Saturday, February 3, 2024
How lie detectors exacerbate border problems. By Matthew Yglesias
Karma mailbag. By Matthew Yglesias
Slightly contrarian, mildly annoying, somewhat influential mailbag. By Matthew Yglesias
Read time: 17 minutes
Slightly contrarian, mildly annoying, somewhat influential mailbag
A slight shakeup of the format, but plenty of the parking content you crave
I was profiled in the Washington Post, and you might find the piece interesting.
Some nice stories! Brian Kemp is pushing housing reform in Georgia (which is also getting a huge new investment in solar panel manufacturing), while Kathy Hochul outlines a bunch of ambitious and specific YIMBY proposals for New York. There’s a housebuilding boom in New Zealand thanks to Jacinda Ardern’s ambitious land use reforms.
Elsewhere, a bunch of state-level Republicans have acted to clip the wings of far-right members of their legislative caucuses. The economic success of Malaysia, based on foreign direct investment and not involving any particular sweetheart trade deals, makes me more optimistic about the growth prospects of other mid-sized countries. They ended an Ebola outbreak in Uganda.
Forward!
City of Trees: This week marks the 52nd mailbag! Any thoughts on what running them for a week has helped with for the site and for your writing?
They’ve been fun to do, they’ve given me a little more space to work on longer-form pieces, and the questions often inspire full columns, so I think the experiment has been a big success. I’m also always glad to have a way to generate some extra value for members that isn’t just walling more and more text off from the world, so I like having something that at least some people seem to enjoy participating in that works as a member exclusive.
That said, I do sometimes worry that the exercise may be becoming too repetitive, so this week I’m going to try offering longer answers to a smaller number of questions and see how that suits. We’ll still mix in some very short stuff, but there are basically fewer tweener answers.
TPM: I was delighted to read that you are going to attend a classical music concert. What are you going to hear at the National Symphony? And if you've already been, what did you think of it? Will you go back?
Kate (who has much more symphony experience than I do) and I are going to see Dvořák’s 7th in a few weeks, largely because that’s what’s playing when my dad will be in town to babysit.
JA: This is going to be a slightly trollish question. I love this substack, and I learn a lot from it. However, I worry that I suffer from some Gell-Mann amnesia when reading it.
I'm an economist, and I've found that a lot of your opinions on economic issues (especially monetary policy) are laid out with great confidence and yet very little knowledge beyond an intermediate undergraduate level. The most ridiculous offender was the article in which you proclaimed the optimality of nominal GDP targeting, despite the fact that you're probably not familiar enough with modern macro theory to articulate what the main counterarguments are. (Instead, it seems like this was just an idea that you got from Scott Sumner's blog...)
Are your hot takes in other areas (e.g. politics, housing policy, transportation policy) grounded on more expertise, or are they like your economics takes?
Gell-Mann Amnesia is the phenomenon where when you read a journalistic account of something you are truly an expert in, you realize that the treatment has all kinds of flaws. But then when you are reading about something you are not an expert in, you forget how bad the coverage of your specialty was and just assume it’s good. This is a real thing that happens to me every time I read about myself.
But I really don’t love this complaint about media (or about myself), and I think this question really illustrates why. Here we have a person with a PhD in economics complaining that my economics articles seem to reflect merely an “intermediate undergraduate level” of monetary policy. I fully accept that as a criticism and would not expect a person with an economics PhD to learn anything useful or interesting about economics from my columns. At the same time, a large majority of the population — including me — does not have an intermediate undergraduate-level education in economics. And most economics professors are neither willing nor able to write engaging and timely columns about national affairs. So I think that even according to this critical account of my work, I am raising the level of discourse with my monetary policy columns. And that is also the standard I try to set with my housing, transportation, and congressional politics takes. This is an unabashedly generalist site, and I both hope and assume that anyone curious about even deeper dives on these subjects will be able to pursue more specialist sources if that’s what they want.
To the specific charge that NGDP targeting is just an idea I got from Scott Sumner’s blog, I both plead guilty (that’s where I got it from), but also think this sort of illustrates the opposite of your point.
Sumner, after all, is a PhD-haver and college professor who specializes in monetary economics, so if the idea is that it’s important to be more deferential to experts, then where else should I get ideas from? On the other hand, lots of well-qualified PhD-havers and monetary economists disagree with him. This just shows that, unfortunately, macroeconomics is not the kind of subject where you see a convergence of policy opinions as people become more and more expert.
But it’s not like Sumner is alone on NGDP Targeting Island, and I just picked up an idea from a random blogger. Christina Romer has advocated for NGDP targeting. So has Michael Woodford. If you want to get your economics takes from a columnist who has a Nobel Prize in economics, Paul Krugman has advocated for NGDP targeting.
Now of course none of that is to say that there is a clear academic consensus in favor of NGDP targeting. Far from it. And if you ever catch me saying something like “a large majority of macroeconomists favor NGDP targeting” or something like that, then that would be crazy. I haven’t done a formal survey or anything, but my sense is that this is a very controversial idea among academics, and the fact that you don’t see any of the world’s central banks adopting an NGDP-level target speaks for itself to some extent. Something that happens from time to time is that I make mistakes — Wednesday’s post, for example, just did some bond math wrong in a way that someone more experienced in writing about bond markets wouldn’t have done. I was reaching into new subject matter and I made a mistake. It’s not a mistake I will make again, and more to the point, it’s not a mistake I would have made if I’d been better versed in bonds. But even if you think my monetary policy takes are bad, I don’t think you can explain the disagreement by saying “hey, this guy hasn’t gone to grad school.” Woodford and Romer and Krugman and Sumner and David Beckworth have all gone to grad school. People just disagree!
Romulus Augustus: You are a Dune fanatic. What is your main argument for not being an Asimov “Foundation” stan?
I like the Foundation books, but I think they really show their age in a way that Dune doesn’t.
