Commenter Archive

@mad-rocket-scientist That's a good point, as well - displaying a valid CCW permit is close to equivalent to showing that you've passed a daily background check, since it seems like the state forces you to surrender the permit upon conviction of a revocable offense, and it seems like offenses that warrant revocation are broader than offenses that warrant being made firearms disabled. I suppose in theory that one might be able to avoid surrendering the CCW permit if convicted of a revocable offense while traveling outside the state, but you would have a better idea on that than I.

@jim-heffman You are correct. The inquiry isn't, and since Sherbert and Thomas has never been, on whether the belief is substantial, but on whether the pressure being applied is substantial. The belief itself is presumed substantial. The prospect of jail, as in this case, is and always has been indisputably substantial. The prospect of significant monetary penalties or loss of sizable benefit amounts is likewise indisputably substantial. The prospect of de minimis monetary penalties or loss of benefits is almost certainly insubstantial. The prospect of having to choose between paying indisputably significant monetary penalties or having to drop all insurance coverage for employees is an interesting argument that doesn't fit easily on a de minimis to substantial scale without more clarity about what is part of the scale. The prospect of having to forbid employees from using their insurance coverage for particular purposes - which was not a question asked in Hobby Lobby, but which should have been - seems like it, too, would require more clarity as to what is part of the scale, but would nonetheless be de minimis.

As I understand, most states that allow referenda pretty severely limit the legislature's ability to amend the laws created by passed referenda. Otherwise, the legislature can just effectively undo the referendum almost as soon as it passes. Presumably the reason most referenda (other than those required by a state constitution) reach the ballot and pass is because the legislature has first refused or failed to pass a similar law, so giving it the ability to significantly modify the referendum once it passed would defeat the entire purpose.

(1) The thing is that the range exemption only applies when inside an "established range authorized by the governing body." From what MRS is saying, shooting in the wilderness is a very common thing, and currently also quite legal. However, I don't think we could reasonably say that the places where this type of shooting occurs meet the definition of an "established range authorized by the governing body." From what MRS is saying, they're basically just temporary clearings in the wilderness.

(2) While the idea of strict liability for trespass is obviously an old one, one of the problems here is that this would seem to create criminal liability for failure to conduct a background check if someone else happens to negligently trespass while in possession of a firearm you lent. I'm not even a gun owner, and I have a significant problem with the notion of strict liability for someone else's subsequent strict liability offense. If I were a gun owner, I'd be pretty vehement in my opposition to that. What's more, whether or not a background check is conducted has absolutely nothing to do with whether the loanee subsequently trespasses, yet failure to conduct a background check is precisely the crime that the owner would be charged with even if the loanee would have passed any background check.

3. Whether or not it's good public policy to impose strict criminal liability on hunters if they choose not to conduct a background check and it turns out that the loanee was under a firearms disability, it's a policy that gun owners themselves would understandably find pretty objectionable and potentially burdensome because of its tendency to force a significant change in the social nature of hunting - trading guns with a new hunting buddy becomes a potentially criminal act unless you conduct a background check because of the possibility that the hunting buddy misunderstands (or lies to you about) his firearms eligibility, hunting license, or level of training. I suppose "potential criminal liability" is a better exemption than "definite criminal liability (ie, no exemption at all)," but not as much as you'd expect since whether or not that potential liability arises is essentially a crapshoot.

Basically, what the referendum says is that there's strict liability for failing to conduct a background check when trading guns with a firearms-disabled person, but no strict liability for failing to conduct a background check on a person who is not firearms-disabled. Which sounds simple enough until you realize that the only way to know with any kind of certainty whether someone is firearms-disabled is by conducting a background check. Keep in mind also that, according to MRS, what we're often talking about here isn't really even a loan, but is instead a momentary "swap," in which the loanee is momentarily giving up a firearm in exchange for the lender's firearm. Even if the loanee turns out to be firearms-disabled in those circumstances, the situation isn't even conceivably more dangerous than it was prior to the swap - it's not ordinarily going to make a difference whether the loanee is shooting the firearm he brought or the firearm he swapped for, as he can cause just as much trouble in that circumstance with his shotgun as he can with your AR-15, or vice versa.

