Pun Salad

How odd. Wasn’t inflation Putin’s price hike/tax hike? Corporate greed? Actual growth? “Transitory”? Non-existent? None of those messages have broken through in polling for Biden on the economy or on his overall job performance, and especially on economic stewardship. Right now his RCP aggregate on economic job approval is worse than his overall standing (33.2/62) in an election cycle that is all about the economy.

The Supreme Court has agreed to hear a case called Moore v. Harper, involving a theory known as the “independent state legislature” doctrine (ISLD). The left confidently declares this doctrine to be radical and insane — a recently concocted bit of buffoonery by Federalist Society types who can’t really be serious. Matthew Cooper of the Washington Monthly calls it “the crazy ‘independent legislature’ doctrine.” The reliably incorrect Ian Millhiser at Vox declares Moore v. Harper to be “perhaps the gravest threat to American democracy since the January 6 attack.” Steve Benen terms the ISLD “an obscure idea” that could be used to overthrow presidential elections. Rick Hasen calls it an “extreme position” that “could help foment election subversion.” NPR says it “could radically reshape elections for president and Congress.” Radley Balko has a typically sober and restrained take, writing that he “[c]an’t emphasize enough how batshit this is.”

What is this obscure, crazy, extreme, radical position that has the lefties (and, as we will see, Michael Luttig) in such a lather? As it turns out, it is really nothing more than reading the Constitution to mean what it says. There are arguments against the ISLD, some of which are plausible and some of which are just silly. It’s my purpose in this set of pieces to begin to evaluate them for you. But any rational discussion of the subject has to acknowledge that the doctrine really does nothing more than give a plain reading to the clear text of the Constitution — which, the last time I checked, was still the supreme law of the land.

The discussion will proceed in at least two parts, because putting them in a single newsletter challenged the Substack length limits. Today, I will discuss the textual basis for the ISLD. I will note that support for the ISLD does not imply that legislatures may follow the Trump Blueprint of holding an election and then changing the results if they don’t like them. That idea actually is insane. Then, for paying subscribers, I will take on the issue of whether state legislative action in this area can be trumped by state constitutional provisions. (Hint: I believe it is not.)

The brute reality is that most kids slot themselves into academic ability bands early in life and stay there throughout schooling. We have a certain natural level of performance, gravitate towards it early on, and are likely to remain in that band relative to peers until our education ends. There is some room for wiggle, and in large populations there are always outliers. But in thousands of years of education humanity has discovered no replicable and reliable means of taking kids from one educational percentile and raising them up into another. Mobility of individual students in quantitative academic metrics relative to their peers over time is far lower than popularly believed. The children identified as the smart kids early in elementary school will, with surprising regularity, maintain that position throughout schooling. Do some kids transcend (or fall from) their early positions? Sure. But the system as a whole is quite static. Most everybody stays in about the same place relative to peers over academic careers. The consequences of this are immense, as it is this relative position, not learning itself, which is rewarded economically and socially in our society.

Late last Friday, PolitiFact issued a “fact check” claiming that Florida governor Ron DeSantis’s recent swipe against the Civics Secures Democracy Act (CSDA) was “false.” Actually, DeSantis’s criticism of CSDA is on the mark. It’s PolitiFact’s reporting that’s fallacious. PolitiFact’s failed attack on DeSantis can fairly be called an opinion piece in disguise. But it’s also something more — and worse — than that. Yacob Reyes of PolitiFact thoroughly misrepresents DeSantis, merely refuting a straw man of his own making. Let’s have a look, then, at the media’s latest bogus hit job on DeSantis.

At a June 30 event on civics education, DeSantis contrasted Florida’s approach to that subject with CSDA, which he said, “would allow the Biden administration to buy off states with $6 billion if they sacrifice American history for critical race theory and Biden’s other political whims of the day.” PolitiFact rates this statement “false,” because “DeSantis’s claim ignores a provision in the Civics Secures Democracy Act that prevents the education secretary from imposing curricula, such as critical race theory, on states.”