Category: Politics

May I Put My Head Up My Own Ass?

I’ve blogged twice before on the creeping criminalization of all things sexual. As I have noted many times, the goal here is not to prevent rape or sexual assault, per se. It is to enshrine radical feminist notions of consent into law so that women are considered victims, sex is considered non-consensual by default and any man can be guilty of sexual assault.

To wit:

PERHAPS the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.

In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”

That last bit will sound ominous to those of you familiar with our legal system. In some cases, prosecutors will pile up dozens if not hundreds of charges in the hope of intimidating out a plea bargain. Do we really think someone should end up on a sex offender registry for a stolen kiss? A bunch of lawyers think so.

The example points to a trend evident both on campuses and in courts: the criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal. Some new crimes outlined in the proposed code, for example, assume consent to be meaningless under conditions of unequal power. Consensual sex between professionals (therapists, lawyers and the like) and their patients and clients, for instance, would be a fourth-degree felony, punishable by significant time in prison.

Having sex under those circumstances can already lose you a job, a professional license, a reputation and a career. Do we really need to add prison time and registration to an act of slimy but consensual sex? A bunch of lawyers think so.

You should read the whole thing because it gets worse and worse. Stephen Schulhofer, one of the authors of this code, defends the proposal, saying the law would take a “light touch” to policing sex. I wonder if he could identify any time when when the law has ever taken a light touch to anything.

Yes most people will ignore this nonsense. But it would create a powerful tool for law enforcement to punish people they don’t like. Can’t convict a man of rape even though you “know” he’s guilty? Well here’s fifty charges of holding her hand without consent. And suddenly that “light touch” adds up to a twenty-year punch in the mouth. And I’ll give you one guess as to the skin color of the men who would be most commonly victimized.

Schulhofer compares such a law to speed limits:

To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives. As long as “people know what the rules of the road are,” he says, “the overwhelming majority will comply with them.

First, the majority of people don’t obey the speed limit. Second, the claim that speeds limits save lives is dubious. Third, there have been many problems with people ending up in prison because fines and fees leave them thousands of dollars in debt from minor traffic violations. Fourth … for the love of … speeding is a fine, not a prison sentence. Speeders aren’t put on offender registries. Speeders don’t lose their jobs because they sped. Speeders aren’t barred from being near children. The comparison is totally ridiculous.

The fundamental problem here is that there is a gray area where sex is concerned. Everyone would agree that if a man forces a woman to have sex with him, that’s rape. Everyone would agree that if two people have sex with complete enthusiasm that’s not. But what if one of them drunk? How drunk? Is one party manipulative? Has pressure been brought? What kind of pressure? Does repeatedly asking your spouse or girlfriend for sex count as pressure? What if you tell your boyfriend you’re going to cheat on him if he doesn’t have sex with you?

Over time, we have moved the black area to cover more and more behavior. Having sex with someone who is passed out drunk is rape (unless he’s a man, in which case you’re the victim). That’s as it should be. Coercing or defrauding someone into sex can be rape. That’s as it should be.

But there is a growing part of our culture that wants no gray areas. Everything has to be either has to be enthusiastically consensual or it is assault.

But human beings don’t work that way. We need gray areas, including gray areas in sex. We have and should turn some of that gray into black — there was a long time where a rape victim was blamed if she was drunk. But the idea of turning all of the gray into black is the kind of absolutist idea that only lawheads and fanatics believe in.

This is often tied to reasonable-sounding questions: “Well, why should a woman have to endure a man kissing her if she doesn’t want to be kissed?” She doesn’t. But the law is a crude instrument with which to deal with these things. Any time we have tried — any time we have tried — to inject the law into complex human interactions, it has been a disaster. It has ended up destroying lives, throwing people in prison, and creating a climate of fear and distrust.

One of the NYT’s commenters:

This is a power play by people who know nothing about power other than their desire to have the power to force their vision of sexual exchanges on others through totalitarian state power, totalitarian because it superciliously uses the state to inject into ALL the most intimate adult relationships their own weird ideology, completely unrooted in biology, psychology, or sanity. The heart has its reasons reason does not know so.

