Professor Epstein argues that civil educated discourse being drowned out by uncivil persons on your own side makes informative debate difficult and then shows simply that Professor Sunstein's reaffirmation of FDR's Second Bill of Rights is unworkable.
All true. The problem is that the good professors are too caught up in intellectual notions.
The US Bill of Rights works. Early criminal works because they took of one of the key advantages of controlling an opponent -- denying him part of the field of play.
The idea is simplest on a chess board. Trying to learn chess a few years back, I bought a book by Eddie Fisher. One of the key notions is limiting your opponent's ability to move. Use the edge of the board as a weapon, then push him toward that edge that he cannot course. Think of a king versus a queen. For every move the king makes, the queen can swift react and push the king into a corner before retirement becomes evident for even a beginner.
The notion of good law is that it simply prohibits part of the field of play from the criminal. Do not murder. Murder is the knowing or intentional killing of another. Done.
Don't hit people. Don't threaten to hit people. Don't steal.
How about yelling or loud music? Hmmm . . . . Let's just discourage that.
For two people in one room, you have most of the rules to provide those two sanity.
Once you start saying that you cannot intentional kill if the music is too loud, you need two lawyers. One to argue that the music was too loud. The other to argue that the complainant was too old (Remember? If the music is too loud, you're too old?). Now age is possibly the problem?
Complex rules lead to complex arguments. Simple rules, simple arguments, simple compliance.
Professor Sunstein's and FDR's failings is that they want to describe the preferred world and make it a right. They might as well say that the teenager has a right to listen to loud music. At least I will still have a job as a lawyer wearing earplugs, even if you are too old.
Tuesday, September 15, 2009
Saturday, September 12, 2009
Lost our Sense of Mission?
The guys at PowerLine were commenting on the affable and clarifying Mark Steyn. PowerLine focused on the loss of will defend our culture.
Whether you call it "will" or "morale" may not make a difference. I do see a difference. Will is much more of an individual's trait. Morale is the cohesiveness of the group that reflects a collective of individual wills.
Just like throughout most of American history, America is still divided a third, a third, a third. The Democrats caucusing together is of the vintage of Anti-Federalists, Jacksonian Democrats, Copperheads, European Social Democrats. It has always gathered around the notion of a strong federal government and strong states being impossible and highly undesirable. Their rationales swing widely. At the core they just don't like the Miracle in Philadelphia. Their vision for the country starts with the proposition that the Constitution of negative liberties and we need to enshrine more positive liberties. (Good rhetorical choice of words but a terrible description of the process.) Call them the radical revolutionaries. Change away from the current institution is always good, so long it does not come to resemble the previous incarnation of the institution. In fact, new institutions are preferred over old ones wherever possible.
The polar opposite third of the population is the group centered around the Federal Constitution carrying it out as strictly as possible. Many would even suggest that the 17th Amendment (popular election of senators) was part of the weakening of our Constitution. This amendment may be good or bad. If you looked at this group, they would likely either tell why it is good or be persuaded it's worth discussion. They want change, but theirs is the harder: change to what worked better in our past; preserve the institution and evolve it slowly in Edmund Burke's preferred manner.
The middle third is where all the action is. They call themselves moderate and cling to the Poor Richard (a/k/a Ben Franklin) claim of all things in moderation. A little revolution is good. A little of institutional preservation is good.
The revolutionaries don't have to have a strong vision of what they want. They are highly negative: no continuity, no stability. Change is all that matters. This focus on "no" allows them to build adherents quickly. If you are ever around a talented salesman, the salesman demonstrates the power of "no." To truly understand his talent, just imagine the insufferable, talentless salesman.
The talentless salesman wants to tell you how wonderful his product is. "This car is the greatest ever. Look at the engine, the tires . . . . Wow?! Huh?" When you say, "No, too big." The salesman either argues that is not actually big compared to a dump truck or changes his story to how the next car is the greatest. He wants you to say "Yes." He wants you to say, "Yes, that is a great car. Yes, I have to have it." He is always pushing his ideas of what you should like and gets offended when you don't say "Yes." He is just following the rule that every "yes" is a step closer to success in getting you to buy. An hour later, you are less likely to have bought a car and more likely to run out the door.
The successful salesman tries to get you to say "No" as quickly and often as possible. "Do you want a car with more than 20 mph?" If you say, "No," he has just eliminate half his inventory from the discussion with one question. If you say, "Yes," same solution, different direction. "Do you want a car for more than 5 passengers?" Smaller target again, a "No" gets you a sedan or a coupe, but a "Yes" gets you a mini-van, SUV, or truck. Three more questions and you are standing in front of the car that is most likely to be his best candidate for you.
