"In the end, we will remember not the words of our enemies, but the silence of our friends."—MLK

Wednesday, October 26, 2016

Imperfectability and the inevitability of reform

One of the principles of a conservative approach to politics & life is the idea of imperfectability. No perfect order exists this side of heaven, and all human endeavors have faults and failures. The late Russell Kirk expressed this concept well in his summary, Ten Conservative Principles:
Sixth, conservatives are chastened by their principle of imperfectability. Human nature suffers irremediably from certain grave faults, the conservatives know. Man being imperfect, no perfect social order ever can be created. Because of human restlessness, mankind would grow rebellious under any utopian domination, and would break out once more in violent discontent—or else expire of boredom. To seek for utopia is to end in disaster, the conservative says: we are not made for perfect things. All that we reasonably can expect is a tolerably ordered, just, and free society, in which some evils, maladjustments, and suffering will continue to lurk. By proper attention to prudent reform, we may preserve and improve this tolerable order. But if the old institutional and moral safeguards of a nation are neglected, then the anarchic impulse in humankind breaks loose: “the ceremony of innocence is drowned.” The ideologues who promise the perfection of man and society have converted a great part of the twentieth-century world into a terrestrial hell.
The conservative rejection of the idea of a perfect temporal order goes hand in hand with the conservative emphasis on reform. To be a conservative is to embrace the principle of reform, that institutions and policies must undergo rejuvenation when necessary to remain relevant in the fact of the relentless change that besets all things under the Sun. For this reason, ideologies that seek to freeze human government or society at a certain point are doomed to produced miserable failure, for the friction of change produces heat that melts away all attempts at stasis.

For a conservative, principle remains steady, but the application of principle varies from time and time, culture to culture, circumstance to circumstance. What works for one people in one era may not work for a different people in a different era. Imperfectability and the inevitability of change make provisional all human arrangements: the only constant is change. For the conservative, though, the type of change, the type of reform, makes all the difference. Change in continuity with the past, developmental change that preserves diversity, community and human flourishing is the conservative goal. Not the preservation or restoration of a Golden Age that never existed, but the continuing expansion of the human spirit to avoid what Kirk identified as the two-fold threat to civic order: violent discontent or fatal boredom.

Tuesday, October 25, 2016

O'Sullivan's Law, in Real Time

O’Sullivan’s Law [named after British journalist John O’Sullivan] 
 states that any organization or enterprise 
that is not expressly right wing 
will become left wing over time.

Colin Powell joins 68 Republican politicians, donors and officials who are supporting Hillary Clinton
 It's not all grudging support, either. From the compilation:
"Grant Woods, former attorney general of Arizona -- "Hillary Clinton is one of the most qualified nominees to ever run for president."
Brent Scowcroft, chairman of the President's Intelligence Advisory Board and adviser to three previous Republican presidents — "The presidency requires the judgment and knowledge to make tough calls under pressure. ... [Clinton] has the wisdom and experience to lead our country at this critical time."
James Clad, deputy assistant secretary of defense -- "There is no choice: In razor sharp contrast to her opponent, Secretary Clinton is ready, steady and prepared. With a proven preference for bipartisanship, she must win this election."
Lezlee Westine, former White House director of public liaison and deputy assistant to the president — “Our nation faces a unique set of challenges that require steady and experienced leadership. That is why today I am personally supporting Hillary Clinton."
Jim Cicconi, former Reagan and George H.W. Bush aide — "Hillary Clinton is experienced, qualified and will make a fine president."
Meg Whitman, former Hewlett-Packard chief executive and California gubernatorial nominee — "Donald Trump's demagoguery has undermined the fabric of our national character. America needs the kind of stable and aspirational leadership Secretary Clinton can provide."
I will tell you why I think these nominally conservative career Republicans are extolling the virtues of a pro-big-government, pro-living-constitution, pro-choice, pro-identity-politics progressive Democrat. But it will make you wince: 

Trump tells it like it is.
It is one of his supporters' most common praises of him. "He tells it like it is." Drives people crazy, and even perplexes Trump's more squeamish supporters: you just mean he's not a stiff, stock pol -- but you do see he's...off, though, right? 

No, Trump doesn't really tell it like it is. Not more (and probably not appreciably less) than any political candidate, who can rattle off a prepared factoid here or there but otherwise takes liberties in other to relate a broader narrative and offer authentic observations: "we don't make anything anymore"; "we don't win anymore." These are not accurate statements, but they ring true to many. These are what people have in mind when they explain: he tells it like it is.

