site banner
PaperclipPerfector  1d ago (text post)   7068 thread views

Culture War Roundup for the week of April 27, 2026

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

3
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity

Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.

Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.

One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.

Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.

Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.

Thank you for the article! I quite enjoyed it. Reminded me of what Feynman wrote about great men. It reminds me of the episode "The Supremes" in The West Wing Season 5 as well. I thought your arc pretty much is the story of idealists being disappointed with reality and become a cynic. I think "Justice" with the capital J is like "Truth", it is something almost always unreachable, yet the correct thing, and the beautiful thing, is to keep striving towards it. The legal system, and as the article demonstrates or that West Wing episode dramatizes, benefits from intelligent, talented, thoughtful, experienced, and hard-working individuals with variety of viewpoints coming together to inspect problems from a variety of angles so that in the debate and discussion and verbal sparring and arguments, something closer to "Justice" can be found. At least, that's my optimistic takeaway.

Edit1: Oh man I love the clip, everyone should watch it (only 2m36s) https://youtube.com/watch?v=cYR3ZzOBg1Q

Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.

Perhaps historically true, but in modern times it is horribly false. At the outset, modern poor urban youth are now much more lightly policed than suburbanites. Drinking or smoking weed in public is just not payed attention to by urban police forces, same with minor property crime. So they are simply not being arrested for misdemeanors that the suburban kids would be. And as a result they also aren't picking up possessory felony charges for drugs or guns. Then at the court level the prosecutors offices in urban situations have much larger caseloads so they offer much more favorable plea deals. A felon with a gun in the city might get offered 3 years while in a suburb he would be lucky to get 7. This also means that if there is a trial less resources are dedicated to the prosecution than would be in the burbs. In a suburb, good luck with an officer forgetting court for even a misdemeanor DUI. In cities, officers miss court dates for felony burglary and robbery cases because they are responding to a more serious offense, or maybe had a 24 hour shift and dont feel like it. Finally, the judges in urban areas are nowadays progressives that, even after a trial, err towards imposing a sentence near the mandatory minimums. In the burbs, you are looking at a maximum sentence if you lose a trial.

But the general rule that the law is not perfectly blind is very true. The other day a cop was murdered by someone who was released by a judge for Armed Hijacking a few days before that. You know not a single judge was releasing someone who did a gun crime THAT day.

2+2 had a different answer than the 4 that was a correct answer.

2 + 2 = 5, for large values of 2.

An important thing to keep in mind about Law:

PDF: The Law is a Fractal: The Attempt to Anticipate Everything

For instance, we might consider a municipal park for which a city had adopted the rule, “no vehicles are allowed in the park.” We could treat “Point 1” on the number line as representing the act of driving a car through the park and “Point 2” as representing refraining from driving a car through the park. The rule would assign the label of “illegal” to Point 1 and “legal” to Point 2. ^5

As has been famously pointed out,^6 these two points and the rule itself are insufficient to cover all the specific factual situations that might arise involving vehicles in a park. At least they are insufficient in any reasonable rule system.^7 What if, for example, a police vehicle has to enter the park on an emergency call? If we want an appropriate, specific rule, we would need another point, between Points 1 and 2, corresponding to the factual scenario, “A police vehicle entering the park.” Point 1.5, let’s call it, to which we would assign, like Point 2, the label “legal.” But what if the driver of the car were a thief who had stolen it from the police? That specific scenario would fall between Points 1 and 1.5, perhaps 1.2, and would be assigned the label “illegal.”^8

And so on. Given the numberless potential variations, foreseeable and unforeseeable, in “vehicles,” motives, and circumstances, there can, provably,^9 be no end to the possible specific scenarios—and thus no limit on the number of rules that would result from trying to write an appropriate one for each possible, distinct fact situation.^10

If the Law is not clear then who gets to decide the rule? I don’t think it’s clear that Courts get to. Thinking about the 14th Amendment I don’t think it’s clear the SC gets to make the decision. Jurisdiction has meaning and I don’t see why the SC gets to choose the meaning. Reasonable people can have different meanings.