No arguments. No long discussions.
There still be an hour for you to persuade yourself that you want to buy, and the talented salesman will serve as your pro-buying angel/devil on your shoulder. In ten minutes, though, he knows whether you are going to buy better than you do yourself.
The Democrats have managed to sell their snake oil like the most talented salesman. They get the moderates to say "No." "Do you want to lose your doctor when you are too old to pay the bills yourself?" "Do you want your children to be uneducated?" The moderates have so little foundational understanding of the debates that their "No" answers drive the debate. They know the customer wants to feel good. If the customer wanted a large, red SUV, the customer gets an SUV. Then salesman gets his commission. The salesman is not worried that the customer may be bankrupt next year because of the excessive car payment. I started this by discussion morale. Democrats have a high desire to cohere together when they are excited about institutions that need to change. Discussions focused on "no" are easy. Their problems in morale arise when they need to agree on the vision to replace the destroyed institution.
The Republicans then act like the talentless salesmen: "But look at how well designed middle-of-the-road sedan looks! Look at the moderate mix of space and fuel efficiency." They keep telling the moderates what to like. Republicans of a conservative bent have a common but loosely defined vision. Attacks on that vision are bad. Promotion of the vision is good. Republican morale is highest when the shared vision is most prominent.
Moderates don't have a vision of what they want the country to be. They want to feel good about themselves and their futures. They don't like shared visions, because they have become acclimated to being made uncomfortable about the federal vision. The Democrats' ability to find "No" answers in the sales questions works well on moderates. Moderates don't have a unifying morale and gyrate wildly.
The instantaneous success of the Republicans lately is that they now have a concrete example of Obamacare about which to seek a "No." "Do you want to lose your doctor?" "Do you want this 8% tax increase?" "Do you want government mandates of doctors, lawyers, and counselors sitting you down every 5 years after retirement age to discuss when you are going to die? A/k/a 'Death panels' that you appoint, but follow government rules." No. No. No.
Reveal to moderates the misery of the Democrat revolution(s). The debate becomes easier. The moderates become increasingly uncomfortable with the "No" answers that Republicans generate.
To accelerate this, Republicans must also play Toto in pulling back the curtain of Democrat tactics. The Great Wizard of Oz in the White House starts to look sillier when you quit focusing on the large face but focus on the weak man pulling the levers.
The growing discussion of Saul Alinsky and his writings has been a curtain-pulling discussion.
The discussion of treating moderates like saps who can be lead to desired answers by seeking "no" would accelerate it further. The use of the "no" technique by the Republicans will accelerate it further. Once everyone becomes aware of the "no" technique, discussion of visions because more acceptable.
I dispute whether we have had a loss of will. I think the two poles of the debate have very different senses of what drives morale. Each of their morales is high. Democrats are on a high by recent successes of getting into office. Republicans of a conservative bent on a rising morale because they sense their movement rejuvenating.
The moderates in middle have a sense that don't belong to either pole. They have dropping morale. That may not last. A focused attempt to break moderates' bonds to the Democrats could unleash a rising sense of morale in middle. Then what election effects will arise?
Whether you call it "will" or "morale" may not make a difference. I do see a difference. Will is much more of an individual's trait. Morale is the cohesiveness of the group that reflects a collective of individual wills.
Just like throughout most of American history, America is still divided a third, a third, a third. The Democrats caucusing together is of the vintage of Anti-Federalists, Jacksonian Democrats, Copperheads, European Social Democrats. It has always gathered around the notion of a strong federal government and strong states being impossible and highly undesirable. Their rationales swing widely. At the core they just don't like the Miracle in Philadelphia. Their vision for the country starts with the proposition that the Constitution of negative liberties and we need to enshrine more positive liberties. (Good rhetorical choice of words but a terrible description of the process.) Call them the radical revolutionaries. Change away from the current institution is always good, so long it does not come to resemble the previous incarnation of the institution. In fact, new institutions are preferred over old ones wherever possible.
The polar opposite third of the population is the group centered around the Federal Constitution carrying it out as strictly as possible. Many would even suggest that the 17th Amendment (popular election of senators) was part of the weakening of our Constitution. This amendment may be good or bad. If you looked at this group, they would likely either tell why it is good or be persuaded it's worth discussion. They want change, but theirs is the harder: change to what worked better in our past; preserve the institution and evolve it slowly in Edmund Burke's preferred manner.
