Skepticism, leavened with a certain understanding

Good column from Holman Jenkins last Friday.  Federal law enforcement feels a great deal more politicized to me than when I was a younger man.

Excerpts from Trust but Verify’ Applies to the FBI:

Federal law enforcement did not cover itself in glory—again—in the just-concluded trial of Noor Salman, wife of the Pulse nightclub mass murderer in Orlando, Fla.

A judge scolded prosecutors during the trial for withholding exculpatory evidence. At her original bail hearing, the FBI had relied on a confession, extracted from Ms. Salman in an 11-hour interrogation, that she had helped Omar Mateen scope out the gay nightclub in advance of the shooting. As was subsequently revealed, the FBI was already in possession of cellphone location data that contradicted her claim. Other evidence also cast doubt on the confession, which the FBI failed to record or sustain with circumstantial proof. Ms. Salman was acquitted.

Happily, the malpractice here was less consequential than in the thrown-out corruption conviction of the late Sen. Ted Stevens. It was less brazen than the Consumer Financial Protection Bureau’s manufacture of fake statistical evidence of racial bias in auto lending or the questionable federal and state asset seizures that keep coming to light.

The Noor outcome may not be flattering to the FBI, but it should be flattering to America. Holding law enforcement accountable is the best refutation of the authoritarian temptation, with its mocking of our insistence on due process, elections and respect for individual rights.

So skepticism, leavened with a certain understanding, is required in the clash between individual rights and the police. This is about to become especially true in the mother of all cases, the FBI’s role in the 2016 election.

We’ve already learned a few unsettling things. Trump associates Michael Flynn and George Papadopoulos were treated in unforgiving fashion for lies that may not have been lies, whereas the FBI practically conspired with Hillary Clinton and her aides to make sure their truth-shading was overlooked. The FBI’s use of evidence to win a Carter Page surveillance order appears to have been every bit as disingenuous as that used by prosecutors in the Noor Salman bail hearing.

Political bias or simply toadying to the party in power may turn out to have been a factor, but we are likely to hear a great deal about what top law-enforcement officials believed, rather than knew, about Donald Trump.

But another lesson also applies in such a world. All presidents face opponents who seek to make sure they deliver as little as possible even when delivering would be good for the country. Mr. Trump came to the presidency with too much baggage that his opposition could use against him. That’s something Mr. Trump’s voters and party should have thought about before nominating him.

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Trump as a convex mirror

From Matthew Continetti’s American Politics in a Convex Mirror:

I am not saying that the weirdness, the distortion, began with President Trump. This story opens years earlier, with a financial crisis in which those responsible paid no price, with economic stagnation and the rise in deaths of despair in the American interior, with the decline in race relations during the second half of the Obama presidency, with mass migrations of peoples across borders and progressive governments unable or unwilling to stop them, and with sudden bureaucratic announcements that public school restrooms are to be made gender neutral, that the population covered by DACA is to be expanded beyond what the president said was legal just months before, that teachers and principals cannot enforce discipline in the public schools without coming under suspicion of racism.

What Trump has done is heighten the contrasts, deepen the incongruities, to the point where politics no longer can be understood by reference to what came before him. Seventy-one years old, rich and famous and uninterested in personal change, Trump imported his style of life, his habits and predilections and tics, into a Washington that was completely unprepared for and resistant to the style of populism he represents. The routine sackings, the ceaseless flow of personnel, the insults and braggadocio, the improvisation, lack of structure and preparation, willingness to scapegoat, comfort with ambiguity, his operatic ambitions, policy zigzags, running commentary on the happenings not only in the culture but also in the government over which he presides, and the close and careful attention to the wishes, desires, and emotions of the audience—this is exactly how the president wants to operate. He enjoys such chaos, thrives in it, partly because the more unstable things seem, the more heavily dependent events and personalities are on his every move.

Happenings, policies, and staffing decisions that not long ago might have been interpreted and advocated according to the traditional modes and understandings of Republicans and Democrats, conservatives and liberals, are now refracted through the lens of Trump’s personality to such an extent that some writers oppose moves they would have otherwise applauded, others support tactics and methods they would have otherwise abhorred, and still others are rendered shocked and immobile by animosity and outrage.

We might take comfort in the fact that, despite the tumultuousness in Washington and the unconventionality of our presidential wild-child, American life does not seem appreciably different: the economy is humming, the vast majority of people go about their daily lives peaceably and civilly, the political agenda is largely in keeping with the traditions of the party in power, and the precedent of off-year elections, which have seen the last three presidents lose control of Congress at some point in their terms, looms in the background. When one turns one’s eyes away from the distortion, a more familiar picture comes into view.

Meanwhile the number of foreign crises with which Trump has to deal—from Russia, Iran, and Syria in the Middle East to China and North Korea in the Pacific—continue to multiply. And this combination of national and international uncertainty and volatility is dangerous not only for the president, but also for the millions whose lives will be affected by decisions made in the coming weeks.

