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Supreme Court Questions

When I was in high school, I became aware that the Republicans had made a conscious decision to weaponize the courts: They were angry when the Constitution kept telling them that their legislative agenda wasn’t legal. In 1968, Nixon dusted off an old term (“strict constructionist”) and they began crafting a new theory of law around it. It claimed to be all about applying a strict reading to the Constitution; to do nothing except read literally what was on the page and apply it in the most literal way possible.

And if that’s what strict constructionism actually was, I’d be all for it. But, of course, it isn’t. “Strict constructionism” is a code word for “conservative activism”. If it was actually about a strict reading of the Constitution, then, to pick just one example, its practitioners wouldn’t have so much difficulty finding the 14th Amendment in their copies. “Equal protection of the laws,” after all, is a pretty cut-and-dry statement.

This ideology of conservative activism got a huge boost in the ’70s when the Court found a “right to privacy” in the Constitution which, if applied logically, would allow them to overturn any law they felt like at their whim. It gave the “strict constructionist” movement the red meat it needed.

Since that point, the unabashed goal of the Republican party has been to stack the Court with conservative activists. And, by and large, the progressives in America have let them do it. I still have friends who talk proudly about voting for Nader in 2000. Many of them were complicit in Trump becoming President, by either staying home or by voting for a third party candidate. And it’s not just Presidential votes, either: Apathetic progressives have repeatedly handed Republicans congressional control. The result is that only three out of twenty judges in the last 50 years have been appointed by a Democrat with a Democratic congress.

So for about twenty years I’ve watched this slow motion trainwreck happening. And now that it’s finally arrived, it’s actually worse than anything I imagined when I was eighteen. Because it’s not just a matter of reversing what the “liberal” court had achieved. It extends beyond that. Kennedy’s replacement will lock in for at least 15-20 years a conservative majority which has already demonstrated that it will:

  • Prevent any form of election reform.
  • Go further than that, and explicitly allow Republicans to rig the electoral system.
  • Go even further than that, and allow Republicans to pass laws dismantling non-Republican political organizations.

And, yes, this conservative court will also dismantle any form of public healthcare, roll back the rights of anyone who isn’t a white, straight, Christian male, and do far more damage besides. But it is this fundamental, anti-democratic core of the new Republican ideology — an anti-democractic agenda which will now be ruthlessly enforced by the Supreme Court — which is the death knell of America.

We need to show up in 2018 and we need to show up in 2020 even more. And not just at the national level: Progressives need to win at the state level in a census year to undo a lot of the damage the Republicans have done over the last decade; and they need to continue winning at the state level consistently for many years to come to make it stick. But the truth is it may already be too late: The Republicans have waged a fifty year campaign to take the keys to the kingdom. Over the last decade, they’ve been working hard to rig the system. And now that they have the Supreme Court, they will use it to lock that rigging into place.

I was recently linked to this story on Facebook: U.S. Government Bans Native American Tribe From Protesting On Their Own Land – Send In Police To Remove Protesters.

As far as I can tell, the linked story is bullshit. First, it’s unclear which judicial action it’s reporting on. The article was written on September 7th, but the only judicial action on that day was actually a victory for Native American protestors.

Digging a little deeper, however, it appears that this is actually just a spam site that’s repackaging a story that got a lot of clicks on Facebook so that it can harvest some of that proven clickbait. It was most likely posted by an algorithm that noticed an uptick in Native American-related or pipeline-related stories on social media, and decided to copy-paste an earlier story on those topics which was a known success at attracting likes and shares.

The story it was copying, however, was actually just a spammy repackaging of actual reporting that had taken place several days earlier by Telesur.

Telesur’s story, however, wasn’t accurate. And their headline (“Native Americans Banned from Protesting Pipeline on Own Land”) was total bullshit. As Native News Online accurately reported, the judge’s order only prohibited them from physically interfering with construction. It didn’t ban them from protesting. Furthermore, the site covered by the judge’s order wasn’t actually on a Native American reservation, so it never banned them from ANYTHING “on their own land”.

So, to sum up: Inaccurate reporting tied to a completely inaccurate headline caused a bunch of fringe websites to post mock-outrage stories about something that wasn’t actually happening. One of those mock-outrage stories remixed the headline into a mostly fact-free rant masquerading as a news story and paired it to a really great photograph that caused people to click it and share it. Then some trashy sites noticed that the post was popular and duped it in order to harvest the advertising revenue.

The photograph, by the way, is actually of a Brazilian man from 2012: “An indigenous man stands as riot police stand guard during the UN Conference on Sustainable Development, or Rio+20, in Rio de Janeiro, Brazil, Wednesday, June 20, 2012. Brazil’s indigenous are protesting the government’s plan to construct the large Belo Monte hydroelectric dam in the Amazon.”

And that’s how most Americans are getting their news in 2016.