But that is only the more obvious sense, a sense that does not explain why careerist Republicans and conservatives are supporting their putative antithesis. A sense that is true of any generic politician.

So what is so uniquely genuine about Trump that 68 career Republican politicians (not to mention the legions of pundits and public intellectuals who've put their "thought leadering" to other purposes) publicly supporting his -- their -- adversary? Why would they do this? 

The careerists would have you believe they are seeing the same things you and I are seeing, but, owing only to their savvy and experience, they simply have drawn a different conclusion than most of their current and erstwhile constituents. But I do not think so. I think, though I cannot prove, that these careerists have become used to listening for something from candidates, something they do not hear coming from Trump. They have tuned and adjusted their dials every which way, but get nothing but static. They cannot pick up that pirate-radio signal from Trump, the way they usually do, where -- while the candidate promises transparency and reform to the masses -- the pols, consultants, special interests, and think tanks, hear assurances that the old, familiar customs and channels for buying and selling influence will remain unchanged.

This much, at least, is certainly true: no one can accuse Trump of speaking in code, the usual way of attacking a candidate's character and motives. No, he barks his offensive remarks square in the ear. No one can attack him for telegraphing to donors and thought leaders that he really stands for the status quo, or that he does not intend any of his high-minded language about reform to upset entrenched interests. Trump is the political puppy that could not be house-trained. He struggles enough to convey his text; perish all thought of a subtext.

To repeat, I cannot prove politicians speak in subtext, let alone what the subtext says. But I can think of nothing else to explain why conservatives do not govern at all like they campaign. Paul Rahe:
We can elect conservatives. We can elect them in a landslide, giving them more governorships, state houses, and more seats in Congress than Republicans have had at any time since 1928 — and nothing happens. The administrative state continues to grow; the progressives in charge force the states to accept same-sex marriage and men in the ladies room; they persuade all the universities in the land to institute an inquisition to hound and ruin young men who have incurred the pique of a young woman or two by stealing a kiss or (more often) by ceasing to steal kisses; and they promise to censor political dissent by identifying as “hate speech” any statement that breaks from orthodoxy.

In response, what do the conservatives in office do? They cower; they run; when put under pressure, they fold (yes, Mike Pence, it is you I have in mind). And when the Presidential candidate foisted on their party by popular fury aimed, in fact, at them speaks an unpleasant truth, they wring their hands. Theirs is the party of the white flag. They show their talents best in retreat.
Prof. Rahe is too gentle. Republicans control the Congress, and not only do they fail to defund the reckless bureaucracy's leftist career civil-rights lawyers, they increased their budget. And when conservatives worked to put a gruesome Planned Parenthood scandal in the public record in time to remove its further funding from the federal budget -- a cause David Daleiden risked prison for -- Republican leadership did nothing.

Our politics may not work well,
but it works.

Politicians may not achieve what we want,
but they achieve what they want.

Trump is unique, in other words, not because what he says is true. He is unique because he says what he says -- full stop. What he says is often crass, but it is not coded. We may judge Trump good or bad, but he restores to us this forgotten privilege: that we may judge him as equals.

We have been electing people who say conservative things, but fail to do conservative things. These are the people who now would tell us that because Trump has not done conservative things, conservatives should not elect him. Forgive me, but I am more alarmed by the careerist conservatives, having taken of our time and treasure with no meaningful conservative accomplishments to show for it, now telling us the way to advance the cause is to vote against the insufficiently conservative candidate who promises progress against political corruption, in favor of the candidate who promises Progress against everything but. I cannot prove it, but I suspect these careerists can still pick up that pirate-radio signal from KHRC, broadcasting from a bunker deep inside fortress D.C., safe from the public, whispering in their ears: 'We're still here. You will be safe with us.'

To adapt C.S. Lewis, there may be two views about conservatives, but there’s no two views about things that look like conservatives and aren’t.

Monday, October 24, 2016

Human life is not too controversial

[Reprinted, with the exception of the opening quoted exchange and video along with some minor revisions, from my 2013 post at another site about censoring imagery critical of abortion. The images in that post were later removed. -tk]

This brief exchange, ending with a Democratic senator refusing to engage further, is about as far as typical public discourse extends on this important public issue:
Sen. Santorum: “Obviously, you don’t mean they have to take the baby out of the hospital for it to be protected by the Constitution. Once the baby is separated from the mother, you would agree—completely separated from the mother—you would agree that the baby is entitled to constitutional protection?”
Sen. Boxer: "I don’t want to engage in this.”