Mind your own damn business. Take responsibility.

It is pathetic that this perverted nonsense is taken seriously in the name of rape. It is a perfect storm example of why american contempt for the academic and the intellectual and the professor is justified and the Emperor’s New Clothes remains relevant. The ALI isn’t what it was. It is like the founder’s grandson running the business into the ground.

We should have a debate over how we define rape and sexual assault. That conversation has resulted in enormous progress on the question. But we should not cede the floor to the absolutists and lawheads. That way lies disaster.

One final note: several commentators have joked — or said seriously — that young men should hire sex workers rather than deal with this nonsense. While I favor decriminalization of sex work, that joke isn’t funny. The same people who want to make holding hands into sexual assault want to make patronizing a prostitute into rape. They believe that all sex workers are victims and all johns are predators. And our laws — under the guise of fighting sex trafficking — are coming into line with what they want.

The people who want to keep sex work illegal are the same people who want to prosecute people for holding hands. There’s a lesson in that somewhere …

(H/T to the always awesome Lenore Skenazy and Amy Alkon.)

The Bear Roars

Vox has a long think-piece about the potential for a war with Russia, which could include a nuclear conflict. I think the article is a bit alarmist but it’s worth a read. The essential point is that Russia trying to re-establish itself as a premier power and is consumed with the idea that the United States wants to weaken and topple its leadership. To that end, they are engaging in more and more provocative action and have lowered the bar for the use of nuclear weapons. There is a real fear that they might attack the Baltics to try to break NATO, with the threat of nuclear attack backing it up. And the lowering of nuclear thresholds has made an accidental nuclear war more likely.

A few scattered thoughts:

First, I’m old enough to remember when Mitt Romney was openly mocked and derided for declaring that Russia was one of the chief dangers we faced. There’s a part of me that wonders if Romney didn’t actually win the 2012 election and is keeping Obama in as a figurehead. We certainly seem to be, in the inept Obama way, pursuing every foreign policy initiative Romney advocated.

Second, the idea that the US would invade Russia and topple the regime is insane. But, as Robert Heinlein noted during the Cold War, the defining element of Russian foreign policy has always been paranoia. It still is. And we need to be careful in how we deal with them.

Third, I think this means that missile has moved from critical to even more critical, especially given the danger of an accidental war.

Fourth, we need to seriously think about what we’re going to do if Putin attacks the Baltic states. Do we let him take them and risk having NATO fall apart? Do we defend them and risk a large-scale war? This is the kind of issue that needs to be front and center in the 2016 presidential campaign.

Gay Marriage Debate Ends

A lot going on today, but the big news is that the Court has upheld gay marriage by a 5-4 vote. With that, the debate over the subject is effectively over. And, as someone who has supported the GOP in the past, I couldn’t be happier. The issue can go away and we can focus on more substantive issues.

More to come.

You should read the opinions. It includes vintage Scalia. But it also includes a very good dissent from Roberts who argues that the problem is not gay marriage; the problem is the way the Court has interpreted the Constitution. It’s quite good and conciliatory. Roberts can drive me nuts sometimes, but I still think he’s one of the best things to come out of the Bush 43 Administration.

If this had happened with a republican president that had an enemies list…

As usual a complicit media just lets the criminals running our government tell blatant lies and show no curiosity or desire to get to the truth. At this point it is a given that the IRS was ordered to target conservatives by the WH – and only fucking liars will pretend otherwise – but the criminals have been beyond efficient at hiding the level of criminal activity the Obama administration has gotten away with because of media treatment of this abuse of power:

WASHINGTON (AP) — Investigators are blaming mistakes by IRS employees — not a criminal conspiracy — for the loss of thousands of emails related to the tax agency’s tea party scandal.

IRS workers erased 422 computer backup tapes that “most likely” contained as many as 24,000 emails to and from former IRS official Lois Lerner, who has emerged as a central figure in congressional investigations, according to IRS’s inspector general.

The workers erased the tapes a month after IRS officials discovered that an untold number of Lerner’s emails were lost. The IG says the workers were unaware of a year-old directive not to destroy email backup tapes.