Scottie J: You and Noah Smith often chide progressives for accusing those they disagree with of operating in bad faith. I am broadly sympathetic to your perspective on this, but I am curious as to how you define bad faith. Over the weekend you chimed in on a Twitter back and forth between Jonathan Chait and Shadi Hamid. You mentioned that you find Hamid's tweets "extremely annoying." Hamid seems like a pretty clear example of someone that often tweets in bad faith. He's trying to antagonize progressives and mock their concerns without trying to actually persuade anyone of anything. Am I completely off-base on this?
I like this question because I think it’s a good illustration of how I think about this — I sincerely have no idea whether or not Shadi Hamid tweets “in bad faith” because I am not a major consumer of Shadi Hamid’s tweets. What I have seen of his Twitter presence strikes me as pretty annoying, so I don’t follow him.
That being said, I’ve also been broadly familiar with his work on American foreign policy and democracy promotion in the Middle East going back to before Twitter existed. I’ve never found his arguments about this to be 100 percent convincing, but they’re not zero percent convincing either. This article he wrote last month connecting the dots between the Ukraine war and the lack of democracy in the Middle East is very interesting, for example. And I liked his 2014 book, “Temptations of Power: Islamists and Illiberal Democracy in a New Middle East” a lot. Since I’m actually more familiar with his longer-form work in this area than I am with his tweets needling liberals, I think I also end up with a somewhat different sense of where it is that he’s coming from.
One of the big issues in U.S. policy toward the Middle East is that there’s a persistent concern that if Middle Eastern regimes become more responsive to public opinion, the voters might make “bad” choices about policy.
Suppose a democratic Egypt were to tear up the country’s longstanding peace deal with Israel. A democratic UAE would maybe do the same thing. Democratic regimes might want to flex their nationalist credentials by kicking out American bases or conditioning intelligence cooperation with the CIA on America making some kind of policy concessions. Maybe from a left perspective, those are easy to give up on for the sake of democracy. But it gets worse. What if a more democratic Middle East means restrictions of rights for women and LGBT people? What if it means less tolerance for religious minorities? The tensions between democracy and liberalism aren’t new ideas to political theory, but the tensions can be particularly acute when we’re thinking about places where the median of public opinion is very distant from what’s considered a liberal ideal in the contemporary United States.
Hamid’s professional work involves a lot of grappling with these kinds of questions, and I suspect part of his annoyance with the Trump-era (and especially post-1/6) progressive discourse about democracy is that it strikes a specialist in this area as kind of shallow.
My friend Erica De Bruin is a political scientist who studies coups. She also used to work in the D.C. policy world. So when Trump/coup stuff got in the discourse after Election Day 2020, I was curious about her take and was glad The Washington Post published a piece from her. But her conclusion was that “coup” was the wrong shorthand for what was happening. Suffice it to say, the reaction from the peanut gallery to this was not kind, largely because people had already converged on the idea that the thing to say if you wanted to strongly condemn his election subversion efforts was to accuse him of attempting a “coup.” Nobody was interested in someone injecting persnickety disagreements, even if the someone in question is literally a coup scholar. She, I think, understandably chose to not spend the subsequent several months fighting on the internet with people about this and is instead publishing good, popular press pieces about things like coups in Africa.
But the point of this digression is that I think it’s actually not unusual for people who’ve studied foreign countries to find the #resistance discourse on the subject of American democracy to be a bit off. The difference is Hamid likes to needle people on Twitter about this.
Now as I say, I am not personally a huge fan of these tweets. But my guess is that they are offered in supremely good faith — that most people don’t realize they’re coming truly and deeply from the heart of someone who was thinking about the dilemmas of democracy promotion long before Trump came onto the scene and who’ll still be working on that topic when the discourse moves on to something else. But a lot of people don’t seem to want to just shrug and not follow people whose tweets they don’t enjoy. They instead want to come up with Big Reasons why the person is Officially Bad and they often reach for this “bad faith” idea to explain it. But I think it’s worth being shallower. Tastes differ and you can just not follow someone.
I’m going to close this out with something I can screenshot and that will surely annoy people on Twitter: I’m struck again and again by the fact that the Trump-era anxiety about American democracy among liberals has been paired with an increasing discomfort at the idea of subjecting institutions to democratic governance. Whether we’re talking about Covid NPIs or K-12 curriculum or content moderation rules, I think liberals are increasingly inclined to argue in favor of the importance of deference to credentialed experts — in part because, not coincidentally, education polarization means credentialed experts are likely to be liberals. I think Hamid is a bit under-alarmed about the procedural radicalism of the modern right. But a big theme of Slow Boring is that the fight to preserve democracy needs to include more willingness to pander to the actually existing views of the public and a bit less cultural avant-gardism. Just as a democratic future for Egypt would almost certainly entail more Islamist influence over policy than I personally would favor — after all, I’m a secular Jew — a democratic future for the United States of America entails an education system that inculcates values closer to those of the median voter than to those of the median working-age college graduate.
Justin P: You said towards the end of a “Bad Takes” episode about your bariatric surgery that you'd stopped losing weight and started gaining it. That strikes me as an astonishing admission about the effectiveness of a surgery that's going to mean lifelong changes for the kinds of foods you're able to comfortably eat. If the “environmental obesogens” hypothesis turns out to be true (there's a fair bit of evidence that it is) then has doctors pushing bariatric surgery to such an extent been a mistake?
I would just really dispute the premise that doctors are heavily pushing bariatric surgery. There are tons of people with obesity in the United States and only a tiny fraction of them seek surgical treatment for it.
Stepping back, the basic facts are:
I weighed nearly 280 pounds before my surgery.
About nine months post-surgery I bottomed out at around 215 pounds.
By one year post-surgery I’d rebounded to 225 and then stabilized there for a few months.
I gained five pounds during the Thanksgiving-Christmas era, so then for a New Year’s Resolution, I had to recommit to a healthy lifestyle and swiftly lost back those five holiday pounds on ten days of a 16:8 intermittent fasting protocol.
I’m now sticking with the 16:8, and we’ll see where that takes me.