Ideally the legislature would clarify. I am not sure how this would work with an Amendment. Could a simple bill make the decision or do you need to amend the amendment for clarification? I definitely think the legislature gets first crack at it but I am not sure what process is necessary a bill or amendment to clarify an amendment. If it’s only a bill then you could to limited extent be modify the Constitution whenever the legislature changes.

If the legislature does nothing then who gets to decide the meaning of “Jurisdiction”. I don’t believe the courts should do anything that would be creating policy. The definition of jurisdiction isn’t in the amendment. They have nothing to base a decision.

Absent legislative action then I guess the executive branch gets to define the word and citizenship status is just an executive order. And if your born 2 min before a GOP POTUS leaves you are a non-citizen for life and if your born minutes later your a citizen for life. Legislative or Executive Action each are more Democratic when bills are passed that lack clarity on meaning.

But I do think in most situations you can write legislation that solves 90-95% of cases in footnotes to legislation. A lot of legislation is written very poorly.

It would seem like we could have a hierarchy of laws. If No Vehicles in the park is a rank 4 law and police may proceed on any available path or road in an emergency with their sirens and lights operating is a rank 3 law then both can coexist because a rank 3 exception supercedes a rank 4 law.

Isn't that part of what the common law system does? A practical hierarchy is created and citations refer back to prior precedent in applying the unwritten hierarchy.

Okay but what about say a wheel chair? It is a vehicle. Maybe you have ADA so perhaps that trumps.

What about stroller?

In law school I asked, "what about shoes?" The professors liked it I suppose.

Great little quiz/game about this https://novehiclesinthepark.com/

It's just in general really difficult to come up with a rule that is

  1. Simple to track and consistently enforce

  2. Covers all potential cases, including adversarial readings.

  3. Doesn't confuse a good number of people with legitimate arguments to how it can be interpreted.

Honestly I took it and scored 93% in the majority. So the rule seems clear to me.

96% here, and my exception A non-functional vehicle is still a vehicle, a tank is a vehicle, and it still counts when it's part of a monument would have been covered by other permitting and planning work anyways.

Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.

I don't think our law system was ever meant to be mathematics or purely procedural. The point of trial by jury is that, instead of an agent of the state (judge) judging you at best by the letter of the law or at worst by his personal whims, you get a jury of your peers judging you by local common sense/prejudice. Les Mes gives the theatrical argument for this. The benefit of Common Law is that, instead of the application of the law solely being dictated from above, you get precedent of how the law was applied in reality and hopefully that contact with reality makes the application of the law better and more sensible.

The above system works great ... when you share most values with your countrymen. If you think your neighbors lack common sense and/or their prejudices are wrong and/or harmful, then their influence will move both juries directly, and precedent indirectly via the judges their representatives vote in, in directions you don't like. A cliché example of this would be being judged by an ethnic outgroup. I'll note European countries which don't have common law also have the problem of internal values conflict and the problem of sharing a state with people you fundamentally disagree with is a perennial human issue, so common law and trial by jury are not the issue.

Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory.

I think a lot of the Constitution worship you see among boomercons is cargo culting. I think the constitution, and it actually sticking, is one of the greatest social achievements in human history. Ask the French or Latinos how easy keeping a constitution is. At the same time, the founders consciously knew that the Constitution was a tool and agreement to promote values they cared about and create an agreement that would let the states function together. Treating following it as an end in itself, like it was the 10 Commandments, was never how they viewed it. Most leaders of the early republic, including later ones like Andrew Jackson, recognized that keeping the social constructs that the 'union is perpetual' and 'the constitution is supreme' were foundational to the functioning of society, but the end-goal was always securing people's wellbeing and liberty rather than following the constitution for its own sake.

To that end, everyone agreeing to treat the constitution and union as inviolable while still manipulating procedural outcomes seems to have been the dominant trend/strategy in our history across the strong majority of factions.

Law is a social construct but that doesn't make it "not real" either. There will always be people who misconstrue and purposely interpret things in the way they wish, but widely agreed upon rules provide a schelling point for society to focus on. Despite the numerous attacks on our constitutional rights since our founding, would be oppressors have still been consistently forced to chip away at the margins rather than do away with the concepts itself. Even the most anti free speech/anti gun/anti whatever idealogues are stuck having to try to find something to reach for.

