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We Need A Massive Surveillance Program


I am a privacy activist who has been riding a variety of high horses about the dangers of permanent, ubiquitous data collection since 2012.

But warning people about these dangers today is like being concerned about black mold growing in the basement when the house is on fire. Yes, in the long run the elevated humidity poses a structural risk that may make the house uninhabitable, or at least a place no one wants to live. But right now, the house is on fire. We need to pour water on it.

In our case, the fire is the global pandemic and the severe economic crisis it has precipitated. Once the initial shock wears off, we can expect this to be followed by a political crisis, in which our society will fracture along pre-existing lines of contention.

But for the moment, we are united by fear and have some latitude to act.

Doctors tell us that if we do nothing, the coronavirus will infect a large fraction of humanity over the next few months. As it spreads, the small proportion of severe cases will overwhelm the medical system, a process we are seeing play out right now in places like Lombardy and New York City. It is imperative that we slow this process down (the famous 'flattening the curve') so that the peak of infections never exceeds our capacity to treat the severely ill. In the short term this can only be done by shutting down large sections of the economy, an unprecedented move.

But once the initial outbreak is contained, we will face a dilemma. Do we hurt people by allowing the economy to collapse entirely, or do we hurt people by letting the virus spread again? How do we reconcile the two?

One way out of the dilemma would be some kind of medical advance—a vaccine, or an effective antiviral treatment that lowered the burden on hospitals. But it is not clear how long the research programs searching for these breakthroughs will take, or whether they will succeed at all.

Without these medical advances, we know the virus will resume its spread as soon as the harsh controls are lifted.

Doctors and epidemiologists caution us that the only way to go back to some semblance of normality after the initial outbreak has been brought under control will be to move from population-wide measures (like closing schools and making everyone stay home) to an aggressive case-by-case approach that involves a combination of extensive testing, rapid response, and containing clusters of infection as soon as they are found, before they have a chance to spread.

That kind of case tracking has traditionally been very labor intensive. But we could automate large parts of it with the technical infrastructure of the surveillance economy. It would not take a great deal to turn the ubiquitous tracking tools that follow us around online into a sophisticated public health alert system.

Every one of us now carries a mobile tracking device that leaves a permanent trail of location data. This data is individually identifiable, precise to within a few meters, and is harvested by a remarkable variety of devices and corporations, including the large tech companies, internet service providers, handset manufacturers, mobile companies, retail stores, and in one infamous case, public trash cans on a London street.

Anyone who has this data can retroactively reconstruct the movements of a person of interest, and track who they have been in proximity to over the past several days. Such a data set, combined with aggressive testing, offers the potential to trace entire chains of transmission in real time, and give early warning to those at highest risk.

This surveillance sounds like dystopian fantasy, but it exists today, ready for use. All of the necessary data is being collected and stored already. The only thing missing is a collective effort to pool it and make it available to public health authorities, along with a mechanism to bypass the few Federal privacy laws that prevent the government from looking at the kind of data the private sector can collect without restraint.

We've already seen such an ad-hoc redeployment of surveillance networks in Israel, where an existing domestic intelligence network was used to notify people that they had possibly been infected, and should self-quarantine, a message that was delivered by text message with no prior warning that such a system even existed.

We could make similar quick changes to the surveillance infrastructure in the United States (hopefully with a little more public awareness that such a system was coming online). When people are found to be sick, their location and contact history could then be walked back to create a list of those they were in touch with during the period of infectiousness. Those people would then be notified of the need to self-quarantine (or hunted with blowguns and tranquilizer darts, sent to FEMA labor camps, or whatever the effective intervention turns out to be.)

This tracking infrastructure could also be used to enforced self-quarantine, using the same location-aware devices. The possibilities of such a system are many, even before you start writing custom apps for it, and there would be no shortage of tech volunteers to make it a reality.

The aggregate data set this surveillance project would generate would have enormous value in its own right. It would give public health authorities a way to identify hot spots, run experiments, and find interventions that offered the maximum benefit at the lowest social cost. They could use real-time data and projections to allocate scarce resources to hospitals, and give advance warnings of larger outbreaks to state and Federal authorities in time to inform policy decisions.

Of course, all of this would come at an enormous cost to our privacy. This is usually the point in an essay where I’d break out the old Ben Franklin quote: “those who would give up essential liberty to purchase a little temporary safety deserve neither.”

