Isaac Laquedem

Chief Justice John Roberts indirectly alludes to Ambrose Bierce, lexicographer

John Roberts wrote today's Supreme Court opinion in which a 6-member majority struck down the Biden administration's forgiveness of most of the student loan debt in the country.  Whatever the merits of the court's decision, the Chief Justice included this allusive gem in his opinion:

From a few narrowly delineated situations specified by Congress, the Secretary [of Education] has expanded forgiveness to nearly every borrower in the country.  The Secretary's plan has 'modified' the cited provisions only in the same sense that 'the French Revolution 'modified' the status of the French nobility' - it has abolished them and supplanted them with a new regime entirely.

The Chief Justice is quoting from Antonin Scalia's opinion in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 US 128 (1994), which turned in part on the definition of "modify."  In that case Justice Scalia wrote, "It might be good English to say that the French Revolution 'modified' the status of the French nobility - but only because there is a figure of speech called understatement and a literary device known as sarcasm." 

Justice Scalia did not credit any earlier source for his bon mot.  I suspect he was inspired, perhaps unconsciously, by Ambrose Bierce's work "The Devil's Dictionary," in which he defined "abridge" as "to shorten," attributing this fictive mashup of a sentence from the Declaration of Independence to Oliver Cromwell as an example of "abridge" in use: 

When in the course of human events it becomes necessary for people to abridge their king, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.

A PSU professor calls out the University of Oregon for turning Trumpist on the First Amendment

Maxine Bernstein reports in today's Oregonian that the University of Oregon banned Bruce Gilley, a Portland State University professor, from replying to a UO Twitter account for 60 days because of a comment that Professor Gilley made in reply to that account, which belongs to UO's Division of Equity and Inclusion.  He was one of three Twitter users that the Division's communications manager (now retired) blocked.

Professor Gilley sued.  He argues that UP violated his right to free speech and is asking for nominal damages of $17.91 (because the states ratified the First Amendment in 1791) and an acknowledgment that UO violated his First Amendment right of free speech.  (The university unblocked his account the day after he filed suit.)  A federal court heard argument on Professor Gilley's suit on Friday.

As the saying goes, politics makes strange bedfellows.  UO turned to rising liberal icon Misha Isaak for its defense.  As reported by Ms. Bernstein, Mr. Isaak's defense of UO is mainly that the court should dismiss the suit because persons higher up in the university administration unblocked Professor Gilley when they learned that the Division had shut him out from commenting,  The administration has also reminded the Division of Equity and Inclusion that it cannot block speech based on the user's viewpoint.  I interpret Mr. Isaak's defense of UO as being mainly that because UO blocked his speech for only a short period, and because the UO official who blocked Professor Gilley didn't know about the First Amendment, the University didn't violate his constitutional rights in a big enough way to be worth the court's time.  Mr. Isaak also suggested that Professor Gilley "relished being canceled because it gives him a platform," a strange way to defend an apparent First Amendment violation.  But let's go back a few years to a similar story, still fresh in the minds of constitutional lawyers.

In 2017 President Trump blocked Twitter users with whom he disagreed from replying to tweets on his personal account.  Several of the blocked users sued, backed by the Knight First Amendment Institute at Columbia University.  They argued that the president conducted official business on his Twitter account and that it was effectively a government-sponsored platform from which he could not bar users based on the content of their comments.  Those plaintiffs attracted support from an institute at Georgetown University which filed a brief on behalf of an all-star cast of professors of constitutional law, including Erwin Chemerinsky, Geoffrey Stone, and Laurence Tribe. 

In 2019 the federal court for the Second Circuit ruled unanimously in favor of the Twitter users and against President Trump, and minced no words:  "Accordingly, we hold that the President violated the First Amendment when he used [Twitter's] blocking function to exclude the Individual Plaintiffs because of their protected free speech." Knight First Amendment Institute v. Trump, 928 F3d 226 (2019).  You can read the entire opinion here.