The other thing here is that the fix I suggest above that would presumably appease gun owners' concerns here would actually better accomplish the referendum's goals. Since you're just as liable if you fail to inquire about the loanee's training, licensing, and firearms disability as you are if you do make that inquiry, there's little incentive to make that inquiry - you're either going to roll the dice that your new hunting buddy is allowed to possess firearms or, far less likely, you're not going to swap with him at all. But if you change the exemption so that it applies if and only if you make a reasonable and good faith (but still casual) inquiry, then there's tons of incentive to at least ask the right questions before swapping.

I'm not so sure this answers MRS' concerns, which I take to be that he is worried that this prohibits this type of borrowing and lending at informal (ie, unlicensed or unestablished) shooting ranges. From the language of the statute, it seems to me that it does in fact require a background check in those situations, or at minimum does not exempt that.

Additionally, the language about hunting loans seems quite burdensome and also leaves the owner on the hook if the recipient negligently trespasses onto property where hunting is prohibited, even if the recipient causes no actual harm.

By burdensome, I'm referring to the fact that the owner is on the hook for failure to conduct a background check if it turns out that the recipient is either insufficiently trained, lacks an appropriate hunting license, or is firearms-disabled (ie, would fail a federal background check). It's easy to say that this just means the owner should try to verify the recipient's training, hunting license, and lack of firearms disability before lending the firearm out. But there's only one way of doing the first of those, and only two ways of doing the last: (1) just asking the person whether they're trained, have a valid license, and are firearms-disabled; or (2) for the firearms disability, having to go to a licensed dealer to have them run a full-scale background check, which is exactly MRS' concern.

But if the owner only does (1), and it turns out the person lacked adequate training, a proper hunting license (though presumably it's easier to properly verify a hunting license), or is firearms-disabled, then the owner is in violation of this law, even if the recipient does everything right and causes no harm while in possession of the firearm. As a practical matter, this type of mistake error can happen pretty easily - obviously, the recipient could just lie to the owner, thereby putting the owner strictly in violation of the law. More than that, you don't even need the recipient to act nefariously for the owner to lose the exemption - it's not uncommon for people under a firearms-disability to be unaware that their conviction for a relatively minor offense rendered them firearms-disabled, and obviously people overestimate their training all the time.

Then, of course, you have the problem where the exemption is lost if the recipient trespasses onto land where hunting is prohibited, whether intentionally or negligently, even if the recipient otherwise acts responsibly and causes no harm. This, again, is strict liability for the owner; worse,there's not anything the owner can do to prevent it from happening.

These are just unrealistic expectations unless you're hoping to prevent this kind of casual lending for hunting purposes from occurring at all.

The problems with the limitations on the hunting exemption could easily enough be fixed just by inserting the phrase "if the owner makes a reasonable and good faith attempt to verify that...."

The problems with the lack of an exemption for an informal shooting range are not so easy to fix, and I doubt the referendum's sponsor would be willing to work with gun owners on that item in any event, as I expect that the sponsors view discouraging informal shooting ranges as very much a feature rather than a bug.

I think I need to refresh my memory on the scope of the right against self-incrimination before I can properly respond to this.

I do know that this sort of "perjury fishing" or the lesser "false statements" fishing has become increasingly common over the last decade or so, which was what led to my speculation.

I don't have anything to say other than that this was a really excellent post.

I don't think it would be right to say that religious freedom is becoming a partisan tool. In many ways, what I'm suggesting is quite optimistic- it would mean that there's no longer a single set of religious interests with near-monopoly power to influence legislation and regulations. The loss of that power means that "law of general applicability" doesn't always mean "law of general applicability that serves or protects the interests of the largest religious groups."

It's impossible to have laws of general applicability that don't infringe on someone's religious beliefs, and if we're going to have a Sherbert- style test, that means we're going to have a lot of valid religious freedom claims, many of which won't ever see a courtroom. If I'm right, then that would mean these necessary infringements are being more evenly distributed, and more of them are falling on the group most capable of defending themselves in court.