Consider for instance the Trump admin's continued efforts to implement tariffs. They're not just saying "we're doing tariffs and we don't need a reason or permission", they're finding old statutes with vague wording that maybe if squint your eyes hard enough and are using only your peripheral vision, maybe it was inclusive to use for tariffs in that manner. That they feel the need to justify themselves at all speaks to the value of having a justification.

My offer to sell you a bridge is complicated by the fact that I do not own the bridge in question, but that doesn't make my offer "not real" either. I really am offering you a piece of paper with ink on it, and I really do expect you to give me your money in exchange for it. Probably I can find other people who will assure you that I do own the bridge; doubtless there is some coherent framing in which accomplices form a "schelling point" for "society" to focus on.

Despite the numerous attacks on our constitutional rights since our founding, would be oppressors have still been consistently forced to chip away at the margins rather than do away with the concepts itself.

I flatly disagree that infringements on constitutional rights have, since the founding, consisted of "chipping away at the margins", but I fully agree that all actions my tribe has taken in the past or will take in the future that might be considered unconstitutional should be framed in this way. Obviously, any action my tribe engages in should be considered as, at the worst, only "chipping away at the margins", not based on the details of what we do, but purely on appeals to vague historical generalities.

Even the most anti free speech/anti gun/anti whatever idealogues are stuck having to try to find something to reach for.

"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.". Likewise the suspension of Habeas Corpus under Lincoln.

Obviously "even the most anti-whatever ideologues" are not stuck trying to find something to reach for in any substantive sense. Examples overflow of officials and other power-wielders simply ignoring whatever rules inconvenience them without even a fig-leaf of legal justification. But let us be charitable, and recognize that the sorts of fig leaves you appeal to are in fact useful to would-be abusers; after all, even conmen understand the utility of cooling the mark out. Even under this charitable interpretation, it seems to me that you would need to argue that these fig leaves were sufficiently substantive so as to provide meaningful protection to those being abused. Otherwise, all that you are claiming is that the people abusing their power find it more convenient to whitewash their abuses than to let them stand naked, and the pejorative implications of the term "whitewash" should be all the argument necessary for why this is not a reasonable response to the grievances of the abused.

Previous discussion:

As I understand it, your complaint is that people are increasingly reluctant to accept the outcomes mandated by the rules. I doubt that you consider rule-following to be a terminal goal, so the argument would be that rule-following should produce superior outcomes, right?

Let's say we disagree strongly on how things should be, but we've agreed to follow a set of rules. A conflict arises. You follow the rules to the letter. I apply a novel strategy the rules didn't account for. I win. You have no grounds within the rules to contest my win, because I didn't break any of the rules as written. Changing the rules to account for this novel strategy is itself a conflict, and you're already behind on winning conflicts. Suppose this pattern repeats a number of times, and you now expect that you lose by attempting to play by the rules, and I win by playing outside them.

Let's say you believe this outcome is a problem. What are your options to resolve it? Attempting to improve the rules is not, I think, a workable strategy. The simple fact is that, contrary to Enlightenment ideology, there is no flawless ruleset available. You are never going to close all the loopholes. Rules are simplifications, abstractions, map and not territory. they have to be interpreted, adjudicated, enforced, and each of those steps involves human judgement and an irreducible loss of objectivity. Motivated agents will always find ways around a fixed ruleset, and the longer they stand, the more porous they become.

At the end of the day, it seems to me that respect for a ruleset requires either trust that the rules lack fragility, or trust in the other party not to abuse that fragility for their own advantage. Leaving aside questions of cause and responsibility, it seems obvious to me that neither side of the Culture War actually maintains confidence in either of these propositions. Under such conditions, why would one expect the rules to continue to operate in anything approaching a reliable fashion?

I used to argue that the Constitution was whatever five Justices said it was, but now it is not even that. We won multiple Supreme Court decisions on the Second Amendment over the past few decades. Blue states and their circuit courts ignored the rulings, and then we got to observe how unified defiance from "subordinate" legislatures and courts shapes Supreme Court jurisprudence, as the Justices refuse to take cases or deliver decisions that would spark further defiance. And it's not as though Federal law worked any better. We decided that Tribal interests should be protected by law. We won elections, drafted laws, and passed them by the legitimate process. Then Blue Tribe simply ignored them, and the courts have let them do it.