It's embarrassing for a public university with a law school to be caught out taking a page from Donald Trump's playbook and suppressing protected free speech because it doesn't like the speaker's message.  It's more embarrassing, or should be, when the part of the university doing the suppressing is the division that's devoted to providing room for all voices to be heard.  At the very least, the president of the university should take a few minutes to write a note of apology and acknowledge to Professor Gilley and the court that its Division of Equity and Inclusion messed up bigly.

2022 Endorsements I: NO on Measure 111, YES on Measure 112

Oregon's voters face an odd array of statewide ballot measures.  Here's Isaac's take on two of them.

Measure 111 would add this sentence to the state constitution: "(1) It is the obligation of the state to ensure that every resident of Oregon has access to cost-effective, clinically appropriate and affordable health care as a fundamental right."  The measure would also add a weakish qualifier: "(2) The obligation of the state described in [section 1] must be balanced against the public interest in funding public schools and other essential public services, and any remedy arising from an action brought against the state to enforce the provisions of this section may not interfere with the balance described in this section."   The statement of financial impact states "The financial impact to state and local expenditure and revenue is indeterminate. The measure does not require additional state government revenues or expenditures. The impact of the measure will depend on future legislative action to establish additional health benefits and determine how they will be paid for."  The legislative argument in support of Measure 111 states that the measure "protects state spending in other critical areas by requiring that health care spending be balanced with funding all other services the state provides, like schools and public safety.  This measure also does not increase any taxes, and that is because it does not make any changes to current health programs or policies."  Most of the published arguments in support likewise claim that the measure is a lofty aspirational statement, not a budgetary mandate.

The legislature got this one wrong, both in the drafting and in the argument.  First, the drafting.  Section 1 obligates the state to ensure that Oregonians have access to "cost-effective" and "affordable" health care, which implies that if an Oregonian cannot afford health care, the state is required to pay for the care.  I don't object to national health care as a general policy (Western Europe has got on quite well with national health care) but the wording creates an unfunded mandate with no cap.  The legislative statement in support misreads the measure because the measure does not allow the state to balance health care spending against "funding all other services the state provides," but only against "public schools and other essential public services." 

I read the measure to prohibit Oregon from spending any money on anything other than public schools and "essential public services" until the state has provided affordable and accessible health care to every Oregonian.  But what is an "essential public service"?  Nowhere in Oregon law does the term appear.  The state performs many desirable and frequently laudable functions, such as subsidizing public television and radio (ORS chapter 354), providing loans to veterans (chapter 407), administering wildlife laws and operating wildlife refuges (chapters 496 to 500), and regulating wages and hours (chapters 651 to 653).  None of those functions can fairly be called an "essential public service" similar to education, highway maintenance, and law enforcement, however. 

I see Measure 111 as inviting litigation over what the legislature can and cannot fund, and pitting the beneficiaries of some government programs against the beneficiaries of other government programs.  I recommend voting NO on Measure 111.

Measure 112 is much more straightforward.  In 1857 the framers of the Oregon constitution prohibited slavery in the state "otherwise than as a punishment for crime, whereof the party shall have been duly convicted."  The 13th Amendment to the United States constitution, adopted in 1865, used almost the same language: it prohibited slavery nationwide "except as a punishment for crime whereof the party shall have been duly convicted." 

The only argument filed against Measure 112 is from a group of county sheriffs who oppose slavery and involuntary servitude, but believe that the measure, as worded, would force them to end in-prison work programs.  I understand their concern; I believe that they are misreading the measure.

Oregon has not seriously tried to impose slavery as a punishment for crime, and the words that legislators chose in 1857 and 1865 are now outdated.  It's time to remove "slavery" from the constitution.  Isaac has voted YES on Measure 112.

Why forgiving student loans makes the republican party's indentures fall out

The 13th amendment abolished slavery and "indentured servitude" except as punishment for a crime.  The United States succeeded in abolishing slavery.  An economist might look at the vast realignment in the past 40 years not just of wealth but of debt and conclude that indentured servitude has made a comeback.