@burt-likko The thing is, I just don't buy the argument that Hobby Lobby actually made it easier than was already the case to invoke religious beliefs to avoid laws of general application, except to the extent that it's now clear that corporations may assert protection under RFRA (which is certainly significant, but is beyond the scope of this post and is irrelevant at the moment in the Paragon case, though it hypothetically could become relevant in the future).

It's easy to overlook, I suppose, but Sherbert and its progeny really did set a remarkably low bar for showing sincere beliefs and substantial burden thereof, and thus left the bulk of the burdens on the government. When the Court - led by Justice Scalia, it should be pointed out - pushed back against this, Congress immediately enacted RFRA (by a 97-0 vote) expressly to reinstate that low bar.

I'm not sure I agree here with your primary point. I certainly agree that the most action in RFRA cases is going to be on the compelling interest/least restrictive means prong, and that these prongs shift the burden to the government. You also make a really good point that the least restrictive means test doesn't mean that the burden can only be used as a "last resort," which obviously adds to the conclusion that the judge here just got that prong completely wrong.

But I can't agree that the shifting of the burden to the government on RFRA claims the effect of Hobby Lobby so much as it's that the clear intent and effect of both RFRA and the Sherbert test (including its progeny, Thomas) it reinstated is and has just about always been to do exactly that.

While Alito's decision should have recognized that it was possible to comply with the regulation without any burden on the stated religious belief whatsoever (since HL either already pays for contraception coverage in the same manner through other forms of contraception or has the right to prohibit employees from using health insurance for contraception ), it's worth re-emphasizing that the government never actually made this argument, and none of the handful of amici briefs I read did, either. In other words, if Alito had raised this point, it would have been something raised pretty much sua sponte.

Instead, the argument in front of the court mostly seemed to be whether the burden was substantial - the government conceded that there was some burden (or at least made no attempt to dispute the existence of at least some burden), but instead insisted that the burden was too attenuated to be "substantial." Some amici made the more interesting argument that there was no substantial burden because the penalty for providing no health insurance was less than the cost of providing health insurance even without contraceptive coverage. Both of these approaches were full of holes, but especially the government's approach, which completely misunderstood the point.

They conceded (as they kind of needed to) that the religious beliefs were sincere and that inquiry into their sincerity was inappropriate, but then tried to argue that paying for insurance that included coverage for contraception was too attenuated from the stated belief to constitute a substantial burden.

But Thomas makes extremely clear that if a person is compelled to act in violation of a religious belief, the compelled violation of the religious belief is pretty much automatically substantial - "it is not for us to say that the line [a Plaintiff] drew was an unreasonable one," i.e., the question of whether the belief the Plaintiff is being asked to violate is important is a question that courts can't ask. Instead, the inquiry is on whether the government seeks to compel this violation through "substantial pressure." The government in Hobby Lobby totally missed this distinction, and focused its arguments on the extent to which complying would violate the asserted belief, completely ignoring that the real issue with the substantiality prong is the amount and impact of pressure being applied.

The amici arguments about how Hobby Lobby could have just paid the penalty and provided no insurance were stronger, because they at least addressed the real issue of whether the pressure being applied was substantial. This argument was more interesting, because it effectively forced the court to determine whether allowing Hobby Lobby to pay less but forcing it to provide no insurance for its employees was "substantial pressure." This is where I really wish Alito had tried to annunciate a clearer standard (now I need to amend my comment to Michael Cain) as to what does and does not constitute "substantial pressure" rather than just saying generally that forcing employers to choose between cancelling its employees' health insurance and violating a religious belief is a "substantial burden."

I don't see how that failure amounts to lowering the bar for "substantial pressure," though - I think it's obvious to most people why it's bad policy to thrust that kind of choice on employers (even if we disagree whether the choice is in fact being thrust on employers), as it discourages them from providing health insurance to employees. On the whole, I think a lot of people would find that kind of choice more problematic from a public policy standpoint than, say, denying benefits to a handful of Jehovah's Witnesses because they quit their jobs for religious reasons. But just because it may be bad policy to thrust that choice on a Plaintiff doesn't mean that the choice substantially pressures the Plaintiff. Then again, maybe it does.