Stop pretending that the outcomes of orderly systems can be trusted. Justice is not, under present conditions, the presumed outcome of a process. Findings and verdicts and rulings do not settle a matter if the outcome is not just. Demand Just outcomes, and never, ever let an unjust outcome rest.

"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.". Likewise the suspension of Habeas Corpus under Lincoln.

Better link or archive.ph copy.

And Dexter Taylor is now in a maximum security prison where he will likely die, unable to appeal. Because that's how much the Second Amendment is worth in the US.

"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.".

To be clear here, this is no actual recorded statement like this. There is a claim by the defense attorney that they were told this by the judge, but there is nothing to support it but his word and his word alone. Maybe it happened, but "defense lawyer claimed something" is not that much without anything else to support it. Even then, even if it did happen, a judge of a criminal court is a very low level position with multiple appeals courts above them. Their word is not final.

If you were living in almost any other country, we wouldn't even be having this conversation. You would simply not have a gun, and you would not be able to make meaningful legal appeal otherwise.

Likewise the suspension of Habeas Corpus under Lincoln.

That's actually a quirk of how the law works, that presidents have used in various ways already even today. Consider for instance the Trump tariffs in place for a year were ruled unconstitutional! And in response the Trump admin has pivoted to another, most likely also unconstitutional, means of implementing his tariffs. But likely doesn't mean it has been ruled on in this specific way, and the US legal system assumes new decisions like that is lawful until otherwise said. You and "your tribe" is benefiting from this just the same. Trump gets to fuck around with the economic wellbeing of companies all around the country at his whim because of this presumption.

That it takes time to sort out many wrongdoings is not a great criticism, no system can have immediate and perfect retification. Come up with one that does first before whining that one of the most consistently successful and free country in the world can't do the impossible.

Ugh, I'm sorry for doing this without responding first to the earlier conversation thread, but:

You would simply not have a gun,

TheNybblr has made his situation clear, and there's an active court cases with arguments next month over that class of problem; it's not a hypothetical.

and you would not be able to make meaningful legal appeal otherwise.

Do you believe Dexter Taylor will have a meaningful appeal that either clearly debunks the defense lawyer's claim or sends the case back for a retrial? How about Malinowski? Will New York Citiers be allowed to own stun guns?

I live in NJ; I cannot lawfully purchase a similar rifle anywhere in the country, because NJs firearms owners permit is too hard to get. You need to tell them the name and hospital affiliation of any mental health practitioner you have ever seen, since birth,

The first one is pretty simple, bans on gun ownership for people who have involuntary committed is a common law. Texas and Florida both do it as well. Requiring you submit your history of commitments seems a reasonable part of the ban there. Again, Texas and Florida do a very similar thing except their process is automated https://giffords.org/lawcenter/state-laws/mental-health-reporting-in-florida/

Florida law requires the Florida Department of Law Enforcement (FDLE) to compile and maintain an automated database of persons who are prohibited from purchasing a firearm based on court records of adjudications of mental defectiveness or commitments to mental institutions.

So if anything NJ is lighter there and doesn't pry into your history until you try to get a gun, instead of having a database of everyone by default. Of course this privacy results in requiring personal submission on application instead.

and you need to have two unrelated adult references swear you're moral enough to buy a gun.

This is the thing most likely to be unconstitutional. Challenge it in court and let the process play out. I never claimed that would be oppressors don't exist, I said that they occur at the margins. Requiring two references is a margin, and even while it's probably going to be ruled unconstitutional, personally it's not a great sign for Nybbler if it's truly stopping him personally from getting a gun.

Because either

  1. He was involuntary committed, and thus wouldn't be able to get one in Florida or Texas either.

  2. He doesn't have two people in his life who trust him to own a firearm and going out of state is easier than finding and convincing other people (many who would be republicans or pro 2nd amendment as New Jersey is a 50/46 state) that he is safe.

It shouldn't be a requirement, but also casually speaking big red flag IMO. I have like ten people in my immediate life who could easily do so if it was required.

