SCOTUS Strikes Down Economic Protectionism in Tennessee

This week, in Tennessee Wine and Spirits Retailers v. Thomas, the Supreme Court struck down a Tennessee ordinance which prohibited new residents from obtaining a liquor store license until they had resided in the state for two years (in a particularly galling twist, they can't renew the license until they have ten years of residency -- even though liquor store licenses have to be renewed annually. Yes, that means there is a seven year no man's land in between.). The vote was 7-2, with Justices Gorsuch and Thomas in dissent.

I want to flag this briefly, and particularly the dissents of Gorsuch and Thomas. To be clear: I firmly believe that good policy and proper legal interpretation are not coterminous categories. The question before the Court was (a) whether laws like this violate the "dormant commerce clause" and (b) whether the special legal regime the Constitution provides for alcohol regulation in the 21st Amendment alters that analysis. I'd have to read the case more carefully to decide where I come down on it, though in my extremely brief browse I think the majority has the better of the argument.

But this nonetheless serves as a good example of a simple point: there is no straight line connection between conservative jurisprudence and economic liberty. In many circumstances, there is a more straightforward left-libertarian alliance against unnecessary government licensing regimes which serve only to obstruct disfavored classes from economic opportunity. Sometimes, conservatives will join them (the majority opinion here was written by Justice Alito); in the right circumstances sometimes one sees a massive cross-party consensus on these issues. But there remain plenty of cases where conservative politics and conservative legal analysis implies propping up economic protectionism and government red tape. Any assumption of a natural alliance between economic freedom and conservatism is a myth.

Defending a Racist: The Drinking Game

You ever had a conversation with someone hell-bent on defending a racist (him/herself or someone else)? There are some predictable moves they'll make -- and by "predictable" I mean "virtually all of these conversations could track my anti-discrimination syllabus class-for-class". So I figured, if I'm going to be driven to suicide by these idiots, I may as well go down via drinking game. But let's be clear -- actually playing this game? Will kill you. Nobody's tolerance is high enough.

That said -- here are the rules! Note that I'm using "Black" as my stand-in minority group, but you can substitute pretty freely (Jews, gays, Latinos -- try it, it's fun!). And feel free to add your own rules in the comments.

* * *

"I don't have a prejudiced bone in my body." (1 sip)

"I asked him and he said he wasn't racist." (2 sips. But if he says "let's ask him and see if he admits he's racist," replace alcohol with juice because he's too naive to be older than 11 and you're in for a long night)

"I think he's really brave to even ask these questions." (1 sip)

"Oh there you go, playing the 'race card'" (1 sip, 3 sips if you haven't actually called the person racist yet, 5 sips if you haven't even spoken yet)

"So I guess anytime someone criticizes a Black man, it's 'racist'?" (1 sip)

"CRITICIZING AFFIRMATIVE ACTION IS NOT RACIST." (1 sip, 3 sips if nobody's arguing that all such criticisms -- as opposed to this particular criticism -- are. Which is to say, 3 sips).

"I'm not saying I agree with everything he says, but he makes some astute points" (1 sip to start, 2 sips if he won't say which things he disagrees with, 3 sips if he won't say which parts he agrees with, and down the bottle if the "astute point" is "Blacks were better off enslaved"/"Jews do run the world"/"gays are basically an armada of child molesters")

"But I have Black friends/family!" (1 sip) "...and they agree with me!" (another sip)

"Not every Black person agrees with you!" (1 sip)

"You're the real racist...." (1 sip)

".... for thinking about race so much" (1 sip)
".... for even thinking race is a thing" (1 sip)
".... for holding yourself out as different. Why do you think you're better than the rest of us, huh?" (down the bottle)

"You're just afraid of hard truths. Stop being so PC!" (2 sips)

"I'm just asking questions okay? Stop being so defensive!" (1 sip) ".... do you have something to hide?" (another sip)

"Oh, so I need a lifetime of study before I opine about your group?" (2 sips, but down the bottle if it would have taken less than an hour of "study" to know what was said was idiotic).