J. Russell George, the Treasury inspector general for tax administration, is scheduled to testify Thursday before the House Oversight Committee about his investigation into the emails. The Associated Press obtained a copy of his prepared testimony.

George says his investigation “did not uncover evidence that the erasure was done in furtherance of an effort to destroy evidence or conceal information from Congress and/or law enforcement.”

No, they are not just reporting news and not speculating here. They are covering for these crooks. We all know that the level of incompetence of the politically motivated bureaucratic monster that has been dragging this country into the abyss for a few decades now has reached absolutely new levels of low during this criminal administration, but not even I – someone that expects nothing but mendacity and stupidity from these people – can believe this level of stupid and ineptness is responsible for the bold faced claims nobody would otherwise accept. As the title of post asks: do you think that anyone, especially in the media, would have accepted this ridiculous answer to what was obviously another attempt at a coverup?

Why no questions and answers about who conducted the investigation and what evidence they used to present this ludicrous argument? And how likely would one be to accept this conclusion when you find out it was neither an independent or honest investigation, but some other insiders beholden to the crooks in charge that couldn’t find anything. Shit, I bet if the evidence was dropped in their lap they would manage to misplace it or lose it. Because that’s how they have been doing things.

Maybe we should ask the Chinese what their hack produced about the various Obama administration criminal activities. Then again, with Obama and the people following him being this corrupt, destructive, and profitable to China, they might just feel compelled to lie to keep him in charge for as long as it takes them to take over the world.

Still, the revelation that computer tapes were erased after officials knew about the lost emails is likely to fuel conspiracy theories among conservatives who say the IRS has obstructed investigations into the scandal.

Nixon was unavailable for comment, and George Bush was caught laughing because so many of the people that called him stupid are now bending over and grabbing their ankles trying to provide cover for the stupid criminals now in charge. Can you imagine the media making this sort of excuse for a republican president if the IRS, after attacking his political enemies and being caught & investigated, decided to erase evidence? I normally would go into my rant about how I told you Obama would make mediocre Boosh look like a fucking awesome president, and how stupid and destructive leftists and what they believe and do are, but at this point, after all this damage and destruction, there is not even joy in that.

The Best of Lee: Kelo Anniversary

Ten years ago today, the Supreme Court issued out of the worst ruling in their history: Kelo v. City of New London, in which justices Kennedy, Souter, Ginsberg, Breyer and Stevens decided that it was “public use” for a government to force a citizen to sell his property to a rich developer. Because taxes.

Here’s some choice quotes from the wonderful dissents of Clarence Thomas and Sandra Day O’Connor. Thomas first:

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent.

The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.

O’Connor:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

The irony is that the deal with Pfizer fell through and Kelo’s former home is still an empty lot.

Lee’s comment was short and brutal:

Personally, I would love to see one of the homes of these justices earmarked for demolition because some douchebag on a city council somewhere has decided that the revenue from a new Wal-Mart Supercenter is more important to the community than the property tax being paid on the land that has been in your family for six generations. Simply disgusting. When the highest court in the land wipes its ass on a concept as fundamental to human liberty and dignity as the right of property there is something seriously wrong with our government.

The government’s assault on property rights has only gotten worse. Yesterday, SCOTUS pushed back a little. But it will not really begin until the Court repudiates Kelo.

Raisins in the Sun

This morning saw the Supreme Court hand down four more decisions. All were important to some degree but the most significant was one I blogged about earlier: Horne v. Department of Agriculture. The Court decided, correctly, that the government taking part of someone’s raisin crop to ostensibly raise the price of raisins was indeed a “taking” under the Constitution and they are entitled to compensation.

Somin:

The Court ruled in favor of the property owners by an 8-1 margin on the most significant issue at stake: whether the government’s appropriation of the raisins is a taking. Only Justice Sonia Sotomayor dissented.

This is an extremely important result, because it rejects the government’s dangerous argument that the Takings Clause offers less protection for personal property than for real property (the legal term for property in land), which had been embraced by the Ninth Circuit lower court decision. For reasons elaborated in detail in an amicus brief I joined along with other constitutional law and property scholars, the government’s position on this issue was deeply at odds with the history and original meaning of the Takings Clause. Indeed, as the Court notes, the Clause was adopted in part as a reaction to abusive British confiscation of personal property during the colonial era and the Revolutionary War.