Do you believe Dexter Taylor will have a meaningful appeal that either clearly debunks the defense lawyer's claim or sends the case back for a retrial?

We'll see! I don't know the exact specifics of his case and the law as written and what the higher courts will decide based on those. But how would the appeal "debunk the defense lawyer's claim"? He's claiming the judge said something in private, unless he has actual evidence the appeals court isn't going to care. A defense attorney can't say "Dear appeals court, I overheard the judge in the bathroom say he just decided at random. I'm the only one who heard it and there's no recording but please trust me please". He's gonna have to show proof.

The first one is pretty simple, bans on gun ownership for people who have involuntary committed is a common law. Texas and Florida both do it as well. Requiring you submit your history of commitments seems a reasonable part of the ban there.

No. "the name and hospital affiliation of any mental health practitioner you have ever seen, since birth". Not anywhere you've been involuntarily committed. Any mental health practitioner, you have seen, over your entire lifespan. Talk to a licensed MHP as a high school guidance counselor, and it's technically required. And you have to sign a disclosure request so they can ask hospitals actively.

(Bonus: any errors in an application, even honest mistakes, can be and are used to on their own act as sufficient cause to reject a permit to purchase.)

So if anything NJ is lighter there and doesn't pry into your history until you try to get a gun, instead of having a database of everyone by default.

New Jersey does run its own Point of Contact system including a mental health database. They just also require active disclosure of everything else, too.

((New Jersey, by statute, also prohibits firearm permits from being issued to anyone with a voluntary mental health commitment, though that's not relevant here except to show it's also more aggressive than Florida in stupid ways.))

This is the thing most likely to be unconstitutional. Challenge it in court and let the process play out.

The specific New Jersey requirement's legal challenges have been bound up by some case consolidation and standing delatory tactics problems, but we do have other circuits who have looked at those policies and decided they were a-OK. My personal favorite is Antonyuk, where the character references survived because there was an imaginable circumstance where they could be constitutionally applied, and because buying and gun and possessing a gun are different. So the challenge has been live since 2022, the district court's stay of other parts of the law that were blatantly unconstitutional was reflexively stayed and never went into effect.

SCOTUS booted the case there back down, without any process protecting the plaintiff's rights in the meantime, and given Rahimi, very little chance of the Second Circuit changing their minds or New Jersey behaving any better. SCOTUS doesn't care. It's not a random illegal-immigrant with a human trafficking background on a holiday weekend.

He doesn't have two people in his life who trust him to own a firearm and going out of state is easier than finding and convincing other people

His primary stopping point is the disclosure requirement; he does not have those names of professionals. Beyond that, many jurisdictions will actively refuse character references from out of county, and the law permits them to reject references arbitrarily.

But how would the appeal "debunk the defense lawyer's claim"? He's claiming the judge said something in private, unless he has actual evidence the appeals court isn't going to care.

I don't see where you're getting "in private" from, but the trivial and poor debunking would be to say "that didn't happen" or "there is no evidence of this claim", in their own writing. A stronger one would be something along the lines of "here's the trial transcript, it ain't in it".

I'm not asking you whether they'll have a perfect debunk. I'm predicting -- and willing to bet at nontrivial odds -- that they're not going to try.

You're absolutely right in the sense that appeals court isn't going to care. They don't need to debate whether it happened. That's the process.

Requiring you submit your history of commitments seems a reasonable part of the ban there.

New Jersey's law demands an accounting of all psychiatrists that evaluated you regardless of whether those evaluations were connected to judicial proceedings, not the very narrow category of involuntary commitments ordered by a judge after a psychiatric evaluation.

Ah well that probably is overreaching then. Regardless it doesn't change much as my claim has never been that government doesn't do unconstitutional things, it's that they do it at the margins.

Either by severity, like two references and mental health history is still a pretty doable task as opposed to a straight up ban which wouldn't allow you a gun at all or through time such as Trump illegally stealing billions from American companies through tariffs.

We have two choices here. Presume government is acting legally until ruled otherwise by courts or presume government they're acting illegally and prevent government from doing anything until they affirmatively prove their case. Our founding fathers decided the former is preferable in the design of US government.