"It is true! I know because ..."

"... I read it on the internet" (1 sip)
"... my Black friend said so." (1 sip)
"... well, everyone knows that it's true." (3 sips)
[multiply drinks x2 if what's "true" is a well-known urban legend/conspiracy theory; x3 if upon being informed of that the response is "sure, that's what the Mossad wants you to think."]

"TRUE OR FALSE: THERE ARE BLACK PEOPLE WHO HAVE DONE BAD THINGS!" (1 sip)

"Who made you the knowledge/PC police? What makes you so sure you know what you're talking about" (1 sip if you're a member of the group under attack, and/or 1 sip if you actually do have an academic or professional specialty in the topic under discussion).

"I'm not saying racism is okay, but I understand it given that Black people do [whatever]." (1 sip)

"I don't have a problem with Black people. I have a problem with ...." (1 sip, but brace yourself)

"... their music, clothing, and culture." (1 sip)
"... the 80% of them who disagree with me." (2 sips)
"... institutions populated primarily by Black people." (3 sips)
"... the uppity ones." (down the bottle)

UPDATE

Some more:

"All I'm saying is how about a White History Month for a change?" (1 sip -- thanks Bill)

"You see racists behind every bush." (1 sip, add another if they accuse you of it being a hobby)

"Louis Farrakhan exists. Therefore...." (1 sip)

".... until you condemn him to my satisfaction, shut up." (2 sips)
".... racism is totally justified." (2 sips)
".... anybody who talks about racism is Louis Farrakhan" (down the bottle)
[x2 if Farrakhan is replaced with Jesse Jackson, x3 if he's replaced with Kanye West]

"So I guess Black people are perfect in every way?" (2 sips)

Don't Drink and Be Driven Home

Orin Kerr points out a perplexing case out of Indiana, where the state Supreme Court ruled that a passenger in a vehicle stopped by the police on the highway is "in public" for purpose of a public intoxication statute (the case is Moore v. State).

Professor Kerr observes that the case is easily distinguished from the precedent the Indiana Supreme Court relies upon (Miles v. State), where the police found the drunken defendant parked by the side of the car with his windows rolled down. Here, by contrast, the defendant was only "by the side of the road" pursuant to the police's seizure of the car pursuant to a traffic stop. He notes the famous case of Martin v. State, an Alabama state case taught in law schools nationwide for the proposition that the police cannot take an intoxicated person into "the public", then arrest him for public intoxication (so much of the 1L curriculum is about shattering student's prior conceptions of fairness as irrelevant to the law; Martin is memorable if for no other reason than as a pleasant break from that routine).

But aside from the seemingly specious legal reasoning of the decision, it also seems rather disastrous from a policy perspective. The state has a substantial interest in keeping intoxicated drivers off the road. One of the main ways it seeks to accomplish this is by encouraging drunk individuals to become intoxicated passengers instead. The whole point of a designated driver program is for non-intoxicated persons to drive their intoxicated friends home, rather than letting them drive drunk themselves. This decision seems to fly in the face of that public policy and, to the extent that it discourages the practice of designated driving, makes the state of Indiana considerably less sake safe [Though my friend Mike is right that it was much better in the original. --DS].

Tipsy Cup

It is only because everything turned out okay that I am rolling over laughing imagining the scene: Applebee's accidentally serves alcohol to a toddler.

Femme Up

You've seen those Bud Miller Light "man up" ads, right? Possibly the most misogynist (and annoying) ads on television now (and that's saying something), they feature a man declaring to a hot female bartender that he doesn't care what his beer tastes like, at which the bartender derides him for undertaking some stereotypically female activity (wearing skinny jeans, wearing a thong, excessive texting). The early versions were even worse, amazingly -- they had the bartender tell the guy to take off his girlfriend's skirt (and showed him actually wearing a skirt) -- I guess the literal statement by women that being a bad drinker = being a women (horrors) was a little too obvious.

