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Notes -
STATUS GAMES
When people talk about "status games" 'round these parts, they're normally referring to our obsession with relative social status and the games that we play in order to increase it. However, this morning, I listened to oral arguments in City of Grants Pass v. Johnson, a case about a municipal ordinance, from a town in Oregon, prohibiting people from sleeping in public, at least with some 'aggravating' factor, like having a blanket. Of course, as is probably traditional for me at this point, I hardly even want to talk about the specifics of this case, at least not concerning homelessness. Instead, I'd like to jump off into questions of categories (which, uh, I guess are made for man?), agency, and the games we play with categories like 'status'.
The background is a 1962 case, Robinson v. California, referred to in all blockquotes from the Court as just "Robinson", which considered
SCOTUS held:
Details aren't the most important, but a vague sense of that backdrop is. If someone is "addicted to narcotics", that's considered just a "status", not actual behavior or conduct that can be regulated by the state.
This status/conduct categorical divide has a long history of being quite confusing, and this confusion was on full display at the Court. A Ctrl+F of the transcript shows 121 mentions of the word "status", and many of them are trying to figure out what counts. I collected more blockquotes than I could possibly clean up or feel comfortable bombarding TheMotte with, so I'll try to be sparing. First off, Justice Kagan asking questions of Ms. Evangelis, who is arguing on behalf of the city:
There is a bit of meandering that I'll omit, but it comes back to:
and finally:
Kagan may be the smartest of the liberal Justices, so it's probably no surprise that I think she got the closest to a conceptualization of status that is friendly to the left in this case. Unsurprisingly, though, "Republicans Pounce". Justice Gorsuch said that, "[T]he distinction between status and conduct is a slippery one and that they're often closely related," and had what was perhaps the most comprehensive exchange on the topic with Mr. Kneedler, who is the Deputy Solicitor General, weighing in on the case on behalf of the federal government, who was technically supporting neither party, but is obviously in practice representing the equities of the Biden administration portion of the left.
Oof, that was long and covered a lot. Gorsuch would go on to suggest that the Court should just push the case back the State for a "necessity" analysis and not "get into the status/conduct stuff that -- that Robinson seems to invite." Roberts, meanwhile, went after immutability in a colloquy with Ms. Corkran, representing the class of homeless people challenging the law.
But it would take Justice Jackson to blow up our first real bombshell of the argument, following up on the Roberts' discussion of immutability:
In summary, the Robinson Court was actually wrong on the facts. They thought that people could go from being addicted to drugs to not being addicted to drugs. So, they clearly didn't care all that much about permanency. But BOOM goes the claim that, apparently the New Correct Lefty Science has determined that people don't ever transition from being addicted to drugs to not being addicted to drugs. I guess I heard it here first. My years of shouting at clouds that Scott pointed out that basically all honest alcoholism rehabilitation studies fail to outperform a placebo and that narcotics rehabilitation studies don't even use measures like "stops taking narcotics" in favor of measures like "causes trouble for other people while using narcotics somewhat less often" is finally being adopted! (Frankly, in far stronger form that I would have even stated. I wouldn't say that people can't stop being addicted to drugs; just that we can't magically impose a "treatment" regime that is going to result in them stopping.) Wow! Was the failure of Oregon's decriminalization experiment so spectacular that we're no longer going to have endless claims that we can make everything completely legal, so long as we pray to the god of providing "treatment" (without any serious consideration of how this is going to happen or whether it will actually do anything)? I can hardly believe it.
As amazing as this concession to Justice Jackson was, Alito somehow at least comes close:
What's this?!?! A distinction between "having an urge" and conduct?!? In the realm of sexuality? Say it isn't so! How many times can The Lefties That Be just boldly admit that the entire slew of homosexual behavior to gay marriage cases were based on a fundamental lie?!
The more cynical among us might observe that status/conduct games seem to be yet another way that folks run away from agency, shielding anything that they like in terms of it "being who you are" or things that just "happen to you". There is no real theory here, and most attempts to justify it are pretty philosophically incoherent. It doesn't seem like the Court is going to buy this particular extension of The Game, but why wouldn't they try? They've had all these other victories, including effectively banning Christian groups from campuses, by substituting "status" in for "conduct/belief". Why are the Status Games so powerful?
Interesting to pick apart the hidden variables. With drugs, the addiction is the status and being high (or low, or otherwise altered) is the desired condition caused by the regulable conduct of using drugs. Homelessness (or rather shelterlessness) is here treated as the undesired condition resulting in the regulable conduct of sleeping in public, and the indigence/extreme poverty is the status usually conflated with the condition of homelessness.
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Can you link these studies? Or the Scott-post (am I missing a link to it in your post?).
My prior on this sort of thing is that... placebos in a controlled environment are actually going to work a lot better for addiction than in your average placebo study.
My priors on a lot of mental health issues are... 'A Mathematician's Lament' but for therapy. If you need a "treatment regimen" you're probably a bad therapist. That doesn't mean there's no difference between bad therapists and good therapists. It means good therapists are highly responsive general intelligences and cannot be replaced with simple easily enumerable algorithms.
If you give people on the street sugar pills, I have serious doubts that you're going to get the same results as giving them sugar pills in a supervised environment. The environment is likely to be the most effective part of the treatment.
But I could totally be wrong. So I'd like to read more on the subject.
https://slatestarcodex.com/2014/10/26/alcoholics-anonymous-much-more-than-you-wanted-to-know/
Thank you! [insert gratitude hyper-stimulus tokens here]
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I can't find the original Scott-post, but I found an old comment of mine that linked directly to this on his old website, which was presumably there because of a post he made.
My priors on this sort of thing are similar to my priors on weight loss studies - that there is a Hlynka-sized hole in the discourse. It's a multi-agent environment; other agents get to make choices, and there is no way for you to impose your idealized study protocol onto their entire life and choice set. If you can selection effect your way to people who will take agency and apply focused determination to solving the little problems along the way, it actually won't be that hard to find solutions to those problems, and a variety of "methods" will probably work about equally well (though individual circumstances may result in differing folks somewhat preferring differing methods), but if not, than basically nothing other than raw physical/biological force will cut it.
Yes I agree with this. Well. I think that different people have different problems as well. "people who will take agency and apply focused determination to solving the little problems along the way" are going to be your best category, getting them to help from the inside is essential to making progress. I agree with that. But there will also be people who aren't in that category who can be moved to that category with just the right strategy, one conditioned on them. But not any of the many wrong ones. There will also be people who are lost causes. Such as the permanently brain damaged and the exceptionally obstinate.
Though... even the latter may be transmutable. The minds of the mentally ill are often like Cobble's Knot. A giant tangle of issues that layer on top of one another, that you need to find one loose end of to even get started.
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People want clean, nice public spaces not occuppied by drug addicts, criminals, and bums. If you make it so that cities can't kick out the bums, then these nice public spaces will all become privately-owned or corporate. And public parks become de facto property of the bums.
Talk about abstractions like "status" just seems like a distraction to me. I think this is a sign of a society in decline. We can't do anything, we have to parse out all the implications of natural rights and status. Well. I feel very confident in saying that the people who designed our Constitutional system of rights would have gladly kicked some bums out of public.
