Riding the asymptote

A trio of impossible topics

“This week’s newsletter will be brisk,” I wrote before starting it. If you want to make God laugh, et cetera… What I meant was, “I have several topics that I want to write about but since I’m not yet ready to commit pen to paper on them, and since I’m enjoying the discipline of publishing on a fixed schedule rather than as I please (to wit, Sunday afternoons), I’d better just look around and see if there’s anything that happened this week meriting comment.” Three things, as it turns out, and none of them were brisk.

Let’s start with Senate Minority Leader Mitch McConnell (R-Ky.). He is 81 years old. He joined the Senate in 1985 and became the Republican leader there in 2007. He has recently and publicly experienced two “senior moments” where he has seemed to “lock up” for awkwardly long times while talking to journalists. While McConnell has had a long and successful career as the outfoxiest of outfoxers who ever outfoxed, this is the beginning of the end for him. The blood’s in the water now.

Think of a well-feared but elderly mob boss. No one would talk openly about succession, still less, challenging him. But one day, at a garden party, everyone sees the don redden and clasp his chest. He sits down quickly. The Whispering starts. The Consigliere does the rounds, insisting that the don simply bit into a chili pepper. And it might have worked, but days later, the don is seen wincing in pain, clutching his left bicep, and again bolting for the chair. Now the whispers are unstoppable, no matter his actual medical status, and no matter what the consigliere says. That’s where we are with McConnell. One lapse, he could have brushed off, just as the Chief Justice did with his 2007 seizure. Two is pushing it. If it happens once more, the whispers will become murmurs.

To be sure, I understand why many Republicans are scornful of the media’s coverage. Why, they might point out, other than raw partisan bias, should the infirmity of the Senate Minority Leader be of such outsized concern given the obvious infirmity of the President of the United States? And there’s something to that. Joe Biden, a year younger than McConnell, is declining quickly, whether from age or the pressure of an office that abrades its incumbents. One can argue that in holders of powerful offices, defaulting to silence is a better failsafe than defaulting to talking nonsense; even his defenders acknowledge that Biden has always been a “walking gaffe machine.” And to be sure, I’m biased. While most people only learned that they hated Biden when he won the Democratic nomination, I’ve hated him for years. When Obama selected Biden on August 23, 2008, my reaction was “Ugh . . . Just—ugh. Ugh.” I called him “the laughing stock of politics, a caricature of everything that is wrong with the Senate and the Supreme Court confirma[t]ion process.” And that was Biden in (relatively speaking) his prime! He is now very far from that.

Nevertheless: “But that other kid did it too, he’s just as bad” didn’t work with momma when you were seven and it ain’t gon’ work today. The fact that Biden (and Feinstein and Fetterman, and the list goes on) is also cognitively impaired is an argument for their retirement, not against McConnell’s.

And I understand why McConnell doesn’t want to go. Quite apart from anything else, absque me, tempestas venerit. “If not for me, the storm will descend [on you]!” He sees himself as holding the line against the populists. He fears that if he retires, the Trump cult gets his post. In McConnell’s mind, it is 1977 and he is a Cardinal of the old-line who thinks they can ride this out and elect a normal pope and resume normal business, right after the fever breaks, which must surely happen any day now. Trump-skeptical Republicans must have been telling that to themselves in the mirror every morning since January 2016; I wonder at what point they stopped being able to look themselves in the eye while doing it. As discussed in last week’s newsletter, that position is untenable. Cardinal Ottaviani held on as long as he could. But he must have known the game was up when Cardinal Wojtyła was elected in October 1978 at the youthful age of 58, and a few months later, at the start of August 1979, he let Jesus take the wheel. Even if the next conclave were to begin right now, and concluded “successfully,” it says little to say, “if only Ottaviani and the old-line could have held out for another 46 years!”

§

Jonah Goldberg says (podcast at about the ten minute mark onward) that while he tends to agree with Nikki Haley as a practical matter that “we need consensus if we’re going to do anything about abortion,” logically, Mike Pence, who

wants to have a federal ban on abortion . . . has a better argument . . . [because] the moral law really shouldn’t countenance the differences between Rhode Island and Kentucky. And . . . Tim Scott is right about that, too . . . [that] ‘moral law shouldn’t stop at a state’s border . . . it should be one rule for everybody . . . .

