, the idea of white men attacking a black man out of racial animosity is still so easily believable.

            Maybe that newspaper in Alabama calling for the Klan to night ride again could offer a perspective.Report

            • Avatar Jaybird says:

              “It’s their fault for this story being so believable in the first place” is an interesting argument.

              Do we want to explore how this argument has been used historically or no?Report

              • Avatar Chip Daniels says:

                Sure, go for it.Report

              • Avatar Jaybird says:

                Are you familiar with Blood Libel?Report

              • Avatar Chip Daniels says:


                Are you suggesting noting the historical pattern of white on black racial violence is some sort of bigotry?Report

              • Avatar Jaybird says:

                Not at all.

                I would say that *RECREATING* it, however, is indicative of a problem.

                Would you say that what Smollett did was merely “noting” racial violence?Report

              • Avatar Chip Daniels says:

                I think what the candidates like Harris did, was merely noting the report fit a pattern.

                Even though it is politically incorrect to say so.Report

              • Avatar Jaybird says:

                It fit a lot of patterns.Report

              • Avatar InMD says:

                Personally I think any story that sounds like a hypothetical from a grievance studies seminar or law and order script that didn’t make the cut should be treated skeptically. The fact that the media doesn’t is frustrating, but I also think it’s why the illiberal leftism pushed on the campuses where journalists are educated is in fact a problem.

                They’re being set up to fall for hoaxes that confirm their basis like this one or Jackie Coakley at UVA and they will again and again then wonder why people don’t find the #fakenews stuff as preposterous as it often is. No one wins with this.Report

              • Avatar Chip Daniels says:

                Tonight, on NCIS:
                Ripped from the headlines, a white supremacist military officer plans a major terrorist strike to kill the Speaker of the House.Report

              • Avatar InMD says:

                Hey maybe so!

                I know being woke means never having to admit an error. Sadly as more of a rationalist I’m required to wait for the investigation before I reach any firm conclusions about Mr. Hasson.Report

            • Avatar Brandon Berg says:

              Let’s say there are 200 million white adults in the United States. If in any given year, one in a million white adults decides to attack a random black man just for the hell of it, that gives the media four such incidents per week to satisfy the left’s perverted lust for racism porn. The fact that one crazy motherfisher somewhere in the US might attack a black guy for being black every now and then means literally nothing at all.

              That said, this particular farce had all the classic hallmarks of a hoax and was not even remotely plausible. The only thing that sold it even a little bit was the fact that he was actually injured. Most people don’t have the guts to commit to a hoax like that.Report

            • Avatar North says:

              Mmmm, in my opinion changing the subject away from an uncomfortable fact; that this idiot fabricated a crime that played to our left wing sensibilities and way too many people bought into it too easily; to more standard left wing nostrums demeans us and our principles.Report

          • Avatar Iron Tum says:

            If he had testified against two random white men, he would have been well within his rights to do so, and they would have been responsible.

            This is not a difficult concept. All white men are racists. All of them, without exception. Because racism is about systemic power structures, not the beliefs of any one particular individual. Likewise, white men are members of, supporters of, and perpetrators of at least two oppressor classes. They as class members ARE responsible for hate crimes, regardless of the “facts” of any particular situation.Report

            • Avatar Chip Daniels says:

              Its times like this when I am reminded of the wisdom of Andrew Klavern, who wrote:

              “Why do so many leftists find themselves getting tangled in charges of racism? It’s because leftism and racism are two stupid philosophies that share the same central mistake: the idea that some people are good. They’re not. None of us is righteous; no, as the Bible says, not one. The concept of original sin is not just a central truth of Christianity, it is *the* central truth of any honest, happy, forgiving life. Think of yourself: are you who you want to be? Are you the best possible version of yourself? If you answered “yes”, congratulations: you’re a sociopath. Sane people wake up in the middle of the night, full of a sense of moral inadequacy and regret, because they are morally inadequate and have done things worth regretting.

              Food for thought, gentlepersons, food for thought!Report

            • Avatar North says:

              This is some kind of spoof right? Sarcastic or satire? Because it reads as utterly deranged.Report

  6. Avatar Jaybird says:

    In a vaguely related story, ABC news is talking about this:

    ONLY ON ABC7NEWS.COM: Surveillance catches presumed MAGA supporter vandalizing San Francisco home

    SAN FRANCISCO – In an exclusive interview, ABC7 News spoke with a San Francisco homeowner who said his home was vandalized and he believes it all started after he put out an “Impeach Trump” sign on his balcony.

    The San Francisco resident prefers to remain anonymous but said, “I kind of feel like the eggs had gone too far and I felt violated at that point. My kids live with me and I thought what will he do next? He can throw a rock through my window.”

    We’ve got a handful of San Franciscans on the board. Guys, is this something that you guys have had to worry about? Trump supporters vandalizing things in your town?Report

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