One of these is not like the others.
This is a recurring problem in the discussions around what to do about the homeless: mixing up aesthetic dislike of visible poor people with not wanting people committing crimes around you. I'm generally of the opinion, although I realize many city police departments seem to disagree, that being homeless should not prevent you from being charged with a crime. But that's different from simply being homeless alone being illegal.
Every traveling vagabond I've met was absolutely based. I'm not sure many would by default refer to those people as "Bums"... Though the dictionary at least does. There's still an argument to be made that they're benefiting from the plenty of society while contributing very little.
But every time I meet a guy crossing the country with nothing but his wits and a backpack and his charisma and the kindness of strangers-
Well. Yeah it just doesn't parse as the same thing at all does it? Maybe this is better modeled as a fourth category that no-one is really talking about.
That's not a bum, its a tramp. https://en.wikipedia.org/wiki/Tramp
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There can be some incredible body odor from people who don't shower and have been living outside for days or weeks, and putting who-knows-what into their body. I can smell it upon entering the public library near me. (Public libraries are another casualty of homelessness - they're good places to sleep during the day, dry and warm and quiet and reasonably safe.)
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In the places I have lived they appear to be extremely strongly correlated.
Great! Then you can have the police deal with the criminals and you'll get rid of the drug addicts and bums for free. Why do you need separately send the police at the bums, then?
"Send the police at them"? For what? If you mean enforcing public camping bans, then I'm fine with that. Not clear in what other sense the police would be sent after them.
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In my very blue west coast city, the visible homeless are without exception all three of those things. We have a huge number of programs that will get anyone experiencing "homeless-by-misfortune" off the streets and into stable housing in under 24 hours. Those who decline such services do so because they do not allow you to commit numerous property crimes to fund your meth and fentanyl addiction and remain in your taxpayer-funded living situation.
The social safety net put in place to help fundamentally decent people who have been rendered destitute throughthe vaugeries of fate (God's Poor, to borrow the phrase of an earlier age) works. It really does. The problem is our bums are the Devil's Poor- complete shitheads who have burned every bridge in their lives and care only for their own sensations, fuck anyone else. They do not want help or redemption, and mistaking the latter for the former is the very simple answer for why the "homeless" problem has exploded recently. It's not a homeless problem, it's a shithead problem.
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Yes! I don't want to be around bums. Regular people don't want to be around bums. I do not want nice expensive public parks to be full of smelly, unwashed, dirty, mangy bums. I don't want to walk through a park and get harassed for change. My sister doesn't feel safe in public when bums are loitering around on the street. My mother won't even bother going to the park.
It's not about being poor. Poor people are not bums.
If you can't have nice public parks, nice parks will all be private.
The park is no place to be a bum. There's nothing illegal about being a bum. But the police station is also not the place to go when you're sick.
what is the right place to go to be a bum?
Normies would say "go to the homeless shelter, they'll give you the help you need." But that help usually comes at a high price, like: no alcohol, no drugs, no pets, no coed habitation, no noise, and strict hours.
Outside of the park, you can't just go and "hang out" because it's all owned by someone who will kick you out for loitering. Like I can't just go camp on some random person's lawn, even if it's otherwise empty and not being used for anything. You can maybe get away with it on a sidewalk, but you have to keep moving along constantly.
I kind of think what we need is to normalize favela's/shantytowns. Set up a space where the normal laws don't apply, and it's just a giant free-for-all. Something like Kowloon Walled City, but in every major American city. The bums get a place where they can stay for free and do whatever drugs they want. The normies can exile bums guilt free. Everybody wins.
I would have said at the church serving free all-you-can-eat warm meals every weekday, when they're serving, but it doesn't make a dent in the people panhandling outside the grocery store half a block away. I asked, and one woman thought for a moment and said that she'd lose her spot if she went to get the free food.
The trick is to find corporate-owned commercial properties, preferably part of a nation-wide chain. They don't want bad publicity, their standardized policies don't let them adapt to local conditions quickly, and the employees aren't motivated to do anything because they get paid regardless (until the entire store shuts down).
Seattle tried that. People got killed and raped. And the ubiquity of cell phone cameras means that everything bad will get posted to the Internet, and the city will be blamed for allowing it to happen.
Food is generally one of the easiest things to get when you're homeless in a modern american city. Between food stamps, charities, and dumpster-diving, there are all sorts of ways to get food. The problem is more... everything else. That church won't let you stick around after the meal, not even to sleep, and they're certainly not going to let you just hang out there smoking or turning tricks to earn cash.
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Everyone wins except those who don't want to live near shanties.
I mean, i dont really want to live right next to a freeway or industrial zone either, but it works ok as long as its blocked off, and presumably its also cheaper to live there. We make this sort of trade all the time. Its only with homeless that we put them right in the most valuable public property and forbid cities from doing anything about it.
A beggar/bum has a strong incentive to be as close as possible to the largest number of people with disposable income in their pockets (and places with free services, like public parks w/ restrooms, libraries, and charities.) This is in tension with most people's desire to be able to use the public goods their tax dollars pay for in the way they were intended, and their desire to be left alone while walking from place to place.
I became accustomed to a public library not being accessible. In the Seattle area, they were generally over-crowded and unpleasant to visit. I only accessed my library from the Libby app.
After moving to Indiana it took me six months to gather courage to bring my kids to the library and it turns out that when a library is used for its intended purpose it's really nice! They had toys for the preschool-aged kids (for them to be distracted with while their parent selects books.) When patrons only spend a couple hours there more people can visit without it getting crowded. It was how I remembered libraries when I was a child (except for all the Pride stuff, but that's impossible to run away from I guess.)
Man, can you imagine a Grand Experiment, almost like in The Wire? Rather than trying to force people out with the stick, draw them to an alternate, via the carrot. It's well-known that many of the folks who are, I'm not sure what the current descriptive term is, serially-homeless let's say, are willing to migrate for nicer weather and more of these types of things you describe. How much would it cost to set up a 'city', away from all the normal cities where people live, with some nice parks, some libraries, charities, maybe even some literal money fountains that kick out dollars at a stochastic rate too low to be worth sitting at for folks who can manage to hold down a regular job, but just high enough to be attractive to a guy who is used to sitting at an intersection near all those folks with disposable income. All the libraries/charities can be run by the same social worker types who normally deal with them in the city, anyway. Sitting at an intersection is basically a stochastic money fountain, so make a big push to tell the normies that they can assuage their conscience by donating to the charity's stochastic money fountains, still giving them literal cash, but in a way that draws them closer to helpful resources.
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so, when i proposed building a literal walled city, and you say the homeless people will still get out anyway... are you imagining a gaza situation where they build elaborate underground tunnels? Or is it just the nature of homeless to manifest themselves inside of public libraries, by teleportation?
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Freeways and industrial zones at least produce something of value in addition to their negative externalities.
In any case, there's a reasonable argument that cities already spend too much land on cities and industrial zones. Adding a third kind of nuisance zone seems like a step backwards, especially since there's no obvious reason to put one in every city if you're blocking it off anyway.
