The Winds That Would Blow

Here’s the peroration of Joshua Mitchell’s piece at RealClearPolitics in defense of institutions:

The burden of each generation is to mediate between past and future, not to destroy the past in order to secure a future. Democratic adherents of identity politics see the past as irredeemably stained — “systemically racist,” to invoke the fashionable phrase. But if we trample on our past, we will trample on our future, too.

What do our fragile institutions still have to teach us? The art of ruling and of being ruled. In our woke age, this idea sounds harsh to some ears, so let’s rephrase it: we learn the give and take of human affairs. This is an art, not a science, which is to say that we learn it by doing, whether in family life, in our religious institutions, in our informal civic associations, or in our local political life. We watch, we speak up, we listen, we lead, we follow, we act, we desist from acting. Through all this, our character is developed, and our judgments are formed. Some of us will be very good at it; some not.

If we are to take seriously the idea that we are citizens, equal under the laws, then learning the art of ruling and being ruled must be the most important measure of success in this democratic age. No book can teach it. No state can secure it. Only life lived in our institutions can help us master it. Is it any wonder, then, that as these institutions whither, we witness deeply distorted expressions of ruling and being ruled? Rather than learning humane ways of mastering this art, we observe a citizenry that alternates in a seemingly bipolar fashion between riotous violence in the name of social justice and deferential and unquestioning obedience to the state in the name of public safety. When the art of ruling and being ruled is not learned in humane form in our institutions, then it will appear in inhumane form outside these institutions — where it becomes the despotic art of mastery and servitude.

I was reminded of a passage from Robert Bolt’s play A Man for All Seasons:

This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

The law is just one institution. So are religion and customs. Philosphers from Confuciuis to Kant have emphasized the importance of respect including respect for institutions.

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Our Political Violence


The Armed Conflict Location & Event Data Project has compiled data on the political violence that has been wracking the U. S. since the end of May:

Applying ACLED’s rigorous methodology for monitoring political violence and demonstration activity around the world, the US Crisis Monitor collects data in real-time and publishes weekly updates to inform research, journalism, policymaking, and civil society initiatives. Drawing on more than 1,500 national, regional, and local sources, the first data release comprises over 1,800 total events, including over 1,790 demonstration events and over 10 political violence events, as well as 20 strategic development events that provide additional insight into potential changes to the political environment. Events are recorded in all 50 states and the District of Columbia during the three-week period from 14 June to 4 July 2020, ranging from nearly 200 in California to four in South Dakota. The vast majority of events are peaceful protests linked to the Black Lives Matter movement, which has led to a massive surge in demonstration activity across the country, with a total of nearly five times as many events recorded per week relative to ACLED’s US pilot project last summer. New data tranches will be released at the start of each week covering the previous week and supplemented with historical data for 2020 as available.

It looks like a good resource to me.

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The Gathering Storm

Amidst the encomiums the editors of the Wall Street Journal sum up how events will unfold pretty accurately in my opinion:

The President has the power to nominate a successor as soon as he desires, and the Senate then has the power to confirm or not. The timing of that vote is a matter for the Senate to decide, and the current Senate can hold a confirmation vote even on the last day it is in session if it chooses.

Majority Leader Mitch McConnell said in a statement Friday evening that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” He is right to hold such a vote. The GOP retained its Senate majority in 2018 in large part because of the political backlash from the smearing of Justice Brett Kavanaugh. Whether Mr. McConnell holds a vote before or after the election is a prudential political decision based on the likelihood of getting the votes for confirmation.

Democrats are sure to raise as a precedent Mr. McConnell’s refusal, in 2016, to allow a Senate vote on Barack Obama’s nominee after the death of Justice Antonin Scalia. But that was a constitutional use of the Senate majority that Democrats would also have employed, as no less than New York Democrat and now Minority Leader Chuck Schumer had declared toward the end of George W. Bush’s second term.

GOP voters will insist that a Republican Senate vote on Mr. Trump’s nominee in this Congress. Does anyone who has ever met Mr. Schumer think that he wouldn’t insist on a confirmation vote now if he were Majority Leader and a Democrat were President?

There is one way that we could avoid bitter controversy on judicial appointments: Congress could start doing its job and stop depending on Supreme Court justices to “legislate from the bench” and work Congress’s will without leaving Congress’s fingerprints on it. That’s the source of an enormous amount of today’s acrimony. Too much social legislation has already been effected by judicial decree but it is likely to continue. It maintains the cozy situation of Congress being able to get results more extreme than they’re willing to vote for.