Point being that saying that this kind of a choice is "substantial pressure" probably doesn't affect the height of the bar for "substantial pressure" much one way or another. Instead, merely addressing the question of whether this is "substantial pressure" - even if you want to determine that it is not substantial pressure - really should have required that the court more clearly define what is and is not substantial pressure rather than just saying that this case falls on one side or the other of an ill-defined - but pre-existing - line.

More importantly though, whatever Alito did, I don't think we can say that he was meaningfully lowering the level of substantiality required - choosing between no insurance for your employees at all (but at a lower economic cost to the employer) and maintaining existing insurance costs while violating the employer's conscience is nothing if not a "substantial" choice with significant consequences. The question isn't so much the substantiality of this choice but instead whether it's the type of substantial choice we're concerned about when we talk about substantial pressure.

Thanks, Michael. There's definitely something to that suggestion, though it's worth mentioning that for purposes of the substantial burden test, it seems pretty clear that Alito's lack of, err, clarity has the effect of just leaving the relatively bright-line test from Thomas (and, for that matter, its predecessors) untouched, even if it's ambiguous whether he's actually applying that test or some other test known only to him.

Thanks, James! This is almost certainly a much more detailed analysis than was justified, but I kind of got on a roll, and suddenly what I intended to be a short little 500 word post turned into a 1600 word post. I do worry that this is too specific a topic to interest readers, but we'll see.

FWIW, bans on cross-burning are constitutional only insofar as the prosecutor is able to show a specific intent by the defendant to intimidate. In other words, it's bannable solely because it is a particular manner of threatening physical violence, and the bans can only apply insofar as someone actually possesses that intent of threatening physical violence. Actual, intentional, threats of physical violence aren't usually treated as speech at all. Whether or not it should be constitutionally protected even with that intent, it's easy to see the analogy between cross-burning and, say, threatening to kill someone while pointing a pistol at them even if you never pull the trigger. At best, the argument might go, this is in effect an attempted assault rather than speech.

But bans on speech or expressive conduct solely because the speech or conduct is likely to cause fear, without any intent requirement, are clearly unconstitutional. So it's not the speech itself that is unprotected, but rather the intent to commit or threaten violence that is unprotected. That may seem like a subtle distinction, but it's an important one.

And it's really easy to see how these kinds of "speech codes" will wind up being used in practice when they're as vague as university policies tend to be. We have a good example from just a couple of weeks ago, in fact, when a professor who had left his old job after being offered a job at an Illinois public university had that job offer rescinded because of "uncivil" comments he made on Twitter about Israel's war in Gaza. And he wasn't exactly a professor who was going to be teaching Middle Eastern affairs, so you can't even say that the speech that got his job offer rescinded was work-related.

See Dirks' follow up in which he seems to acknowledge being in the wrong here, and which Jaybird links below. But the way in which his original letter is phrased is really troubling. When you - as an authority of a government agency - write that there is a "vague boundary" between, e.g., "free speech and political advocacy," you've essentially just said that free speech doesn't exist, or is subservient. To focus for the moment just on that specific example, "political advocacy" isn't in any way distinct from "free speech" - it's the most important and valuable subset of free speech; to say that there's any kind of boundary between the two, much less a vague boundary, is to fundamentally misunderstand the very concept of free speech.

Similarly, he discusses the "boundaries between protected and unprotected speech." Here, he is acting as if "unprotected speech" is a meaningful category, and in the context of the letter, seems to be arguing that "unprotected speech" is synonymous with "uncivil speech," even if the exact boundaries between "protected" and "unprotected" are vague (which, for what it's worth, makes what he wrote even worse - IMHO, an authority figure saying that what is "protected speech" is vague is akin to saying that the authority figure has the right to determine what is and is not protected speech).