Which is a problem. Because, as we’ve just demonstrated, what the algorithms, systems, and mob psychology of social media select for is not the dissemination of truth. It is the dissemination of outrage. When you unthinkingly allow yourself to take in that outrage, you’re doing a disservice to yourself. And when you unthinkingly allow that outrage to drive your actions — even the simple action of hitting a Like or Share or Retweet or Up Vote button — you’re doing a disservice to everyone around you.

You’ll frequently hear authors and IP companies bitching and moaning about the fact that they don’t see a penny when their copyrighted material is sold on the used market. Even otherwise fairly intelligent folks like Isaac Asimov have irrationally believed that people buying used paperbacks were sticking daggers in their backs.

Even if we ignore the ethically tenuous position of people who want to sell you a toaster and then prohibit you from ever selling that toaster to somebody else (which a few weeks ago I would have considered hyperbole, but then the Ninth Circuit Court of Appeals decided it would be a good idea to gut consumer protection and ship American jobs overseas all in one fell swoop), the claim being espoused here is fundamentally nonsensical.

What they’re overlooking (either willfully or ignorantly), is the actual effect that being able to sell used books has on the original customer’s buying habits:

First, it influences their decision to buy. (“I’m willing to pay $50 for this textbook, but only because I know I can sell it back for $15 at the end of the semester.”) If they weren’t able to recoup a portion of their investment, they might never buy it in the first place.

Second, it amortizes risk. (“I dunno if this DVD is worth $20. But I guess if I don’t like it, I’ll be able to sell it for at least $8. $12 isn’t that much of a risk.”) Customers who can amortize their risk are more likely to buy. And if the product turns out to be good, they may not resell at all.

Finally, it injects fresh capital: The $10 you get from GameStop for your video game is often going right back into purchasing a brand new game at GameStop.

This effect is somewhat diffused and may, therefore, not be clear when it comes to books or DVDs or video games. But it’s crystal clear when you look at the auto industry: X buys a $30,000 car from Ford. X sells it a couple years later to Y for $10,000 and uses that money to buy another $30,000 car. A couple years later X sells his new $30,000 car to Y for $10,000, while Y sells the original car to Z for $2,000.

Holy shit! Ford has lost all that money spent by Y and Z! X is ripping Ford off! … right?

Nope. Because (a) X couldn’t afford to buy a $30,000 car every two years if he wasn’t selling to Y; and neither Y nor Z can afford $30,000 new cars. The money from Y and Z is, in fact, funneling right up the system and into Ford’s pocket. And everybody wins: Ford makes more money. X gets fancy new cars on a more frequent basis. Y and Z get cars they otherwise couldn’t afford.

This is why nobody in the auto industry makes a new car that they can sell for $5,000 despite the obvious market for $5,000 vehicles.. They’re already getting the money from the $5,000 market.

As virtually everyone in the world knows, there’s a massive oil spill in the Gulf of Mexico. I’m not going to spend a lot of time harping on details (since they’re well-known and you can Google ’em if you’re curious), but I have two thoughts on the matter I’d like share.

First, blame.

Second, solutions.

THE BLAME

Figuring out who, exactly, is to blame for this catastrophe is going to play out over several months. Possibly years. But there are  a couple things which are abundantly clear:

(1) There’s something rotten with BP. When you’ve racked up 700+ safety violations at your deepwater drilling platforms and every other oil company has less than a dozen… well, it doesn’t take a genius to figure out that BP was doing something wrong.

(2) Under President Bush, the Minerals Management Service somehow managed to devolve into the sort of cocaine-snorting, sex-addled, graft-ridden machine of corruption one really only expects to see in Hollywood action blockbusters. This was part of the Bush Administration’s wider failure to maintain the robust regulatory agencies required by law. (See also No One Would Listen: A True Financial Thriller.) And the election of Obama didn’t magically fix these problems.

Since the Deepwater Horizon rig exploded, the MMS has approved 27 new offshore drilling projects. All but one of these were granted the same exemptions from environmental review as the Deepwater Horizon platform. Incredibly, the reason these exemptions were granted is because of the implausibility of a spill resulting from deep water drilling.

(3) President Obama isn’t to blame for the current spill. Nor is it clear to me what action he could reasonably be taking at this point to speed the progress of disaster efforts in the Gulf. (Getting angry or wearing a less-fancy shirt won’t actually accomplish anything, no matter what the brain-dead, narrative-addicted media tries to tell you.)

But where Obama does deserve to be smacked around is the fact that he decided to reverse course on his campaign promise not to allow off-shore drilling. Of course, there was no way for Obama to know that the Deepwater Horizon disaster was coming (and that, as a result, he was irreparably shooting himself in the foot and wasting what could have been amazing political capital and a complete vindication of his policies).