That is because the rhetorical case for protecting the unborn has succeeded. The debate is over.  It would be, that is, had the Supreme Court not issued – in Justice Ruth Bader Ginsburg’s own words – a “difficult to justify,” “heavy-handed judicial intervention” in Roe v. Wade 40 years ago.  Today, nearly two-thirds of Americans support making abortion generally illegal after the first three months of pregnancy.  A staggering four-fifths support bans in the last three months.  So if the pro-choice movement is just a paper tiger subsisting on the likes of distasteful “war on women” memes, how is it still so powerful?

Never underestimate the media as an ally.  True, people cannot justify the unjustifiable killing of a distinct, self-directing human life. But in this multimedia age, intellectual arguments simply do not carry the day.  Only pictures can tell a story and inspire people to action.  Without pictures, abstruse sophistry about zygotes and blastocysts lull readers into false complacency, while veiled accusations of waging “wars” on science and women cow them into silence.

Pictures change all that.  No one knows that better than the media.

LifeNews reported that The Chicago Tribune, USA Today, and the LA Times refused to run an advertisement showing a hand holding a 20- to 24-week-old baby, pictured above, created by Heroic Media.  The pro-life organization said they were told the ad was “too controversial.”

Objectively speaking, there is nothing controversial about the picture in the ad.  It is a human fetus pictured during a stage of development an overwhelming majority of Americans believe ought to be protected by law.  The text of the ad asks for support to “stop abortions from being allowed after 20 weeks when a child feels pain” – again, something a vast majority already support.

The only potentially objectionable content is, perhaps, the call to “Stop the War on Children.”  As a reason for not running the ad, however, this does not wash.  First, the Chicago Tribune, after refusing the initial ad, did accept an alternative ad, pictured below. The alternative ad features the very same copy as the original, including the “War on Children” reference.  The only difference is the imagery: 

Moreover, the Tribune does not seem to have a problem with “war on” references.  The first four links that came up on a Google search for the phrase “war on women” at the Tribune were these:
There were more Google results, as well as other examples of “war on” and “anti-women” references on the Tribune’s own site under “Related Articles” for the above linked pieces.  But there is no need to belabor the point.  If “war on” and “assault on” rhetoric is “controversial,” it is only disqualifyingly so when it comes to disfavored causes.

But as I said, in the battle for minds, rhetoric has only won the abortion-rights camp between a fifth and a mere third of America.  In the battle for hearts, I’d wager their ranks are thinner still.  They are right to fear photos like these.  Their proliferation would lay waste to what remains of their cause.

Sunday, October 23, 2016

"Camelot Can Wait—Fact-Check the Coconuts"

No less than King Arthur himself (in Monty Python's telling, that is) was subjected to ruthless, disinterested -- nay, uninterested -- fact-checkers, even in a cause so great as the quest for the Holy Grail: 

ARTHUR: We have ridden since the snows of winter covered this
land, through the kingdom of Mercea, through--
GUARD #1: Where'd you get the coconut?
ARTHUR: We found them.
GUARD #1: Found them? In Mercea? The coconut's tropical!
ARTHUR: What do you mean?
GUARD #1: Well, this is a temperate zone.
ARTHUR: The swallow may fly south with the sun or the house martin
or the plumber may seek warmer climes in winter yet these are not
strangers to our land.
GUARD #1: Are you suggesting coconuts migrate?
ARTHUR: Not at all, they could be carried.
GUARD #1: What -- a swallow carrying a coconut?
ARTHUR: It could grip it by the husk!
GUARD #1: It's not a question of where he grips it! It's a simple
question of weight ratios! A five ounce bird could not carry a 1 pound
Needless to say, Arthur's invitation to join his Court at Camelot never made it to the fact-checkers' master.

Monty Python's Quest for the Holy Grail was farce, of course, but today's improbably serious fact-checkers blur the distinction to near seamlessness.