But this proposal doesn’t require us to give up any liberty that we didn't already sacrifice long ago, on the altar of convenience. The terrifying surveillance infrastructure this project requires exists and is maintained in good working order in the hands of private industry, where it is entirely unregulated and is currently being used to try to sell people skin cream. Why not use it to save lives?

The most troubling change this project entails is giving access to sensitive location data across the entire population to a government agency. Of course that is scary, especially given the track record of the Trump administration. The data collection would also need to be coercive (that is, no one should be able to opt out of it, short of refusing to carry a cell phone). As with any government surveillance program, there would be the danger of a ratchet effect, where what is intended as an emergency measure becomes the permanent state of affairs, like happened in the United States in the wake of the 2001 terrorist attacks.

But the public health potential of commandeering surveillance advertising is so great that we can’t dismiss it out of hand. I am a privacy activist, typing this through gritted teeth, but I am also a human being like you, watching a global calamity unfold around us. What is the point of building this surveillance architecture if we can't use it to save lives in a scary emergency like this one?

One existing effort we could look to as a model for navigating this situation is the public/private partnership we have set up to monitor child sexual abuse material (CSAM) on the Internet.

Large image sharing sites like Facebook, Google, and Snapchat use a technology called PhotoDNA to fingerprint and identify images of known abuse material. They do this voluntarily, but if they find something, they are required by law to report it to the National Center for Missing and Exploited Children, a nongovernmental entity that makes referrals as appropriate to the FBI.

The system is not perfect, and right now is being used as a political football in a Trump administration attempt to curtail end-to-end encryption. But it shows the kind of public-private partnership you can duct tape together when the stakes are high and every party involved feels the moral imperative to act.

In this spirit, I believe the major players in the online tracking space should team up with the CDC, FEMA, or some other Federal agency that has a narrow remit around public health, and build a national tracking database that will operate for some fixed amount of time, with the sole purpose of containing the coronavirus epidemic. It will be necessary to pass legislation to loosen medical privacy laws and indemnify participating companies from privacy lawsuits, as well as override California's privacy law, to collect this data I don’t believe the legal obstacles are insuperable, but I welcome correction on this point by people who know the relevant law.

This enabling legislation, however, should come at a price. We have an opportunity to lay a foundation for the world we want to live in after the crisis is over. One reason we tolerate the fire department knocking down our door when there is an emergency is that we have strong protections against such intrusions, whether by government agencies or private persons, in more normal times. Those protections don't exist right now for online privacy. One reason this proposal is so easy to float is that private companies have enjoyed an outrageous freedom to track every aspect of our lives, keeping the data in perpetuity, and have made full use of it, turning the online economy into an extractive industry. That has to end.

Including privacy guarantees in the enabling legislation for public health surveillance will also help ensure that emergency measures don't become the new normal. If we use this capability deftly, we could come out of this crisis with a relatively intact economy, a low cumulative death toll, and a much healthier online sphere.

Of course, the worst people are in power right now, and the chances of them putting such a program through in any acceptable form are low. But it’s 2020. Weirder things have happened. The alternative is to keep this surveillance infrastructure in place to sell soap and political ads, but refuse to bring it to bear in a situation where it can save millions of lives. That would be a shameful, disgraceful legacy indeed.

I continue to believe that living in a surveillance society is incompatible in the long term with liberty. But a prerequisite of liberty is physical safety. If temporarily conscripting surveillance capitalism as a public health measure offers us a way out of this crisis, then we should take it, and make full use of it. At the same time, we should reflect on why such a powerful surveillance tool was instantly at hand in this crisis, and what its continuing existence means for our long-term future as a free people.

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10 hours ago
South Burlington, Vermont
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We Are Still At Least Two Weeks Away From Our Peak

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This week is going to be our “Pearl Harbor moment,” says the surgeon general, and he’s not alone. But I don’t see where that’s coming from. Here’s a look at the day-to-day growth rate of COVID-19 deaths:

The good news, obviously, is that the growth rate appears to be going down. The bad news is that as long as it’s above zero it means that the number of deaths is increasing every day. This means that although next week will be bad, the week after that will be even worse:

This is the roughest kind of projection, but it suggests that we’ll have 20,000 new deaths next week and 30,000 the week after that. The rate of new deaths should then start to slowly decelerate.

Of course, this all depends on countermeasures being kept in place and holdout states not releasing a big new pool of infections into the country. For what it’s worth, here’s a messy look at some state data (the dashed black line is for the entire country):

New York is showing signs of flattening, and so is New Jersey. Louisiana appears to be accelerating. Other states seem to be growing at a fairly steady rate.

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2 days ago
South Burlington, Vermont
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Legal Systems Very Different From Ours, Because I Just Made Them Up

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[with apologies to the real Legal Systems Very Different From Ours. See also the List Of Fictional Drugs Banned By The FDA]


The Clamzorians are animists. They believe every rock and tree and river has its own spirit. And those spirits are legal people. This on its own is not unusual – even New Zealand gives rivers legal personhood. But in Clamzoria, if a flood destroys your home, you sue the river.

If you win, then the river is in debt to you. The government can assign a guardian to the river to force it to pay off its debts, and that guardian gets temporary custody of all the river’s property. He or she can collect a toll from boats, sell water to reservoirs, and charge rent to hydroelectric dams. Once the river has paid off its debt, the guardian is discharged, and the river becomes free to use once again.

Clamzorian precedent governs when you may or may not sue objects. If you swim in the freezing river in the dead of winter, and catch cold, that’s on you. But if a hurricane destroys your property, you can absolutely sue the wind for damages, and collect from windmills. Suits against earthquakes, volcanoes, and the like are dead common. Suits against diseases happen occasionally. Sometimes someone will sue something even more abstract – a custom, an emotion, a concept.

Legend tells of a lawyer who once sued Death itself for wrongful death, a class action suit on behalf of everyone who ever lived. The judge found in favor of the plaintiff, but the appointed custodian despaired at ever collecting the judgment – the few morticians and undertakers in the realm couldn’t afford even a fraction of the damages. In a stroke of genius, he went after the military, and charged them for the right to kill enemy soldiers. The military grumbled, but eventually gave in: fair is fair.


Fixed fines are inherently unfair to the poor. If you fine people $50 for running a red light, you’ve charged someone who makes $10,000 0.5% of their income, but someone who makes $100,000 gets off with only 0.05% of their income.

But prison sentences are inherently unfair to the rich. After all, if you already live in a crowded slum much like a prison cell, and your life is prison-level boring and oppressive already, then going to prison barely costs you anything. But if you live in a mansion and spend all day indulging in the finest luxuries on offer, going to prison is a massive decrease in your quality of life.

The people of Pohjankaupunki thought long and hard about this problem, and came up with a solution: crimes will be punished by neither fines nor prison. They will be punished by government mandated prescription of rimonabant, a prodepressant medication which directly saps your ability to feel happiness. Running a red light may get you 5 mg rimonabant for a month. Murder may get you 80 mg rimonabant twice a day for ten years.

There is no capital punishment in Pohjankaupunki, but if a criminal decides to commit suicide rather than continue to take their medication, they are considered to have voluntarily upgraded to the death penalty, and their debt to the state has been repaid.


Sloviria is an enlightened country. They do not blame criminals for their actions. They realize it is Society’s fault for making criminals that way. So when someone commits a crime, they punish Society.

Sloviria is very technologically advanced, with plenty of social networking sites and GPS tracking of cell phones and all the other systems that create a nice objective social graph. When someone commits a crime, the government lets them go free, and punishes everyone else, in proportion to how close they were to the offender on the social graph. If the punishment for a certain crime is a $1000 fine, perhaps each of their parents and their partner pays $200, their boss and best friend pay $100, some of their teachers a few tenners each, and more distant friends and relations a few dollars or less. If a friend of a friend who you met at a dinner party once commits murder, you may be out a couple of cents.

This isn’t to say perpetrators get off scot-free; Sloviria isn’t that enlightened. The punishment for perpetrators is that nobody wants to interact with them, for fear that they might perpetrate again. Once a person is a known criminal – or a suspected criminal, or just the sort of person who seems like they might become a criminal – their friends, families, and business relations shun them, trying to minimize their potential loss. This threat enough is to discourage crime and every form of crime-adjacent misbehavior.

The Slovirian Radical Party is even more enlightened than Sloviria as a whole, and opposes social punishment. They believe that such punishment prevents rehabilitation, since criminals and at-risk youth find it impossible to make the connections they need to succeed, and are forced to hang out with other people as criminal as themselves. They propose a complete inversion of Sloviria’s justice system; when anyone commits a crime, the people closest to them are rewarded. They envision a future where, once somebody shows any sign of being at risk for antisocial behavior, they are love-bombed by dozens of people hoping to get rich off their acquaintance, people who want to employ them, adopt them, date them, or just serve as mentors and parental figures. But wouldn’t all these people encourage the potential criminal to offend? The Radicals debate this among themselves, with one solution being that this could just be a perfectly normal crime punished by jail time.


Nova-Nishistan’s legal system is based on blackmail. It’s not just blackmail. There are courts and jails and so on. But few people use them. If you have evidence that someone committed a crime, you are expected to threaten to report them unless they give you money.

The system has many advantages. The person most likely to have evidence of a crime is the victim. The victim can choose how much money they want as damages, and have a good chance of receiving it. Fines are automatically calibrated to the wealth of the victim, so poor people are not stuck with debts that are impossible to pay. If a crime is victimless, or the victim chooses not to prosecute, any other witnesses are incentivized to take up the cause of punishing the wrongdoer of their own initiative. Few crimes make it to the courts or prisons, so everyone is assured a speedy trial and an jail cell free of overcrowding.

In order to maintain their system, the Nova-Nishistanis need many laws related to blackmail itself. One of their most serious crimes is to blackmail someone, receive the requested ransom, but report them anyway; anyone convicted of this will be in for a lengthy prison sentence. Indefinite blackmail – “pay me $100 now, but I might ask for more later” – is forbidden. So is non-monetary blackmail; too easy to abuse. There are a host of similar regulations.

One regulation they don’t need is laws about retaliating against blackmailers. You might expect this to be a problem – blackmailing the mob sounds pretty scary. But there are lots of individuals, companies, and (let’s face it) rival gangs happy to provide dead-man’s-switch-as-a-service. Tell them your secret (which they promise not to disclose without your consent), and if anything happens to you, they prosecute it. Even better, if anything happens to you, they’re almost guaranteed to investigate your death, since their special evidence gives them a leg up in what could be a very lucrative blackmail case.

Of course, this only works on people who are rational enough to respond to incentives. If someone is a complete unpredictable psycho, you probably don’t want to try blackmailing them, even with a dead-man’s-switch as insurance. But these are probably the people who should be in jail anyway!


The people of Bogolia thought it was unfair that rich people could hire better lawyers than poor people. But they didn’t want to take the authoritarian step of banning rich people from buying good lawyers, if they thought skilled representation was important. Instead, they just mandated that in any legal case, both sides had to have equally-priced counsel. A rich person could hire as expensive a defense attorney as they wanted, as long as they donated an equal sum to the plaintiff to hire star attorneys of their own. You could sue someone with as highly-priced an attorney as you wanted, but you needed to give them the same amount to spend on their defense.

(this rule applied to the state too, and so implied the right to a public defender worth however much the state was paying to prosecute you, even if you were poor and couldn’t otherwise afford one)

Some trolls tried launching hundreds of frivolous lawsuits against companies they didn’t like, assuming that the company would have to pay both sides of the lawsuit and eventually go broke. They were punished through the normal anti-frivolous-lawsuit rules, and it turned out that companies that did not go broke having to pay one side of a lawsuit don’t go broke having to pay both sides either.

But there were some weirder unintended consequences. How good a lawyer to get became a highly strategic decision for rich clients facing poorer ones. If you thought you were in the right, you’d get a good lawyer, since two equally good lawyers facing off will likely produce truth. If you thought you were in the wrong, you’d try to get a crappy lawyer, since then your opponent would also have a crappy lawyer, and two crappy lawyers facing off will likely produce random results. Not paying for a good lawyer started to be seen as an admission that one’s case was weak.

But also, lawyer salaries started to get wacky. If a random criminal hurt a rich person somehow, and the rich person hired a good lawyer, the random criminal might receive tens of thousands of dollars to spend on legal advice. But random criminals generally are not savvy at evaluating lawyer skill, so thousands of predatory lawyers sprang up, willing to cater to these people by looking impressive and accepting very high salaries. For the savviest of political operators, an equal and opposite caste of underpriced lawyers sprang up, who would accept very low pay in exchange for vague social credit to be doled out later. More and more political scandals started to center on prestigious lawyers defending politicians for free in exchange for favors, and so depriving the opposing party of their right to equally-matched counsel.

Finally the authorities handed down a change to the system: the plaintiff and defendant would agree on two lawyers to conduct the trial. Then the judge would flip a coin, and one of the two would be assigned at random to each party.


Sanzorre accidentally became an anarcho-capitalist state under the dominion of malpractice insurance companies.

They started off by insuring doctors. Doctors know a bad malpractice case could ruin them. And although being a good doctor helps, it’s not 100%. Even the best doctor can get unlucky, or have somebody with a grudge fabricate a case against them. For that matter, even very bad doctors can get lucky and never have to deal with a case at all. So doctors have malpractice insurance, and if they seem to be practicing medicine badly their insurance company will raise their premiums.

This worked well enough that other industries started adopting it too. If a factory’s pollutant byproducts got discovered to cause cancer ten years later, their industrial malpractice insurance would pay for it. If someone slipped and fell and broke their back on a restaurant floor, their restaurant malpractice insurance would pay for it. Of course, these insurance companies worked closely with factories to monitor how many they were polluting, and gave discounts to restaurants which followed best practices on floor cleaning.

Finally, they branched out to serving ordinary people. If you accidentally hit someone’s dog with your car and got sued for damages, better to have a personal malpractice insurance pay them than get hit for tens of thousands of dollars yourself. Having malpractice insurance became to Sanzorrians what having health insurance is to Americans – a necessity if you don’t want to court disaster.

The plaintiffs in all these cases were usually being covered by lawyers who took contigency fees. But as malpractice insurance companies became better at their jobs, the contingency fees began to dry up. Finally, lobbyists from the insurance companies got contingency fees banned entirely. This presented a dilemma for ordinary people with grievances against bad actors. Thus the rise of the grievance insurance.

If you suffered harm from a doctor’s medical error, and had grievance insurance, the insurance company would pay the cost of the malpractice suit. If you were poisoned by industrial runoff, the insurance company would pay the cost of suing the factory. Grievance insurance soon became as essential as malpractice insurance. Without it, you wouldn’t be able to stand up for your rights.

Like malpractice insurance, grievance insurance was only available cheaply to people who agreed to avoid risks. If you wanted to be able to sue for malpractice, you had to avoid going to quacks. If you wanted to be able to sue factories for pollution, you couldn’t live right next to a coal plant. Gradually, grievance insurances placed more and more restrictions on people’s behavior, and people generally complied.

As malpractice insurances incentivized potential defendants to avoid actions that could harm others, and grievance insurances incentivized individuals to avoid risk, the number of lawsuits gradually got fewer and fewer. Those that happened were generally settled between malpractice insurers and grievance insurers, without ever having to go to court, and sometimes with both companies changing their policy to avoid repeats in the future. Soon, even this formality was eliminated – each malpractice insurance company paid a negotiated amount to each grievance insurance company each year, and the grievance insurance company paid complainants from its own bank account as per its own policies whenever they complained.

It wasn’t quite full anarcho-capitalism. The state still intervened in a few very serious crimes, like murder. But the insurance companies had replaced the civil courts and the regulatory apparatus, and controlled every aspect of doing business.


Modern philosophy says that formal systems are bunk. The dream of reducing the complexity of reality to some mere set of rules is a childish desire reminiscent of the fascists and high modernists of the early 20th century. Enlightened thinkers realize that we need a Kegan 5 type fluid ability to transcend systematicity. So the people of Mirakoth don’t have laws. They’re just supposed to not do bad stuff.

If someone in Mirakoth thinks someone else did something bad, they can bring it before a council of seven judges. If a majority of the judges think it was bad, they can assign whatever seems to them like fair punishment. If the loser appeals, it goes to a larger council of forty-nine judges. If they think it was bad, it was bad. These judges are under no obligation to follow precedent or any particular philosophy. They’re just supposed to be in favor of good stuff and against bad stuff.

In order to prevent people from seeking out judges who agree with them, each case is assigned seven judges at random. All cases are tried by videoconference, to make sure the judge pool is unlimited by geographical mobility. If the judges think a case is frivolous, they can choose to punish the person who brought the case.

Doesn’t this create such paralyzing uncertainty that nobody knows if they can do anything at all? Not really. Controversial cases are more likely to go to the full 49 judge panel. If an opinion is only held by 20% of judges in the country, then there’s only about a 1 in a million chance that the panel will rule in favor. Even if the opinion is held by 40%, it’s still only an 8% chance of winning. So just don’t do things that more than 40% of people think are bad, and you’ll be fine!

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4 days ago
South Burlington, Vermont
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District Court Finds Bump Stock Ban May Constitute a Taking, Because the Federal Government Lacks a Police Power

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In 2018, the Trump Administration announced that federal gun control laws would now be read to prohibit bump stocks. Previously, the Obama Administration determined that the National Firearms Act and the Gun Control Act did not prohibit bump stocks. The Trump Administration's policy was challenged in several courts.

I filed an amicus brief on behalf of the Cato Institute in Guedes v. Bureau of Alcohol, Tobacco, (D.C. Circ.). We contended that this reversal of positions from the prior administration was not entitled to deference. The Supreme Court ultimately denied cert in Guedes, over Justice Gorsuch's dissent. (Kristin Hickman and Jonathan Adler commented on the denial.)

As far as I am aware, all other courts have likewise turned away challenges to the bump stock ban. Until today at least.

Judge Starr of the Northern District of Texas found that the Trump Administration's policy may be unconstitutional. Here is the introduction from Lane v. United States:

Bump stocks allow semi-automatic rifles to fire at a rate close to machine guns. In December 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule determining that bump stocks qualify as prohibited machine guns under federal law and required their destruction or surrender. Brian Lane lawfully purchased three bump stocks before the rule took effect and raises a Fifth Amendment challenge that the federal government must compensate him for taking his property. The federal government responds that the rule falls under a valid use of the police power, which requires no compensation. But as explained below, the federal government forgot the Tenth Amendment and the structure of the Constitution itself. It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn't abolish the states to take their police power, the Court DENIES the motion to dismiss WITHOUT PREJUDICE. The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation. The Court requests that the federal government also address any limits on that federal power and the Court's proper role in examining the validity of the underlying rule when determining if there was a compensable taking.

Judge Starr rejects the notion that the federal government has a police power.

The federal government here raised the talisman of police power 31 times in its motion to dismiss and an additional 19 times in its reply. This seemed unusual to the Court because the Court had thought the police power is a power reserved for the states, not for the federal government. Fearful the Court was wrong, it turned to the first place one should always turn to with such questions: the Constitution. Article I, section 8 enumerates the powers the People gave to the federal government at our Nation's founding: the tax power, the borrowing power, the commerce power, the naturalization power, the bankruptcy power, the power to coin money, the postal power, the maritime power, and the war power.39 None of these powers is the police power.

Instead, the federal government has to rely on one of its enumerated powers. And it hasn't. Judge Starr gave the parties a chance to re-plead their case.

Rather than deny the federal government's motion to dismiss outright, the Court will allow it an opportunity to file a new motion to dismiss, based on the limited enumerated powers the federal government has (as confirmed by the Constitution, the Supreme Court, and even Wikipedia). If the federal government opts for the commerce power, it should discuss the limitations in Lopez and Morrison. Also, the federal government should be prepared to address whether the validity of the final rule is an issue under the proper judicial framework for assessing the taking.51

Judge Starr is quite right. The federal government lacks a police power. And I haven't seen this argument addressed in any other bumpstock cases.

Stay tuned.



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4 days ago
South Burlington, Vermont
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Vermont to Allow Curbside Firearm Sales

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Updated at 2:37 p.m.

Vermont gun shops can continue selling firearms during the coronavirus outbreak, according to Secretary of Commerce Lindsay Kurrle, though they must do everything they can to limit face-to-face contact.

The state's Agency of Commerce and Community Development plans to issue new guidance Friday afternoon clarifying that such stores may remain open, Kurrle said.

"They're allowed to make those sales, and wherever possible we want them to do it online and [through] curbside pickup," she said. "But because we recognize that you can't legally buy a firearm without an in-person connection during that process, obviously that can happen."

The legal status of gun shops has been unclear since Gov. Phil Scott issued a "stay home, stay safe" order on March 24. The order suspended all "in-person business operations," except those deemed essential to protecting public health, safety and national security. Certain retail businesses, such as grocery stores and pharmacies, were specifically exempted from this mandate. Others, such as hardware stores, were allowed to stay open so long as they used curbside pickup "to the extent possible."

Firearms dealers were left unmentioned in the order and in a "critical business list" subsequently issued by the Agency of Commerce, though "sporting goods" stores and "other miscellaneous store retailers" were deemed nonessential.

Kurrle said Friday that firearms dealers would be treated similarly to hardware stores.

In the absence of specific state guidance, some gun shops have closed and others have remained open.

According to a post on its Facebook page, Powderhorn Sports in Williston closed on March 25 "until we figure out more about what they consider 'essential.'" In a March 30 update, the store indicated that it would reopen the next day. "We will be going back to what we were doing just before the mandated shut down, which is allowing a limited amount of customers in the store at a time so that we can provide ample amount of distance between our customers," the post read.

Complicating matters, President Donald Trump's administration issued non-binding guidance to states and cities last week that firearms dealers should be considered essential. Parro's Gun Shop & Police Supplies in Waterbury cited that ruling in a March 30 post on its Facebook page explaining why it would would remain open.…
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4 days ago
South Burlington, Vermont
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Common-Good Constitutionalism Is an Idea as Dangerous as They Come

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We are living in post-legal times. The new conservative majority on the Supreme Court, and the carefully screened cadre of far-right judges in lower courts, are poking hungrily not only at venerable precedents but at the notion of precedent itself.

Figures heretofore marginal are maneuvering for advantage—think of the obscure White House aide Stephen Miller rewriting immigration law from the White House, or the haberdashery theorist Michael Anton proposing, in The Washington Post, that President Trump gut the Fourteenth Amendment by executive decree.

Adrian Vermeule, the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School, is hardly a marginal figure. At just over 50, he has made his mark as a brilliant but distinctly conservative theorist of administrative and constitutional law. Four years ago, he was received into the Catholic faith, and has adopted a radically conservative posture toward law and society. His chosen philosophy is called “integralism,” which calls for subordinating the state to the principles of the Catholic Church.

Tuesday on this site, in an essay titled “Beyond Originalism,” he called on conservative judges and lawyers to exploit their new ascendancy by remaking the entire country. No longer should they be content to parry the claims of liberal legalists; instead, they must, to paraphrase Vladimir Lenin, proceed to construct the integralist order.

The essay appeared on the eve of April 1, and Vermeule might be having us on. He sometimes aspires to puckishness: Witness a late-February tweet that displayed an advertisement for a conference of anti-Trump conservatives with the comment, “The very first group for the camps.” The sportive conceit here is that these “RINO” conservatives (Republican in Name Only), just like hard-core Trumpists, would one day be shipped off to detention by rampaging liberal commissars. Similarly, his positions in “Beyond Originalism” are sufficiently outrageous that charitably imagining the essay as self-parody is easy.

By contrast, I suspect that Vermeule, with admirable honesty, really is explaining the beliefs that he and others on the right have quietly held for many years. His view of the presidency, for example, echoes some parts of Attorney General Bill Barr’s authoritarian manifesto, delivered in November to an adoring federalist gathering. Let’s examine what Vermeule proposes; it may be our future.

I will try to give a fair summary of his complex argument:

Originalism, Vermeule writes, has since the 1980s, come to dominate conservative legal discourse. The idea behind it was that judges can, by research, determine the “original intent,” of a constitutional provision, and then apply that and only that to present-day cases. The motive behind it, as Vermeule notes, was to fashion an argument that could oppose and eventually reverse Warren and Burger Court precedents that expanded sexual freedoms and limited the power of majorities to enforce morals and hierarchies.

In 2020, the Trump administration has brought the Supreme Court and lower courts under firm conservative control. As a result, originalism commands widespread allegiance among bench and bar; even many liberals have learned to play the game.

Now Vermeule, like Joe Pesci in My Cousin Vinny, asks scornfully: You were serious about that? He wants originalism out; what should replace it is “common-good constitutionalism … based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”

This philosophy is “not enslaved to the original meaning of the Constitution” (unlike “originalism”) but is also “liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy.”

The state will coerce individuals, to be sure, but for their own good: “Subjects will come to thank the ruler whose legal strictures … encourage subjects to form more authentic desires.” The ruler will achieve this through “a powerful presidency ruling over a powerful bureaucracy.”

In the new commonwealth, judges and other officials will enforce:

respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality.”

Reader, you, like me, may wonder how this relates to the actual, you know, Constitution. We can read that document’s “sweeping generalities and famous ambiguities” as embodying natural law and morality. But, really, we need not fuss with textual trivialities all that much. “Thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake.”

What legal changes would just rulers and judges make? “The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism.” To put it differently: Kiss goodbye to your same-sex marriage, your contraceptives, your reproductive choice, and, for good measure, your right to protest against losing them.

That’s just the beginning. But sooner or later, you will thank the wise leader.

Many things could be said about the above vision. To address the easiest first, Vermeule is not admitting to having been an insincere originalist. He never was an originalist. He is an authentic Christian nationalist to whom the Constitution is only an obstacle; to cite just one example, see an argument he recently made on a Christian legal-theory website that immigration rules should be changed to provide “lexical priority [in visas] to confirmed Catholics, all of whom will jump immediately to the head of the queue.”

Puckishness takes one only so far. This man’s argument really is for authoritarian extremism.

Next, Vermeule’s philosophy (and to his credit, he essentially admits this) has absolutely nothing to do with the actual United States Constitution, and in many ways flatly contradicts it. A government that tends its people like sheep, remaking their desires and beliefs, has no basis in the Constitution itself.  The structure of the Constitution embodies a distrust of “strong rule” so clear that no one with eyes could miss it; I can find no commitment there to “a powerful presidency ruling over a powerful bureaucracy.”

In fact, the Constitution as such is not a binding text to Vermeule. What common-good judges must do, he says, is “read into the majestic generalities and ambiguities of the written Constitution” (italics mine) the principles he favors. “Reading into” is a technique of scriptural interpretation. It is called “eisegesis,” which the Oxford English Dictionary explains is “the interpretation of a word or passage (of the Scriptures) by reading into it one’s own ideas.”

We’ve all met eisegesis in daily life—think of your freshman roommate who thought that Pink Floyd’s “Dark Side of the Moon” is actually about The Wizard of Oz. As a scholarly technique, however, eisegesis is, to say the least, disfavored; as a way of thinking, it is dangerous—to use a phrase from King Lear, “that way madness lies.” Much more honest would be for Vermeule to say that the old Constitution has failed and conservatives in robes should storm the Winter Palace, tear up the old rag, and substitute the Republic of Gilead.

This utopia where grateful “subjects” (formerly called “citizens”) kiss the rod that saves them from their foolish heart’s desires is eerily familiar. Consider this credo:

The national community is founded on man as bearer of eternal values, and on the family as the basis of social life; but individual and collective interests will always be subordinated to the common welfare of the nation, formed of past, present and future generations … The natural entities of social life—Family, Municipality and Guild—are the basic structures of the national community. Such institutions and corporations of other kinds as meet general social needs shall be supported so that they may share efficaciously in perfecting the aims of the national community.

The source is The Law of the Principles of the National Movement, promulgated by the Spanish government in 1958 as a summary of Falangism, the philosophy of General Francisco Franco’s regime. Falangists, too, spoke warmly of God, of the favored role of the Holy Catholic and Apostolic Church, of the sacred family, and of the “common welfare”; but they ruled by censorship, secret police, the garrotte, and the firing squad. We need not list the other 20th-century authoritarian regimes that embraced eternal values but ruled by terror.

In fact, my deepest objection to Vermeule’s anti-constitutional philosophy is not that it is harmful and antihuman, but simply that, in the end, it is so banal. This movie has had more remakes than A Star Is Born. The opening scenes are always set amid the delicate towers of Saint Augustine’s imaginary City of God; but the last scene takes place, every time, in dank basements soaked with very real blood.

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4 days ago
«In fact, my deepest objection to Vermeule’s anti-constitutional philosophy is not that it is harmful and antihuman, but simply that, in the end, it is so banal.»
South Burlington, Vermont
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