"The 100 percent tax idea is gaining traction beyond blue strongholds."

"In battleground Wisconsin, Democrats hope to flip the GOP-controlled legislature in the fall and have introduced the No Taxpayer Dollars for Insurrectionists Act.... The states’ strategy of taxing the payouts could face legal challenges. Lawrence Zelenak, a Duke Law School professor with expertise in taxes, noted that the late Supreme Court justice Oliver Wendell Holmes Jr. once said that 'the power to tax is not the power to destroy while this Court sits,' nodding to the tool’s limits."

From "Blue states pitch 100 percent tax on Trump’s ‘anti-weaponization’ payouts/'If you storm the Capitol and you take from this slush fund, too bad, we’re taking it,' one New York lawmaker said" (WaPo).

Why stop at 100%?

"That's the old saying — right? — if you're going to shoot at the king you better not miss."

Said the NYT White House correspondent Peter Baker on yesterday's episode of "The Daily." Context:

[Biden is] saying, in essence, you can't have this debate anymore because this debate, it undermines my chances exactly, and therefore I want you to shut up. This question is over. Knock it off move on. And I think he's daring them. He's daring his doubters and naysayers to come after him or to shut up. You want to take me on? Take me on. Right? That's the old saying — right? — if you're going to shoot at the king you better not miss. So all eyes right now are on Congressional Democrats to see where they fall this week. Do the floodgates open and they end up abandoning him in large numbers or do they decide to give up on that notion?

First, the "old saying" is in fact a famous quote from Ralph Waldo Emerson: "When you strike at a king, you must kill him." I wrote about it back in 2019:

"Justice Samuel A. Alito Jr. just wants you to know: The leaker didn’t come from the conservative wing of the court...."

Writes Ruth Marcus in "The aggrieved Justice Alito points fingers but offers no proof" (WaPo).

Alito didn’t name names but freely assigned motive. “It was part of an effort to prevent the Dobbs draft … from becoming the decision of the court,” he said. “And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.” 

Nice work, because this is the kind of inchoate smear that is impossible to defend against....

Ah! Can we have a general rule against inchoate smears?! They're impossible to defend against, so it's scurrilous to make them. Think hard before agreeing to the rule. How will you feel when it's used against you or someone you like? And what about the unintended side effects? If smears must be not be inchoate,* then sometimes, instead of blind items or silence, you'll get names.

"Like baseball, everyday reality is an adventure that begins and ends at home base, where we are safe."

"No society can police everything all the time, least of all a democratic society. A healthy society rests on a consensus about what is a deviation and what is normal. We venture out from the norm, but we know the difference between the outfield and home, the reality of everyday life. Without that, as we have now experienced, things fall apart.... Society renews itself as common sense evolves. This requires trustworthy, transparent, respectful institutions of social discourse, especially when we disagree. Instead we are saddled with the opposite, nearly 20 years into a world dominated by a political-economic institution that operates as a chaos machine for hire, in which norm violation is key to revenue. Social media’s no-longer-young men defend their chaos machines with a twisted rendition of First Amendment rights. Social media is not a public square but a private one governed by machine operations and their economic imperatives, incapable of, and uninterested in, distinguishing truth from lies or renewal from destruction. For many who hold freedom of speech as a sacred right, Justice Oliver Wendell Holmes’s 1919 dissenting opinion in Abrams v. United States is a touchstone. 'The ultimate good desired is better reached by free trade in ideas,' he wrote. 'The best test of truth is the power of the thought to get itself accepted in the competition of the market.' The corrupt information that dominates the private square does not rise to the top of a free and fair competition of ideas. It wins in a rigged game. No democracy can survive this game."

A very small sample from "The Coup We Are Not Talking About We can have democracy, or we can have a surveillance society, but we cannot have both" by Shoshana Zuboff, an emeritus professor at Harvard Business School (NYT).

The "coup we are not talking about" is the way internet companies have engineered "surveillance empires" with "unaccountable power" —"a fundamentally anti-democratic epistemic coup." 

"When you strike at a king, you must kill him," said Ralph Waldo Emerson, famously.

I think Emerson was talking to Oliver Wendell Holmes Jr., and Holmes was attacking Plato, hence the riposte. The physical attack was metaphorical. Holmes and Emerson were jousting in the world of words, and Emerson got off a bon mot for the ages.