The government argued that it wasn’t really a taking because if they later sold the raisins, the Hornes would get some of the proceeds. This was clearly nonsense. If I steal your car and later give you a cut of what I got from the chop shop, that doesn’t mean I didn’t steal it in the first place. The justices were a little more divided on how to compensate the Hornes.

This is a big case, though. Somin again:

The ruling also calls into question a number of other similar agricultural cartel schemes run by the federal government. In addition to property owners, consumers of agricultural products are likely to benefit from the decision, if these cartel schemes can no longer operate. Freer competition between producers in these agricultural markets will increase the amount of goods sold, and thereby lower prices. Lowered food prices are of particular benefit to poor and lower-middle class consumers, who generally spend a higher proportion of their income on food than the affluent do.

A few years ago, Robert Levy published a fine book called The Dirty Dozen, detailing some of the worst Supreme Court decisions of the last century. One of them was Wickard v. Filburn, in which a unanimous Court decided that a man growing wheat on his own farm for his own use was intrinsically “interstate commerce”. Wickard is the basis not only of our idiotic farm policy, but the basis of the Court’s expansive view of the commerce clause, including the vile Raich decision.

This doesn’t attack Wickard but it’s the first pushback on agricultural policy in a long time, at least recognizing some limits to the power of the Department of Agriculture. Hopefully, it’s the first in a series of decisions.

More from Mataconis and from McArdle, who cautions against optimism:

However, don’t get too excited, because it doesn’t do too much to limit eminent domain where compensation is offered, or “regulatory takings” in which government rules make your property practically worthless, but not quite so worthless that it has to pay you for the lost potential uses.

Indeed. Our federal government has a tremendous amount of power that has goen well beyond its Constitutional limits. Today, a little bit got pushed back. That’s a good day.

Friday Roundup: Guns, Money and Gag Orders

A few stories to close out your week:

  • Following on Alex’s post on the attempt to squash free speech at Reason, the Best Magazine on the Planet has gotten the gag order lifted and broken their silence. What they relate is appalling. Not only did the USA try to get personal information on Reason’s commenters, they got a gag order to try to prevent Reason from notifying those commenters that the government was seeking their information (Reason had already notified them by the time the order came). It’s a must-read on a government that is determined to shred any semblance of privacy.
  • Earlier this week, Treasury announced that the new $10 bill will have a woman on it, although it’s not clear who that will be or how she will “share” the bill with Alexander Hamilton. As someone who favors a radical overhaul of which faces are on our currency, I’m moderately in favor of this. But I much prefer the idea of putting a woman on the $20 for reasons articulated by Jillian Keenan (namely that Jackson was a racist slaveholding genocidal shredder of the Constitution). Still, there are lots of women we could honor: Harriet Tubman, Harriet Beecher Stowe, Eleanor Roosevelt, Elizabeth Cady Stanton, Susan B. Anthony, Sally Ride, Clara Barton. I would take all of these over Jackson. And I wouldn’t mind if we took all the politicians off our currency.
  • How bad was the security at OPM that led to the huge data breach? Really really bad. And they won’t fix it. Change we can believe in!
  • If you’re having trouble finding delicious barbecue, blame government. They are literally outlawing the kind of slow-cooking methods that make for such deliciousness. And it’s not really clear why other than “because they can”.
  • It will come as no surprise to readers of this blog that Paul Krugman and the Keynesians are full of it again. They are citing Iceland an example of how expansionary fiscal policy can save an economy. The problem? In this thing called reality, Iceland endorsed a severe austerity, with significant spending cuts and tax hikes.
  • The blamestorming for Charleston has already begun. Here is a quick refresher about the media’s desperation to blame horrific acts of violence on the Right Wing.
  • And finally, Reason has a feature on a college student who was busted with pot, turned informant and was murdered. No one is accountable, as usual. I’ll spare you my usual War on Drugs rant, in favor of my other favorite one: when dealing with cops and prosecutors, always get a lawyer. Never negotiate on your own.