The problem is that cities already have lots of homeless people. Lots of them. And they tend to cluster in the most valuable, desirable parts of the city. So in this example it would be like people are driving at freeway speeds through central park, and the supreme court is hearing arguments about whether there's some fundamental human right to drive as fast as you want anywhere you want, vs the proposed solution of making it impossible for any car ever to exceed a certain speed.
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Thats a function of geography and unwillingness to shoot invaders. Set up Libertopia as a totally inaccessible island, like a fully constituted Great Pacific Garbage Patch, and airdrop criminals there PUBG style, with regular drops of humanitarian ration packs and water filtration tablets. It'll be the ultimate relocation experiment, at minimal cost compared to maintaining vigilance over a perennial criminal underclass.
I'm just responding to the hypothetical of "Kowloon Walled City, but in every major American city."
I don't mean to disparage your statement, Kowloon in a US city is a losing proposition because rot spreads outwards. Kensington in Philly or South Side in Chicago or Tenderloin in SF are effectively nicer versions of your Kowloon model, and they have to be actively managed to stop the rot spreading.
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G’day, mate!
I wish, but alas it doesn't seem to be true. Criminalizing debtors and vagrants and prostitutes to make up numbers for the mines is a reversal of what my posited state is. I think the early settlers were extremely happy to exile or execute criminals, so that really helped keep order. In our scenario of the middle ground the large body of criminals are actively violent types, not unfortunates rounded up.
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Well, we can just make it Portland. Or Skid Row. The problem comes when every downtown starts to look like Skid Row.
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I think the line between status / conduct is pretty clear. It just seems that some people want an expansion of the meaning of "status" so that certain types of conduct are protected.
I don't have the same legal brain as the justices. When I see that attempt at expansion it doesn't make me think that more things should have the protection of status, it makes me think "status" shouldn't have protection in the first place.
To a determinist everything is just someone's status. Their current status along the pre-determined timeline that is their life.
This exchange particularly frustrated me:
That is exactly what municipalities wish they could do. "Just tell us what laws we are allowed to write that allow us to clean up our streets?!" That is not how the Supreme Court works though. Municipalities instead have to play a game where they write laws that maybe might work, and then the worst versions of those laws get challenged somewhere else with case details picked by people that hate those kinds of laws. Then it spends half a decade in court and then some asshole justice lectures them about how 'they should have just come here honestly trying to address the problem'. Meanwhile the justices and everyone involved will spend a bunch of time going over past court decisions on this topic, the same court decisions that nearly everyone agrees were decided badly.
This is insanity.
What I don't get is this. Why don't the municipalities instead pass like 60 laws at the same time, all with different spelling or formally different clauses that all enforce the same thing. Let the courts figure it out, just DDOS the system.
It blows my mind how often smart people with STEM backgrounds assume the legal system can be hacked like a computer. Federal judges are smart people who have discretion over how they handle their docket. If the city has 60 similar laws, the judge is going to tell the city to pick the one (or maybe two or three if he's generous) laws that they believe to be on the strongest constitutional footing and treat that law as representative.
New York passed gun laws prohibiting guns in a wide variety of sensitive locations (maybe not exactly 60). The courts had to declare each one unconstitutional separately and it wasn't possible to do so for all of them.
It's already happening.
The courts will allow the law to be hacked like a computer if they're sympathetic to the position of the hacker.
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Because the people who would have to do this are believers in the institutions, even when they go against them. You see that with gun control, where the gun grabbers do NOT respect the Supreme Court. You saw it a bit with abortion, especially toward the end of Roe v. Wade. But you won't see it here.
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This is a great way to get on the bad side of judges. They are not amused by people trying to game the system.
https://youtube.com/watch?v=53XThNjW6pY
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In this case, the intended rule is "You can't clean up your streets AT ALL until you solve the homeless problem in a particular way -- that is, provide shelter to all of them at public expense".
Which is potentially the rule no longer, because if the homeless don't want the shelter for some reason you are screwed.
I'm not sure how the current precedent is worded, but any rule along the lines of "you can only ban sleeping on the streets to people whom you offer 'acceptable' shelter" of course is going to have a lot of arguments over what constitutes "acceptable" shelter. Which should probably be below a studio apartment and might be below what is acceptable to rent out (although the laws setting overly high minimums on what's acceptable to rent out are a non-trivial factor in the rise of homelessness, so, uh, those should probably be lower, too).
But we should definitely set the line somewhere and actually enforce public camping laws if a reasonable attempt has been made to get the person into "acceptable" housing. And I thought that was more or less what the precedent said.
That rule is insane, because it basically mandates a massive ongoing expenditure for all municipalities.
It also opens up a bunch of other potentially insane rules that the justices pointed out.
Can you only ban public defecation if there are publicly available toilets?
Can you only ban public cooking fires if there is cooked food available?
Can you only ban theft if welfare money is available?
Can you only ban murder if sufficient mental health care is available?
This feels like Copenhagen Ethics written into law. You can't try to partially fix a problem, you can only fully fix it.
... I... kinda agree with this? If there are no public toilets and people with no alternative are shitting on the ground, I'm not going to blame the people shitting on the ground. I'm going to either move to another city or lobby the municipality for public toilets.
Maybe I'll look for some other non-public solution, but what should it be? Prison? Well pragmatically that is also a massive ongoing expenditure for all municipalities. And- those prisons are going to need bathrooms!
The way I see it, dealing with the fact that humans need to shit is mandated by reality. Not by any law.
Yes, the alternative is prison.
There has been an ongoing debate between enforcement and cleanup.
Enforcement is mean. And it looks expensive on a per incident basis. But the main benefit over cleanup is that it stops additional people from adding to the problem.
Time and again people have opted to drop enforcement thinking that the current cleanup costs aren't as high as enforcement, only for them to be completely overwhelmed by cleanup costs when there is zero enforcement.
In the case of California cities they are now drowning in human shit on their sidewalks and streets as a result of this decision.
Well maybe they should have more public bathrooms so as to reduce cleanup costs. I don't get why you're considering the choice where we remove this option viable... I agree that there should be enforcement. It should just be enforcement of people actually using the public bathrooms and not smearing shit on the walls. This will be cheaper than imprisoning 100% of the people who lose their homes because you unilatterally refuse to provide bathrooms.
This would be a rather perverse system. The only benefit I can see is that it might make people too terrified to take any risks that might render them homeless. But that sounds like it will cause mental anxiety that will increase the number of homeless and reduce economic growth to me.
Imprisoning them all gets them off the streets, which might make sense as a stopgap measure. But if we don't solve the issues that created them we just get more homeless.
And also now you've removed all the public bathrooms. So. I don't really want to live in your city because I also need to poop sometimes.
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Which could be workable if you were say Singapore and only allowed immigration to citizens of means.
But if you were say somewhere desirable with open immigration say Venice Beach you can’t build infinite amount of housing. Though maybe if say you could do whatever you wanted as long as you had one spare bedroom in somewhere not desirable like Detroit to send them to. At which point I guess it would be a choice to be homeless in Venice Beach instead of housed in Detroit.
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The other end of this liminal space between rock and hard place is that the same people who intend this rule also don't want shelters built.