I'm talking about that this morning because James Woods got kicked off Twitter:

James Woods, one of the few conservative stars in Hollywood, has been locked out of his Twitter account for over a week now for “abusive behavior,” once again demonstrating the double standard the tech giant holds when it comes to enforcing rules.

Twitter suspended Woods for a tweet that read, “‘If you try to kill the King, you best not miss’ #HangThemAll,” according to his girlfriend Sara Miller....

The tweet was apparently in reference to the Mueller report, which found no conspiracy between the Trump campaign and Russia. The quote is from Ralph Waldo Emerson and has been used in various forms in movies and TV shows like The Wire....

"You best not miss" is the form of words used on "The Wire" (video here), and on "The Wire" the physical attack is not metaphorical, but with a real gun with bullets. But Woods was using the physical attack metaphorically. The idea — which deserves to be expressed — is — I think — that there was a coup attempt on Trump and it didn't work, therefore those who attempted it are in desperate trouble.

This isn't a true threat, just rough political discourse. It's not much like Emerson, because Emerson was speaking in a context where it was clear that only ideas were at stake. Holmes couldn't physically threaten the long-dead Plato. I think it's also clear that Woods was talking about political power and legal troubles, though the legal troubles are bad enough that they could lead to a physical impact on a human being — that is, a prison term. But there is a problem with Twitter's clipped language and vast dissemination. Among the thousands or millions of readers of a post like "If you try to kill the King, you best not miss’ #HangThemAll" are confused, paranoid, angry people who might hear a message to go out and kill somebody.

I'm checking the #HangThemAll at Twitter, and I see this:

James woods was banned for saying #HangThemAll about treasonous leaders on the left and was banned from Twitter, but @kathygriffin isn't banned for this: pic.twitter.com/tT1x4eeVnJ

— The JP McGlone (@JPMcGlone) May 4, 2019

Yes, and that's the problem. Twitter needs to apply its standard from a neutral viewpoint.

"The president of the United States has many faults, but let’s not ignore this one: He cannot write sentences."

"If a tree falls in a forrest and no one is there to hear it … wait: Pretty much all of you noticed that mistake, right? Yet Wednesday morning, the president did not; he released a tweet referring to 'forrest fires' twice, as if these fires were set by Mr. Gump. Trump’s serial misuse of public language is one of many shortcomings that betray his lack of fitness for the presidency. Trump’s writing suggests not just inadequate manners or polish—not all of us need be dainty—but inadequate thought. Nearly every time he puts thumb to keypad, he exposes that he has never progressed beyond the mentality of the precollegiate, trash-talking teen."

Writes John McWhorter in "Trump’s Typos Reveal His Lack of Fitness for the Presidency/They suggest not just inadequate manners or polish, but inadequate thought."

I got there via "A Letter to Professor John McWhorter" by Seth Barrett Tillman, who writes:

We (Americans) have had many talented wordsmiths in the White House. I see no connection between such talents, and adopting & putting into effect substantively sound policies. Woodrow Wilson—a university academic—comes to mind. But very few can explain precisely why the U.S. entered WWI or offer any justification for Wilson's allowing the federal civil service to be (re)segregated by race. He was good with words.

Your article amounts to a non-instrumental claim that elites who share your specific skill set should have power and those who do not share that skill set should not.... It is certainly better for the President to spell "forest" with a single R rather than two Rs. But ... it is probably more important that better policies be put in place to stop similar future disasters....

That was linked by Glenn Reynolds, who writes:

Good writing, like good shooting, is a valuable skill. Neither has a moral component. The Supreme Court’s best writer was Oliver Wendell Holmes, who told us — eloquently — that it was okay to sterilize people society didn’t like.

Let me add that there's a big difference between good writing and good spelling! Some great writers have had bad spelling — notably William Faulkner:

One of Faulkner's editors at Random House, Albert Erskine, said, "I know that he did not wish to have carried through from typescript to printed book his typing mistakes, misspellings (as opposed to coinages), faulty punctuation and accidental repetition. He depended on my predecessors, and later on me, to point out such errors and correct them; and though we never achieved anything like a perfect performance, we tried."...

And Ernest Hemingway:

Whenever his newspaper editors complained about it, he'd retort, "Well, that's what you're hired to correct!"

And John Keats:

In a letter to his great love Fanny Brawne, Keats spelled the color purple, purplue. This generated a longer conversation between the two, as Keats tried to save face by suggesting he'd meant to coin a new portmanteaux [sic] - a cross between purple and blue.

