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The Libertarian Party's National Committee (LNC) decided by a 134 vote today, after a tortuous 8-hour Zoom meeting, to divide the party's convention business into two parts.

The first will be an online meeting over the same Memorial Day weekend during which the scotched in-person convention was supposed to occur in Austin, Texas. At this online meeting, "nomination and balloting for party candidates for President and Vice-President" will occur.

Then a follow-up physical convention will be held in Orlando, Florida, from July 812. While the LNC did not formally commit yet to a contracted venue, they received a presentation from the Rosen Shingle Creek resort that seems to be a favorite.

The realities of the pandemic led the original convention hotel to cancel the party's reservation. Some expected that last Saturday the LNC would commit to a non-physical option, but instead, they voted to give themselves another 10 days to set up an alternate physical convention to occur before July 15.

Lots of debate stormed in the week between about parliamentary, legal, and physical possibilities and impossibilities. That debate continued during today's marathon LNC meeting.

Some insisted the word "place" in the party's bylaws (Article 10), had to mean a physical place, and thus conducting official convention business online would violate those bylaws. A vast amount of time today was spent on the metaphysical question of "what is a place?" and the proper reasonable meaning of "impossible."

Others insisted that Robert's Rules of Order was making new adjustments for the pandemic reality of electronic meetings; some argued that regardless of whether some electronic meetings are allowed under Robert's, Article 12 of the party bylaws did mention that "Boards and committees may conduct business by teleconference or videoconference." Yet! Article 10 did not specify that a convention could. Some believed that notmentioning virtual specifically as possible for conventions meant such online conventions were prohibited.

Some believed that if Robert's Rules and the Libertarian Party bylaws prevented the organization from performing the very purposes that bylaws and Robert's Rules are supposed to help with (not prevent), such stringent interpretation was perverse and unnecessary. Some mocked the idea that any available physical place could possibly hold nearly 1,000 people and conduct business with safe social distancing, but Orlando's Rosen Shingle Creek thinks it can.

Some worried, during the meeting and in online chatter, that the progress of the law or the pandemic might make the party have to eventually cancel the in-person portion in July later anyway. Many also worry that the combination of the pandemic and the presidential vote having already occurred will encourage lots of would-be delegates to not show up in Orlando even if an in-person event does happen, leaving whoever wins the party officer positions (and other issues settled) at that in-person convention under a shadow moving forward.

Lots of back and forth happened today about whether it mattered much that it was merely difficult or inadvisable for people to travel to an in-person convention during a pandemic; after all, there is always somereason a delegate a state party picked might not make it to the actual convention. Some thought it made the party look criminally irresponsible to encourage 1,000 people to travel across the country to descend on a city, then scatter; some thought it made them look like they were kowtowing to tyrannical fears and supportive of shutting down American business to notdo that.

Outgoing LNC chair Nicholas Sarwark (he is not running for re-election) said in a phone interview before the meeting that he believed "the best [thing] for the party to do would be to set the national convention for Saturday and Sunday of Memorial Day weekend" (to honor the commitments of time already made by delegates), but hold it "in an online venue like Zoom, and have prepared a motion to modify the convention agenda" to move most convention business outside "LNC, judicial, presidential, and vice-presidential elections" to some later, potentially in-person convention, since most other business and motions would be difficult to do online. This is more or less what happened, though today's recommendation has LNC and judicial votes pushed to the later in-person meeting.

Daniel Hayes, head of the convention oversight committee, said in a phone interview before the meeting that an in-person convention was vital for media attention; this is likely so, though shifting the presidential vote into the virtual earlier convention likely will drain some media interest from the physical followup. Out of an abundance of caution over whether some entity might later decide the decision of a virtual presidential vote was technically against the rules, the outcome of the Memorial Day online vote will need to be ratified by the July in-person convention.

LNC Secretary Caryn Ann Harlos was one of the leading voices, at first, for an in-person convention only, but was key in offering a version of the "presidential vote electronic, rest in person later" compromise. Overarchingly, she thinks talk of evading inconvenient bylaw interpretations for whatever reason is violating the "contract with members," since she sees the bylaws as a contractual agreement the LNC has made with the party's members.

Harlos thinks, though, that since their very purpose as a party is to run national candidates, a compromise that allows that and only that business to be done electronically was acceptable, as waiting much longer would conflict with certain state's ballot access deadlines. However, she believes "merely being scared of a virus" was not a good enough reason to mess around with the bylaws' clear language.

The LNC has been experimenting this week with Zoom meetings that emulate the functions of a normal convention, though some participants have found them lacking, subject to both technical glitches and giving presiding officers more power to control how delegates can communicate than in an in-person meeting.

The LNC doesn't have the power to tell the actual delegates assembled that they can only do specific things at a convention, so the choice to only do the presidential vote at whatever electronic meeting commences will ultimately have to be made by the convention body itself.