I don’t understand why the moral gravity of abortion makes it ipso facto suitable for federal regulation. Say that abortion is murder—as pro-lifers have said for years. Or say at least that it’s like murder. Well, murder isn’t an exclusively or even mainly federal crime. Such federal laws as exist about murder are specialized exceptions to the general rule, which is that murder, like most criminal law, is state law. So if federalism and subsidiarity argue against “one rule, coast to coast, the moral law knows no borders” for murder, why not also for abortion? Federalism and subsidiarity, diversity, conjoined with a right to travel, are good things to be celebrated, not obstacles to be overcome when we care enough about the topic.

Also on the subject of abortion: Goldberg’s Dispatch colleagues note the GOP’s turmoil as it seeks a “consensus” position on abortion following the Roe-Casey regime’s end. The correct answer remains, “abortion is a state question.” That was always the Republican answer while besieging Roe-Casey (which had illegitimately made it a federal issue), and that answer was correct, not merely a convenient, formulation or talking point. It is still correct now. Abortion is a state matter, the federal government should stay out of it, and that is the appropriate consensus position for Republicans seeking federal office. So, Nikki Haley is more-or-less right.

Nevertheless, with the benefit of hindsight, some ferment should have been expected.

For many of us, Roe-Casey was illegitimate because of what it did (created a federal legal regime superintending abortion law) and how it did it (by judicial fiat). The Supreme Court fabricated that regime of whole cloth.¹ Many of us also disagreed with what that federal legal regime said—but that was secondary. Subjected to withering criticism from the moment it was decided, from bench, bar, and laity alike,² even Roe’s author conceded that it is not grounded in constitutional text and tradition but in abstraction piled atop abstraction.³ Thus, Roe-Casey was unique in degree but not in type; it was objectionable because it was the worst and highest-profile example of a constitutional methodology that was objectionable, and it and others like it had to be discarded (or otherwise) because of that methodological objection.⁴

We sometimes forgot, though, that we stood a’shoulder with a larger body of people who thought Roe was bad because it legalized abortion. Who thought Roe was “illegitimate” in the sense that it divorced positive law from “natural law”—mandating not only separation but contradiction. Groupthink and other mass-action dynamics pushed them to adopt our rhetoric about the Constitution and federalism, and their frequent invocation of our talk about abortion “being a state matter” further obscured the divide, but where our goal was to overrule Roe, theirs was and is ending abortion as a cultural matter and banning it as a legal matter. (A third constituency, I like to think larger than either extreme, lay ’twixt and ’tween. Robert Bork, for example, decried it both from a legal and moral standpoint.)

While Roe-Casey ruled the land, none of this mattered. Well, subject to rare exceptions, anyway; the Supreme Court struck down a state ban on “partial-birth abortion” in 2000,⁵ but when the Court reversed course in 2007, upholding a federal ban on the same, Justices Scalia and Thomas went out of their way to note that the case challenged the ban under positive limits on Congressional action, not negative limits on Congressional power.⁶ Press the Court on the latter, they said, and the statute might well fail. People like me thought they were correct, but pro-lifers were unhappy. Criticism was muted—but it was there. Nevertheless, as long as Roe-Casey remained good law, everyone was pulling in the same direction. Overruling it was the next step no matter where anyone in the coalition of rope-pullers might wish to go next.

Dobbs broke that. With Roe-Casey gone, people like me flew out to the USS Abraham Lincoln to unfurl the MISSION ACCOMPLISHED banner. It was over. We won. Nothing more to do, chaps! But others got busy passing state laws—which, yes, we had all along said would be the effect of overruling Roe-Casey, and which they had all along said (softly or otherwise) was the purpose of such. And some demanded a federal ban. We should have seen that one coming. Maybe this is too obvious to require saying, but Pence et al support the passing of state laws that discourage, regulate, limit, and even ban abortion (laws that are, or at least, may or may not now be possible) not because Pence et al think states are the proper loci of such regulation if it is to exist, but because Pence et al want to ban abortion. Any rhetoric they might in other circumstances deploy about federalism, subsidiarity, and process, abstractions and high ideals, should always be understood in the light of and subordination to this fundamental commitment. If you care nothing for federalism or subsidiarity, and if lives are at stake, does it matter whether those lives are Texan or Californian? So it’s no surprise that they also want to discourage, regulate, limit, and even ban abortion through federal action, especially as they lose and lose again in state-level battles.