And Jane Austen:

She once misspelled one of her teenage works as "Love and Freindship" and is infamously known to have spelt scissors as scissars.

And F. Scott Fitzgerald:

The original draft of The Great Gatsby contained literally hundreds of spelling mistakes, some of which are still confounding editors. These include “yatch” (instead of “yacht”) and “apon” (instead of “upon”). One of his most famous gaffes, which occurs toward the end of the novel, inspires debate to this day.

Here's that gaffe:

After Fitzgerald’s death, Edmund Wilson changed the spelling from “orgastic” to “orgiastic” in the famous closing line: “Gatsby believed in the green light, the orgastic future that year by year recedes before us.”

So many great writers were bad spellers that I've got to wonder whether bad spelling goes along with great writing. Maybe there's something about the brain of a bad speller. Have many Spelling Bee winners gone on to write great books?

John McWhorter thinks bad spelling is evidence of "inadequate thought," but — ironically — he needs to give that thought a little more thought.

ADDED: John Irving, the author of "The World According to Garp," was called "stupid" and "lazy" when he was a child and later found out he had dyslexia. I'm reading his "How to Spell." Excerpt:

You must remember that it is permissible for spelling to drive you crazy. Spelling had this effect on Andrew Jackson, who once blew his stack while trying to write a Presidential paper. “It’s a damn poor mind that can think of only one way to spell a word!” the President cried.

When you have trouble, think of poor Andrew Jackson and know that you’re not alone.

And remember what’s really important about good writing is not good spelling. If you spell badly but write well, you should hold your head up. As the poet T.S. Eliot recommended, “Write for as large and miscellaneous an audience as possible”--and don’t be overly concerned if you can’t spell “miscellaneous.” Also remember that you can spell correctly and write well and still be misunderstood. Hold your head up about that, too.

Does it smell funny in here?

When is it okay to shout "Fire!" and cause a panic? Brett looks more like he's smelling... not smoke but ... woman?!?... oh, I don't know, but now, I'm reading the Wikipedia article "Shouting fire in a crowded theater" and I see:

People have indeed falsely shouted "Fire!" in crowded public venues and caused panics on numerous occasions, such as at the Royal Surrey Gardens Music Hall of London in 1856, a theater in New York's Harlem neighborhood in 1884, and in the Italian Hall disaster of 1913, which left 73 dead. In the Shiloh Baptist Church disaster of 1902, over 100 people died when "fight" was misheard as "fire" in a crowded church causing a panic and stampede.

In contrast, in the Brooklyn Theatre fire of 1876, the actors initially falsely claimed that the fire was part of the performance, in an attempt to avoid a panic. However, this delayed the evacuation and made the resulting panic far more severe....

In his introductory remarks to a 2006 debate in defense of free speech, writer Christopher Hitchens parodied the Holmes judgement by opening "Fire! Fire, fire ... fire. Now you've heard it", before condemning the famous analogy as "the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes." Hitchens argued that the socialists imprisoned by the court's decision "were the ones shouting fire when there really was a fire in a very crowded theatre indeed.... [W]ho's going to decide?"

When it's not a real fire, but a political situation, who's to say the perception of a smoldering fire is wrong? Me, I have very little sense of smell, so I've got to rely on other people to alert me about literal smells that signal danger. In the metaphorical realm, where the "smell" is of a developing political problem, those who "smell" it earliest could either be wrong or really giving us a useful early warning that we can pay attention to, contemplate, and maybe do something about before it's too late.

As for the smell of a woman — the smell I imagine Brett Kavanaugh to be screwing up his face about — I tried googling that...



"You know what's kept me goin' all these years? The thought that one day... never mind... silly. Just the thought that maybe one day, I'd -- I could have a woman's arms wrapped around me... and her legs wrapped around me.... That I could wake up in the morning and she'd still be there. Smell of her. All funky and warm. I finally gave up on it." That's the key "smell" quote from "Scent of a Woman."

These days, the idea that you'll wake up one morning with "a woman's arms wrapped around me... all funky and warm" feels metaphorical and horrible. Life was going so well. You were climbing the heights. What a good man you are, admired by all, up and up you go, and then you wake up one morning and she is "still... there..." and she's "wrapped around" you all right. Smell of her.

ADDED: What am I really saying here? Have I bitten off more than I can chew? It's my Kavanaugh gnaw.