 

In 1999, near the end of the Clinton administration, the residents of only three states (Hawaii, Maryland, and California) had average household debt that exceeded 1.5 times household income. By 2008, the last full year of the Bush (43) administration, the household debt-to-income ratio was above 1.5 to 1 in 40 states, and above 2 to 1 in 20 states.  The fortunes of American households improved under Bill Clinton Barack Obama [thank you, Diana H.]; in 2016 only two states (Hawaii and Maryland) were above 2 to 1, and 30 states were above 1.5 to 1.  Household debt to income improved under Trump; in 2020 only Hawaii was above 2 to 1 and 21 were above 1.5 to 1.

 

What is astonishing about the statistics is not that household debt-to-income ratios improved somewhat under the Trump administration and through the pandemic, but how much the burden of household debt has increased since the Clinton administration.  It's from that fact that I derive my theory about indentured servitude: the debt burden of the average American household is what compels many adults to work two jobs, to be unable to save, and to accept low wages. The heads of households are effectively in indentured servitude: compelled to work in order to pay interest on debts without making progress on the principal. The genius of private student loan programs is that they have extended indentured servitude upward into the college-educated classes. Not just the plumber but the psychologist must work to service debt and feed the creditor class.

 

It's perhaps for this reason that the republican party so stridently opposes President Biden's forgiveness of student loans, and the concomitant lessening, however slightly, of the financial ties that bind the graduates to their corporate overlords.  Heaven forbid that the masses should be able to pay their bills on time.

Harvard expels a Congressional enabler of the January 6 riots

The recent stories about the consequences that are starting to rain upon the January 6 anti-government rioters have drowned out ("swamped" might be appropriate) a story from Cambridge about a consequence that befell one of the insurrectionists' enablers. On January 12, Harvard University's Kennedy School of Government removed Rep. Elise Stefanik (R-NY) from the senior advisory committee of the Kennedy School's Institute of Politics. Douglas W. Elmendorf, the dean of the school, used polite academic language to call her a liar: "Elise has made public assertions about voter fraud in November's presidential election that have no basis in evidence, and she has made public statements about court actions related to the election that are incorrect," which Dean Elmendorf said "do not reflect policy disagreements but bear on the foundations of the electoral process through which this country's leaders are chosen." In response, Rep. Stefanik tweeted that Harvard had decided to "cower and cave to the woke Left," not the intellectual response that Harvard College had trained her for when it issued her a degree in 2006.

Harvard University retitles an academic harasser: professor demeritus

Complaints about Professor Jorge Dominguez sexually harassing students over a 36-year period finally had an effect: Harvard University revoked the professor's academic privileges and took away his title.  The university acted so slowly that the title it revoked was that of professor emeritus, as he had already retired.  Still, it's a start.

Maybe it's time to move Tubman Middle School farther from the freeway

I've been amused watching the conniptions of our local politicos about the two most significant obsolete portions of our local freeway system: the Interstate Bridges and the Rose Quarter section of Interstate 5. I sense there's a lot of overlap between those who are pushing to replace the two three-lane Interstate Bridges with two new three-lane bridges (on the one hand) and those who oppose widening the two two-lane sections of Interstate 5 where the Rose Quarter has grown up around it. That section of Interstate 5 is the only urban section of Interstate 5 between Canada and Mexico that hasn't been widened to six lanes - even in Eugene, Salem, Ridgefield, and Castle Rock (population 2,234) this vital commercial link has six lanes.

I've read only one sound objection to improving the Rose Quarter section to match the rest of the urban freeway, which is that Harriet Tubman Middle School is next to the freeway and widening the freeway would make the air quality at the school even worse. I don't begrudge that objection - the school was built in 1952, 14 years before the freeway opened - but it's sometimes occurred to me that the school district might have noticed the freeway's presence before it put millions of dollars into remodeling the building a few years back, and perhaps even considered moving the school to a new location farther from the freeway.