Mark Twain said "If you don't read the newspaper, you are uninformed; if you do read the newspaper, you are misinformed." Left out, however, was misdirected. The press, observed Bernard Cohen in 1963, "may not be successful much of the time in telling people what to think, but it is stunningly successful in telling its readers what to think about." Cohen was echoing a similar sentiment expressed in the 1922 classic Public Opinion by Walter Lippman, co-founder with Herbert Croly of The New Republic.

The problem is a sort of inverse of the "don't think of an elephant" trick: Do think of an elephant. Think of a whole herd of wild, aggressive elephants. And they're stampeding their way toward a populated area. Now think of the journalists covering the discussion of what is to be done:
Candidate X says "swift action must be taken to defend against the mammoth beasts, as the populations in harm's way lack the necessary resources and equipment to divert or repel them on their own."
But fact-checking Candidate X's claims reveals the animals in question are in fact not "mammoths" at all, but a species of African bush elephant. The extinct mammoth line is actually most closely related to the Asian elephant. We rate Candidate X's claim partly false. 
This kind of "journalism" about elephants does not bear the slightest relevance to the elephant story at hand: to the reader concerned for his family's orchards the journalist talks only about the elephant's family tree. It is not the connection the elephant's tusks have with the mammoth that troubles the reader, but the connection the tusks are about to have with him.

That example is hypothetical. But it is not exaggeration:

Were you curious about the Democratic nominee's participation in the professional-grade wiping of the same server she claimed hosted only yoga and wedding-planning emails? I.e., why was the server wiped, and was Clinton involved? Did this "journalism" satisfy? After parsing it, do you even remember the question?

Were you confused -- do you know anybody who was confused -- was even capable of being confused -- about whether there is some kind of meaningful distinction between a "red line" and a "line in the sand"?

Meanwhile, the elephants are upon us. And thus the first question an intelligent people will ask of their journalists is: what is their motive? For a disinterested journalist is less than worthless -- is positively harmful -- if he has become also uninterested in the things the public values. As in the case of John Harwood, whose thumb is putatively so squarely on the pulse of the American public he was chosen to moderate one of the Republican debates, yet confessed he found it "[a]mazing...that some people still think it's worth burning so much interview time with [the] person most likely to be [the] next president on her emails."

"Granted that he states only facts," said G.K. Chesterton, "it is still essential to know what are his emotions, what is his motive. It may be that twelve hundred men in Tottenham are down with smallpox; but we want to know whether this is stated by some great philosopher who wants to curse the gods, or only by some common clergyman who wants to help the men."

Or by some fact-checker mooching for coconuts.

Thursday, October 20, 2016

What's the foundation of national pride? Pres. John Adams gives us an answer!

"If national pride is ever justifiable or excusable it is when it springs, not from power or riches, grandeur or glory, but from conviction of national innocence, information, and benevolence."

Inaugural Address (March 4, 1797). 

Wednesday, October 19, 2016

On Writing Law Review Articles for the Marketplace of Ideas: Leaders' Questions in the Irish Parliament

Micheál Martin (Leader of the Opposition; Cork South Central, Party: Fianna Fail) 

Dáil debates, Kildare Street (Oct. 18, 2016, 2:05 P.M.), 
https://www.kildarestreet.com/debates/?id=2016-10-18a.5, https://tinyurl.com/jm4lbzs

"The Court of Appeal backlog could take over a decade to clear. That is not my assessment but that of Mr. Seth Barrett Tillman, law lecturer at Maynooth University. I understand--perhaps the Taoiseach will confirm if this has happened--that the Chief Justice and the President of the High Court have approached the Government with a view to having more judges appointed to the Court of Appeal. Either that has happened or it has not." 

Fianna Fail Leader Micheál Martin was quoting from my: Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34 Irish Law Times 210 (2016), http://ssrn.com/abstract=2816458 (also available on Westlaw.ie).

Willie Penrose TD (Labour, Longford-Westmeath), Dail Debate on the Judicial Appointments Bill 2016: Second Stage, Houses of the Oireachtas (Oct. 26, 2016), https://oireachtas.heanet.ie/mp4/dail/latest/dail_20161026T085459.000009.mp4 (at 41:50ff) (discussing a Maynooth academic’s research).


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Modern Scholars Who and Prior Courts which Understood Ex parte Merryman, The New Reform Club (Oct. 9, 2016, 4:59 AM), [Here

Counterfactual Wiki: The Jungle

The Jungle                                                                          

Not From Wikipedia, the free encyclopedia 

     For other uses, see Jungle (disambiguation).