AND: I am genuinely working my way toward what I want to say about Kavanaugh's predicament. The most straightforward thing I can say — and I have only figured this out after writing this post to pre-chew things — is:

1. This seat on the Court is especially important because of the threat to women's rights. Justice Kennedy was the 5th vote in key right-of-privacy cases, and women's continuing domain over our own bodies is at stake.

2. Kavanaugh has used his relationship to real-life women as some assurance that he will do right by women. We've heard much talk about his coaching girls' basketball and his hiring of female law clerks. He has forefronted his goodness with women, putting it in issue to meet very specific, important questions we have about him.

3. It's not a case of whether it would be fair to prosecute him for sexual assault after so many years and with this little evidence, but a question whether this person should be confirmed to take Justice Kennedy's seat on the Court and to have power for a lifetime to make decisions that will quite specifically determine the scope of women's rights. He has no right to the seat that's comparable to a right to remain free from criminal penalties.

4. Why should we Americans accept this man's power over us? He's been portrayed as a super-human paragon, and I don't think that can be the standard for who can be on the Supreme Court. It's dangerous to go looking for paragons. Maybe they've got a hard-to-detect dark side that has driven them to a life of saintly good works.

5. I assume all of the Senators are thinking primarily of their own power and how all of this will play in the November elections and in future elections. They are power-seekers and Kavanaugh is a power seeker. I am not seeking power. I am wary of the people who exercise power. I don't trust any of them, and I find it very hard to decide whom to trust here. It's tempting to say, it's wrong to use this device to defeat Kavanaugh. But to say that is to join everyone who insists on thinking of this all in terms of partisan politics. I'm having flashbacks to the Bill Clinton era, when I saw so many fake feminists put party politics first. I didn't. I didn't do it then, and I'm not going to do it now.

"Why do so many people think he’s good? Have you looked at his paintings?"

"In real life, trees are beautiful. If you take Renoir’s word for it, you’d think trees are just a collection of green squiggles."

Renoir is considered a good painter because his work is featured in museums, [Max] Geller added. But upon further inspections of his paintings, that line of argument “seems pretty fallacious”....

The Renoir Sucks at Painting... Instagram account... has even received the wrath of Genevieve Renoir, who says she is the painter’s great-great-granddaughter.

On one photo, Genevieve commented: “When your great-great-grandfather paints anything worth $78.1m dollars … then you can criticize. In the meantime, it is safe to say that the free market has spoken and Renoir did not suck at painting.”

Geller, who turned her comment into its own post on the account, said: “I think that is one of the most absurd and insane arguments for anything, the idea that we should let the free market dictate quality.”

Ms. Renoir's argument — staunchly opposed by Geller — bears an intriguing similarity the old free-speech argument that Oliver Wendell Holmes made back in 1919: "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market."

Would you call that — using Geller's words — "most absurd and insane argument for anything, the idea that we should let the free market dictate quality."

"Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs..."

"... we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at."

Said Judge Posner, in a piece titled "The chief justice’s dissent is heartless."



ADDED: Perhaps the heart should be ripped out. Maybe we like our judges heartless. But "heart" has been a big theme in judging judges.

At the John Roberts confirmation hearing, Senator Teddy Kennedy probed him about heart:

KENNEDY: [Y]ou were enormously complimentary about Earl Warren, about him understanding not only the law, but also understanding the importance of a chief justice, bringing other justices together in a very important way in terms of dealing with a societal issue and a question. And I think we're a fairer country and a fairer land because of this.This was really the bringing together of the mind and the heart. Oliver Wendell Holmes said, "It's dangerous to think about legal issues can be worked out like mathematics."

And another nominee who was here not too long ago [Stephen Breyer] had this to say about the head and the heart: "What you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of cases. That is why I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules removed from human problems and it will not help. if you do not have a head, there is the risk that in trying to decide a particular person's problem in a case, that may look fine for that person, but you cause trouble for a lot of other people, making their lives yet worse."

How did Roberts respond?

I recognize as a judge and I recognized as a lawyer that these cases have impact on real people and real lives.  I always insisted when I was a lawyer about getting out into the field and seeing. If I was arguing a case involving native villages in Alaska, I went to the villages. If I was arguing a case about an assembly line, I went to the assembly line. You had to see where the case was going to have its impact and what it's impression was going to be on people. Now, none of those cases were as important as Brown v. Board of Education but the basic principle is the same: I think judge's do have to appreciate that they're dealing with real people with real cases.I think judges do have to appreciate that they're dealing with real people with real cases. We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.