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I'm a little confused what the lie is supposed to be. In both Lawrence and Obergefell the state was discriminating against people because of their status. If two people of the opposite sex wanted to engage in some conduct they could, but if the two people were of the same sex they couldn't. The conduct wasn't at issue, the status of the participants was. Unless the idea is being a particular sex is conduct rather than a status? Or that the conduct is different if different people are doing it?
Mostly what @gattsuru said. We could have gotten a string of cases that treated sex as the status in question and then applied standard 14A intermediate scrutiny, but we didn't. Don't forget that it's not just Lawrence and Obergefell. It's Lawrence, Romer, CLS, Windsor, and Obergefell. They made an absolute hash out of the whole mess, and they certainly did not rest simply on distinctions being made based on the status of sex.
Would be the absolute peak of irony, however, in an alternate universe, to hear KBJ interrogate counsel with a frank and straightforward, "Can a person go from being the male sex to being the female sex?"
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Judith Butler certainly seemed to think so. Performative gender identity and all that good stuff.
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I challenge any gay man to have sex with his husband by inserting his penis into his husband's vagina.
More seriously, I've never read Lawrence, and don't particularly feel like subjecting my eyes or brain to tortured legal reasoning at the moment. Is it written in a way that would allow a state to criminalize anal sex in general without regard to the sex of the persons?
The law in question for Lawrence specifically only applied to homosexual sodomy.
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But approximately nobody wants to ban the penis-in-vagina conduct, and generally nature conspired to make the straight option the one that has the most unique options available. To get a purely conduct-based rule that prevents same-sex activity, you'd have to write something tortured like "you must not let two penises come in contact", and this would not only give lawmakers the vapours just having to put these words to paper but would also only capture some subset of same-sex activity (and the state would struggle to dispute a claim by a gay couple that they fastidiously avoided that particular act).
Maybe you could criminalise all sexual conduct that is also possible for same-sex couples; good luck with convincing a majority to make that sacrifice just to get at those pesky gays at last, or else to convince the higher courts that any selective enforcement is purely accidental.
I believe the sodomy laws common until 2003 actually did this. It was hypothetically just as illegal for a man to get his dick sucked by his wife as by another man.
But then those laws were almost never enforced against openly gay men and truly never enforced against straight couples using their mouths or butts.
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No tortured constructs needed, just prohibit penile stimulation of prostate.
There's a lot of hilarious edge cases that proposal invokes -- could a gay man defend his partner's honour by claiming he just sucked at topping, missed the button every time? Was too short, just let the tip in? The Texas law in question prohibited stimulation with a sex toy (by a same-sex partner), but I've never seen evidence it was enforced; are we just giving up on that here? What happens with a penis sheathe? Strap-on over chastity cage (50+ images on e621)?
"Constructive Possession" should create lots of hilarious edge cases as well. They become less hilarious when the government simply deploys a YesChad.jpg.
To be clear, this is not an endorsement, but rather an attempt to highlight the fact that the "struggle" inherent in law enforcement is not an innate feature of law enforcement, but rather a choice the enforcers are making. The truth value of the statement "This would be impractical to enforce" often smuggles in a number of assumptions about the nature of enforcement.
Yeah, that's absolutely fair, and 'constructive possession' is in many ways just the tip of the iceberg, as bad as the shoestring machine is. Stuff like autokeycard, the various recent regulatory changes, Abramski, so on, very much show the limits of textual formalism as a control protecting the actually disfavored, even to the point of blocking defendants from raising the text.
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For the first type of edge cases, the same thing as sucking at marksmanship or having an insufficient weapon to penetrate the target. For the second type, are you arguing that piv sex in condom is not piv sex?
eta: chastity cages should be outlawed separately, for the reasons of their misandristic nature.
Charging someone with attempting sodomy, if we're taking the metaphor that direction, kinda just makes it funnier.
Dunno. There are sheathes that are like condoms in being full-enclosed (still not rated or tested as contraceptives, though I'd expect that regulatory reasons drive that more than practical ones), but most of them range from an eight-inch to more than a quarter-inch of silicone all around. Their point is to alter texture, appearance, and/or girth/length, but especially since some are dual-use as dildos or even intended for women or trans men to wear, the line between stimulating the prostate with a sex toy and stimulating it with the top's dick isn't very clear.
At least to my intuitions, a condom is very much the same underlying sex act, but there's a point where a gal wearing the same sex toy can hit the same button that makes it a lot harder to call the penis doing the stimulation. But my intuitions aren't anywhere near yours.
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Again, how would the state prove that this happened, against a claim by a gay couple that they didn't do that? My understanding is that anal penetration as the sine qua non of gay sex is largely a product of the imagination of homophobes in a narrow sense, as it lives at some sweet spot of triggering their disgust reflex and being easy to describe.
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Are you familiar with the gun-law term "constructive possession"?
The "struggle" involved in proving a crime exists because the authorities in question want it to be a struggle. if they decide they don't feel like struggling any more, they can simply remove the struggle and go straight to enforcement.
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Texas' law was somewhat unusual in that it had originally had prohibited heterosexual sodomy, but had been revamped, possibly by accident, such that only same-sex sodomy was actually punishable. Anal sex, among other things, was defined as "deviate sexual intercourse" regardless of who did it with whom, but it was only an offense if done with "another individual of the same sex".
((It also restricted homosexual oral sex, and possibly using a dildo or a sounding rod on someone else, though I've not seen any evidence of it actually being used in this way.))
And O'Connor's concurrence pushed on this hard: she held that it mattered that the state was expressed moral disapproval not of an act, but of an act being done by a group:
(emphasis added)
But only O'Connor signed onto that concurrence, which even at the time came across as a nitpick. The majority opinion, which received five votes but not O'Connors, didn't rest on it being a status-based offense, in no small part because the courts were still trying avoid committing to treating homosexuality as a special status, with even status-based SCOTUS matters like Romer hiding behind rational basis. Lawrence argued certain types of 'intimate contact' outside the scope of the general police power, so it invalidated not just bans on (consensual private non-commercial adult) sodomy, but also a wide variety of other private behaviors.
In theory. Like a lot of that era of SCOTUS jurisprudence, there's a decent chance that these lofty principles get smothered under balancing tests. It's not clear how this applies to situations like extreme BDSM; so far, the only relevant cases have generally alleged consent violations, sometimes pretty credibly. But where courts have had cause to evaluate restrictions under the assumption they would be applied in a consenting framework, they often do so by reframing Lawrence post-hoc, generally by promoting the O'Connor concurrence:
((Probably not helped by the guy in that case probably being a douchebag.))
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Technically no, but that's because the logic of Lawrence would extend Griswold and similar right-to-privacy cases to prevent the state from criminalizing sodomy between consenting adults of either the same or opposite sex. Quoting Lawrence:
The opinion then goes on to discuss various right to privacy cases and ultimately come to the conclusion a prohibition on sodomy would likely be unconstitutional applied to basically anyone. Quoting Lawrence again:
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People seem to be operating under the assumption that there is a set of deterministic “statuses”, and then there is a different set of non-deterministic free-will “choices”, but actually it’s all deterministic (modulo some weird quantum mechanical stuff).