I think those are pretty good results, though your mileage may vary. Beyond that, I’m interested in environmental obesogens and other hypotheses people have. But one point I would make is that the discourse needs to try harder to distinguish between the question of weight loss for people with obesity, which is very important for a lot of us in the contemporary United States, and the question of obesity prevention in future generations. The latter is really the win we want. No matter how bullish you may be about Ozempic or bariatric surgery, we know that “everyone gets fat and then gets surgery and medication to lose weight” is not an optimal solution.
And importantly, if we look at past eras with a much lower prevalence of obesity, we know that even back then people who were overweight really struggled to lose the pounds. The difference is that drastically fewer people were becoming overweight in the first place. So the question of how we get back to that kind of situation is important. But I do think the evidence suggests that overweight people can’t just copy what they see non-overweight people doing and expect to see the same results any more than you can tell alcoholics to copy the behavior of casual drinkers.
Ken Bowers: Back on December 27 writing about housing, you wrote: “The real policy challenge is developing a proposal that will reassure people who park their car on the street and who worry that more housing will lead to more parking scarcity.” That rings true, but I don't think there is an honest way around the fact that if you remove parking requirements and allow more density, curb parking will likely become more scarce. Yes, you can solve this with pricing, but I don't think that's what the incumbent residents have in mind. Setting aside whether easy curb parking should trump housing, have you seen any such proposals that you think are political winners?
To be clear, the reason I advocate for more focus on this is precisely because it’s not obvious what the solution is. Unlike the zany ideological anti-YIMBY arguments that take up a lot of time on housing Twitter, “if more people live near me that will increase competition for parking spaces” is broadly accurate.
Part of the solution is adopting the right political approach. It’s very unusual for a policy change to have zero downsides for everyone. The case for something like the ADU reforms that California has adopted in recent years is that all things considered, the benefits outweigh the costs. And part of how they assembled the coalition for that was a discussion in Sacramento about statewide policy change. This works because the benefits of abundant housing are broader than the costs of parking scarcity. So if you ask someone “would you rather have more housing in your neighborhood?” the answer may be “no.” But if you ask them “would you rather have more housing in every in-demand neighborhood?” that flips to a “yes.”
There are also more down-and-dirty ways to do coalition politics. Part of the land use reform that Kathy Hochul is proposing is to require upzoning near New York State’s commuter rail stations. I doubt she will be able to persuade many state legislators from Long Island and Westchester to embrace this. The hope is that a coalition of New York City Democrats plus a bipartisan coalition of members from upstate and western New York will just outvote them. The proposed change is clearly better for most of the people in the state and sometimes that’s how small-d democratic politics works — you forge a coalition and you beat the opposition. The key to making this work, though, is that you have to frame it to rural Republicans and Democrats from Buffalo and Rochester as a kind of boring technical issue that’s good for the state’s economy and tax base. What you don’t want to do is run around talking about how everyone on Long Island is being racist, because that will negatively polarize upstate Republicans into supporting the putatively racist Long Island NIMBYs.
The basic logic of “stay chill, build coalitions, and outvote the opposition” is in general just a bit underrated on the east coast.
One of the most ridiculous things, for example, is that New York City has not yet abolished regulatory parking minimums. The winning argument in this particular case is that especially outside of Staten Island, most New Yorkers do not own cars, so you have regulations that are bad for the economy, bad for the environment, bad for freedom, and bad for poor people that have no upside at all for a majority of the city’s households. You just need to acknowledge that the motivating concern here is a practical one about parking.
To get more specific, you need to delve into the details of the local situation, so I’ll talk about the place I am most familiar with: Washington, D.C.
D.C. is interesting in that daily car commuters are a minority of the city’s adults, but over 60 percent of households do own cars. Those cars need to be parked somewhere, and a lot of people park them on the street permanently while another big swathe do so at least occasionally. Some of the city’s parking is metered and some of it is wide open, but much of it is governed by neighborhood-based Residential Parking Permits. These RPPs are very cheap, and a reasonable concern RPP holders have is that more residents in their area will increase the number of RPP holders without increasing the number of RPP spaces. Things like bike lanes also drive concern about the reduction in the utility of RPPs. And of course, relaxing the city’s regulatory parking minimums would result in more scarcity of RPPs.
For a long time, high-minded urbanists have been pushing the city to raise the price of RPPs. That’s an idea that makes sense to me in the abstract, but I don’t think it’s proven to be a winner, and my current thinking is that the best path forward is to do the opposite of this — give every current RPP holder a permanent, free Residential Parking Permit and then stop issuing new ones.
Where will new residents park? Well, we should turn the RPPs into property that you can sell or transfer to other people. So if a new person comes to town, he either needs to park off-street or else he needs to get by without a car — which a huge minority of the city’s current households already do. This creates a situation in which scarcity of parking has financial upside for incumbent residents by increasing the value of your RPP. In this world, while there is still plenty of new construction that has off-street parking, the political economy switches away from requiring off-street parking. And while today my neighbors might say they are glad that it’s illegal for me to turn my garage into an ADU, in a world where parking scarcity creates financial upside for them, they might welcome this.
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Never mind hypocrisy, the West faces another challenge. By Daniel Drezner
Thursday, February 1, 2024
The Case for Disqualification. By San Wilentz
The Supreme Court must decide if it will honor the original meaning of the Fourteenth Amendment and bar Donald Trump from holding public office or trash the constitutional defense of democracy against insurrections.
Illustration by Anthony Russo
Illustration by Anthony Russo
Even as Donald Trump roars and intimidates with ever more violent threats, even as his lawyers warn that kicking him off the ballot in November would “unleash chaos and bedlam,” even as it becomes evident that we are not in the midst of a normal national election but an ongoing coup d’état by a charismatic despot, it is taking a long time for the public to understand the enormity of the events of January 6, 2021, and all that precipitated them.