We probably need more data, but keep in mind that a lot of those pre-NLRA losses are going to be largely/primarily attributable either to:
1. The government actively intervening against the unions, sometimes in brutal ways (the Pullman strike is exhibit A1 here); and
2. Courts issuing injunctions under anti-trust laws.

Part of my argument acknowledges that pre-NLRA was hardly an anarchist utopia for labor, and a remedial action of some sort was necessary. But I'd argue that much of it should have been to forbid government intervention in various disputes entirely.

Again, though, it's almost tautological that labor is at its strongest negotiating power relative to management in more anarchic conditions. The word "management" is synonymous with imposing control over a situation, ie, making the situation predictable in order to make it profitable. Unpredictability and chaos are the antithesis of management.

@saul-degraw For the specific purpose of the Market Basket issue, that decision is irrelevant. It is the NLRA that makes wildcatting illegal or at least damn near impossible in the context of a unionized employer.

As for the rest, the numbers don't lie - prior to the NLRA, the private sector unionization rate in the US was more than double its current rate. Now I concede that the NLRA itself increased labor's power for the 15 years or so it was in effect before Taft-Hartley really kicked in, but my point is that formalizing unions in the way that the NLRA did, while providing a massive short-term boost to unions, also provided a stable target for management to shoot once it regained the upper political hand. And it was inevitable that management would eventually regain the upper hand politically.

The NLRA plus Taft-Hartley, say the numbers, is at least arguably worse than having neither, even if the NLRA alone would have generally been good for labor, and even if the regulatory regime that existed prior to the NLRA explicitly disfavored unions. The problem is that once the NLRA created a static target, it was just a matter of time before we were no longer dealing with the "NLRA alone."

But that point isn't what's relevant for purposes of this thread. What's relevant for now is only the recognition that there is in fact a tradeoff involved in the NLRA, which I don't even think is debatable - there are tradeoffs involved in almost all legislation anyways.

Market Anarchy is one of those phrases that libertarians can use and be strident about while seemingly being unable to see why people might be highly unattractive to people on both the labor and corporate side.*

Oh, I get why it's unattractive, particularly on the corporate side (and again, I have to reemphasize that this is beyond the scope of my point in this specific thread, which is only that the type of action in the Market Basket case would be illegal in a unionized environment because of the NLRA). I'll even be the first to acknowledge that outright market anarchy across the board would be very bad for GDP, amongst other things.

But it's close to being tautologically true that anarchy in labor markets favors labor over management. After all, the tactics that labor has just about always used as negotiating leverage are tactics that attempt to either exploit or introduce chaos or uncertainty into management's business - indeed, that's the entire strategy underlying a strike or a secondary boycott or whatever.

If you say "we're all going on strike a year from now if you don't give us what we want," then management has a full year to plan for you being on strike: getting scabs lined up, making plans for outsourcing, building up a reserve, etc., etc. But suddenly have a significant part of management's workforce walk out on strike without notice, though, or act in other ways that allow you to be a moving rather than a static target, and management's in deep shit and has little choice but to negotiate and cooperate.

And I'll just add that none of this means that it's inconceivable for there to be a regulatory regime that would in the long run be beneficial to labor. But for such a regime to be effective, it has to change the entire paradigm in which labor and management are set up as adversaries and instead sets them up as partners.

@saul-degraw Well, I think we have to start off by recognizing that the nature of the system is that people who don't like unions are going to be in power about 50% of the time no matter what.

Second, I'll link to these two pieces again: https://ordinary-times.com/blog/2011/02/23/labor-roundtable-why-market-anarchy-favors-labor
And
https://ordinary-times.com/blog/2011/02/23/labor-roundtable-kevin-carson

While Taft-Hartley is certainly a huge part of this issue as a whole, and should be repealed under most circumstances, in the specific case of what the employees in Market Basket are doing here, the obstacle to it being done in a union context would not be Taft-Hartley but rather the NLRA more generally. This is because what the employees in the Market Basket context have done seems to rely heavily on a decentralized approach that would be difficult to accomplish in an exclusive bargaining rights situation,which is what the NLRA creates. There are certainly understandable and appealing reasons for requiring exclusive bargaining rights in the collective bargaining context, but the flip side of it is that it acts to make unpredictable wildcat-type strikes very difficult, if not impossible regardless of any laws prohibiting them.