Anti-Trans Discrimination

So over the last few years, the health fascists have been telling us to avoid saturated fats in favor of trans fats. According to their analysis, using trans fats will prevent thousands of deaths and tens of thousands of heart atta- ..

No, wait.

That’s what they were saying. Now they are saying that trans fats are the quintessence of evil, a mass murderer of our body politic, something that needs to be banned forthwith and its inventors shot so that the knowledge of how to make trans fats may be extinguished. And yesterday, the FDA caved, calling for trans fats to be gotten rid of within three years (having been pushed by lawsuits from food nannies).

Take it away, Walter Olson:

It’s frank paternalism. Like high-calorie foods or alcoholic beverages, trans fats have marked risks when consumed in quantity over long periods, smaller risks in moderate and occasional use, and tiny risks when used in tiny quantities. The FDA intends to forbid the taking of even tiny risks, no matter how well disclosed.

The public is also perfectly capable of recognizing and acting on nutritional advances on its own. Trans fats have gone out of style and consumption has dropped by 85 percent as consumers have shunned them. But while many products have been reformulated to omit trans fats, their versatile qualities still give them an edge in such specialty applications as frozen pizza crusts, microwave popcorn, and the sprinkles used atop cupcakes and ice cream. Food companies tried to negotiate to keep some of these uses available, especially in small quantities, but apparently mostly failed.

Even if you never plan to consume a smidgen of trans fat ever again, note well: many public health advocates are itching for the FDA to limit allowable amounts of salt, sugar, caffeine, and so forth in food products. Many see this as their big pilot project and test case. But when it winds up in court, don’t be surprised if some courtroom spectators show up wearing buttons with the old Sixties slogan: Keep Your Laws Off My Body.

Olson also points out that you don’t just ban trans fats; you have to switch to something else. That something else may be palm oil, coconut oil or genetically-modified soybean oil, all of which come with known and unknown health risks.

Anyone want to lay bets on when those oils will turn out to be dangerous? Anyone want to lay bets on how fast we’ll find out that the danger of trans fats has been wildly overestimated?

You can read more from Baylen Linniken, including the details of how this ban came about. What’s striking, however, is the complete and total lack of skepticism in the supposedly fact-based left wing. Vox has run several articles that repeated the health tyrants claims without any skepticism (despite having run numerous articles about how most scientific studies are garbage). Major media networks have mindlessly repeated the FDA’s shaky claim that this will save 7,000 lives a year. None of them have asked with it is the governments business to do this. All of them see this as some sort of progressive victory.

To hell with this. Trans fats are not poison. They are (probably) bad for you. But it’s not the FDA’s job to make us eat right. That’s our job. Their job is to make sure the food supply is safe. Trans fats aren’t nearly deadly enough to warrant a ban. They aren’t even as deadly as the horribly low-salt low-fat high-carb diet the health experts have been pushing on us for decades.

Don’t ban trans fats. Ban the food nannies.

Trump In

Donald Trump just declared that he’s running for President this year, apparently as a Republican, in one of the oddest speeches I’ve ever seen from a Presidential candidate. God knows what he’ll do. He has been famous for really awful ideas, including a proposal for a wealth tax.

This is going to be highly entertaining to blog, but bad for the Republic in the long run. We now have 12 Republican presidential candidates. Some of them are serious (Bush, Rubio, Walker, maybe Kasich and Perry), some have interesting things to say (Paul), some are just engaged in ego-stroking and some are just insane.

If they don’t pull their shit together, Hillary is going to coast to victory.

Shootout in Dallas

Early this morning, a deranged man starting shoot at the Dallas police HQ and planting bombs. No one was wounded. The police chased him down, cornered him in a parking lot, shot out his engine and then, when it appeared he wouldn’t back down, shot him.

I’ve criticized the police in this space for using SWAT tactics in domestic situations. This is one instance where it was absolutely required. As far as I can tell, they handled a dangerous situation well and no innocent bystanders were hurt. So … well done, Dallas PD.