The Jungle is a novel written by the American journalist and novelist Upton Sinclair.[1] Sinclair wrote the novel to portray the harsh conditions and exploited lives of working- and middle-class Americans in the United States.[2] The book also was a window into the American sausage-making industry, exposing rampant violations and unsavory practices and leading a large and vocal contingent to call for reforms.[3]

However, most readers regarded the book as essentially divisive and ideological. A Meat Inspection Act was proposed, but a Congress insulated by strong political parties ultimately voted it down after industry advocates condemned it. Politicians rebuffed questions about the putrid conditions in the sausage factories as short sighted and issue-centric, rather than pragmatic and coalition-building legislation more typical of Congress's work. As one Congress member put it: “In the regular party, conferences on issues are regarded as women’s work.”[4]

Even as support continued to grow for meaningful reform to curb the abuses in the sausage factories, politicians and intellectuals refused to reconsider the Act. Defending national leadership against widespread claims of back-scratching and logrolling, many academics explained them as signs of a healthy political system, not a corrupt one: “To demand high standards of democratic deliberation . . . is to potentially slow, dampen, or even deny the ability of energetic leadership to play its mobilizing function and enact effective policies in a timely way."[5]

The Jungle also depicts struggling working class conditions, failing social supports, deteriorating living conditions, and a hopelessness and isolation among many Americans. These elements are contrasted with the deeply rooted corruption of people in power. Critics, however, denounced Sinclair's themes as "a tail-chasing, tree-munching, all-consuming, ever expanding, and by now entirely counterproductive war on corruption. Perhaps the hardest of all default assumptions to reset is the idea that most of America’s political and governmental ills are the result of some version of corruption and that the remedy involves some version of amateurism."[6]

Reaction to Sinclair's Morals and Character                    

Though initially boasting strong sales, The Jungle went out of circulation after its second printing. A suspected anti-Semite and Socialist, and a sexual-abstinence advocate who nonetheless left his first wife following an adulterous affair, Sinclair's character was simply too fraught and outside the mainstream for a widespread paperback readership. 

Sinclair's initial support among writers and artists, with his interest in occult phenomena and experimentation with telepathy, also waned. Science-fiction author Robert A. Heinlein deeply supported Sinclair's ideas, although he attempted to distance himself later in his life.[7] 

In his novel, Mammonart, he suggested that Christianity was a religion that favored the rich and promoted a drop of standards. He was against it.[9]


1. The Jungle: Upton Sinclair's Roar Is Even Louder to Animal Advocates Today, Humane Society of the United States, March 10, 2006, archived from the original on January 6, 2010, retrieved June 10, 2010. 

2. "Upton Sinclair", Press in America, PB works.

3. Fox Election HQ, "Krauthammer: WikiLeaks Dump 'The Camera in the Sausage Factory'". 

4. Daniel Patrick Moynihan, "'Bosses' and 'Reformers': A Profile of the New York Democrats," Commentary, June 1, 1961. 

5. Thad Williamson, The Tangled Relationship of Democracy, Leadership, and Justice in Urban America: A View from Richmond (2014). 

6. Jonathan Rauch, Political Realism: How Hacks, Machines, Big Money, and Back-Room Deals Can Strengthen American Democracy (2015).

Tuesday, October 18, 2016

Bleating at Sheep

PBS: "Trump overwhelmingly leads rivals in support from less educated Americans"

The Washington Post: "Donald Trump’s surge is all about less-educated Americans"

"Historians Against Trump" in "An Open Letter to the American People":
 As historians, we consider diverse viewpoints while acknowledging our own limitations and subjectivity. Our profession reminds us to look for the humanity in everyone as we examine the ideas, interests and movements that shape world events. We interrogate and take responsibility for our sources and ground our arguments in context and evidence. Donald Trump’s record of speeches, policies and social media is an archive of know-nothingism and blinding self-regard. Donald Trump’s presidential campaign is a campaign of violence: violence against individuals and groups; against memory and accountability; against historical analysis and fact.