This is not an argument for repealing the entire NLRA and saying that unions will be better off without it. As the first of my two links shows, there was actually quite a bit of regulation of unions prior to the NLRA, which was on the whole certainly an attempt to remedy the problems that largely stemmed out of government's longstanding cooperation with anti-unionism. But because of how it formalized everything, it also left unions more of a sitting duck in the long run from a strategic standpoint if/when anti-union legislation was ultimately passed.

Labor's greatest leverage in the long run, particularly in the private sector, is its ability to throw management a curveball and be unpredictable. For all the advantages that the NLRA provided labor, it of necessity undermined this leverage by making labor more predictable and an easier target to hit. Whether that tradeoff was ultimately worth it is a separate question, but the point for our purposes here is just that the tradeoff exists, and the specific type of tactics that Market Basket employees used here would not be available in the context of a post-1935 union environment.

That of course is what I've been arguing for years, so.....

I'm mostly not okay with that, actually, although I'm not overly passionate about the issue and open to persuasion. The reasons I'm opposed to the name are:
1. The Angels play about 30 miles outside of LA. For me, that's the equivalent of a New York team playing smack dab in the center of New Jersey in New Brunswick or even in the eastern part of Somerset County. There's a huge distinction for me between playing in the close-in suburbs and the exurbs, which are in my experience culturally quite distinct from the core city and close-in suburbs, especially when you're talking about a densely populated region. Thirty miles outside of Denver and I assume you're still in an area where much of your life is going to pull you into the metro area's core. Thirty miles outside of New York, and you might only going into the core a couple of times a year, if that. Hell, go 40 miles outside of New York and you might be just as likely to head down to Philadelphia as New York for a lot of stuff. I assume that the LA metro is more similar to NY than Denver.

2. The Angels - and here I'm making a huge assumption - seem to draw their fan base almost entirely from Orange County, and it seems like there's a pretty significant cultural distinction between Orange County and LA, to the point that an average person from Anaheim would be offended at the notion of saying they were from LA.

It seems worth mentioning that, because of how the NLRA is structured, what the employees did here may have been possible only because they were not unionized. What the employees did would, at minimum, fit within the general concept of a "wildcat" strike, which has long been illegal if you are unionized because it technically violates the notion of the union being an exclusive bargaining unit. It was done in an uneven and erratic manner that organized labor does not, to my knowledge, have the ability to do, but that is particularly unpredictable for the employer and thus very difficult for the employer to plan around.

While a unionized employee base could have theoretically declared a uniform strike, I'm not at all convinced that this would have been overly successful. For one - to my knowledge, at least - unionized strikes usually need to be ratified by a supermajority of the union. While that can theoretically happen instantaneously outside of circumstances inapplicable here, as a practical matter, I'd expect that it would take some time to organize and properly ratify the strike, with the employer all the while having the opportunity to plan and prepare for the strike.

I guess what I'm saying is that, while this does show the possibilities and value of collective employee action and of labor unionism very broadly, it does not provide much support for the form of unionism that has existed in the US since the NLRA was passed in the 1930s.

@morat20 Great points. I've wondered for awhile what would have happened under Bush without 9/11. For all of his problems - and they were myriad - he really did seem to be serious about his concept of "compassionate conservatism" and did really seem to understand that this would have required building a broader coalition. The other thing of course that killed him in that regard was the manner in which he became President, which both made broadening the coalition impossible and meant that he needed to tread with greater caution on issues that could irritate his base. What little capital he had in that regard was basically blown on Medicare Part D, which did not pay the political dividends he probably had hoped for. When he was finally able to pivot back to domestic issues in his second term, he didn't have nearly the political capital he would have needed to privatize Social Security (but made the ill-advised decision to spend what he had on pursuing that right after his re-election), and then didn't have any capital left at all to strongarm conservatives into signing on to his immigration reform packages.