Presume government is acting legally until ruled otherwise by courts or presume government they're acting illegally and prevent government from doing anything until they affirmatively prove their case.

Does this seem like a good description of Caetano turning to Calce?

I know the process arguments: Caetano was a per curiam, not a ruling; the eventual decision in a different case after the state mooted Caetano only bound Massachusetts (and arguably not even them); yada yada standing self-mooting yada. But those are only arguments about how the process got here. They say nothing about whether the process is reasonable or correct.

Because it seems wildly insufficient to affirmatively prove that the government's acting illegally. Caetano did that in 2016.

And people clearly believe that, for rights they care about, and sometimes even for stupid shit like people appreciating the view of a building. Courts are quite happy to throw out preliminary injunctions and temporary restraining orders, even post-CASA and even where the government is quite likely to win the eventual case. We have processes that could be used to evaluate whether new, poorly-defined, and likely unconstitutional laws should go into effect or be delayed. They just aren't: see Illinois v. Due Process for a trivial example that SCOTUS didn't care about either.

Ah well that probably is overreaching then. Regardless it doesn't change much as my claim has never been that government doesn't do unconstitutional things, it's that they do it at the margins.

When you make an appeal to reasonable deference due to a lack of systemic overreach, it is no longer 'regardless' if the systemic overreach is at what you dismiss as the margins. Your outgroup is by its nature at the margins of your consideration.

'I do not mind constitutional rights being revoked for my outgroup' is not a defense.

We have two choices here. Presume government is acting legally until ruled otherwise by courts or presume government they're acting illegally and prevent government from doing anything until they affirmatively prove their case. Our founding fathers decided the former is preferable in the design of US government.

Why only two? Why are you unable to come up with other choices of how to perceive and proceed?

More comments

I can't pinpoint when I started thinking that law was basically a bunch of bullshit, but I know what case solidified that view in my mind beyond any shadow of a doubt - Wickard v Fillburn. For those unfamiliar:

Roscoe Filburn was a farmer in what is now suburban Dayton, Ohio.[4] He admitted producing wheat in excess of the amount permitted. He maintained, however, that the excess wheat was produced for his private consumption on his own farm. Since it never entered commerce at all, much less interstate commerce, he argued that it was not a proper subject of federal regulation under the Commerce Clause.

...

By the time that the case reached the high court, eight out of the nine justices had been appointed by President Franklin Roosevelt, the architect of the New Deal legislation. In addition, the case was heard during wartime, shortly after the attack on Pearl Harbor galvanized the United States to enter the Second World War.[6][7] The decision supported the President by holding that the Constitution allowed the federal government to regulate economic activity that was only indirectly related to interstate commerce.

...

That effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone, but the cumulative actions of thousands of other farmers just like Filburn would certainly make the effect become substantial.

Therefore, Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

Nope. Zero chance. You are just never, ever, ever going to convince me that a single person has ever honestly believed that growing wheat and feeding it your cows is interstate commerce or that anyone believes that such an extension of interstate commerce regulatory powers would have been considered legitimate by the people that penned and signed the Constitution in. If growing wheat and feeding it your cows can be interstate commerce, there is simply no end to the potential malleability of any law on the books.

I sometimes wonder if Franklin Roosevelt didn't do more damage to the US than any other president. In some ways he was a proto-Trump. He saw problems, and rather than try to fix the system, bulldozed through it and made up justifications, then the rest of the government had to rationalize things post-hoc to maintain the veneer of a Republic.

It's funny, because I remember studying that same case in PolySci and thinking to myself, verbatim: "wow, so our legal system is literally just whatever some powerful dickhead wants it to be".

law was like math 2+2 =4

While math like 2+2=4 is generally agreed upon, you might be surprised at the level of disagreement within a given math department. It's probably lower than the law department, but it's not zero. Specific examples would be the Axiom of Choice (either accepting it or not leads to unintuitive results like Banach-Tarski) or opinions on computer-assisted proofs like the Four Color Theorem, although I haven't been in a math department class since ChatGPT came out. Even the analysis vs. topology folks come to somewhat different conclusions based on their chosen axioms.