We have a professional obligation as historians to share an understanding of the past upon which a better future may be built. This means equipping the public with historical skills [skills to do what? -tk] and narratives that are “factual, accurate, comprehensible [to whom?--are we to presume Trump and his supporters are unable to comprehend "narratives that are factual and accurate," or that such narratives would not interest them? -tk], meaningful [whose meaning?--are we to presume this follows the project of "acknowledging our own subjectivity? -tk], useful [toward what "use"? -tk], and resistant to cynical manipulators who sell snake oil as historical truth.” [But one person's "meaningful," "useful" "narrative" is truth, just as much as it is "snake oil" to another. -tk] When Donald Trump accepts the Republican nomination on July 21st, a Grand Old Party born out of the struggle for abolition and justice will have succumbed to snake oil. We are here to say, “No more.” Join us in standing up to Trump—for our history, for our future, and for each other.

Historians Against Trump Organizing Committee:
Brian Dolber
Amy Harth
Caroline Luce
David Schlitt
Jonathan Zimmerman: "Why I’m Not Joining ‘Historians Against Trump’":

… I won’t join Historians Against Trump, which indulges in some of the same polarized, overheated rhetoric used by Trump himself....

What were Washington's views of religion and civic life? His Circular Letter provides the answer!

George Washington's pronouncements regarding civic religion were usually couched in general language. He rarely referred to God in specific confessional terms, for example, but rather used generalized language that reflects often common 18th century rational theistic terminology. This use of generalized language was often paired with terminology designed to appeal to religious believers of a more orthodox Christian persuasion. It is this pairing that more often than not leads, I think, to a good deal of the confusion regarding Washington's own religious beliefs and his view of faith in public life.

A good example of Washington's use of language in this regard can been seen in one of his more significant public pronouncements, the Circular Letter to the Governors of All the States regarding the disbanding of the Continental Army in 1783. In that letter, Washington seeks to reinforce the stability of the early American Republic as the Continentals returned home after winning independence.

Washington makes two particularly important points regarding the role of religion in civil life. The first is that for a variety of reasons, including divine "Revelation," human society is improving:
The free cultivation of letters, the unbounded extension of commerce, the progressive refinement of manners, the growing liberality of sentiment, and, above all, the pure and benign light of Revelation, have a meliorating influence on mankind, and increased the blessings of society. 
Note that Washington, while listing many human accomplishments in this process of improvement, he attaches priority to "the pure and benign light of Revelation." Washington does not specifically identify where God's Revelation is found, but in traditional Christian theology Revelation is found in both scripture and the natural world. To his audience, the leaders and citizens of the newly independent American nation, the use of the term "Revelation" would have carried the resonances of biblical religion and an understanding of the natural world known through reason.

And for Washington it was divine Revelation that was most to account for the progressive improvement in human society. Not a dry and cramped secularism or a humanism operating in a universe where God is simply an inattentive watchmaker, but Revelation proceeding from an active God who was communicating with human beings, moving them constantly forward toward a better future. Washington argues that because of these many advantages -- both human and revelatory -- the happiness of the citizens of the United States as "a Nation" (and Washington uses both the singular indefinite article and a capital "N") is for the taking. If happiness and freedom do not result, "the fault with be entirely" our own.

Washington's second point reinforces the importance of God's action in human events by commending the state governors and their respective states to divine care. "I now make it my earnest prayer," he writes, "that God would have you and the State over which you preside, in his holy protection[.]" Washington hopes that God would move the citizens of the country to "cultivate" a host of proper civic virtues: obedience to governmental authorities, fellow-feeling for each other -- both fellow citizens and particularly for the returning veterans of the Continental Army -- and, most interesting, to emulate those virtues "which were the characteristics of the Divine Author of our blessed religion[.]" (Italics in the original.) After including a brief and common list of those virtues, Washington states that without "an humble imitation" of the example of the Divine Author, "we can never hope to be a happy nation."

What one sees in Washington's Circular Letter is language used that is confessionally non-specific, but which takes for granted certain key religious ideas: 1) God is active in human affairs, moving human beings towards greater goodness and social solidarity; 2) because of the advantages they benefit from, the citizens of the United States are responsible for their freedom and happiness; and 3) human beings are called to imitate the attributes of God as He has Revealed them.

Washington's Circular Letter is not a fully developed treatise in civic theology, but it does manifest the key points of Washington's own views about the role of religion in human society. And Washington's vision in that regard was one that viewed religion as a positive force in human life and civic affairs. It is not, to say the least, a vision of civic life that is hostile to religious faith. While couched in language that is not expressly orthodox, it is couched in language that is amenable to orthodox interpretation. Far from religion ruining everything, to borrow a phrase from the late Christopher Hitchens, for Washington religious faith stands as the well-spring for civic virtue and human happiness.