But what Obama should have known is what everyone who supported his opposition to off-shore drilling knew years ago: Off-shore drilling platforms are not some form of magical technology which is completely impervious to bad luck, bad design, or bad maintenance. Like everything else ever built by man, this technology is fallible. And, as we’re seeing, the environmental impact when something goes wrong can be huge.

THE SOLUTION

All that being said, I have the solution for stopping the oil spill.

This isn’t because I’m a genius. It’s because everyone involved already knows what the solution is: Drilling relief wells which can be used to repressurize the pipe.

Drilling Relief Wells

Everything else going on in the Gulf of Mexico right now is a sideshow of bread and circuses designed to keep people mildly appeased and distracted until the relief wells finally reach the right depth. (Which isn’t anticipated to happen until August.) Relief wells are the only way we know to stop spills from blowouts.

We know this because all of this has happened before: On June 3rd, 1979, the Ixtoc oil well suffered a blowout. All of the same techniques being attempted at Deepwater Horizon were attempted at the Ixtoc: Garbage was dumped into the hole. Mud was pumped into it. Chemical dispersants were used. A massive Top Hat-like cap was unsuccessfully lowered into place. (It was called — and I wish I was kidding as I said this — SOMBRERO.)

And the only thing that finally stopped the Ixtoc blowout were the relief wells that were finally drilled to relieve the pressure. The Ixtoc well was not successfully capped until March 1980.

So here’s the hard, bitter truth: There is absolutely nothing that can be done about this spill until the relief wells currently being drilled are completed.

But here’s what needs to happen in the future: Instead of waiting for disaster to strike before beginning the relief wells (which will then take months to reach the necessary depth), oil companies should be REQUIRED to maintain two relief wells in addition to their main well at ALL of their ocean oil rigs.

The next time disaster strikes, these pre-drilled relief wells can be quickly connected to the main well, pressure can be rapidly alleviated, and the scope of the disaster can be rapidly contained.

The Pride Cul-de-Sac

February 5th, 2009

(1) The first step on the path of maturing as a human being is the acquiring of a sense of self — learning the distinction between Self and the Others around you.

(2) The necessary precept of the tribe also necessitates our ability to identify ourselves as a member of a larger group, creating a sense of Us versus the Other.

(3) This sense of community has resulted in many good things — its the basis of cooperation and civilization. However, it also a darker side: The origin of all prejudice lies in the instinctual elevation of the individual’s immediate community (Us) above other communities (Other).

(Some of this is an outgrowth of our natural competition as a species. But part of it is an unhealthy tendency to elevate oneself not through personal achievements but by denigrating others: The poor pale-skinned southern farmer can feel good about himself because he “knows” himself to be superior to those with dark skin. The abusive husband mitigates his own failures in life by destroying his wife. And so forth.)

(4) Cultural or systemic prejudice sets in when the other becomes subjugated — either physically or ideologically — into accepting the elevation or “superiority” of the other group.

(5) The natural first step in attempting to liberate the oppressed and create a proper equality between two separate communities, therefore, has been to increase the pride of the oppressed group. Blacks must first be willing to have pride in themselves before they can fight for their rights. Women must have pride in themselves before they can leave the feminine mystique of “housewife”.

(6) However, there is a trap. First, and most obviously, the search for pride can often tap into that same instinctual elevation of the individual’s immediate community. Thus, it’s not enough for women to claim their rightful place as human beings… all men must become rapists. It’s not enough for the slaves to be set free… the slavers must be made the slaves.

(7) The more insidious trap, however, is that be emphasizing the need for pride, the civil rights movements deepen the sense of identity in the community. But it is the very distinction between communities which allows the racists or the sexists to flourish.

When there is a legitimate basis for the community, the possibility of prejudice against that community is unavoidable and must simply be guarded against with constant vigilance. For example, a Jew or a Catholic or a Republican all have a legitimate community.

But what about those communities which only exist because of prejudice? Why, for example, are all those with dark skin grouped together into a single community whereas all those with blue eyes or red hair are not similarly grouped together?

These illegitimate communities are, fundamentally, part of the problem. Ironically, however, they have also been made part of the solution: By creating a sense of pride in a community which, by all rights, shouldn’t exist, the illegitimate community is perpetuated and the fundamental foundation on which all prejudice is built remains intact.

At some point, therefore, it follows that the illegitimate community must be discarded entirely and the foundation ripped away. But here the trap snaps shut: In order to fight back against prejudice, the civil rights movement has fostered a sense of pride in the illegitimate community. In doing so they have turned that community into a force capable of effecting societal change… but it has also led them into a cul-de-sac. Such a movement can effect great change, but — like a man trying to pick up the board on which he is standing — it will find itself fundamentally stymied in attempting to rip away the foundation in which the prejudice it fights takes root.

The question then becomes: How do you escape from this pride cul-de-sac? How can a community voluntarily — and positively — disassemble itself?

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