The middle third is where all the action is. They call themselves moderate and cling to the Poor Richard (a/k/a Ben Franklin) claim of all things in moderation. A little revolution is good. A little of institutional preservation is good.
The revolutionaries don't have to have a strong vision of what they want. They are highly negative: no continuity, no stability. Change is all that matters. This focus on "no" allows them to build adherents quickly. If you are ever around a talented salesman, the salesman demonstrates the power of "no." To truly understand his talent, just imagine the insufferable, talentless salesman.
The talentless salesman wants to tell you how wonderful his product is. "This car is the greatest ever. Look at the engine, the tires . . . . Wow?! Huh?" When you say, "No, too big." The salesman either argues that is not actually big compared to a dump truck or changes his story to how the next car is the greatest. He wants you to say "Yes." He wants you to say, "Yes, that is a great car. Yes, I have to have it." He is always pushing his ideas of what you should like and gets offended when you don't say "Yes." He is just following the rule that every "yes" is a step closer to success in getting you to buy. An hour later, you are less likely to have bought a car and more likely to run out the door.
The successful salesman tries to get you to say "No" as quickly and often as possible. "Do you want a car with more than 20 mph?" If you say, "No," he has just eliminate half his inventory from the discussion with one question. If you say, "Yes," same solution, different direction. "Do you want a car for more than 5 passengers?" Smaller target again, a "No" gets you a sedan or a coupe, but a "Yes" gets you a mini-van, SUV, or truck. Three more questions and you are standing in front of the car that is most likely to be his best candidate for you.
No arguments. No long discussions.
There still be an hour for you to persuade yourself that you want to buy, and the talented salesman will serve as your pro-buying angel/devil on your shoulder. In ten minutes, though, he knows whether you are going to buy better than you do yourself.
The Democrats have managed to sell their snake oil like the most talented salesman. They get the moderates to say "No." "Do you want to lose your doctor when you are too old to pay the bills yourself?" "Do you want your children to be uneducated?" The moderates have so little foundational understanding of the debates that their "No" answers drive the debate. They know the customer wants to feel good. If the customer wanted a large, red SUV, the customer gets an SUV. Then salesman gets his commission. The salesman is not worried that the customer may be bankrupt next year because of the excessive car payment. I started this by discussion morale. Democrats have a high desire to cohere together when they are excited about institutions that need to change. Discussions focused on "no" are easy. Their problems in morale arise when they need to agree on the vision to replace the destroyed institution.
The Republicans then act like the talentless salesmen: "But look at how well designed middle-of-the-road sedan looks! Look at the moderate mix of space and fuel efficiency." They keep telling the moderates what to like. Republicans of a conservative bent have a common but loosely defined vision. Attacks on that vision are bad. Promotion of the vision is good. Republican morale is highest when the shared vision is most prominent.
Moderates don't have a vision of what they want the country to be. They want to feel good about themselves and their futures. They don't like shared visions, because they have become acclimated to being made uncomfortable about the federal vision. The Democrats' ability to find "No" answers in the sales questions works well on moderates. Moderates don't have a unifying morale and gyrate wildly.
The instantaneous success of the Republicans lately is that they now have a concrete example of Obamacare about which to seek a "No." "Do you want to lose your doctor?" "Do you want this 8% tax increase?" "Do you want government mandates of doctors, lawyers, and counselors sitting you down every 5 years after retirement age to discuss when you are going to die? A/k/a 'Death panels' that you appoint, but follow government rules." No. No. No.
Reveal to moderates the misery of the Democrat revolution(s). The debate becomes easier. The moderates become increasingly uncomfortable with the "No" answers that Republicans generate.
To accelerate this, Republicans must also play Toto in pulling back the curtain of Democrat tactics. The Great Wizard of Oz in the White House starts to look sillier when you quit focusing on the large face but focus on the weak man pulling the levers.
The growing discussion of Saul Alinsky and his writings has been a curtain-pulling discussion.
The discussion of treating moderates like saps who can be lead to desired answers by seeking "no" would accelerate it further. The use of the "no" technique by the Republicans will accelerate it further. Once everyone becomes aware of the "no" technique, discussion of visions because more acceptable.
I dispute whether we have had a loss of will. I think the two poles of the debate have very different senses of what drives morale. Each of their morales is high. Democrats are on a high by recent successes of getting into office. Republicans of a conservative bent on a rising morale because they sense their movement rejuvenating.
The moderates in middle have a sense that don't belong to either pole. They have dropping morale. That may not last. A focused attempt to break moderates' bonds to the Democrats could unleash a rising sense of morale in middle. Then what election effects will arise?
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