Something to keep in mind in election season 2016.

Monday, October 17, 2016

"If You Like Your Doctor's Advice, You Can Keep Your Doctor's Advice": A New State Challenge to "Medical Judgment"

California enacted a controversial law last year, known as SB277, that abolished the religious and personal-belief exemptions to state-mandated child vaccinations. One remaining exemption, however, is at the heart of the law: the physician exemption. Under that exemption, if your child is contraindicated (that is, medical circumstances suggest your child is more likely to suffer adverse reactions), then your physician still may exempt the child from certain vaccines.

In 2014, Dr. Bob Sears wrote an exemption for a two-year-old who suffered adverse reactions to prior immunizations. Sears is an outspoken supporter of both vaccines and vaccine choice. He is respected by opponents of SB277 for his even-handedness on the fraught subject. The California Medical Board is now accusing Sears of "gross negligence" related to the 2014 exemption. The Board alleges Sears failed to get written medical history concerning the child's prior adverse reactions.* "If the board finds Sears negligent," the Orange County Register reports, "he could face discipline ranging from a public reprimand to revocation of his medical license."

This is unusual to the point of unique. From a legal perspective, that is. From a policy perspective, the chill down the spine should feel familiar; more anon. But the law to date has steered well clear of the physician's prerogative to advise his patient. For example, in Doe v. Bolton, the 1973 companion case to Roe v. Wade, the Supreme Court described a physician's "medical judgment" as follows: 
"medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient." 

Over three decades later in 2005, the LA Times remarked that this broad standard meant that, in effect, "any abortion could be justified.”

And so it went. In fact, only in the cases of serial killers has the law found the physician's time-honored discretion to have been exceeded. Ramesh Ponnuru:
How would a prosecutor be able to overcome a defense rooted in the abortionist’s claim that a late-term abortion was needed to protect the mother’s emotional health? Is there any evidence that abortionists have been prosecuted or lost their medical licenses in this way? (I have read of only two successful prosecutions for illegal late-term abortions since Roe: those of the “Butcher of Avenue A” in New York in the early 1990s and of Kermit Gosnell in 2013, both of whom were also convicted of many other counts.)
Nothing on the face of California's SB277 suggests it means to cabin physicians' advice concerning your children or immunizations. Where the law is codified in the Health and Safety Code (at section 120370), it contemplates physicians will consider all "medical circumstances," echoing the practically limitless "medical judgment" language of Doe v. Bolton. More than 40 years after Doe, in other words, scrutinizing physicians' judgments advising abortion is simply unheard of. And yet less than a year after SB277, California is targeting a well-known physician for offering a patient his medical judgment.

As mentioned above, the attentive will find this familiar. The state's intimidation strategy is taken from the same page as the EPA -- that is, "how the Romans used to...find the first five guys they saw and they'd crucify them," as described in a 2010 presentation of one of its officials, Al Armendariz:
“I was in a meeting once and I gave an analogy to my staff about my philosophy of enforcement, and I think it was probably a little crude and maybe not appropriate for the meeting, but I’ll go ahead and tell you what I said:

“It was kind of like how the Romans used to, you know, conquer villages in the Mediterranean.  They’d go in to a little Turkish town somewhere, they’d find the first five guys they saw and they’d crucify them.

“Then, you know, that town was really easy to manage for the next few years.”
So even if Sears survives, it would be cold comfort to say "the system worked." By design, the process is the punishment: downstream pediatricians less prepared than Sears for litigation and negative publicity will have to strongly consider preemptively changing their medical counsel.

The state sees vaccines as a generally-applicable policy for the entire public. But until now, a conscientious, patient-centered physician would treat vaccines just like anything else: an independently-considered choice for each individual patient. To learn if this holds much longer, watch this space. 

So if you like your doctor's advice, you can keep your doctor's advice -- until, that is, the state threatens your doctor's medical license, in the service of a policy objective. In that case, it's more likely either your doctor will change his advice, or he'll stop being your doctor. Or anybody else's.

*From personal experience and research, I can relate that many pediatricians are loathe to entertain the possibility that any symptoms are caused by vaccines -- even symptoms explicitly stated on the label -- and thus are unlikely to document them as anything but routine ailments.