Such is politics seen through a convex mirror, as the viewpoints that we had come to consider “normal” are upended, overturned, and no new lines of sight have been established in their place.

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Privacy and Facebook

Not sure how we regulate Facebook effectively.  It’d be nice to at least find a way to place the liability for violations on the company.  From Facebook’s Days as an Unregulated Monopoly May Be Numbered: in today’s WSJ:

There are several explanations for the lack of economic consequences. One is that the services and products people get in return for their data far exceeds the annoyance or worries about privacy. Indeed, the more information customers surrender, the more useful the ads and products they are offered are likely to be.

The other is that the costs of invading privacy aren’t easily quantified, or borne by the company. A customer whose information has been hacked or sold may never be a victim of identity theft. You might be denied a job, arrested or deported some day because of your social-media history, but people seldom build such remote risks into their decisions today. Some people feel creeped out being tracked by advertisers or co-opted by odious political causes, but can’t put a price on those feelings.

“The economic proposition is opaque,” says Mr. Acquisti. “We can agree consumers are getting value back. It’s hard to estimate the cost to privacy, and how much value the companies who manage the data are getting from it.”

This isn’t to say companies like Facebook are indifferent to privacy concerns. Facebook does self-regulate by adhering to the privacy practices of the Digital Advertising Alliance, an industry group.

And the economic costs of privacy violations appear to be growing, potentially raising the incentive to act. Last fall credit-reporting service Equifax Inc. lost a third of its market value and its chief executive after disclosing an extensive data breach. Like Facebook, Equifax makes money by collecting and analyzing data about people. Unlike Facebook, Equifax also operates under several federal laws that expose it to significant legal risk; multiple federal, state and foreign regulators are investigating the breach. It also has competitors to whom disgruntled customers, such as banks, can turn.

Clicking around I found this little ditty, related and amusing.  From Tom Smith and His Incredible Bread Machine:

The rule of law, in complex times,
Has proved itself deficient.
We much prefer the rule of men!
It’s vastly more efficient.
Now, let me state the present rules.

The lawyer then went on,
These very simpIe guidelines
You can rely upon:
You’re gouging on your prices if
You charge more than the rest.
But it’s unfair competition
If you think you can charge less.

A second point that we would make
To help avoid confusion:
Don’t try to charge the same amount:
That would be collusion!
You must compete. But not too much,
For if you do, you see,
Then the market would be yours
And that’s monopoly!”

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Is the Overton Window shrinking or multiplying?

The Atlantic is do its bit to try and make Kevin Williamson an “unperson.” Ben Shapiro asks, “So, why should anyone outside the intelligentsia care?”

Because this is a symptom of a broader leftist attempt to shrink the Overton window. “Overton window” is a term coined by Joseph Overton of the Mackinac Center for Public Police, meaning the range of acceptable public discourse. Typically, those of us in the political world accept that the Overton window extends beyond positions with which we agree. Take, for example, the thought of Louis Farrakhan, or Richard Spencer, or Ta-Nehisi Coates. All of their views are certainly covered by the First Amendment, but only some of them fall within the Overton window — those that advance rational, useful debate. Thus, I believe that Ta-Nehisi Coates is an overrated thinker who promotes a toxic politics, but there’s little doubt that his views fall within the range of acceptable discourse. The views of Louis Farrakhan about Jews and of Richard Spencer about blacks do not.

But the Left has boiled beliefs down to two categories: those with which they disagree, and those that are outside the Overton window. The range of acceptable discourse extends from the identity politics of Coates to the socialist politics of Bernie Sanders. Anything outside that range — in any respect — immediately falls foul of the social-justice class.

This creates a serious problem for the country. That’s because people whose views are excluded from the Left’s new Overton window are cast into outer darkness with people whose views are truly execrable. And the new outcasts are presented with a three-pronged choice: Either embrace the politics of the Left, fight both those who label you a deplorable human being and those who are actually deplorable, or side with those who are deplorable against those who would cast you out. Many conservatives may explicitly make alliances of convenience with toxic people in order to fight the Left — which, after all, has already called mainstream conservatives toxic.

There’s no longer one narrative, one Overton Window.  How the Left chooses to cope with that will determine what form the inevitable backlash (dialectic?) takes.

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Liberating tolerance

David French writes, “(M)ost progressives haven’t read Marcuse… and they’d be shocked at the notion.

(A) person on the left will claim that they’re tolerant because of their regard for “gays, lesbians, bisexuals, asexuals, blacks, Hispanics, Asians, transgender people, and Jews.” But ask that same person a simple question, “What’s wrong with gay people?” and the answer is immediate: “What do you think I am, some kind of homophobic bigot? Of course I have nothing against gay people.”