Voting against Roberts, Senator Barack Obama said:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult.... [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

After Obama became President and got to choose his own Justice, his nominee, Sonia Sotomayor, disentangled herself from that heart business: 

The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law.... What judges consider is what the law says.

Obama had chosen Sotomayor after doubling down on this idea of heart, saying:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

When he said that, I blogged:

[W]e know what this "heart" business means! It means that the President (or would-be President) understands that judging won't be neutral, that the human being doing the judging, no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion. So "heart" matters. The question isn't whether "heart" counts. It's: which "heart" do you want?

And I remember way back in 2005, when President George W. Bush was struggling to convince us that Harriet Miers belonged on the Supreme Court. "I know her; I know her heart" he said, and I blogged:

I razzed the Democrats for all the "heart" talk at the Roberts confirmation hearings, and the word makes me suspicious. Bush knows hearts (and he can look into a man's eye and see his soul). One wonders if his father believed he knew David Souter's heart...

This reminds me. I once conceived of a superhero I called Framerman:

Framerman appears upon the legal scene whenever judges have difficulty interpreting the Constitution. His superpower is the possession in a single mind of the collective consciousness of all the framers and ratifiers. He stands ready to answer any question, however unforeseen at the time of ratification, precisely as the entire body of relevant decisionmakers at the time would have resolved it. No more guesswork! No more result-oriented historical mumbo-jumbo! Dramatic conflict heightens as Framerman gives answers that surprise and then outrage the judges. The judges could rise up in anger and murder our poor superhero in the end, but this seems out of judicial character. Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent. Hearing this, Framerman — bearing a slight resemblance to Tinkerbell, who would die if people stopped believing in fairies — clutches at his heart and succumbs.

Well, so, even Framerman had a heart!

Gail Collins hears my call.

3 days ago — in the comments to a post titled "Justice Ginsburg gently corrects those who heard her previous remark as a confession of drunkenness at the SOTU" — I wrote: "I wonder how soon the talk of her needing to resign will begin. Spring is near, the end of the term looms. People will be thinking this is Obama's last chance to do a nomination. And yet, the GOP controls the Senate, so maybe they will leave her alone."

And here's Gail Collins — we remember her embarrassing column last week — with a new column "The Unsinkable R.B.G./Ruth Bader Ginsburg Has No Interest in Retiring."

From the beginning, Ginsburg waved off the whole idea. (“And who do you think Obama could have nominated and got confirmed that you’d rather see on a court?”) Anyway, since Republicans took control of the Senate in January, it’s become pretty clear that ship has sailed.

“People aren’t saying it as much now,” she said with what sounded like some satisfaction.

On the subject of the aging and sleeping of Supreme Court Justices, a reader sent me 2 quotes from the book "Yankee from Olympus: Justice Holmes and His Family":

Jobism.

"Jobism" is the word of the day here on Althouse. Do you know this word? I encountered it on SCOTUSblog in a piece titled: "Justice Oliver Wendell Holmes: Soldier, pragmatist, jobist, skeptic." Context:

[Legal historian G. Edward] White compared Holmes’s solitary intellectual journey as a jurist with the solitary crusade that a soldier undertakes in war.  If, White proposed, there is a connection between Holmes’s experiences as a soldier and his time as a jurist, perhaps it would be his "jobism" – a term understood as an unadvertised excellence at one’s professional duties, particularly in spite of a lack of access to knowledge of the grand strategy in which one is involved...

A 332-page book about Justice Holmes's dissenting opinion in Abrams.

Reviewed here by Alan Dershowitz, who says:

In “The Great Dissent,” Thomas Healy, a professor of law at Seton Hall Law School... postulates that a chance encounter with Learned Hand — then a district court judge — on the train between New York and Boston planted the seed that eventually blossomed into Holmes’s full-blown defense of free speech. Hand attempted to convince the 77-year-old justice that tolerance of dissenting, even obnoxious and dangerous, views was essential to democratic governance, but his effort seemed at first to fall on deaf ears: Holmes insisted that the state could legitimately enforce what a majority accepted as the truth, which he defined as “the majority vote of that nation that can lick all the others.” He accused his younger judicial colleague of striking “at the sacred right to kill the other fellow when he disagrees,” and he later invoked an absurd analogy between the power of the state to vaccinate those who might spread dangerous diseases and to imprison those who might spread dangerous ideas.