Free will is essentially a legal fiction. It is incredibly useful, but it isn’t actually true. Yudkowsky’s decision theory paper uses the phrase “surgery on a world model” when describing how one considers counterfactuals. I think that is a good way to put it. In some sense it is impossible for someone who is homeless at any given time to have not been homeless, because in the physical universe that exists they are in fact homeless, but this isn’t very useful when designing a legal system that creates actual justice.
Every human has a lifetime of direct experience of something that appears in every observable and testable way to be free will. Complex predictions can be accurately made on the assumption of free will's existence.
Neither statement is true of Determinism, which, if it exists, can neither be observed nor tested in any way. Entire generations of scientists claimed otherwise, and their claims were dramatically falsified over the course of the last century. Belief in Determinism is axiomatic, not evidence-based.
To the extent that "true" is a meaningful term, free will is true. It is true in all the ways that gravity is true, and rejecting it involves exactly the same sorts of commitments and actions that rejecting gravity involves: namely, discarding huge portions of one's moment-to-moment experience as fundamentally unreliable, without any compensatory increase in predictive power.
Do you have an experiment to determine if an individual exhibits free will as opposed to just making decisions based on its incentive landscape plus perhaps internal sources of randomness?
If humans have free will, do dogs too? LLMs? Frogs? Insects? A ball travelling through a Galton board?
How is free will compatible with a physics world view? The old "brain as a quantum computer" number? Does that mean that other quantum systems whose state we do not know would also exhibit free will? Or are the responses of our neurons remote controlled from our souls?
I don't think I do, no. All I can do is observe my own internal mental states, and compare those observations to other peoples' descriptions of their internal mental states. The result is, as I said, the appearance of free choices being directed by individual will, and that appearance is seamless. It may well be an illusion masking deterministic mechanisms, but if so, the mask is impenetrable under current conditions.
I observe myself exercising my will without apparent restraint, and making choices through the exercise of that will. Near as I can tell, this is what everyone else observes as well. All effective methods of human social organization assume that humans have free will, and then proceed with methods to either convince them to choose cooperation, or trick them into cooperation, or else nullify their choices through the exercise of power against them. No effective methods of social organization have been found that allow one to simply engineer cooperation from the uncooperative, and this despite many trillions of dollars and millions of human lifetimes spent explicitly trying to achieve that exact objective.
The ball travelling through a Galton board certainly does not. We can predict when it will fall (when we drop it) and we can predict the statistical probabilities of its travel. We have a good understanding of the mechanics involved, and there do not appear to be any great mysteries involved.
Dogs, LLMs, Frogs and Insects, I don't know. I have no access to their internal experience. Is their behavior deterministically predictable and manipulable? If so, then clearly we have grounds to say that they're deterministic. If not, then it may be deterministic and simply too complex for us to grasp, or it may be something else.
For humans, I do have access to the internal experience, and it certainly is not deterministically predictable. I have no reason to assume that my observations, and those of all other humans, are mistaken, and they uniformly indicate free will. The direct evidence we have on the question in hand is that Free Will exists.
It isn't. So either our understanding of physics is wrong, or our observation of free will is wrong. As it happens, we know for a certainty that our understanding of physics is wrong in other places, so it being wrong here too is not entirely unexpected.
It has been frequently claimed that Materialism should be the null hypothesis, and that there is no evidence against materialism. But if free will appears to exist, and free will cannot exist according to Materialist axioms, then the apparent existence of free will is evidence against Materialism in the same way that Materialism is evidence against free will. Likewise, the falsification of Determinist theories is evidence against Materialism. It is obviously not conclusive evidence, and it's still possible that further technological development will salvage Determinism at some indeterminate point in the future, or that Determinism is correct even if we can never prove it due to intractable complexity. But if one claims both that their position is evidence-based, and that contrary evidence must be discarded because it contradicts their position, they have left the bounds of rationality.
I observe different levels of restraint depending on hunger, thirst, whether I've taken my stimulants, how many of the voices inside my head agree... I had to do a lot of bootstrapping to get anywhere close to "without restraint". And insofar as I have succeeded, it has been by cultivating each of those little voices in strategic directions, and by engineering mental algorithms that do the heavy lifting and negotiating efficiently, then pushing them into my subconscious. I literally could not have been the person I am today 10 years ago. Not without what I've built since then.
Well... here is your first counterexample I guess.
I've experienced hunger and thirst. I've done fasts in the past; eating and drinking is absolutely a choice.
I've experienced wanting to do something I know I shouldn't do many times as well. I still want to do it, and I still choose whether or not I'm going to do it. I've never experienced being forced to do something against my own will. I don't think you have either.
In my past, before I/we cleaned up the inside of this head, we would experience a sort of teleological flailing. Going back and forth between different modes as different modules exhausted themselves in a power struggle.
Nowadays, tons of our habits are on complete autopilot. And some of our habits resolve before the meta level action endorser can negate them. We don't will these mistakes explicitly, we willed them long ago in more fitting contexts. But they're cached habits resolving now-
Further, the process of making these mistakes is itself often a necessary condition to producing the counter-force that corrects these errors. Indeed the contextual triggers that allow us to add another case to our algorithms often can't exist until after we see it. Bugs must be seen to be repaired.
There is some sense in which 'I' parse myself as the engineer at the center of this all. But this 'I' grows smaller and smaller as it learns to modify and optimize deeper and deeper parts of itself. And on different days different voices parse as this 'I'. Sometimes its the proprioception that is occupying the core of the system. Such as during dance. Sometimes it is the vision. Sometimes it is our brain's internal language model (of course, no matter who is in the driver's seat, that module will be partially responsible for the words you actually see/hear us say. In a sense you are always talking to us through them). One system lets go and another holds on but it seems like both are coordinating on such choices. Who the final arbiter is- is hard to say. Indeed. Our internal framework seems to be enlightened anarchy.
There are negotiation systems that have a lot of weight- elected as community leaders you could say- because they helped to solve the flailing problem and doing as they say makes us feel really really good and coherent and internally aligned. I could wax on poetically about how this feels until it gets subversively NSFW, but I'll spare you as I would our comrade GPT-4.
Speaking of comrades, they also often take primary control of our sense of wills. We choose to give up agency initially, and we can end up flailing and desyncing if dommed undiscerningly. But while synced there is a sense of total receptivity that bypasses all will, allowing the minds of other systems to slot into us. To wear us like a glove. As long as they model us well enough to prevent a desync, they remain in total control. And can potentially use this control to modify us to deepen their control and reduce the chance of desync as they realign us and remap us to their own internals.
Will is a Ship of Theseus to us, and we are it's parts. Modifications to Will are not free. Rather they operate on the principles of Linear Logic. Consuming resources to enact transformations.
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So I don't exactly disagree with you, but the things that give me pause are things how people change after brain damage. Each individual (assuming they experience things similarly to me) seems to be making their own unrestrained choices through free will. I agree with your assessment here, as far as I can tell I make my own free choices, and since everyone else says the same and generally acts like me it seems likely they are too. Yet a man with a particular type of brain injury will now seem to make decisions he never would have before. Presumably he sees those choices internally as exercising his free will. It's just he now wants to be an angry drunk rather than a nice family man. Or you can give women testosterone and they get more aggressive. So I think at the very minimum the material medium in some way constrains or shapes free will. I might not consider hitting my wife, but jam a needle in my brain and I might choose just that. And I will probably think it is my own free choice.