They will accuse me of callousness toward human life, but I do actually care about federalism and subsidiarity, and I meant what I said in the Time Before. “The Constitution says nothing about abortion. So, as the Tenth Amendment confirms, it’s a matter for the states to decide.” That was my line then, and it’s my line now. I said it because I thought (and think) the Constitution makes it a matter for the states to decide vel non; Pence et al said that because they wanted the states to ban abortion. I think that abortion is a complex issue. I don’t have a position on what any particular state should do, and unlike Pence et al, my earlier position wasn’t a stalking horse for banning it. But my earlier position does rule out direct federal action. And while the federal government may engage in indirect action to induce the results it wants from individuals and states,⁷ subsidiarity and prudence should be strong headwinds against such.

There is no doubt in my mind that the Republican Party (now, certainly) contains many more people like Pence than like me. I don’t know whether it can accept a nuanced position, let alone what it will see as a temporizing one. But if the GOP wants a consensus position, it could do far worse than sticking with the one that it has had all along.

§

And because I’ve not yet annoyed enough people by talking about abortion—guns, too, have been back in the news after a shooting in Florida. A 21-year-old white male walked into a Dollar General near the historically black college Edward Waters University carrying an “AR-style” rifle and a handgun daubed with a swastika. He shot three people and then himself. He carried with him a manifesto that, we are told, announced his intent to kill blacks. All three victims were black. There ensued another round of our national hobby, the “gun-violence doom-loop” in which people broadly hostile to firearms loudly demand that we pass more laws and people broadly favorable to firearms loudly insist that the laws we have are not enforced so why should we pass more, and nothing changes.

A decade ago, I wrote a lengthy post at Motu Proprio commenting on gun regulation. Alas, it is not currently available online. The short version is, I’m pragmatic and I think the Second Amendment allows regulations touching, but not plenary regulation of, firearms. Hugo-Black-style absolutism is impractical, unnecessary, and since it has prevailed as to no other amendment, it’s not clear to me why it should prevail as to the second. Since then, the Supreme Court’s decision in Bruen has complicated matters.⁸ Still, Bruen’s hurdle is imposing rather than overpowering.

I’ve also said many times over the years that vague, freighted, and polarizing labels like “assault weapon” is not helpful. The better approach, though no one seems willing to take it, follows the pattern, “For purposes of this statute, a [new label for assault weapon] is a semi-automatic firearm capable of firing more than x rounds in y seconds and accepting a magazine containing z rounds.” Then haggle over values of x, y, and z. I think that’s more likely to yield useful results.

I used to think we were quickly (though perhaps asymptotically) approaching the point where it would no longer matter what was said because sooner or later, some atrocity would be so appalling that it would produce so strong a public reaction that knee-jerk regulation would ensue, à la Dunblane. Thus, my Burkeian instinct was that we had better enact reasonable gun measures now or else unreasonable measures would be forced upon us.

Nevertheless, there is a large part of the electorate so enthralled of firearms, so fearful and mistrustful of the government, and so entrenched in its political power, and there is no regulatory step so obviously passing muster under Bruen, so plainly beneficent and incorruptible of intent, and so clearly likely to achieve some meaningful good, that I must confess doubt that there could be any crime sufficiently heinous that it could break that doom-loop of crisis—fury—inaction—crisis—fury—inaction. If Sandy Hook didn't do it, nothing will.

And yet—I tend to think that political pressure is tectonic. It may slacken but it never goes away, really, and if jammed, eventually, it will find release, one way or another. If all legislative paths are blocked “by” “the second amendment” (whatever anyone might think that means) and if unacceptable tragedies keep happening, of course the Democrats will seek to get rid of the second amendment. What else do you expect them to do? (Just as, if all legislative paths to reforming abortion law are blocked by Roe-Casey, and you can't get rid of Roe-Casey without changing the composition of the Supreme Court, of course the Republicans will seek to change the composition of the Supreme Court, for just the same reasons.)

Every time one of these shootings happens, someone, somewhere in this great, wide land converts to the cause of “something, anything, at any cost.” A few thousand voters here, a few thousand voters there; sooner or later, it adds up to a majority. Sooner or later, the pressure will either be released safely, here and there, or else it will release cataclysmically, all at once. I am not sure that safe, gradual, responsible, reasonable release is in the cards. The GOP will keep blocking, the shootings will keep coming, the pressure will keep building, until something gives, and then everything may change very quickly.