In the moment, American historians were better equipped to grasp their profound political implications. Less than a week after the attack on the Capitol, Eric Foner, the preeminent authority on Reconstruction, pointed to Section 3 of the Fourteenth Amendment, ratified three years after the end of the Civil War, which bars anyone who has sworn to uphold the Constitution and who has engaged in insurrection from ever holding office again. Plainly, Foner said, then-president Donald Trump, along with other public officials, had sworn “an oath to defend the Constitution and, on Jan. 6, they violated it.” To bar them from public office, as the Constitution mandates, “would be the mildest of punishments” for “an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election.” Upholding the law of the land, Foner remarked, “would be an affirmation of the vitality of our wounded democracy.”1
Three years later the Supreme Court will now decide whether to sustain the recent decisions of the Colorado Supreme Court and the Maine secretary of state to follow the Constitution’s mandate, much as Foner suggested. Unsurprisingly, Trump’s lawyers and defenders, when not unsubtly raising the specter of mass violence, have groped for any escape route they can find. George W. Bush’s attorney general Michael B. Mukasey has floated the strange reading that the relevant section of the Fourteenth Amendment covers only persons appointed to office.2 In its filing contesting the Maine disqualification, Trump’s legal team tries to peddle the claim that the amendment bars persons “from holding specified offices, not from running for them or from being elected to them.”
No less risible, if somewhat more surprising, has been the alarm at Trump’s disqualification expressed by some law school academics and political pundits. By their reasoning, Trump’s misdeeds aside, enforcement of the Fourteenth Amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.
Audio: Listen to this article.
Samuel Moyn of Yale Law School, for example, writing in both The New York Times and, less guardedly, the Trumpist magazine Compact, has described invocation of the Fourteenth Amendment as essentially a conspiracy, part of a plot by liberals to stifle dissent against their shoddy elitist hegemony, the latest “quick fix or short cut that would save liberals the trouble of winning” at the polls. The New Yorker’s Amy Davidson Sorkin cites a Colorado Supreme Court dissenter’s citation of a solitary, eccentric 1869 court ruling—a decision debunked and even ridiculed by historians and constitutional scholars across the ideological spectrum—to suggest that disqualifying Trump would deny him due process under the law. In any event, Sorkin writes, it would be much “sounder” to defeat Trump at the polls than to risk the chaos she presumes his disqualification would cause. To avoid political consequences, she would toss the law and leave the matter to politics.3
Kurt Lash of the University of Richmond claims, in a Times op-ed, that the constitutional basis for disqualification is at best iffy. Lash imputes ambiguity to the Fourteenth Amendment by placing great weight on the fact that during the congressional debate on its adoption in 1866, Senator Reverdy Johnson of Maryland, a former attorney general, wondered whether its disqualification section applied to the president. He downplays how, once corrected, Johnson told the Senate, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am.” Meanwhile, in New York, Jonathan Chait, while raising issues of due process and the optics of disqualification so close to the election, also frets over whether Trump engaged in insurrection at all because he “was not trying to seize and hold the Capitol nor declare a breakaway republic,” as if that were the proper definition of the term. In fact, the federal indictment against Trump for January 6 covers his attempt to stage a coup over a three-month period.4
Finally, Ruth Marcus of The Washington Post, who also fears a Trumpist frenzy, has offered three rationales for the Supreme Court to overrule the Colorado court: that it is unclear whether Trump engaged in insurrection; that Section 3 of the Fourteenth Amendment doesn’t cover US presidents; and that Congress must pass enabling legislation before Section 3 can be enforced. But the historical and constitutional basis for these claims is at best flimsy and for the most part nonexistent.5
Whether motivated by a clutching fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, these confident disavowals betray a basic ignorance of the relevant history and thus a misconception of what the Fourteenth Amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.
Over the past forty years the doctrine of originalism (along with its sibling, textualism) has been the cornerstone of the jurisprudence of the conservative majority that now dominates the Court. Concocted in the 1980s to roll back the constitutional precedents of the New Deal and Great Society eras, supposedly in the name of judicial restraint, originalism purports to divine the original intentions of the framers by presenting tendentious renderings of the past as a kind of scripture. This bad-faith invocation of the framers has become a ploy to justify overturning Roe v. Wade, gutting the Voting Rights Act of 1965, eliminating commonsense gun regulation, and more. But now this originalist petard is exploding in the majority’s face. No degree of cherry-picking or obfuscation can deny the historical record of the Fourteenth Amendment, which is unequivocal: if Donald Trump engaged, in any way, in the insurrection of January 6, he is automatically barred from holding any public office, federal or state.6
Contrary to some of the pundits, the Fourteenth Amendment, including its third section, was not adopted to conciliate the North and South or, in Moyn’s words, to “stabilize the country after a civil war.” Along with the Thirteenth and Fifteenth Amendments, it was an attempt to formalize and consolidate a social revolution—the abolition of slavery—and, as far as possible, to crush, in national law, the implacable efforts of the defeated Confederates to undo that revolution.7 The amendment’s third section grew from debates initiated by the congressional Joint Committee on Reconstruction on how best to ensure that the chief Confederates would not recreate an oligarchic regime based on black subjugation and disenfranchisement.
As the legal historian Mark Graber has demonstrated, however, the third section’s framers and supporters also pointedly stated that they were not aiming its disqualification provision simply at those who had participated in what they called “the late rebellion.” Graber cites, among others, Senator John Henderson of Missouri, who observed that “the language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.” Anyone who had violated a solemn vow to uphold the Constitution could never be trusted not to do so again; hence disqualification was the only reasonable course. The reasoning pertained not to any one era but to all time, providing the nation, Senator Waitman T. Willey of West Virginia declared, with a “measure of self-defense.”8
The need for that self-defense in the current moment belies the argument of Sorkin and others quaking before Trump and his followers that, in Chait’s words, to disqualify him “would be seen forever by tens of millions of Americans as a negation of democracy.” The fact is that Trump has already attempted to negate American democracy and come perilously close to doing so; and he has stated publicly that he intends to do it again, up to and including, if returned to power, suspending parts of the Constitution that he is supposed to preserve, protect, and defend. It would certainly be a “sounder” solution (Sorkin’s word) if Trump were defeated in 2024, after which he graciously returned to Mar-a-Lago. But he and his supporters—most recently Representative Elise Stefanik of New York, who is eagerly auditioning to be his running mate—have openly declared that this simply will not happen, no matter what the voters decide. They are no less implacable than the die-hard Confederate insurrectionists were after Appomattox. They represent precisely the kind of clear and present danger that the framers of the Fourteenth Amendment knew they were facing, a danger against which the normal mechanisms of electoral democracy are powerless. Only a constitutional remedy, those framers knew, would suffice. Section 3 of the Fourteenth Amendment is that remedy.