I think that Huckabee in 2008 presented himself as a potentially worthy candidate to restart those efforts, but you're right that he's now said too much as a commentator to gain any traction in that regard if he tries again.
@michael-cain Dismantling programs certainly counts as something affirmative (though for our purposes, dismantling PPACA alone doesn't since it's still being implemented and in any event hasn't yet become an established part of life). However, while your understanding probably describes a chunk of the "Right," I don't think you could reasonably say that there'd be anything close to unanimity on the Right to also dismantle Medicaid and Medicare. As I recall, the conservative health care proposals that actually had or have strong GOP support are/were basically just significantly limited versions of PPACA. The only additional elements, IIRC, are limited to permitting insurance sales across state lines and medical malpractice reform. The potential effects of permitting insurance sales across state lines may or may not be significant - the potential effectiveness of med mal reform is minimal - but if those are the only items of health care reform that you can get your coalition to agree on, then you're not going to be able to treat the issue very seriously.

1. Caddyshack. Definitely.
2. National Lampoon's Vacation. Again, this is indisputable, and any list that fails to include these two movies is invalid.
3. Airplane! This clearly belongs, but I'm at least open to argument on it.

The top 3 are all easy picks in my book. Picking the best out of the sizable next tier of movies is really difficult though. Ferris Bueller, Spaceballs, Stripes, Trading Places, Blues Brothers and Better Off Dead are clearly the lead contenders for me. Princess Bride and Good Morning Vietnam also really belong in this group, but since we only have one spot and since they're not "pure" comedies, they get dropped. Planes, Trains, and Automobiles and The Great Outdoors also both just barely miss being in the running, if only because they both have some pretty sappy moments that reduce their comedy quotient ever so slightly, however much it pains me that this means my list will have no movies in which John Candy played more than a bit role.

Stripes gets dropped because Harold Ramis and Bill Murray are both already represented on the list, with Ramis represented twice. Spaceballs gets dropped because it's no better than my third favorite Mel Brooks movie, and the '80s were too rich in great comedies to warrant including something by a director who did even better work in the '70s. While it pains me greatly, I'm also going to cut Ferris Bueller for the completely arbitrary reason that I don't find myself quoting it very often. Blues Brothers gets dropped for similarly arbitrary reasons. So that leaves Trading Places and Better Off Dead, both of which The Wife and I quote several times a month, and which are incredibly rewatchable.

4. I'm going with Trading Places. If I have to choose between a movie that has John Cusack and Booger and one with Eddie Murphy and Dan Aykroyd at the height of their powers, there really shouldn't be a choice, especially when both Murphy and Aykroyd would otherwise be missing from the list. It was hard for me to imagine a Mount Rushmore of 80s comedies without at least one of John Candy or Dan Aykroyd, but it would be outright criminal to have a Mount Rushmore of 80s comedies without Eddie Murphy.

In fairness, I can think of a number of other libertarian successes beyond tax rates and de-regulation - Milton Friedman's input is one of the biggest reasons we don't have a draft anymore, and while liberals have certainly been the more powerful force in the SSM movement, libertarians have played a key role there as well. Libertarians have also played a big role in blocking and undoing firearms prohibitions, and it was libertarians who were behind Heller. And of course the tide finally seems to be turning on significant portions of the War on Drugs. But on the whole, yeah, libertarian influence has been clearest on questions of tax rates and (unfortunately uneven) deregulation.

This is mostly because of the nature of coalition politics - as with most elements of the two dominant political coalitions, libertarians wound up being largely integrated into the GOP coalition by virtue of something approaching an historical accident. What officially bound the GOP was anti-communism, and obviously the libertarian economic message dovetailed nicely with that. But more importantly, from the modern libertarian movement's inception in the mid to late '40s until the last 15-20 years, it had a huge amount of common ground with the Chamber of Commerce types who have traditionally formed the core of the GOP's power base. Over-regulation of the economy really was a major problem back in the day - indeed, the totally screwed up health care system we have is largely a direct outcome of the over-regulation back then.

The ties between the libertarian movement and the GOP thus actually predate the close ties between religious conservatives and the GOP.