"Heh, great stuff, Althouse. Cf. Derrida on Nietzsche's umbrella."

Says Yashu, in the comments on "The word 'umbrella' appears exactly once in Obama's 'Dreams From My Father.'" And that was after I'd read rhhardin, commenting on "Sigmund Freud on the meaning of the umbrella": "Derrida in Spurs on the umbrella that Nietzsche wrote he had forgotten."

I'm spurred to read "Spurs," but "Spurs" is not an ebook, so I'm off the hook. Still, here's some text visible in Google books. Derrida is playing with the the possible meaning(s) of "I have forgotten my umbrella," found (in quotation marks) in Nietzche's unpublished manuscripts. Excerpt:

The umbrella's symbolic figure is well-known, or supposedly so. Take, for example, the hermaphroditic spur of a phallus which is modestly enfolded in its veils, an organ which is at once aggressive and apotropaic, threatening and/or threatened. One doesn't just happen onto an unwonted object of this sort in a sewing-machine on a castration table. 

"Unwonted" is not a typo. Unlike "unwanted," it's not commonly heard/seen. It means: "not commonly heard, seen, practised." So says the OED, which tells us that Charlotte Brontë used "unwonted" in "Jane Eyre": "Difficulties in habituating myself to new rules and unwonted tasks." Are there umbrellas in "Jane Eyre"?

I jumped up, took my muff and umbrella, and hastened into the inn-passage: a man was standing by the open door, and in the lamp-lit street I dimly saw a one-horse conveyance....

The Freudian symbolism is too blatant to need pointing out. The umbrella, the man, and the horse. And the muff, the inn-passage, and the open door. That's more than dimly seen.

"Apotropaic" is also unusual. The OED says it's "Having or reputed to have the power of averting evil influence or ill luck" and gives this earliest example from the 1883 Encyclopedia Brittanica:

The sacrifice of the ‘October horse’ in the Campus Martius..had also a naturalistic and apotropaic character.

Wikipedia says the "October horse was an animal sacrifice to Mars carried out on October 15, coinciding with the end of the agricultural and military campaigning season." There were chariot races and "the right-hand horse of the winning team was transfixed by a spear, then sacrificed." So did the ancient Romans have umbrellas? Yes. They were used by women and "effeminate men." Used against the sun, of course. How much Latin do you need to see the "umbra" in "umbrella" and to know we're talking about shade.

We law folk know "umbra" from the "penumbras" in "specific guarantees in the Bill of Rights [that] have penumbras, formed by emanations from those guarantees that help give them life and substance," a very glaring phrase written by Justice William O. Douglas, trying to explain how in the lamp-lit street he dimly saw the right of privacy.

But it was really Oliver Wendell Holmes, Jr. who got that word started in its U.S. law usage, the OED tells us: "The use of the penumbra metaphor in American jurisprudence appears to date from the late 19th cent. and is associated with Oliver Wendell Holmes (1841–1935), legal scholar and Associate Justice of the U.S. Supreme Court."

1873   O. W. Holmes in Amer. Law. Rev. 7 654   It is better to have a line drawn somewhere in the penumbra between darkness and light, than to remain in uncertainty.

I suspect no one will ever Heh-great-stuff-Althouse-Cf. me again. Here I am, writing expectantly, hoping for the circle to finally close, as it did for young Obama, crying over his father's grave, when he realized that the masculine needed to be leavened with femininity and that who he was, what he cared about, was no longer just a matter of intellect or obligation, no longer a construct of words, and then it started to rain and suddenly his brother Bernard was squatting beside him, sheltering him with a bent-up old umbrella. 

"Are you ready for me to read it?" Meade asks, and I say, "It needs one more thing, and I don't know what it is."

"How Twitter Is Messing With Al-Qaeda's Careful PR Machine."

"Individual jihadis are increasingly taking to social media with their own opinions, sparking disputes within the terrorist organization."

It's a marketplace of ideas. As Justice Holmes famously said:

If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Good luck shopping. 

"The minute you knew what happened, you knew it was a terrorist attack."

Said Dianne Feinstein, on yesterday's "Meet the Press," where she was the one defending the Obama administration, but even she moved to get some distance between her and them.