Trump’s ever-inventive lawyers, to be sure, have tried to confuse the issue by claiming that disqualifying their client amounts simultaneously to lèse-majesté and deep-state persecution. At Trump’s behest, they are throwing any argument into the mix to cause delay and to use the courts as a forum for his campaign. Although it persuaded a Denver judge, the claim that presidents are not covered by the disqualification clause does not pass the smell test, especially on originalist grounds, as the framers and the supporters of the amendment recognized that its phrase encompassing “any office, civil or military, under the United States” included the president and vice-president. Trump’s attorneys have the audacity to claim that their client was not an officer of the United States. Have they read the constitutional oath every president takes to “faithfully execute the Office” of the presidency? Do they really expect anyone to believe that the presidency is the one federal office whose occupant is not an officer of the United States?
The United States Court of Appeals for the D.C. Circuit has yet to rule on Trump’s claims to presidential immunity from prosecution for any alleged crimes for which he was not impeached, a twisted reading of the Constitution that special counsel Jack Smith has reasonably said “threatens the democratic and constitutional foundation of our Republic.” Yet even if the appeals court were to rule in Trump’s favor, it would have no effect on his disqualification, as the constitutional bar is not based on any conviction for any criminal offense. Although insurrection is indeed a federal crime under 18 US Code § 2383, it became one only in 1948, and it is in any case irrelevant to disqualification under the Constitution. None of the ex-Confederates excluded from office after the amendment went into effect were prosecuted for insurrection. One public official has thus far been removed from office under the Fourteenth Amendment for participating in the January 6 events: Couy Griffin, a New Mexico county commissioner who was earlier convicted of trespassing, sentenced to fourteen days in jail, and fined $3,000. But one need not have been proved beyond a reasonable doubt to have engaged in insurrection in order to be disqualified from public office. Disqualification is a constitutionally imposed disability, not a punishment for a criminal offense.
The Trumpists would have it otherwise, claiming that unless Congress passes a law implementing the disqualification clause, it is inoperative. If successful, this line of argument would have to rest on a single strange ruling, the one cited by Sorkin, made by Chief Justice Salmon P. Chase in the case in re Griffin in 1869.
A year earlier, presiding over the treason trial of Jefferson Davis, Chase counseled Davis’s attorney that as Section 3 of the recently ratified Fourteenth Amendment was self-executing—meaning that it required no additional legislation to come into effect—its exclusion of insurrectionists effectively vacated Davis’s treason indictment. Just as no additional law was needed to abolish slavery after the Thirteenth Amendment, none was needed to disqualify insurrectionists from public office. What evidence survives suggests that the framers and supporters of the Fourteenth Amendment in 1866–1868 assumed that it was self-ratifying in its entirety; there is no evidence suggesting they did not. Affirmation by a court of engagement in insurrection was sufficient for a Section 3 disqualification, as happened immediately after the Civil War and has happened as recently as 2022 in the New Mexico case. The involvement of Congress was not mandatory; to rule that it is now would raise serious and possibly devastating questions about this Supreme Court’s legitimacy.
In the Griffin case, however, involving a Virginia convict attempting to disqualify the judge who had presided over his trial because he had served in the Virginia legislature during the Civil War, Chase, in his capacity as circuit justice, suddenly changed his mind, asserting that Section 3 was moot, absent enabling legislation. No other judge or justice ever ruled this way again, whereas state courts pursued disqualifications under Section 3, assuming that the entire Fourteenth Amendment, and not just its other four sections, was self-executing. Congress never countermanded these disqualifications.
The attention recently given the disqualification clause has focused new attention on in re Griffin, and most experts have judged Chase’s revised ruling a botch, filled with contradictions and quite likely politically motivated and self-serving. Among other critics, the two conservative legal scholars who have argued most forcefully for Trump’s disqualification on originalist grounds, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, regard Chase’s decision as a joke that “should be hooted down the pages of history.” The Colorado Supreme Court ruling, in coming to the same conclusion, put the issue bluntly: if any of the nearly identically structured Reconstruction Amendments, including the Fourteenth, required additional legislation to go into force, “then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal.”9 For the current Supreme Court to nullify Trump’s disqualification on so feeble and exceptional a precedent as in re Griffin would make another high court ruling based on the Fourteenth Amendment, Bush v. Gore, look like a paragon of dispassionate jurisprudence.
With the law and the facts against them, the Trumpists and the apologetic pundits alike have started pounding the table, trying to raise doubts about whether Trump engaged in any kind of insurrection at all. This has led to some diverting speculation and oddball debates over what, exactly, constitutes an insurrection. Chait claims that nothing less than a full-fledged revolution or Confederate-style secession fits the bill. Adam Serwer of The Atlantic demurs, reminding us of the Whiskey Rebellion, Fries’s Rebellion, Gabriel’s and Nat Turner’s uprisings, not to mention John Brown’s Raid, all described as insurrections in their time. Ross Douthat, in his Times newsletter, denies that January 6 matches any of those lesser examples, though he does hold up John Ganz’s identification of a fascist riot in Paris on February 6, 1934, as a possible instance of one. So much for American exceptionalism.10
To satisfy the Supreme Court majority, an originalist inquiry would be in order; but once more, originalism ends up working to Trump’s disadvantage. Graber has again done the essential work. Upon close examination of Anglo-American legal texts on treason and insurrection dating back to Edward III in the fourteenth century, but with special attention to American law from the founding through the start of Reconstruction, he has identified four elements that define an insurrection: 1) an assemblage of people; 2) engaged in resisting a federal law; 3) using force or the threat of force with intimidating numbers; 4) with a public purpose or, in the words of Justice Samuel Chase in 1800, an “object of a great public nature, or of public and general (or national) concern.” Engaging in insurrection need not mean actually being present to commit the violence or intimidation. On all four counts, the well-established facts of Trump’s activities and spoken words on January 6 and over the preceding weeks squarely fit an originalist definition.