Where have Portland's children gone? To Gresham

 

Portland Public Schools, the state's largest school district by enrollment, currently serves 49,000 students. The district proudly states that it's enjoyed seven straight years of enrollment growth, which it has.  It's not so forthcoming about its decades of enrollment shrinkage; today's PPS enrollment is lower than it was in 1923 -- the administration of Warren Harding! -- when the district enrolled 50,513 students.  The district hit its high point in 1963, with 79,571 students, and its low point in 2008, with 46,046 students.  No massive network of private schools has sprung up to siphon students away from PPS, and the city's population continues to grow (in the 1990s mainly by annexation, but since then through new construction), up 65% since 1963.  So where are the children?

The answer?  They're in Gresham.

After the 2010 census, Multnomah County remapped its four county commission districts to have equal population.  "Equal population" does not mean "equal voters," as children count toward population.  The four districts vary wildly in demographics: they average 121,000 voters each, but District 1 (the westside and inner southeast, entirely within PPS) has 137,000 voters and District 4 (Gresham, Fairview, and east county, nearly entirely outside PPS) has only 101,000 voters.  Turn this statistic around and you see where the children are: District 1 has about 16,000 fewer children and about 12,000 fewer school-age children than the county average.  District 4 has 20,000 more children and about 15,000 more school-age children than average.  District 2 (north and northeast Portland, north of the Banfield Freeway, mostly in PPS) is also missing its children: it has 130,000 voters, so about 9,000 fewer children than the county average.

One consequence of the 30,000 missing Portland children is that PPS is, on the Oregon scale, a rich district.  It receives the benefit of the property tax revenues from the city's growth without having the burden of educating more people.  (The PacWest Center, for example, built in 1988, pays about $1 million/year just in school taxes.)

Portland's missing children are in other places besides Gresham, for instance, in the David Douglas School District (roughly I-205 east to 142nd Avenue and from NE Halsey south to the county line), where enrollment increased by 16% from 2003 to 2013. From 1990 to 2010 the share of households with children in David Douglas increased from 34% to 36%; the share in the rest of Multnomah County fell from 30% to 26%. 

So that's where Portland's missing children are.  Why are they there?  That's a subject for another post; the short answer, I believe, is that Portland has priced and gentrified their parents out of the city.

The winning Republican platform, as seen by John T. Molloy

Not having sold his research on motivating factors for presidential voters, John T. Molloy is offering it free.  Today he posted some of his thoughts, based on research and not personal preference, about what arguments Republican candidates might use to appeal to black and Hispanic voters.  His suggestions are informal, pithy, grossly politically incorrect -- and possibly a path for the bravest of the one-percenters in the Republican field to break away from the others.  I recommend reading the whole thing.  Here's an extract from Mr. Molloy's advice:

Finally, point out that illegal immigration hurts those at the lower end of the socio-economic scale. But don’t use the word socio-economic. That’s a problem with the Republicans [,they] often sound like high school or college debaters. Democrats on the other hand are very effective communicators and they can convince people to vote for them because they make emotional arguments. Emotional arguments change votes intellectual ones, seldom do. If you point out that undocumented aliens take jobs mainly from Hispanic American citizens because they work for less you’ll be believed. Almost everyone in the Hispanic community knows someone who has lost their job to an undocumented alien.

Other states don't teach evolution; we don't teach basic biology

Two stories, at first glance unrelated, were published recently.  One story (here) identifies Oregon as the state with the lowest rate of high school graduation, which is a polite way of saying that the least educated among us have, on average, less education than the least educated in 48 other states.  (Idaho didn't report its results.)  The other story, often repeated (here's an Oregonian story from October about the topic), identifies Oregon as the state with the highest rate of parents who prefer not to immunize their children against what used to be the common diseases of childhood -- measles, mumps, rubella, and chickenpox, for example.  In the early 1960s the United States saw more than 400,000 cases of measles a year; in 2012 there were only a few hundred reported cases.   The 99.5% drop is the result of the vaccine.

Maybe there's a connection between these two stories, and the reason that Oregonians don't believe in the science behind vaccination and the immune system is that Oregonians simply aren't, as a group, all that well educated.  As we make fun of the Southern states' continued efforts to teach creationism in biology class we might ask ourselves whether their citizens mock our simple-minded disbelief in bacteriology.