Then, guess what, you’re not tolerating anything. You’re mistaking tolerance for fellowship or tolerance for tribalism. The word “tolerance” of course implies that there is something to tolerate.

I like Alexander’s definition of true tolerance: “Respect and kindness toward members of an outgroup” — not respect and kindness toward members of what others would define as an outgroup, but rather respect and kindness toward people that are out of your group. His concept reflects Christian values like grace or charity, which imply that there is something to forgive or something to overlook in your relationships with others. When there is nothing to forgive or nothing to overlook and no patience required, there’s no tolerance. There’s no grace. There’s no charity.

The result of this flawed understanding is that millions of people misapprehend their own values. To the very marrow of their being, they believe that they’re something they’re not. They have taken the vice of their particular brand of tribalism and transformed it into the false virtue of fake tolerance.

To be clear, there are some progressives who are wise to this game. They’ve read their Herbert Marcuse, and they know quite well that the new tolerance — what Marcuse called “liberating tolerance” — means “intolerance against movements from the Right and toleration of movements from the Left.” But most progressives haven’t read Marcuse. They’ve never heard of him, and they’d be shocked at the notion that one of the alleged defining characteristics of their lives is a fiction.

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Designed as a doomsday provision

Hans Von Spakovsky, writing at NR, quotes retired Ninth Circuit Judge Alex Kozinski in Silveira v. Lockyer:

The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process…In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence…As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L.Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. . . . If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Related:  David French, also at NR:

No serious gun-rights advocate argues that the Second Amendment protects unregulated gun ownership, of course. The devil is in the details. For example, universal background-check requirements are almost certainly constitutional. But the argument against these laws isn’t that they’re unconstitutional; it’s that they’re unenforceable and ineffective. A recent Rand study looked at studies of the effects of universal background checks on violent crime and found the evidence “uncertain” and “inconclusive.” Last October, Duke professor Philip Cook analyzed studies examining how criminals obtained their guns and noted that the guns typically have been “diverted from legal commerce.” In other words, criminals break the law not just when they use their gun but also when they obtain it. A universal background-check requirement isn’t relevant to already-illegal transactions.
An assault-weapons ban, by contrast, is unenforceable, ineffective, and likely unconstitutional…
Finally, if Kristof wanted to “win an argument” with a gun owner, why did he completely ignore the benefits of gun ownership?  He never once addresses the effects of his so-called sensible gun restrictions on the right of self-defense. An informed gun owner is always going to respond to a gun-control proposal with at least two follow-up questions: First, will it make a material impact on the gun problem you seek to solve? Second, will it materially impact my ability to defend myself from known and foreseeable threats?  
All too often, the answer to those questions is “no” and “yes.” All too often gun-control proposals operate as a form of collective punishment on the law-abiding while serving as barely a speed bump in the path of the criminal. There is a cost in the “let’s just try” approach, and that cost is borne by the men and women who comply with the law.
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Civil society as coastal wetlands

A blast from the (recent) past:  excerpt from a 2016 G-File.

I kind of think of civil society as coastal wetlands. For years, people overlooked wetlands as the kind of ugly, swampy places that served no great purpose. It turned out that wetlands are hugely important. They absorb bad runoff from reaching the ocean, they buffer the coast from soil and beach erosion, and they offer a diverse ecosystem a habitat they can’t find anywhere else. If you think of the government — particularly the administrative state — as an ocean, civil society is the wetlands that keep the ocean from eroding everything. They’re a buffer that blunts the impact of the state. Conversely, they are what stop the nine out of ten problems Coolidge talked about. Without the wetlands, all ten just roll straight into the state’s ocean-sized lap. …

The reason we can’t have a Coolidge today is that government has gotten involved in so much he would have to be an activist just to unwind a fraction of it. C. S. Lewis says somewhere that if you took a wrong fork in the road, it’s not progress to keep walking in the wrong direction. It’s progress to turn around and find the right road.

As I’ve written several times now, I feel more and more like I’ll be in the Nockian remnant for a good while. But today is not the day to rehash old arguments about Donald Trump. That day will come soon enough. Today is a day to wish him well and hope for the best.

I’m reminded of H. L. Mencken’s obituary for Coolidge, a president he first scorned but later came to appreciate. “Should the day ever dawn,” Mencken said, “when Jefferson’s warnings are heeded at last, and we reduce government to its simplest terms, it may very well happen that Calvin’s bones now resting inconspicuously in the Vermont granite will come to be revered as those of a man who really did the nation some service.”

I’m not a big fan of the slogan “Make America Great Again.” And I’m not sure what Donald Trump meant last night when he said we’re going to do things we haven’t done in “many, many, decades.” But if he can get us back to the right fork in the road, and to a place where he could be replaced by a Coolidge, or at least to a place where his bones might be revered, he will have made America greater yet — and he’ll have my gratitude.

Here’s hoping.

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