In fact, there is a clear consensus on the basic facts of January 6, not least in the findings of the congressional January 6 Committee, though Jack Smith may well present more shocking details in his federal case against Trump. Moyn sees no such consensus, a major reason why he thinks the Supreme Court should reject disqualification out of hand. On December 22 he wrote:
What actually happened on Jan. 6—and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him—is still too broadly contested.
The claim is bizarre. “Broadly contested” when bipartisan majorities in both houses of Congress voted to impeach and remove Trump from office? When two Colorado courts concurred that Trump had engaged in an insurrection? When even Trump’s lawyers in those proceedings did not contest the facts about the insurrection? When the remarks, soon after the insurrection, of Senator Mitch McConnell still resound? “It was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election from one administration to the next.”
With oral arguments before the Supreme Court set for February 8, Trump and his advocates have outdone themselves, serving up the sophistry and chicanery contained in the amicus brief prepared on behalf of Senator Ted Cruz and 178 other MAGA members of Congress and filed on January 18. Seemingly a road map for the conservative justices to stop disqualification, the brief reads more like a game of three-card monte. After swiftly noting that Chase’s discredited ruling in Griffin is “not directly binding,” it then shuffles into treating the ruling’s “longstanding precedent” as if it were absolutely binding and claims that “Congress must pass authorizing legislation to enforce Section 3.” The brief twists Congress’s express authority to enforce the amendment to mean that the amendment itself is not self-enforcing.
The brief bids the Supreme Court to rule that because the presidential oath of office does not contain the words “support the Constitution” (the president swears to “preserve, protect and defend the Constitution”), Trump is exempt from disqualification under Section 3. In claiming that the Colorado decision denies Congress’s authority to undo a Section 3 disqualification, it distorts the wording of the Twentieth Amendment, on presidential succession, to reach a conclusion for the ages: “A candidate may be elected President even if he is not qualified to hold the office.” In dealing that card, the brief’s authors appear not to notice that it gives away their entire game.11
These lawyers—indeed, all the academics and pundits quailing at enforcement of the Constitution—would profit from the words of Abraham Lincoln at the outset of the Civil War. The American people, Lincoln said, had established that they could successfully create and administer a democratic government. They had yet to establish, however, whether they could maintain that government “against a formidable internal attempt to overthrow it.” Now they were left “to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion.”12
The conservative majority of the Supreme Court—and the historical legacy of the Roberts Court—have reached a point of no return. The law, no matter the diversions and claptrap of Trump’s lawyers and the pundits, is crystal clear, on incontestable historical as well as originalist grounds. So are the facts of the case, which in any event the Supreme Court is powerless to review. The conservatives face a choice between disqualifying Trump or shredding the foundation of their judicial methodology.
But the choice is far more profound than the Court’s consistency. In 2000 it disgraced itself by manipulating the Fourteenth Amendment to produce Bush v. Gore, a ruling that changed the course of history and was later described by Justice Antonin Scalia, who concurred in it, this way: “As we say in Brooklyn, a piece of shit.”13 Now the Court must decide whether it will honor the original meaning of the Fourteenth Amendment and disqualify Donald Trump. If it does so, it may redeem in part the terrible judicial malpractice of 2000. If it does not, it will trash the constitutional defense of democracy designed following slavery’s abolition; it will guarantee, at a minimum, political chaos no matter what the voters decide in November; and it will quite possibly pave the way for a man who has vowed that he will, if necessary, rescind the Constitution in order to impose a dictatorship of revenge.
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Sean Wilentz is the George Henry Davis 1886 Professor of American History at Princeton. His books include No Property in Man: Slavery and Antislavery at the Nation’s Founding. (February 2024)
No Girls Allowed. By Ryan Broderick
Jan 26, 2024
Over the weekend, the always-excellent John Burn-Murdoch, over at The Financial Times, posted an alarming bit of demographic analysis that has now gone very viral. It’s from a column Burn-Murdoch wrote titled, “A New Global Gender Divide Is Emerging,” which shows a tremendous political gap forming between young men and women around the world.
Burn-Murdoch followed up the column with a lengthy thread on X hypothesizing as to what may be causing this gap and thousands of other users have offered up their own diagnoses, as well: Smartphones, video games, economic inequality, lack of education, an over-correction post-#MeToo.
Interestingly enough, though, the bulk of Burn-Murdoch’s reporting focuses on South Korea, the US, Germany, the UK, Spain, Poland, China, and Tunisia. Which, aside from China and Tunisia, were all countries I worked in, covering elections and far-right radicalization, in and around the time period those countries’ respective political gender gaps began widening. I’m not saying I have a tremendously in-depth understanding of, say, Polish toxic masculinity, but I did spend several days there following around white nationalist rappers and Catholic fundamentalist football fans. And, in South Korea, I worked on a project about radical feminists and their activism against the country’s equivalent of 4chan, Ilbe Storehouse.
In fact, between 2015-2019, I visited over 20 countries, essentially asking the same question: Where do bad men here hangout online? Which has given me a near-encyclopedic directory in my head, unfortunately, of international 4chan knock-offs. In Spain, it’s a car forum that doxxes rape victims called ForoCoches. In France, it’s a gaming forum that organized rallies for Marine Le Pen called Jeux Video. In Japan, it’s 2channel. In Brazil, it’s Dogolachan. And most, if not all, of these spaces pre-date any sort of modern social movement like #MeToo — or even the invention of the smartphone.