Anyway, I was thinking -- wouldn't it be an awesome-yet-revealing parody to create a serious of "femme up" ads for, I don't know, sparkling wine? The women could ask for a glass of wine, the hunky male bartender could ask "sparkling or not", and the women could declare her indifference. At which point the man could mock her for being like a man: "Kinda like how your boyfriend doesn't mind you're borrowing his football jersey?" "But I actually like the Jets!" "Whatever -- femme up."

The point being that it's pretty difficult to imagine a female equivalent of the Bud Miller Light campaign, because we don't view stereotypically manly acts as humiliating, even (normally) when women do them. I guess you could pull it off if you had the women being staggeringly incompetent in their attempts at being masculine, but that's not the point of the Bud Miller Light commercials -- it's not that the dude looks bad in skinny jeans, it's that he deigns wear them in the first place. By contrast, it is difficult to think of a situation where a woman "performing" masculinity is considered inherently absurd or worthy of scorn, without regard to whether she's able to perform.

Snow (Hey Oh!) Roundup

We're fine over here in the wake of the Snowpocalypse. School was canceled yesterday and today, but folks are finally starting to dig out, and we'll be back to normal tomorrow.

* * *

Utah State Rep. wants to ban gay families from participation in all public programs.

Republicans drop "forcible rape" language from their new anti-abortion bill.

Republican presidential candidates graphed on basis of their sanity and their Mormonism.

Meanwhile, Ed Kilgore measures Jon Huntsman's 2012 chances, and finds them severely wanting. He's like Romney, but even easier to call a conservative apostate.

An interview with Dos Equis' World's Most Interesting Man.

Behavioral economists, poor people, and the broken social safety net.

Max Boot chides his fellow right-wingers for pretending there's a viable alternative to ElBaradei.

Colt 45

I saw a truck drive by advertising Colt 45 malt liquor. On the side, in big letters, was the tagline "Works Every Time!"

That's a rather baffling slogan, isn't it? I could understand "refreshing every time", or "delicious every time". But in what sense, other than getting you drunk, does malt liquor "work"?

Colt 45: For when you absolutely, positively, need to get smashed.

Carrying On

I pretty much had the same thoughts regarding the "scandal" of the Canadian woman's ice hockey team's celebration of the Olympic Gold. Having attended college, it is pretty difficult for me to get incensed about underaged drinking (not that I'd be inclined to). And beyond that, it seems like a large part of the outrage stems from a real, if sub silentio, sense that these women aren't behaving like proper ladies. One sees champagne flying at all sorts of other championship proceedings without comment. It baffles me that this is being seen as somehow exceptional.

Broomball Roundup

They play with weak-sauce rules here at Chicago, but I'm just excited to retake the ice.

* * *

Early reports of a possible coup attempt in Niger.

Crazed South Carolina state Rep. wants to eliminate the use of US currency in his state.

Given that I don't drink at all, I found Alyssa Rosenberg's story of how she learned to drink surprisingly fascinating. Then again, she is just a really good writer.

BBC interviewee: One million Jews are secretly available to aid Mossad assassins.

Phoebe Maltz says she's too tired to give thoughts on the Wieseltier/Sullivan quasi-anti-Semitism throw-down, but even her exhausted contribution is pretty spot-on. Still, you should scope the older, longer version.

It must be tough being a news writer who can't even rely on he said/she said. Sometimes, one side is just wrong.

Whaling protesters as pirates?

This strikes me as pretty thin gruel in terms of a benefit for joining the UNHRC.

Israeli foreign ministry apologizes for snubbing J Street-linked American Congressman. This is yet another case of Deputy FM Danny Ayalon unilaterally embarrassing his country.

Con Caracter

ESPN2's Friday Night Fights is now sponsored by Tecate beer, and so, unsurprisingly, they've been running Tecate commercials. But there are at least two things I find interesting about them. First is the fact that the commercials are all in Spanish -- no subtitles, no nothing. I keep waiting for Mark Krikorian to pitch a fit, but so far, no dice.