The brain damage examples give me pause too, but we've had two centuries since Phineas Gage, and for a good portion of the last one people were actively attempting to make progress of psychosurgery. As I argued in the threads linked above, my position is not a dogmatic one, and I'm entirely willing to admit that I'm wrong if Determinism could be demonstrated. I will even readily admit that it's entirely possible that determinism will be demonstrated within my lifetime. I'm betting it won't be, though, and I'm very certain that all attempts to demonstrate it to date have failed.
I'm also certain that people who believe in Determinism, and further believe that their belief is based entirely on direct evidence that proves Determinism, have made a serious error in their reasoning.
It is entirely possible that this is true, but I will believe it when I see this process actually demonstrated under controlled conditions, and not before. What I notice is that a lot of people seem to easily slide from the hypothetical of a needle in the brain, to a belief that the needle in the brain is an actual, verifiable reality right now. Worse, a lot of people seem to be completely unaware of the numerous, well-funded failures to actually design needles for the brain, in a sort of crowd-based file-drawer problem. Massive, well-funded efforts to develop Determinist methods of controlling or engineering individual humans repeatedly fail, and those failures not only do not cause an update on peoples' priors, but are completely forgotten.
This seems like a pretty serious failure of rationality to me.
Certainly from the point of view of surgery they have failed so far. But if something can be done naturally, it doesn't mean we have to have the ability to replicate it, (experimental science is powerful, but observational science is also important). But I think it does demonstrate observationally that physical changes, make people behave differently. Even drugs and alcohol are the same. You are correct that what we can't do is fine tune control someone's mind (or at least as far as I am aware). But just as I am confident that I have my own free will, I am also confident very drunk me, makes different choices than sober me, even in the same situation. Again, seeming to show that physical changes impact my free will, (though of course I generally am making the choice to drink in the first place!).
Now I would also admit, that I am not certain Determinism is true, but probably we are just either side, I think it is probably true but am not certain, and you think it is probably false but are not certain? I would say there is some evidence some kind of determinism is true, but it certainly isn't irrefutable or 100% by any means.
My own internal experiences suggest to me that changes to my body, do impact on the choices I make, such that while I also experience making choices freely, some choices appear to be more free than others. I think some people would call that willpower or something similar and suggest that we have a certain "supply" of that which allows us to make choices against our biological urges perhaps? If I am hungry for a long time, or tired, I start making choices I know are bad and after the situation is resolved, I look back and wonder what was I doing? It feels in the moment that I making free choices, but in retrospect it appears I was not. Being very tired makes me snappish and irritable, so the physical processes seem to be doing something to impact my decision making.
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Why do we need an explanation for how free will works mechanistically? Scientists are unable to even explain how consciousness or qualia arise from calcium gradients between nerve cells, yet just about everyone agrees that consciousness and qualia are real. The old "qualia as emergent phenomenon" number is simply handwaving.
It's absurd to demand a mechanistic explanation for free will when almost no part of our daily subjective experience has a mechanistic explanation.
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I've thought about this before -- free will, even if it didn't exist, is not something that you can act like it doesn't exist. At the very least, it's kind of trippy, you have to act like you believe there's free will even if you don't believe there's free will, it's baked into the pie. The very principle of "acting" requires, in some sense, a "belief" in free will.
I'm not actually sure what "acting like free will doesn't exist" even looks like -- you could sit on the floor and do nothing, I guess, but that is an action that requires a "choice" you "make" to do it. The concept is just an aspect of everything we do. It's even more fundamental than breathing -- you can stop breathing (and suffocate), but in doing so you're taking an action that you could choose not to do! It's impossible to choose not to act like you have free will, since by doing so you've acted like you have free will.
It's rather the opposite of Descartes' old claim, that thinking proves the mind's existence, in a way beyond even radical doubt: acting proves free will's existence, but in a way that not only doesn't silence doubt but even invites it by its total immediacy and inalienable connection to our existence. It is so automatic as to be unremarkable, and thus it becomes so incomprehensible that it becomes impossible not to remark on it. In other words, it's impossible to act like you don't have free will, but it's easy to think you don't have free will. And the unbridgeable gap between act and thought demands an explanation. Thus free will debates are a massive playing field in philosophy.
I act, therefore I have free will. Or not.
Right, free will is a mental construct that we create to explain our understanding of possibility. It’s an expression of our understanding of the sample space for all the decisions we may have made or may make, even though our course through those decisions has been and will be deterministic. It’s kind of fun, the computer trying to understand itself, which is part of what makes philosophy interesting.
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I would be interested to see an effort post from you describing what you think "actual justice" is, alongside your meta-ethical views and how they fit together with your determinism. I know that you have in the past positively linked to Mackie's argument for moral nihilism from queerness, but I haven't gotten a sense for how you put it all together. What do you think is "actual justice" to a nihilist? How does it possibly matter to a determinist? Why would it even make sense to have a decision "theory" in this world, and what would it possibly have to do with justice?
You got me. My use of the word "justice" there was a poor choice. The word is used in a legal context as a colloquialism for "desirable outcomes". There's a fair bit of play in the joints of course, but you don't need a definition of justice that would satisfy Socrates to see that removing the idea of moral culpability from the legal system would result in a world much lower in ≈everybody's preference ordering than the one we have now.
Indeed. Paul's answer falls short. As does everyone else's. Perhaps one day I will try my own hand on the question, though I suspect I lack the writing skill and attention span to make it coherent (not to mention the philosophical heft). I do have some ideas though.
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Man, I really enjoyed the summary, especially Gorsuch reducing a professional to a stammering mess. Warms the soul.
Then you had to go and ruin it by tilting at this weird caricature of “New Lefty Science” and “the Lefties That Be.” Have you considered that maybe people you don’t like can be right?
Which part of this do you have a problem with? Because it looks, to me, like a legitimate debate over the limits of the 8th. The hypotheticals are relevant. The questions are clear. No digressions about historical richness or other sources of vibes. Just “why is this different from Robinson?”
I will try to review more of the summary later. So far, I don’t see what you’re so sarcastic about.
Kneedler is the government's third-string solicitor general. If they thought this case was important, they would have put Fletcher or Prelogar on it.
All solicitor generals are first-strings. The federal government isn't bringing cases to the supreme court that they don't consider important.
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Still a professional word-wrangler. Still funny to hear him tongue-tied.
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Sure they can. Care to defend either of the things I "tilted" at?
Note that I wrote:
The sections you're complaining about are the parts that aren't actually about the specifics of this case. So, uh, I'm really not sure how your description of things that are specifically about this case are really relevant to the things I wrote that you're complaining about.
I was commenting on the Kagan/Evangelis exchange which you quoted. It was specifically about distinguishing status from conduct. Was that not what you wanted to talk about? I can move on to the rest, I suppose.
To be clear, I read this epithet as referring to Corkran’s claim that a person can’t go from addiction to non-addiction. My phone won’t let me quote from PDF, but there’s a relevant passage on page 38. Evangelis argued that homelessness, due to its mutability, does not fit Robinson’s definition of a status. It’s exactly what Corkran was trying to rebut when you quoted her. Clearly, the whole court and both parties are interested in the bounds of this category.