But the mainstream acceptance of the culture from these sites is new. Though I don’t actually think the mystery of “why now?” is that much of a mystery. While working in Europe, I came to understand that these sites and their culture war campaigns like Gamergate were a sort of emerging form of digital hooliganism. Nothing they were doing was new, but their understanding how to network online was novel. And in places like the UK, it actually became more and more common in the late-2010s to see Pepe the Frog cosplayers marching alongside far-right football clubs. In the US, we don’t have the same sports culture, but the end result has been the same. The nerds and the jocks eventually aligned in the streets. The anime nazis were simply early adopters and the tough guys with guns and zip ties just needed time to adapt to new technology. And, unlike the pre-internet age, unmoderated large social platforms give them an infinitely-scalable recruitment radius. They don’t have to hide in backrooms anymore.
Much of the digital playbook fueling this recruitment for our new(ish) international masculinist movement was created by ISIS, the true early adopters for this sort of thing. Though it took about a decade for the West to really embrace it. But nowadays, it is not uncommon to see trad accounts sharing memes about “motherhood,” that are pretty much identical to the Disney Princess photoshops ISIS brides would post on Tumblr to advertise their new life in Syria. And, even more darkly, just this week, a Trump supporter in Pennsylvania beheaded his father and uploaded it to YouTube, in a video where he ranted about the woke left and President Biden. Online extremism is a flat circle.
The biggest similarity, though, is in what I can cultural encoding. For ISIS, this was about constantly labeling everything that threatened their influence as a symptom of the decadent, secular West.
For our new International League Of Unfuckable Conservative Men, it is, increasingly, about labeling everything that threatens them as feminine and, thus, bad. This is why you only ever see them rant about women journalists — well, usually it’s just The Washington Post’s Taylor Lorenz tbh. This is also why they’re always angry about whatever wild shit random teenage girls are posting TikTok. And this why they invented the concept of “simping,” the minute sites like OnlyFans began giving direct financial power to sex workers. Because they see masculinity as unquestionable strength and anything that threatens that must be eliminated. And this why they’re all losing their minds over Taylor Swift right now.
Taylor Swift, an extremely affluent blonde, blue-eyed white woman who writes country-inflected pop music and is dating a football player headed for the Super Bowl. She should be a resounding victory for these guys. Doesn’t get more American than that. But due to an actually very funny glitch in how they see the world, she’s actually a huge threat.
Pop culture, according to the right wing, should be frivolous. Because before the internet, it was something sold to girls by corporations run by powerful men. Famous pop stars through the ages, like Frank Sinatra, America’s first Justin Bieber, or The Beatles, the One Direction of their time, would be canonized as Great by Serious Men after history had forgotten they rocketed to success as their generation’s Tumblr Sexymen. But from the 2000s onward, thanks to an increasingly powerful digital public square, young women and people of color were able to have more influence in mainstream culture and also accumulate more financial power from it. And after Barack Obama’s 2008 presidential campaign was able to connect this new form of pop influence to both liberal progressive politics and, also, social media, well, conservatives realized they had to catch up and fast. And the fastest way to do that is to try and smash the whole thing by dismissing it as feminine.
Pop music? It’s for girls. Social media? It’s for girls. Democrats? Girls. Taylor Swift? Girls and also a government psyop. But this line of thinking has no limit. It poisons everything. If Swift manages to make it to the Super Bowl, well, that has to become feminine too. And at a certain point, the whole thing falls apart because, honestly, you just sound like an insane loser.
Unleash the power of bipartisan NRC reform. By Matthew Yglesias
Read time: 8 minutes
Unleash the power of bipartisan NRC reform
Two good bills that need to be reconciled
Every conversation about nuclear energy on the internet goes the same way. It starts with someone saying we need regulators to be friendlier to nuclear power plants, then someone else interjects that the real problem with nuclear is that it’s too expensive, to which the first person responds that the real reason nuclear is so expensive is that the regulatory burdens are too high.
Who’s right? I believe it’s the first person. But the only way to find out is to actually do the regulatory reforms.
While the environmental movement has, for the most part, set aside the irrational anti-nuclear worldview of the 1970s, it still fails to appreciate that a breakthrough in nuclear cost and technology would be really, really valuable. When discussing nuclear power, environmentalists tend to express incredible levels of optimism about the trajectory of renewable energy and batteries — such wild optimism that it renders the whole nuclear conversation irrelevant. But turn the conversation back to fossil fuels and suddenly it’s vitally important to block natural gas infrastructure or throw paint at the Mona Lisa. The impulse to do that kind of thing reflects, I think, a sound implicit recognition that it’s actually not true that we are on a glide-path to 100 percent renewables.
I’m just as annoyed by the people who are so certain that changing nuclear regulation is the answer that they ignore all the other levers. But we need to try every plausible lever, and nuclear definitely counts.
There’s been some good news on this front recently, though.
One is that Jeff Baran’s nomination for a slot on the Nuclear Regulatory Commission was held up in the Senate and the Biden administration has agreed to withdraw it. The Biden administration says all the right things about nuclear and their signature legislation has lots of important provisions for the nuclear industry. But at the end of the day, the really boring, humdrum work of staffing the NRC is critical to resolving the regulatory bottlenecks, and this means they are hopefully getting pushed in a good direction.
There are also bipartisan NRC reform bills in both the House and Senate, and work is under way to try to reconcile them.
And I think this may be even more important than the administration withdrawing Baran’s nomination, because even a really great slate of commissioners will struggle to make positive change without a clear statement of support from congress.
The basic problem
Baran himself explained the problem well at an earlier confirmation hearing back in 2017, when he told the Senate Environment and Public Works Committee that “it is my job to focus on nuclear safety and security, it is not my job to weigh in on the pros and cons of the merits of nuclear power.”
To nuclear advocates, that line is part of the case against Baran. And as far as it goes, I agree with that case. But the fact is, he is offering a plausible read of the NRC’s statutory mandate. When the United States first built nuclear power plants, it did so under the auspices of the Atomic Energy Commission, which was really a military-first Cold War institution. Then, in 1974, the military and civilian sides of nuclear policy were split, and the NRC was created with the deliberate mission of being a less industry-friendly regulatory body. This was perhaps a uniquely bad moment to be birthing a new nuclear regulatory framework — degrowth ideas were intellectually fashionable, modern cost-benefit analysis wasn’t really in use anywhere, and climate change wasn’t on the policy agenda at all. The Clean Air Act was also written without climate change in mind, but the EPA and the courts have developed doctrine whereby climate impacts can, and do, factor into EPA regulatory decisions.