Second, though, and the subject of this post, is how the commercials handle the trope of masculinity. In general, I'm interested in efforts at reconstructing dominant social paradigms (masculinity, Whiteness, etc.) in ways that are compatible with egalitarian and equitable norms. And I think in many ways the Tecate ads step dramatically in that direction.

Like many beer commercials, the ad campaign here was specifically designed to appeal to a norm of manliness. Yet by and large, it doesn't indulge in the usual beer commercial stereotypes of what a "real man" is (crude, sloppy, disrespectful to women, etc.). Instead, it seeks to evoke tropes of self-respect and dignity for the many Mexican men who have come to America for a better life. Consider this example:



The first person is a sweltering farm worker laboring in the hot sun. The second is a big, tough, tattooed guy who lights up when he sees his mom. And the third is a soup chef who ignores the burn as he moves a pot of boiling liquid from point A to point B. So, as far as Tecate is considered, real men work hard, love their mom, and play through the pain. That's not the worst set of ideals I can imagine.

Is it true that the commercial renders Mexican women supporting characters? Yes. But I'm not 100% convinced I'm against targeted marketing so long as the marketing doesn't reinforce hierarchy or negative stereotypes. Promulgating a positive vision of masculinity requires, at some level, a focus on men and manliness. It's a trade I'm willing to make.

(Semi-inspired by this post by Daisy).

Drinker's Delight

I don't drink beer, or really alcohol in general, but pieces like this (about so-called "extreme beer" breweries like Dogfish) always fascinated me. I think I'm mentally linking it to alchemy, which is intrinsically pretty cool. I have the same reaction to mixed drinks -- I don't usually like them myself, but the appeal of mixing various liquids together and creating something always had a hold on me, which is why I'm so pleased with the positive reaction I get to the old 4th Burton hot apple cider/peach schnapps combination.

Beach Week

The Washington Post takes on a DC high school tradition: high schoolers who take to the Delaware beaches en masse after graduation to, er, celebrate for a week.

Despite not being a drinker myself (indeed, about 20 of my friends and I decided to go to the Outer Banks for beach week instead, for a quieter atmosphere), I don't really get worked up about it or think it is the scariest thing in the universe. The impetus to respond to it as if it were a menace to society grates me far more. Here's Rehoboth Beach police chief Keith Banks:

"In one call last year, the parents were upset and crying and telling me I've ruined their child's [future] because they had a college scholarship revoked because of an arrest. I had one parent tell me, 'My child was just drinking beer and didn't even buy it in your town.' I said, 'How did they get the beer?' And the parent said, 'I bought it for them.'

"I ask you: Is that a responsible parent?"

Perhaps not, but it sounds far more like over-policing to me.

But Why?

A recently released poll indicates that most Americans oppose lowering the drinking age to 18, and likewise believe that we should tighten restrictions on underage alcohol consumptions.

This, to my mind, is ridiculous. Like with drugs, virtually everyone knows folks who drank prior to turning 21 (perhaps -- or perhaps not! -- like drugs, most people themselves drank prior to turning 21). We do not feel like they got away with something they shouldn't have. We do not believe they are bad people. All of which gets tacked onto the fact that our prohibitionist stance on 19 year olds drinking alcohol is futile to the point of absurdism, as anyone who's ever been on a college campus knows. So I really don't know what motivates irrationality to this robust of a degree.

Sin City

Another break, another term I don't fail out of Carleton. Actually, I had one of my best performances at Carleton thus far this last term--taking far and away my toughest schedule. So hurray for me! And hurray for school!

Meanwhile, I'm missionizing on behalf of a drink my friends at college discovered through some alcoholic alchemy. It's very simple: Take a mug of hot apple cider, add one shot of peach schnapps. It's amazing--tastes like liquid candy. Be sure to credit me when you make it on a cold winter night.

Oh, and I almost forgot--tomorrow, I'm off to Vegas, baby! The family is going as a celebration for my 21st Birthday. It'll be sweet. Computer will be along--I don't anticipate any blogging break.