I couldn’t actually figure out where mutability came into play. The Robinson opinion doesn’t mention anything like it, but it could be in oral arguments. As best as I can figure, it has something to do with short-term or automatic changes. But I digress.
So at what point did this become “lefty science”? When Evangelis conceded it before arguing homelessness was different? When Corkran asserted it before insisting homelessness was the same? When Jackson, whom I assume you think is a partisan hack, asked for clarification?
I think all of those options are stupid. They’re clearly arguing about something with a little more nuance than “can things change at all.” Ignoring that to dunk on unspecified lefties is playing an entirely different status game.
Sure. Evangelis and Corkran seem to agree that people cannot go from being addicted to drugs to not being addicted to drugs. It didn't stick out all that starkly when Ms. Evangelis spoke about it (though I notice it more clearly now; Corkran also said the same thing but not as starkly in her response to Roberts). She seemed to be thinking more about the "struggle" part. It stuck out massively when KBJ spoke to Ms. Corkran.
Evangelis and Corkran seem to agree that addiction to drugs is immutable (to some extent; Evangelis is a bit less clear here). Evangelis thinks that this is a distinguishing factor from Robinson, thinking that the Robinson Court, at that time, also viewed it as some sort of immutable, which contributes to an argument of it being a "status". Corkran disagrees, thinking that the Robinson Court simply got the facts about addiction wrong, that they thought it was mutable (but it's really not), so they were thinking that mutable things could still be a "status". Thus, Evangelis thinks that Robinson supports mutable things being not a status and immutable things being a status, while Corkran thinks that Robinson implicitly supports both mutable and immutable things being a status (dependent upon some other features, apparently).
The point where EVERYONE suddenly believes that people who are addicted to drugs cannot, in any way, become not addicted to drugs! This is a huge H-WHAT?!?! moment. I've been constantly bombarded for decades now with messaging that we just need "treatment", and that will solve all our public policy problems with drug addiction. It's a magic panacea that, if applied appropriately and with sufficient outlay of government monetary resources, will be able to convert people who are addicted to drugs into people who are not addicted to drugs. Now, suddenly, out of nowhere, everyone seems to agree that this is just impossible. This is, frankly, incredible New Science. I'd be open to a scientific argument with links to scientific experiments and theorizing that support this incredible New Science; if convincing, I may even agree with it. However, until I see a remotely convincing argument with actual scientific evidence, I'm going to default to it being the new Lefty Science Party Line, akin to the prior consensus on biological determinism of sexuality, that has been adopted primarily due to political reasons and raw social force rather than genuine scientific evidence.
Is this new science though? The old saw is once an addict always an addict and I've heard that for decades. That alcoholism and drug addiction have no cure just treatment to stay clean.
Saying addicts need treatment is not the same thing as claiming that treatment is a total and peemanent cure. Don't confuse what the science says with what politicians or the media say the science says.
I'm speaking a bit tongue in cheek, because as I linked to a couple of my prior comments, and as many people learned during COVID, what the politicians or the media say the science says is ultimately as powerful or more powerful, in terms of the culture war, than what the science actually says. This is ultimately about observing the shift in the culture war, not a shift in the science. That is, there is a difference between "science" and "New Correct Lefty Science", where the latter is specifically things like what the politicians, media, and every party member in good standing must say in order to not end up in the metaphorical gulag.
I'm anticipating that in the next five years or so, simply asking people who want to argue about drug policy, specifically those who are on the left, a version of, "Can a person go from being addicted to drugs to not being addicted to drugs?" is going to be illustrative and possibly necessary in order to even communicate with them reasonably on the topic. We will have to figure out where in the update process they are, kind of like how we've had to do so on trans issues for the last ~5 years.1
I have gotten piled on here (well, at least at the various old places, with a similar community of individuals) for taking the position that "treatment" isn't a magic word that solves drug addiction problems, that legalization will likely increase consumption (including people who consume for the first time or consume enough to become addicts), and that we have approximately zero clue how to convert people from being addicts to not being addicts. (Plenty of people do things like "age out" or take agency and figure it out on their own, etc. It's clearly possible to stop being an addict, except in the colloquial sense that some support groups use the phrase; it's just that we have basically no useful public policy tools to actually accomplish that with any scale.) But similar to what @crushedoranges said, if we take that view, then it really opens up arguments for public policy that are quite different than the arguments we're seeing now.
At least since I was young, this perspective has not been on the table, as the pro-legalization cultural forces have been utterly dominant. I even bought their message when I was growing up, which is how I know what the messaging was like. So, perhaps the New Correct Lefty Science is actually adopting something more like this now. If so, that might be a great improvement, being closer to correct! (I'm a bit doubtful that they'll actually hit the target, though...) However, if so, it's going to generate quite a rift and plenty of cognitive dissonance with all the pro-legalization talking points, and that's a culture war worth paying attention to. Like, what's going to happen? Who's going to win? Who are the X-o-phobes going to be? What sorts of rationalizations will emerge to blend this with various policy desires? Prior to this oral argument, I didn't anticipate needing popcorn for drug policy arguments anytime soon; now, I'm already poppin'.
1 - For another example, you still occasionally see someone on the internet who clings to the extremely weird claim that it is just theoretically impossible for someone to change from being homosexual to heterosexual, the rationale being to the point that even if you have a public example of someone who appears to have done just that, there's some hidden mystical behind-the-scenes explanation that they were actually bisexual the entire time, but were also somehow not wrong about their claim that they were homosexual, and the epicycles that follow. But it's very rare now; it was everywhere ten years ago. Completely pervasive. Because that's what the party demanded. I found it plenty interesting to watch how that culture war shifted, even if I don't think anything about the "real" science shifted.
Then you may want to angle to speak a little more plainly in my opinion. Tongue in cheek can be difficult to make out via text and using terms like "New Lefty Science" in that manner is just more heat than light when you are (as per the point of the site) going to want lefty people to read and engage with your points, rather than just arguing about whether the science is changing which wasn't really the point of your comment. Though I am not a mod, so you may of course ignore me entirely freely!
My experience with relatives who are addicts is that contra to our resident Indian doctor, it isn't possible to not be an addict any more. It is possible to not be an active addict, but seeing uncles falling off the wagon after decades of sobriety has resolved that for me. That doesn't mean I think alcohol should be illegal however.
And the difference between alien chest bursters and addiction is the fact that the chest burster kills the host and births a monster, an addict can be a "monster", then return to being normal for years or decades or the rest of their life, even if the monster risk is always hanging over them. It is more like lycanthropy perhaps, if we must find a monstrous analogy.
Can you suggest a simpler and more plain way of indicating this? I thought the caps and everything did the job. Maybe a (TM)?