That’s not the case with the NRC, which promulgates nuclear safety rules without regard for the consequences of those rules for greenhouse gas emissions.
After the Fukushima tsunami, for example, the NRC enacted a bunch of new safety rules. But at no stage in the process does the NRC consider the question “will these rules cause nuclear plants to become uneconomical and shut down prematurely, generating more air pollution and leading to worse health outcomes?”
Any industry regulated on that basis of safety and security with no balancing test would rapidly become unviable, especially if it had to compete with rival industries offering similar products. The government inspects meatpacking plants to try to minimize the risk of food-borne illness. But we do not have a zero-risk stance, because that would make meat incredibly expensive. And if we selectively adopted a zero-risk stance only for pork, there would be massive consumer shift toward chicken and beef.
The body responsible for the regulatory framework does, in fact, need to have an opinion on the overall merits of nuclear power, because it has significant pros:
Nuclear power generates dramatically less air pollution than burning fossil fuels.
Nuclear power generates a much more stable flow of electricity than solar or wind.
Nuclear power requires a smaller geographical footprint than solar and wind.
Access to cheap electricity has a wide range of economic and human health benefits.
Obviously, it’s crucial to avoid nuclear meltdowns. But it’s also important to remember that nobody died at Three Mile Island. More people died as a result of higher electricity costs post-Fukushima than died as a result of radiation. Five people died last fall in a gas explosion that, while tragic, did not lead the country to shut down gas connections to homes. With all forms of energy, we need a balanced approach.
Two good bills
That brings us to our two competing bills in congress.
One, the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy (ADVANCE) Act, has been introduced in the Senate by Shelly Moore Capito, Tom Carper, and Sheldon Whitehouse. ADVANCE would reduce the fees the NRC charges, which would help new nuclear startups; promote nuclear diplomacy to encourage outreach and technology sharing with friendly foreign countries that are interested in nuclear; facilitate nuclear development on brownfield sites; and, maybe most important, would have the NRC award prizes for successful deployments of advanced nuclear reactors.
The money is important, but the prize is also a kind of mission statement: If the NRC is handing out prizes for deploying advanced reactors, then the NRC is, by definition, in the business of licensing advanced nuclear reactors.
There’s a lot of in-the-weeds aspects to the brownfield idea, but it’s relevant, I think, mostly as a reminder that while there are lots of people who don’t want nuclear power anywhere near them, there are also plenty of places that would welcome it. If you used to have a coal plant that generated a lot of pollution (bad) but also jobs and tax revenue (good), and now all you have is a former coal plant that generates no jobs or tax revenue and the land is unusable, you might be better off with a new nuclear facility. It can hook into existing transmission infrastructure, and then big city libs (or whoever) can reduce their carbon footprint without actually building anything new.
Over in the House, meanwhile, Jeff Duncan and Diana DeGette have an even more ambitious bill called the Atomic Energy Advancement Act.
Their bill contains similar provisions around licensing fees and brownfields, but also specifically directs the NRC to update its mission statement “to include that licensing and regulation of nuclear energy activities be conducted in a manner that is efficient and does not unnecessarily limit — (a) the potential of nuclear energy to improve the general welfare; and (b) the benefits of nuclear energy technology to society.” Several provisions ask that licensing procedures be made “efficient” and “timely.” As is generally the case in the American system, there is inherently a good deal of uncertainly as to what an agency would actually do with this kind of directives. But my general view is that good legislation plus good NRC appointments can drive change and create an agency that wants to say yes to making reactors cheaper to build.
All energy sources matter
My dream scenario would be to mash these bills up in a both/and way, with the House’s strong language on directives to the NRC and the Senate’s prizes. And then, of course, to fill the Baran slot on the NRC with someone great.
Because while it’s possible that nuclear won’t pan out even with favorable regulatory treatment, it might pan out and it would be really nice if it did.
I’m worried that, in the wake of the Inflation Reduction Act’s historic financial commitments to clean energy, we’re losing focus on the crucial need for deployment. It’s not even really that the green movement is excessively focused on a renewables-only vision. Even the bill written by House liberals to facilitate renewable permitting is full of provisions that do the opposite of facilitating renewable permitting:
The Democrats’ permitting-reform bill would fill the coffers of groups that tie up projects. It calls for $3 billion in federal spending for the sake of “increasing the capacity” of nonprofits and local governments to participate in the environmental-review process. And it requires the Federal Energy Regulatory Commission to pay the expenses of parties that want to intervene in regulatory proceedings but cannot afford to. In effect, the bill would subsidize objections to the projects that it means to accelerate.
That bill has some good provisions, too, but one point here is that there’s no “perfect” energy source. To run nuclear plants, you need to mine radioactive material, and you need to store waste, and you do need to be willing to run some non-zero safety risk. To run hydroplants, you need to dam rivers. To build utility-scale wind and solar, you need big swathes of land and you need to run transmission lines. Burning fossil fuels puts pollution in the air. Batteries have their own set of mining concerns. It’s tradeoffs all the way down.
But if you want to rely on electricity to power cars and heat homes, and you want to reduce the amount of fossil fuels that are burned to generate electricity, then you need to build a lot of zero-carbon electricity. You need regulatory reform for geothermal drilling. You need all the things.
Nuclear, though, is particularly promising as a legislative matter at the moment, because splitting the atom unleashes incredible amounts of lib-owning power that gets Republicans wanting to vote for things in a way that renewable transmission does not. Biden and most Democrats say they want to advance nuclear, and these NRC reform bills are the way to do it. I’m not saying the White House needs to loudly endorse them — that might be wildly counterproductive — but encouraging congressional leadership to encourage work on reconciling the bills and getting something done would be really helpful.
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