Anyhow, while I do think that institutional reform of Congress is a good idea in general, I don't think it's going to be necessary - or, if implemented, successful - in breaking the "rhetorical logjams that we've ossified into our discourse." (I like that way of phrasing the problem, BTW). I think it could break legislative logjams, but I don't think it would have much impact on polarization. In fact, it could actually make polarization worse if it was primarily aimed at reducing veto points, which would reduce incentives for cross-party compromise - there's little reason to negotiate with the other party if you can just pass a bill that's acceptable to all the elements of your party.

But I do think that this "rhetorical logjam" will be broken at some point in the next few years under its own weight. I continue to maintain that the reason things are so incredibly polarized right now, and have been for the last several years, is that pretty much the only thing binding the GOP's coalition together is reflexive opposition to Obama.

Most importantly for our present discussion, there's absolutely nothing other than opposition to Obamacare that still binds either TL or ML libertarians to the GOP's traditional Northeastern business power structure. I mean, other than platitudes about small government, I really struggle to think of a significant issue where Rand Paul and Chris Christie are reasonably close to agreement - maybe some social issues that they don't much care about but that particularly animate religious conservatives, and thus are good fodder for pandering. I can think of plenty of areas of agreement or potential agreement between Paul and religious conservatives, and between Christie and religious conservatives, but not between Paul and Christie.

The GOP is messed up right now because, without any common primary interests, it has to act as if every secondary and tertiary interest of every one of its constituent groups is a litmus test matter of principle. I've said this before, and I'll say it again - if you have too many principles, you have none. When a party is healthy and has a common agenda that binds it, then its constituencies are free to try to advance their other issues outside of that agenda by negotiating and working with whoever is willing to discuss those issues, regardless of whether that means talking to members of the other party - and not just centrists from the other party, either.

But when one party's got nothing binding it together other than "we're not them," while simultaneously needing to insist that every issue is a binding litmus test issue, it becomes near-impossible to have any kind of cross-party coalitions - not just legislatively, but also even at a grassroots level.

In the long run, of course, this is an untenable position - the purpose of politics is to govern, and you can't govern if you can't do anything affirmatively because you're worried that literally anything you do will infuriate part of your coalition. At some point, you've just got to bite the bullet even if it means alienating a part of your coalition. What's remarkable is that the GOP has been able to avoid biting the bullet for as long as it has, but the flipside to this is that for awhile it's made the country more polarized than it's been since the Civil War.* Still, I do think we're finally reaching the point where the bullet is being forced into the GOP's teeth whether it wants to bite it or not.

*I don't know enough about this to say so definitively, but it seems to me that the GOP's present problems are not dissimilar from the problems that the Democrats faced in the run up to the Civil War, which led to the most ineffective Presidential administration in history, Buchanan, who I think may have failed so miserably largely because he was unwilling to do anything that would infuriate a sizable portion of his coalition. I suspect a President Romney would have been disastrous for similar reasons, albeit on a much less consequential scale.

@zic It's possible that you're thinking of the "Issues" section of Bob Barr's campaign website, which I'm pretty sure would have taken a vehemently anti-abortion rights stand. McArdle was, like many libertarians*, definitely angry about the nomination of Barr and specifically about a number of the positions that he was emphasizing in his campaign.

http://www.theatlantic.com/business/archive/2008/05/bob-barr-for-president/3514/#comments

*I was not one of those libertarians, but for reasons having nothing to do with abortion, and everything to do with the fact that Barr was the highest profile candidate who was opposed to warrantless wiretaps/searches, the War on Drugs, and torture.

FWIW, the one relatively high-profile self-proclaimed libertarian who I know of that's arguably been defending the police publicly is Kerik, who is in the video you posted. However, I'd be very cautious about reading too much into that - (1) while unacceptably critical of protesters and defensive of the police, he at least has been willing to acknowledge that militarization of the police has gone overboard; and (2) he's an ex-cop, so I don't think it would be appropriate to extrapolate from him, as he obviously has a personal interest in defending the police actions here.

I'm not saying that there aren't any others, just that I'm not familiar with others.