 “When you see a group going up with RPGS and weapons to break into one of our facilities, you can assume it’s a terrorist attack. Unfortunately, the word extremist was used which is not as crystal clear as terrorist. The real-time video which we have all seen reveals that there was virtually no defense. The militia from Libya sent to guard the embassy disappeared the minute these people came down the street. These people just walked right into the facility.”

Why was the word "extremist" preferred to "terrorist"? I don't think either word is "crystal clear." I think both words are "not a crystal, transparent and unchanging, [but] the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used" (to quote Justice Oliver Wendell Holmes, Jr.).

Considering the the circumstances and time in which "extremist" was used and "terrorist" was actively avoided, what was the living thought within each of those 2 words?

Terrorist relates to the war on terrorism. A terrorist seems connected to a network of terrorism, specifically al Qaeda. It suggests organization and it connects a problem of violence to an entire religion. It seems to magnify the significance of the attacks as the leading edge of a group that has been elevated for 12 years as a military enemy, an enemy the Obama administration would like to say it has defeated. One way to claim victory is to stop using the word that is connected with the long war, to demote these violent characters from the status of terrorist. A terrorist terrifies. We are not terrified. We won. We need to get that message out: We won! And we're going to keep winning. We need to win... the war and the election.

Extremist relates to the mind of the individual who's moved into an extreme form of ideation, who's gone from the normal way of thinking about power and politics and has become a crazy nut who will cross the line — perhaps suddenly and insanely — into murderous violence. This misguided individual may have heard a lot of talk — perhaps suddenly, perhaps via YouTube — that he cannot process properly. He's gone into furious thinking and loses control. There's no global network of organized action — nothing like a military enemy in a war — but just the network of disordered thinking within the small globe of a man's skull. This is, unfortunately, something that happens. It happened to Jared Loughner and to Timothy McVeigh. We need to reach and soothe the minds of young men that might burst out into violence. Let them know we care, perhaps through the political theater of distancing ourselves from a disgusting and reprehensible video.

"I’m proud of my dad, not necessarily because of where he is now on marriage equality (although I’m pretty psyched about that)..."

"... but because he’s been thoughtful and open-minded in how he’s approached the issue, and because he’s shown that he’s willing to take a political risk in order to take a principled stand. He was a good man before he changed his position, and he’s a good man now, just as there are good people on either side of this issue today. We’re all the products of our backgrounds and environments, and the issue of marriage for same-sex couples is a complicated nexus of love, identity, politics, ideology and religious beliefs. We should think twice before using terms like 'bigoted' to describe the position of those opposed to same-sex marriage or 'immoral' to describe the position of those in favor, and always strive to cultivate humility in ourselves as we listen to others’ perspectives and share our own."

Dad = Rob Portman.

ADDED: Clicking "edit" on this post, I said: "Do I have a 'humility' tag?" Then, laughing: "No, I only have a 'humiliation' tag." I love adding tags that I've already made, but I resist making new tags. Having "humiliation" but not "humility" strikes me as funny, but on further thought, I do have a tag for humility, which is "modesty." You don't want a lot of synonyms in the tags. "Modesty" is close enough — even if it sweeps together things as diverse as World Hijab Day and the judicial philosophy of Oliver Wendell Holmes.

Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.

The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance."  Levinson has offered 3 different reasons why judges have this role in our system of separated powers:

[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

When did the left turn against free speech?

One of the commenters declares that my "assertion that 'the best test of the truth is its ability to get accepted in the marketplace of ideas' was probably the most offensive part of her argument." When questioned about whether I really said that, he comes back with:

She cited a Justice whose name I haven't retained, as in: "As Justice X says, ..." followed by the verbatim passage I quoted.

She cited a Justice whose name I haven't retained.... Oh, for the love of God, why doesn't every educated person in America know the name of the Supreme Court Justice who said that... or at the very least know that it's embarrassing not to know? As if I'd thrown out some abstruse legalistic peculiarity!

And that was part of an argument by the commenter — echoing Bob Wright — that free speech is too dangerous because it might be false and it might inspire bad people to act out in terrible ways.

Remember when lefties were all about free speech? When did that change? Why did that change? Perhaps the answer is: Free speech was only ever a means to an end. When they got their free speech, made their arguments, and failed to win over the American people, and when in fact the speech from their opponents seemed too successful, they switched to the repression of speech, because the end was never freedom.

"I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death..."

"... unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."