The left, to be clear, is “coming for your guns.” (Not because privately-owned guns are the last bulwark against The Revolution, mind you, but because they see no reason why anyone should own anything so lopsidedly dangerous.) Some of them deny it, sometimes. Every now and again, the mask slips, or burns off, especially in the red-hot fury that follows each latest atrocity. Every time there’s a school shooting, they get a little closer, and every time a popular restriction on firearms passes, they’re pushed a little bit further away, because when something happens that everyone except the hardest of hardliners agrees should have been subject to law, it’s much harder to resist, while it’s a lot easier to resist new gun laws when the tragedy du jour is explicitly addressed by existing laws to stop such things that, in fact, didn’t stop it.

Most people aren’t dogmatic and they don’t build their political positions around deep, immovable, well-considered principles. They take their cues from their tribe, or they take things case by case and support the “sensible” outcome. If you want to win (to paraphrase Gingrich) stand by a sensible solution to a 90% issue and smile. I don’t have a 90% issue, but I do have a couple of thoughts.

At a federal level, I would begin to tackle the problem with a two-part bill. One, take a suggestion from Terri Bear: “[T]emporarily remove prosecutorial discretion for straw purchases or felony possession charges. Hire and assign AUSAs to prosecute every single one presented to the USAO by federal or state law enforcement and supported by evidence. Try for three years and see what happens.” Two, literally whatever other comparable provision Democrats want as a price for step one, also for three years. Then see what happens. Maybe it will work, maybe it won't, but what I like about Terri’s proposal is that she isn’t just regurgitating the same stale, go-nowhere thinking that has never before gotten us anywhere and that has already been pre-rejected by the partisans on each side. We break the doom loop by trying something new.

But as I noted way above, most criminal law is state law, and so it seems to me that the states should be the primary loci actuum here. Different states have proposed different things; I think all of the states should try all of the things. They, too, should lubricate our sclerotic legislative processes with horse-trading and sunset clauses. But the important thing is that they should try stuff. I don’t care what. I doubt that any particular proposal that I’ve yet seen is meritorious. For example, I am highly doubtful that armed guards in schools will yield benefits. But that is a guess, and the best way to know is to try it. I think the Brandeisian path is the right one:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it . . . [b]ut, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.⁹

One of the things paralyzing politics is the idea that we need comprehensive, coast-to-coast, once-for-all-time solutions that will in a single bill address every conceivable facet of a problem and which will never thereafter need or be subject to revision. This is silly. I do not advocate any particular state policy, but I advocate biasing for action, for small, incremental experimentation today rather than holding out for grand bargains at some indefinite future date.

§

Notes & Queries.

• Meanwhile, in the horse-race: After my newsletter last week, the Wall Street Journal concluded a new post-debate poll. It puts Trump at 59%, the Trump-DeSantis-Ramasmarmy bloc at 77%, Haley, 8%, Christie, 3%, Pence, 2%, Scott, 1%. DeSantis and Christie are stable, Ramasmarmy—again I know how to spell his name—had a bump at Trump’s expense (odd, I know) and is now trading those votes back, and Pence appears to be losing voters to Haley.

• This week’s cover image—a glorious rendering of a Penrose triangle—was made by CMG Lee, released under a CC BY-SA license.

Cornucopia.

• The map men on cities.

• “‘Sycophantic’ isn’t a strong enough word to describe Mike Pence’s attitude toward Donald Trump,” writes Kevin Williamson. “He was comically, neurotically servile.” Couldn’t agree more.

• On Upgrade, Jason and guest Stephen Hackett nominate Saturn as their favorite Sol system planet other than Earth. I say Uranus. Oh, simmer down; you’re pronouncing it wrong. In the greek from which it’s taken, Οὐρανός (father of Saturn), the stress would fall on the final syllable. Yor-uh-NOS, with that last O somewhere between the o in orange and the o in million, but definitely not like the o in yo-yo. If you read it through a Latin filter, the stress moves to the first syllable, UR-a’nus. The usual American pronunciation compromises on YOR-a’nus. But even if the stress were to land in the middle, it would still be yor-AH-nus, not yor-AYYY-nus—or did you think Romanus was pronounced like [Rebecca] Romijn-us? Anyway: What is cooler than a planet that got so severely wanged that it now rolls around the solar system like a ball? And it’s a beautiful cyan shade of blue. What more do you want?