I guess my point is we could have a legal system that is more mathy. Pointing out UC which has probably been the most conservative major law school has multiple different legal theory branches is not mathy. Especially when it applies to judicial philosophy and not law design.

I laugh when people mostly on the right complain about the length of bills. I think a clear bill would include a broad “thing” but then spend a lot of words describing all the specific applications.

The current thing is birthright citizenship. The designers of the amendment could have spent the time properly defining why they meant by “jurisdiction”. You could have the amendment that’s what it is now in the list of amendments to keep it short for students to read and then have pages of footnotes defining jurisdiction.

Instead you have basically just boosted the power of judges. Each side on the birthright side in my opinion has correct arguments. So who decides? You basically just made judges into legislators. It’s a policy decision.

From an ethical perspective I believe our law schools have failed us. They shouldn’t have theorists and debates. Words need to mean something and the schools should be emphasizing that. Debating things is of course fun and academics enjoy that process. But they could be teaching future lawyers to interpret words as written and since lawyers write most laws teaching them to write laws that are clear and limit a need to be interpretive.

You can have a legal system that is far more like 2+2. Common law to me seems like hogwash. If you want a common law to be law then write it down on a piece of paper and pass that law.

I understand how Sunstein enjoyed viewpoint diversity in law. I don’t want viewpoint diversity in law. I want something where if I read a law passed by congress I know the rules I need to follow. Viewpoint diversity just means law becomes another form of politics.

opinions on computer-assisted proofs like the Four Color Theorem

I think the development of formal proof verifiers like Lean mostly quelled the practical concerns about computer-assisted proofs. Nobody's going to trust some two hundred page "proof" just because an LLM spat it out, but formalize it and properly verify the proof steps via a smaller verifier that's been itself closely manually examined, and then the remaining parts of it you have to check manually are more like definitions (when Lean verifies that "All Foos are Bars", does its definition of "Foo" and "Bar" match ours?) and much easier to understand and review. There's a real synergy here in iterating between proof verifiers (which will reliably state whether a proof is correct, but weren't very popular by themselves because they require the proof to be spelled out in tedious precise detail) and large language models (which will translate a colloquial proof into tedious precise detail, but aren't very useful by themselves because they aren't reliable enough to trust without rigorous checking).

The aesthetic concerns are still there, though. There are proofs that you can read through (the highlights of, not the every-trivial-step that you have in something formalized) and they enhance your understanding of the subject, and then there are proofs that just make it from point A to point B via some kind of hideous brute force, and there's a reasonable fear that computer-generated proofs or even just computer-assisted proofs are going to have a lot more of the latter instead of the former. There was quite a lot of excitement recently about a couple newly-AI-proven conjectures (IIRC one on primitive sets, another on Ramsey numbers, both on asymptotic behavior?) because, not only were these about questions that human mathematicians had taken more than a passing interest in, but the proofs were short and insightful. Candidates for proofs "from The Book", to use Erdös' old phrase.

Specific examples would be the Axiom of Choice (either accepting it or not leads to unintuitive results like Banach-Tarski)

Well, everybody agrees that if you accept it then you get certain nice things and certain nasty ones, and that you can have consistent models that accept it and consistent models that don't. There's still a disagreement here, but it's again a disagreement over aesthetics more than over fact.

It's a big disagreement over aesthetics, admittedly. The joke goes: "The Axiom of Choice is obviously true, the Well-ordering principle obviously false, and who knows about Zorn's lemma", and the humor is that emotionally that all feels true even though logically those three things are provably equivalent.

There might even be increasing common ground in the aesthetic question. The Axiom of Dependent Choice is sufficient to prove a ton (I hesitate to say "all", since in my own field we typically just throw up our hands and assume full AC, and I'd love to learn of any results that really do make full AC necessary) of the classic real-analysis and functional-analysis theorems that Zermelo-Fraenkel alone doesn't give you, but it isn't sufficient to force the existence of ugly-seeming things like non-measurable subsets of ℝ, or of insane-seeming things like Banach-Tarski.

I'd love to learn of any results that really do make full AC necessary

Okay, there's "every vector space has a Hamel basis", which may have important implications I don't realize since I just use Schauder bases in spaces where the distinction matters.

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats