Not yet subscribed to the Oregon Roundup? Subscribe here. All it takes is your email address and all you’ll receive is this weekly(ish) email, for better or worse. I’ll never give or sell your email address to anyone.
Hi,
Here’s some stuff you might like.
The levee strains: a glimpse of revised school reopening metrics
Bend-La Pine school district Superintendent Lora Nordquist may have broken a little statewide news Tuesday night when she revealed some of the contents of a draft of Governor Brown’s revised school reopening metrics. Per Nordquist, the draft metrics would allow kindergarten through third grade to begin immediately in her district, with higher grades following soon thereafter. Apparently, the metrics would allow a range of weekly average positive cases in a county somewhere around 25 (as opposed to 10 currently) and otherwise relax the standards. Presumably, this would also allow many other school districts around the state to open, or partially open, as well.
This encouraging news comes in the context of Oregon having among the strictest statewide standards for school reopening of any state, stricter than California and Washington, in spite of recent studies indicating that open schools do not increase the rate of Covid transmission beyond that in the overall community. Closed schools has contributed to high unemployment, particularly among women, as someone’s got to stay home to manage the kids. Some school boards and lots of regular Oregonians have pleaded with the Governor to relax her metrics so that more kids can get back into school.
What we have as of now is only a draft as reported by someone who’s seen it, so one cannot say with certainty what, if anything, is going to change. And as The Bulletin points out in the editorial I linked to above, all of this would be much better if it were hashed out in public. Specifically, it does not serve Oregonians well that the legislature has had almost no role in the decisions to close schools and, maybe, reopen them, which must rank among the most critical public policy decisions ever undertaken by our state government. Governing by legislation rather than by emergency order would allow the public to see and meaningfully participate in the making of the laws that impact them the most. It would allow us to see, rather than to assume, who among legislators and interest groups supports reopening schools and who opposes.
I’m not suggesting slowing down the revised metrics to allow the legislature to legislate. Rather, once the new metrics are formalized, the Governor and the legislature should move forcefully to reinstate normal lawmaking order, or something closer to it, so Oregonians and their elected representatives can have their say.
Amy Coney Barrett and Originalism
The U.S. Senate voted mostly along party lines to confirm Amy Coney Barrett to the Supreme Court this week, concluding a surprisingly anti-climactic confirmation process. Maybe 2020 has (finally) run out of climactic storylines, or maybe it’s just saving them up for November 3. More on that in a minute.
Setting aside for a moment her judicial philosophy, Barrett is a really impressive human being. She has seven kids, who range in age from 8 to 18 and while raising them has also attained the highest position available to a lawyer who does not want to be president. I have two kids, birthed neither of them, and usually just barely pull off operating a one-lawyer office in a small city best known as the location for the last Blockbuster video store on Earth.
Although the Democrats lacked the votes to stop Barrett’s confirmation, they did take a few swipes at her judicial philosophy, known as originalism or textualism. Senator Ed Markey (D – MA) tweeted,
“Originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.”
I guess he forgot to mention that originalism is also anti-Semitic, prone to torturing puppies and doesn’t signal out of roundabouts. That’s a whole lot of bad stuff ascribed to a judicial philosophy that holds, simply, that judges should interpret the Constitution to mean what the words in it meant at the time they were written. This is the same thing that lawyers, judges and even Supreme Court Justices do when they’re interpreting statutes (laws written by Congress and signed by the President), but in the last century fell out of vogue when it comes to the Constitution.
The problem, you see, is the Constitution as written prohibits some people, principally but not exclusively progressive people, from doing what they want to do, and it’s hard to amend the Constitution. The easier course was for Supreme Court justices to simply interpret the Constitution in a manner that comports with their preferences regarding outcome, which is to say act like members of Congress rather than as judges. In the mid-20th century, the Supreme Court had the habit of divining “penumbras and emanations” of the actual words in the Constitution, which is to say they more or less made stuff up to get to the result they wanted.
Originalism is a reaction to this, and an attempt to get the Supreme Court back out of the lawmaking business, and into the business of interpreting laws passed by democratically elected representatives, and applying those laws to the facts in the case before them. One of the repeated themes of this here Roundup is Congress, the branch of government most closely tied to voters’ preferences, abdicating its lawmaking authority. Well, a lot of that authority has accrued to the Supreme Court, the branch by far least responsive to the will of the people. That leads to a whole lot of political dysfunction.
Originalism is not racist, because the Constitution, as amended, prohibits racial discrimination. It is not sexist or homophobic because the Constitution requires equal protection under the law. But the Constitution does not say what it does not say, and the last people we want amending the constitution are nine unelected, life-tenured justices, even if at least one of them has superhuman time management skills.
The election and its aftermath
There’s reason to be concerned about violence and unrest whatever the result of the presidential election Tuesday. Marquette University Law School polled Wisconsin voters and found that among Trump voters, 80% think Trump will win and 11% think Biden will win. Biden voters are a mirror image: 80% of them think Biden will win, while only 6% think Trump will win. Anecdotally, I don’t think this finding is unique to Wisconsin voters. In other words, the vast majority of someone’s voters are going to be in for a surprise whenever the election is sorted out.
That disparity of belief about election outcome is an interesting testament to how far Democrats and Republicans have gone toward constructing their own very different versions of reality. Add the mainstreaming of conspiracies about election fraud, voter intimidation and other voting irregularities (not to say these things don’t happen, they do, but they are much more rare than we are currently led to believe). Then, in the event of a close race, add the likelihood of a protracted period of ballot counting and legal challenge as a bunch of states grapple with widespread mail voting for the first time. There’s a real potential for things to get bad, and for people to get hurt.
Are you sick of people saying that each election is the most important election of (a) our lifetime, or (b) the history of the country? I am, but there’s a kernel of truth located therein. The truth is that we have allowed and even encouraged the federal government to usurp ever-increasing authority and spending power, with much of that authority, real and perceived, housed in the personage of the president. If the importance of elections is determined at least in part by the power of the office over our minds, our pocketbooks and our freedoms, then, yeah, each presidential election is the most important ever. While I long for the day when presidential candidates say things like, “I can’t fix your life and if I try I will make things worse for you and others, so go pay attention to something else for a while,” we’re a long, long way from that place. Presidential elections are important.
As important as the outcome may be, what is more important, this time, is how we all choose to react to the outcome. Most of us have never seen political violence like we’ve seen over the past six months or so, and it feels in so many ways as though the country is on the brink of . . . something. You’ve painfully slogged your way through an email about Covid metrics and judicial philosophy, so you’re probably not the type, whatever your political persuasion, to grab your pitchfork and take up rebellion. You may not even own a pitchfork. I don’t.
But we, the pitchforkless, can influence those who are more willing to hurt people and damage property in support or opposition to someone running for president. The more people who denounce political violence of any type or from any side, the better. Those who seek confrontation are emboldened by law-abiding people who share their political preferences and cast blame on the other side, while excusing the lawbreaking of their fellow partisans.
Whatever happens Tuesday and beyond, we must not give people who seek and participate in violence and property destruction the ideological and rhetorical shelter they need.
Were you forwarded this message? Sign up. No sales, no spam, just the weekly(ish) email smart people delete without reading less often than other emails.
Have a great weekend!
Jeff Eager
jeff@oregonroundup.com
Read past Oregon Roundup editions
What I do:
EagerLaw PC – A business and real property law firm in Bend, Oregon.
Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.
Waste Alert – Local government monitoring for the solid waste and recycling industry.