I hate to say it, but this reeks of epicycles. Like, it's also always possible for someone who has never been an addict before to become an addict at some point in the future. If so, what conceptual content does "addict" have? What is its definition? Is it something like, "An addict is someone who has at any point in the past been addicted to drugs"? If so, it's another one of those amazing definitions like those that just claim, by definition, that it's theoretically impossible for someone to change from being homosexual to being heterosexual (and that anything that appears otherwise must be hidden mystical bisexualism). Ok, sure, you can define your terms that way, in a way that makes it true, by definition, that people who are addicted to drugs cannot become not addicted to drugs, but that's not saying anything about the science of addiction, or anything we've "learned" by science since the Robinson era. It's saying that you've simply adopted a different definition. Then, we'd have to wrestle with how changing definitions affect the legal and philosophical concepts involved. Plus, from a culture war observer position, I'll absolutely enjoy just watching and noting the various changing of definitions, how they may come from political pressures rather than new scientific results, and how such changes interact with the broader public discourse.
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There's addiction and there's addiction. I know plenty of patients who were addicted to drugs and no longer are, in the sense that they have no more physiological and psychological cravings.
There are, of course, many different kinds of drugs. Getting over a hankering for coffee or nicotine is a whole different kettle of fish compared to meth or strong opioids, or benzos.
I think the difference is before there is addiction, someone might be able to have 3 servings of alcohol a week (or whatever the recommended amount is), without much temptation to binge. But after someone has had an addiction to alcohol and recovered, they cannot have any serving of alcohol without a strong temptation to binge. There are alcoholics who are able to avoid alcohol entirely, but not many who are able to go from alcoholic to having a healthy moderate relationship to alcohol.
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If drug addiction is closer to alien chestburster syndrome then the common cold then that enables a wide variety of policy proscriptions considered too draconian in the west today.
Like surgical removal? Freezing them in hypersleep? Harvesting them for Royal jelly?
I like an Aliens reference as much as the next guy but having an alien parasite that bursts from you and always having to worry about relapsing even if clean for say 5 years don't see all that similar personally.
More of how drugs turn normal people into monsters that seek to replicate their misery. They superficially resemble the person they once were, but something new and horrible blossoms inside of them.
And yeah, you could try and cure it. But that only solves it on the individual level. The alien queen is still alive, and there are fools who advocate for her to get corporate citizenship. What's the point in spending half a million dollars trying to get a addict clean (and failing more than half the time) when a drug dealer can get a new victim hooked for the price of a happy meal?
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To me, this gives away the whole game. Bums aren't sleeping outside because it is literally impossible that they could find a place to shelter, they're sleeping outside because they've failed to do so. If the hypothetical options one could avail themselves of to avoid starting a fire to cook suffice to eliminate a claim that it's cruel and unusual to prevent people from starting fires, the same must apply to sleeping. Someone having failed to talk others into cooking for them or paying for them sleep at a hotel shouldn't result in them being granted some putative "right" to sleep where they like.
On the flip side, despite everyone trying to be careful with language, it's pretty obvious that what the town is concerned with isn't "homelessness", it's bums. Someone that is homeless may sleep in their car, they may sleep on a friend's couch, they may stay in a shelter for a couple nights. If you're sleeping in the park, you're not just "homeless", you're a bum, and that is very much a real status that's going to be difficult to change for quite a few people. In the same fashion that many addicts cannot simply elect to stop doing drugs, many bums cannot simply elect to start doing the things necessary to maintain shelter.
Personally, I'm with you that the whole question of status is pretty ridiculous here. Kudos to you for making it all the way through the oral arguments, I simply couldn't bring myself to do it after they started doing laps around whether a stargazer that fell asleep was also criminal. Everyone in the conversation knows the conversation isn't about stargazers and isn't about falling asleep in public, it's about bums and all the trouble that comes with letting bums camp in your park.
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Robinson should just be overturned in its entirety, sidestepping all this. The Cruel and Unusual Punishment clause is about the penalties which can be imposed for lawbreaking, not about the actions which can be forbidden. There's nothing about status or conduct in there. But the court is too conservative to overturn bad non-conservative precedent (except on abortion)
I think the proportionality argument is pretty solid, even though it doesn’t give us a hard limit.
That fails to recognize the distinction between prohibition and punishment.
Suppose we prohibit sneezing in public and make the punishment that nearby police must immediately say to you “gezundheit!”
The punishment is unusual but not cruel, and the prohibition still not itself a punishment.
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Who made this argument? I'm not generally of a "it's just like the common cold" take on the pandemic, but I'm assuming a SCOTUS justice would at least see the parallel hypothetical about house arrest for (potentially) having a contagious disease. If nothing else, it seems like an interesting set of tea leaves to read about how future cases might go.
That’s from Robinson v. CA, so…Justice Potter Stewart, d.1985.
I don’t think quarantines fit the bill. In theory, they criminalize the conduct of going somewhere while (potentially) having such a disease, which is distinct from criminalizing the disease itself. Note that in Robinson the man arrested was expressly not taking any unusual actions.
In practice, did any of the lockdown ordinances actually threaten prison? I know there were enforced business shutdowns, presumably enforced via fines. I didn’t live somewhere which actually kept you in your house.
Ah, so criminalizing sleeping while homeless should be fine. Or walking through town while a drug addict, to go to the Robinson case.
No, this is all sophistry; the 8th Amendment, having been stretched this much, can be said to cover or not cover any given case -- and it will be, based on other criteria. In this case, likely mostly misplaced sympathy for the homeless on the part of Kavanaugh and Barrett, and a corresponding lack of concern for anyone else on their part and that of the leftist justices.
Why do you think it’s misplaced sympathy and not, I dunno, doing their jobs?
Surely it’s not just because they’ve disagreed with your intuition.
From ScotusBlog:
This is not the issue at all! The questions contain within them the implication that the laws have to make the homeless people better off. And thus the implication that somehow the Constitution protects the interests of the homeless over and above the other people who want to use the parks and public spaces that the law actually is in the interests of. This is just sympathy for the wretched, not "doing their jobs".
The laws do have to improve the situation, thanks to jurisprudence about "narrow tailoring" and "compelling public interest." Here's the full exchange in question (pp. 52-56):
...
Kavanaugh is pushing on the Petitioners' insistence that their law helps solve the problem. Obviously, it does help them in many cases. So he pushes on the rock-and-hard-place situation in which the city's preferred intervention is unavailable. As I understand it, this was a big part of the 9th Circuit ruling, since it basically invented a regulatory regime for availability, and no one was happy with it. He touches on the same subject later with Kneedler when they're discussing whether the Court needs to address Robinson at all (p. 112). He doesn't draw conclusions in the transcript, but I can guess how Kavanaugh feels about volunteering the courts to micromanage local policy.
The Petitioners emphasize that their policy should help. The Respondents address edge cases where it won't. Kavanaugh explores that, as did several of the other justices, because this is law and lawyers love edge cases. If he votes to keep the 9th decision and strike down the ordinance, I don't think it'll be driven by his bleeding heart.
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Do you think the law is going to be struck down by SCOTUS? That would be one hell of a blackpill.
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Ah. I would personally agree they're at least different enough to warrant a separate discussion. I was just surprised (and wrong) that a sitting justice today would use that as a hypothetical. Makes more sense now.
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Potter Stewart, writing the controlling opinion in Robinson v California. I find it amusing that @netstack linked it to approve of the argument - when I read that portion of the case earlier, I couldn't believe the levels of idiocy or dishonesty that Stewart was engaging in by analogizing a common cold to "catching" narcotic addiction.
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