1. Roe v. Wade , 410 U.S. 113 (1973), overruled, Dobbs v. Jackson WHO, 142 S. Ct. 2228 (2022); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847, 853 (1992), overruled by same.

2. See, e.g., Roe, supra, 410 U.S. at 171 ff. (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221 ff. (1973) (White, J., dissenting); Thornburgh v. ACO&G, 476 U.S. 747, 814 ff. (1986) (O’Connor, J., dissenting); Webster v. RHS, 492 U.S. 490 (1989) (plurality); Casey, supra, 505 U.S. at 979 ff. (Scalia, J.,concurring in part and dissenting in part); Jackson Women's Health Org. v. Dobbs, 945 F.3d 265, 277 ff. (5th Cir. 2019) (Ho, J., concurring in judgment), rev’d, 142 S. Ct. 2228 (2022); Ely, The Wages of Crying Wolf in On Constitutional Ground 281 ff. (1996).

3. Webster, supra, 492 U.S. at 548 (Blackmun, J., concurring in part and dissenting in part).

4. Put favorably, “the Warren Court was aggressive in enforcing its ideals of liberty and equality. But by and large, it attempted to defend its decisions in terms of inferences from values the Constitution marks as special.” Ely, supra, at 294 (italics deleted) (emphasis added). This abstraction from text to “values” (boosting the meaning to higher levels of generality) contrasts with the proper approach, which demands “sticking to lower levels of generality, preferring the language and structure of the law whenever possible over its legislative history and imputed values. And,] [s]earching for meaning, to be found in structure and appeals to the objective legal culture. . . .” Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 64 (1994); accord Easterbrook, What Does Legislative History Tell Us?, 66 Chi. Kent L. Rev. 441, 449 (1992) (“Shifting the level of generality—emphasizing the anticipated effects of a rule while slighting the rule itself—is a method of liberating judges,” and other legal actors, “from rules”). For a reader in examples of what Judge Easterbrook called the “legalist” tradition, see, e.g., Solum, The Fixation Thesis, 91 Notre Dame L. Rev. 1 (2015); Scalia & Garner, Reading Law (2012); Paulsen, Does the Constitution Prescribe Rules for its Own Interpretation?, 103 Nw. U. L. Rev. 857 (2009), and A Government of Adequate Powers, 31 Harv. J. L. & Pub. Pol’y 991 (2008); Originalism: A Quarter-Century of Debate (Calabresi, ed. 2007); Rappoport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L.Rev. 1487 (2005); Nelson, What Is Textualism?, 91 Va. L. Rev. 347 (2005); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001); Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999); Barnett, Necessary & Proper, 44 UCLA L. Rev. 745 (1997); Scalia, A Matter of Interpretation (Guttman, ed. 1994); Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377 (1994); Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989); Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976); cf. Hart & Sacks, The Legal Process 1169 (Eskridge & Frickey eds. 1994).

5. Stenberg v. Carhart, 530 U.S. 914 (2000).

6. Gonzales v. Carhart, 550 U.S. 124, 168 ff. (2007) (Thomas, J., concurring); see also United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) (party presentation rule).

7. See, e.g., National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (purchase of insurance); South Dakota v. Dole, 483 U.S. 203 (1987) (drinking age)

8. New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022); compare Range v. Attorney Gen., No. 21-2835 (3d Cir. Jun. 6, 2023) (en banc) (application of 18 USC § 922(g)(1) to forbid firearm possession based on an old misdemeanor conviction for which no time was sentenced fails under Bruen); United States v. Daniels, No. 22-60596 (5th Cir. Aug. 9, 2023) (application of § 922(g)(3) to forbid firearm possession based exclusively on his past drug usage fails under Bruen) with United States v. Jackson, No. 22-2870 (8th Cir. Jun. 2, 2023) (application of § 922(g)(1) to forbid firearm possession based on a convicted felon passes muster under Bruen); compare Grell v. Lopez, No. 20-15948 (9th Cir. Aug. 7, 2023) (Hawaii law forbidding manufacture, sale, transfer, transport, possession, or possession of “butterfly knives” fails under Bruen) with National Rifle Association v. Bondi, No. 21-12314 (11th Cir. Mar. 9, 2023) (Florida law forbidding under-21s from purchasing but not possessing or owning firearms passes muster under Bruen).

9. New State Ice v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (footnote deleted).