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Ruth Bader Ginsburg, 1933-2020

Associate Supreme Court Justice Ruth Bader Ginsburg has died. She had a very distinguish life and a distinguished Supreme Court career. Requiescat in pace.

Does anyone seriously believe that President Trump will not appoint and that the Senate Republicans will not attempt to confirm her replacement? I have no idea what effect this will have on the election.

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COVID-19 Status Report 9/18/2020

This is a brief snapshot of the status of COVID-19 in the United States. All data are derived from Worldometer.info or COVIDTracking.com.

The United States is no longer in the top 10 countries based on either deaths per million population or cases per million population (it’s #11 in both). California continues to have an increasing number of new cases diagnosed. Texas, Florida, Georgia, and Arizona all have declining numbers of new cases diagnosed. To the best of my ability to determine no state has an increasing total number of hospitalizations due to COVID-19. There’s no way for me to determine whether that’s because new cases are not severe enough to require hospitalization, people are avoiding hospitalization regardless of the severity of the disease, or physicians are treating the disease without hospitalization more effectively.

In states in which governors continue to tighten restrictions, like California and Illinois, although the new cases continue to increase, the governors continue to claim that they’re formulating their policies based on science but it remains unclear to me what science that might be. Here in Illinois, for example, although the number of cases diagnosed is increasing, the number of deaths due to COVID-19 has been stable for months and the number of new hospitalizations and total hospitalizations continues to decline, Gov. Pritzker still wants to tighten restrictions.

There continue to be battles, IMO mostly politically based, on effective treatments for the disease.

I remain highly skeptical that an effective vaccine against SARS-CoV-2 will be available by the end of 2020 and I certainly find the prospect of such a vaccine being available in substantial quantities in the next six weeks farfetched indeed.

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We Should Be Thinking About This Now

In her latest Wall Street Journal column Peggy Noonan outlines the risks that we face from November through January:

“Postelection through to the inauguration, we have a real danger zone,” says Larry Sabato, the great veteran director of the University of Virginia’s Center for Politics.

There will be charges and countercharges, rumors, legal challenges. There will be stories—“My cousin saw with her own eyes bags of votes being thrown in the Ohio River.” Most dangerously there will be conspiracy theories, fed by a frenzied internet.

Let’s make the picture darker, to deepen the point. What many people will fear in such an atmosphere is the possibility of violence. We’ve just been through a round of street violence this summer. It is not beyond imagining that in a tense national environment we would see it again. Maybe it will be Black Lives Matter and antifa versus white nationalists and QAnon. Maybe it will include honestly enraged citizens who believe their side was wronged.

The extreme edges of both parties are punching above their weight against their respective centers right now. They will be a source of pressure for their candidates not to concede, no matter what the results.

All this would only further undermine America’s morale, giving us all the impression of profound national deterioration. It would subvert the democratic process and tarnish our reputation in the world.

The Electoral College meets Dec. 14. There, Mr. Sabato notes, it’s possible there could be a 269-269 tie. There is also the issue of so-called faithless electors, who could deny the winning candidate a majority. In either case, the election would be thrown to the House, where people may be surprised by the rules. They assume that if the Democrats have a majority, as is expected, the House would vote Democratic. But the House would vote not by individual member but by state delegation. There, in the current Congress, the Republicans have an edge.

What a crisis—including a constitutional crisis—may be coming down the pike.

Let’s consider some of the questions we have before us:

  1. As of the tabulation of the results following the closing of the polls on November 3, which candidate will have the greater number of votes?
  2. As of certified results one week later, which candidate will have the greater number of votes?
  3. As of certified results a month after that on December 14 (when the electors meet), which candidate will have the greater number of votes?
  4. Will all of the states have certified their election results as of December 14?
  5. Will either Donald Trump or Joe Biden concede the election under any circumstances?
  6. What happens if either candidate dies before December 14? I believe that would free his electors to vote for whomever they cared to, the running mate or, indeed, any other candidate.
  7. What happens if the president-elect dies between December 14 and inauguration? My opinion is that the consequence of that would be decided by the Supreme Court. The Constitution including the amendments governing succession does not address that contingency. They could even order a mulligan.
  8. Will there be election day violence? Or in the days that follow? I think the likelihood approaches certainty.

I have no idea who will win the most popular votes on election day or thereafter. Just about anything could happen.

We should be thinking about this now.

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It’s Madigan But It’s Not Just Madigan

At RealClearPolitics Adam Schuster of the Illinois Policy Institute provides a primer on how the State of Illinois’s finances got into the terrible condition they’re in:

In 1980, Illinois had just $4.5 billion of pension debt and top-rated AAA credit. Today it has the nation’s worst pension crisis with nearly $140 billion in unfunded liabilities and the nation’s lowest credit rating, just one notch above junk status.

Many politicians share the blame, but Madigan has been the constant. He sponsored the major legislation or allowed the bad bills to pass. Madigan owns Illinois’ failing finances.

Even before he was speaker, Madigan was part of Illinois’ foundational mistake on pensions.

Madigan was a delegate to the 1970 constitutional convention. He voted for the pension clause that states government retirement benefits cannot be “diminished or impaired.” Based on that clause, the Illinois Supreme Court overturned pension reform in 2015 and stated it prevents any effective pension reforms unless the Illinois Constitution is amended to nullify it.

Since then, Madigan’s majority has repeatedly doled out unaffordable but politically advantageous retirement perks the clause permanently locked in place. The speaker and his allies hid the costs from taxpayers and pushed off the day of reckoning with dangerous pension funding games and debt.

He concludes by proposing some reforms:

Two places to start are amending the Illinois Constitution’s pension clause and replacing the House rules that Madigan used to craft Illinois’ infamous culture of corruption and pit of debt.

I agree with him that Madigan stands at the confluence of corruption and public pension debt but Illinois’s problems aren’t limited to that and they aren’t limited to Madigan.

Illinois also has the highest real estate taxes in the country. Coincidentally, Speaker Madigan is a partner in a law firm that specializes in securing real estate tax adjustments and derives income from it. The problem are not limited to public pensions and overt official corruption but extend beyond that to taxes and, indeed, everything the government touches and not just to what’s illegal but extends to what is legal but irredeemably corrupt. Our problems can’t actually be solved without either limiting the reach of government or making every possible corrupt practice illegal. The former is by far the easiest but cosmetic attempt at the latter are far more likely. More likely yet is a continuing downward spiral.

And our problems aren’t limited to Madigan. The race to insolvency began with the election of Rod Blagojevich, a manifest idiot, as governor. It’s more than a coincidence that Blagojevich is the son-in-law of someone who at the time was a powerful former Chicago alderman.

The problems aren’t limited to Illinois. The notion that obviously corrupt practices like influence peddling or reciprocity in political hiring are completely acceptable so long as they’re legal is a cancer undermining our entire system.

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Better Late Than Never, I Guess

I see that Daniel Henninger has discovered Jane’s Law judging by his latest Wall Street Journal column:

The political problem for Democrats and Joe Biden surfaced by the Monmouth poll is that the post-Floyd protests put the progressive urban policing model to an unexpected real-world test, which it has failed demonstrably and disastrously. It has led not to what President-in-the-wings Harris this summer described as “reimagining how we do public safety in America” but instead a virtual collapse of the police function.

The result is an abrupt spike in urban crime and moblike political protesters exploiting official restraints on police. It’s a perfect, still-raging storm of progressive failure. Which now means Democratic failure.

So my argument: The Democratic left has turned certifiably insane, if one definition of irrational behavior is the refusal to recognize the damage being done, primarily to black and Hispanic neighborhoods, by catastrophic violence. Voters, it appears, have begun to notice.

I’ve mentioned Jane’s Law here before. It was proposed by Megan McArdle back when she was blogging under the name “Jane Galt”:

The devotees of the party in power are smug and arrogant. The devotees of the party out of power are insane.

The open question is whether the fever will pass when power changes hands or whether it will just change sides. To my eye there are pretty strong signs that both of our major political parties have gone mad. Also that they are smug and arrogant. Does that mean that they are both in power or that they are both out of power?

My guess is that whoever wins the elections in November you ain’t seen nothing yet. I don’t believe that a Biden victory will mollify the far left and that it would enrage most Republicans. Guess for yourself what a Trump victory would bring.

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Should They Be Prosecuted Under Anti-Sedition Laws?

There’s a kerfuffle presently going on about AG Barr’s comments that rioters should be prosecuted under federal anti-sedition statutes. Here’s what Christian Britschqi concludes at it at Reason.com:

Arson, vandalism, and other acts of rioting have accompanied many of the anti-police-brutality protests around the country. But since this violence is often adjacent to protected First Amendment activities, law enforcement’s response needs to be careful, targeted, and proportionate. We should try to stop the violence and vandalism, but peaceful protesters shouldn’t be unjustly punished or otherwise dissuaded from exercising their rights to free speech and assembly.

By encouraging prosecutors to be as punitive as possible, Barr appears to be taking the exact opposite approach. His suggestion that they dust off sedition laws should alarm all civil liberties advocates.

So far the commentary about it I’ve found is very much along “where you sit is where you stand” lines. So far the major law blogs haven’t commented on it. It’s unclear to me that the suggestion actually has any legal merit.

As a matter of policy I think it’s an error. I would pursue the easiest and least controversial charges first to secure as many convictions as quickly as I possibly could and then let the civil law system take care of the rioters and the organizations and individuals who supported them. Summary execution would have been lenient by comparison.

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The Most Expensive

A report published by Jennifer A. Kingson at Axios concludes that the riots following the death of George Floyd are the most expensive in U. S. history:

The vandalism and looting following the death of George Floyd at the hands of the Minneapolis police will cost the insurance industry more than any other violent demonstrations in recent history, Axios has learned.

That’s both in absolute and inflation-adjusted dollars. The table included in the piece uses figures from the Insurance Information Institute:

On May 26, 2020 after the death of George Floyd in police custody in Minneapolis, Minnesota, protests and riots broke out in that city and spread over the next weeks to another 140 U.S. cities, including: Washington, D.C.; New York, New York; Chicago, Illinois; Philadelphia, Pennsylvania; and Los Angeles, California.

By June 4 at least 40 cities in 23 states had imposed curfews, and rioting resulted in at least six deaths. National Guard were called in at least 21 states and Washington, D.C.

The Property Claim Services (PCS) a unit of a Verisk Analytics, designated the riots in Minneapolis a catastrophe. The Minneapolis civil disorder is the first time that PCS has compiled insured losses for a civil disorder event since the Baltimore, Maryland, riots of April 2015. Those riots did not result in insured losses reaching $25 million when it occurred, PCS’s threshold for a catastrophe. For the first time, PCS has designated this civil disorder and those that followed across the United States from May 26 to June 8 as a multi-state catastrophe event. PCS has included over 20 states with significant losses for this catastrophe. The 2020 event is the first time since 1992 that PCS has compiled significant insured losses for a civil disorder and declared it a catastrophe. Insured losses for this event are not yet available from PCS. A preliminary estimate from insurance industry analysts would put the range between $500 million and $900 million in insured losses, an estimate that will change as insurers are resurveyed and data is refined.

Meanwhile, at the Foundation for Economic Education Brad Polumbo observes that the figures presented almost certainly understate the full costs:

However, there are many reasons that this figure vastly underestimates the true damage wrought by the looting and violence that has broken out in recent months.

For one, the Axios report only measures insured losses. The obvious problem here is that not all the damages were insured.

As I have previously explained, insurance is no panacea for the societal ills imposed by rioting. Indeed, 75 percent of US businesses are under-insured and about 40 percent of small businesses have no insurance at all. Their untold millions in losses don’t show up in the $2 billion figure.

So, too, insurance doesn’t account for the personal pain and suffering caused by rioting. For example, what about the more than 15 people who died during the unrest? Their lives and their families’ pain don’t get counted in any insurance company’s budgetary analysis. Nor does the pain of those such as an elderly businessman punched in the face while his store was ransacked in Kenosha, Wisconsin manifest itself in total reports on insurance compensation.

Finally, there’s also a loss in sales-based tax revenue from the riots. All of these—insured losses, uninsured loss, pain and suffering, and lost tax revenue—will fall most heavily on largely minority communities least able to afford them.

The Axios piece also points out that the riots were distinctive in occuring in so many places. To that I would add that they are still going on and they have been demographically distinctive.

2020 will prove very hard for underwriters. Industry consolidation means there are fewer of them than there were a generation ago. I expect some of them will pursue civil remedies, suing individuals, municipalities, and states. If orders to law enforcement were issued to hold back from enforcing the law and any of these orders are made public, as in from FOIA suits, there may be personal liability for elected officials as well.

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