Rep. Justin Amash (LMich.), the newly minted Libertarian congressman who is certainly a frontrunner, if not now the frontrunner, for the party's presidential nomination said in an interview with The Fifth Column podcast this week (starring Reason's Matt Welch) that "For my partI want every candidate to feel that they got a fair shot, including our campaign. We all want to be treated fairly under this process and that's what's important, that nobody feels like this was some kind of a setup one way or the other either for my candidacy, or against my candidacy, and every other candidate feels the same way about their own campaign." Amash added, "I think it's important that we not postpone it too late because if you postpone it too long, it makes the calendar more challenging and we want to make sure we get on the ballot in all these states too.A campaign has to get up and running and it would be better if it doesn't go all the way to July or something like that."

The matter is important because some state ballot petitioning rules require the actual named candidate, so the later the candidate is named, the harder it will be to meet those requirements. Candidate Jim Gray, former California Superior Court judge and former Libertarian vice presidential candidate in 2012, said in a phone interview this week that while it "would be much more preferable to have an in-person convention, for our campaign, for the party, for the country, since there will be less excitement and less give and take [likely online]having said that, it's a tradeoff." If waiting for a reasonably safe and doable face-to-face meeting "would likely result in us losing ballot access in too many states," then he understands.

Joe Bishop-Henchman, a candidate for LNC chair this year and a leader in the "online presidential vote" faction said in a phone interview before the convention that he worried if the party didn't settle its presidential candidate question sooner rather than later that some state party affiliates might see it necessary to "defy [the national party] and go it alone." In that case, he would not "hold it against them," but he thinks the compromise reached today will "prevent that from happening, the danger of different presidential tickets in different states."

While this question was not settled, many on the LNC seemed to think that if certain state delegations were prohibited by their own state's travel restrictions from making it to Orlando, some allowance would likely be made by the delegates at that convention to allow them to participate in votes and debates virtually.

View post:
Libertarian Party To Choose Its Presidential Ticket in Virtual Vote Over Memorial Day Weekend - Reason

Boris Johnson famously dislikes disappointing the people around him.

The result is this weekends barrage of confused messaging over whether the lockdown is ending, as he tries to please both sides in the battle raging within the Tory party about how to respond to the coronavirus crisis.

On the one hand, the rightwing hawks in his cabinet have been pushing him towards a swift return to business as usual to save the economy, setting out a roadmap to lifting the lockdown sooner rather than later. On the other, the more centrist doves, including the health secretary, Matt Hancock, have been pulling him in another direction, urging caution for fear of a second peak and more lost lives.

The received wisdom is that Johnson is now on the side of the doves following his brush with death during a four-day spell in intensive care suffering from Covid-19.

The start of his address on Sunday was cautious: he insisted that there was no immediate end to the lockdown and would allow only a gradual shift to unlimited exercise within household groups from Wednesday.

However, his overall shift in tone, ditching the stay at home message in favour of a stay alert slogan, told a different story. That new message appears designed to appease some of his critics within the Conservatives mostly on the Brexit-backing libertarian right of the party, who want to see more emphasis on people being trusted to take their own decisions about risk.

The decision to set out an ambition to reopen schools and some shops in June and some hospitality venues in July without the epidemic in care homes and hospitals yet under control also shows he has also been swayed by the hawks in his cabinet.

And a renewed emphasis on asking people to get back to work, even if they cannot observe social distancing, is another move that will please Tory MPs worried about the furlough scheme while alarming trade unions concerned about the safety of their workforces.

It is clear from the scathing reaction of Nicola Sturgeon, the first minister of Scotland, that there are serious worries in the devolved administrations about the risk of lifting the lockdown too soon and the chaotic messaging that is accompanying it.

Supporters of Johnson argue that he is trying to strike a careful balance between setting out a roadmap for reopening the economy and making no promises about exactly when schools, shops, cafes and restaurants would reopen.

He insisted that the government would ultimately be driven not by mere hope or economic necessity, [but] [by] the science, the data and public health.

However, sooner or later Johnson is going to have to pick a side in the argument over whether the threat of a crashing economy requires taking some risks with public health unless the epidemic starts to clear more quickly than scientists anticipate.

And in the meantime, the public has been left with some of the biggest questions unanswered especially about when they will be able to freely see their family and friends again.

The rest is here:
Johnson address shows he has been swayed by hawks in his cabinet - The Guardian

Harvard Law Professor Emeritus Alan Dershowitz came out fighting for Michael Flynn in a column published early Friday morning by the conservative think tank the Gatestone Institute.

Titled: Flynn Was Innocent All Along: He Was Pressured to Plead Guilty, Dershowitz reiterates his longstanding belief that the former lieutenant general and national security advisor should never have pleaded guilty because he did not commit a crime.

Per the largely pro-Flynn piece (emphasis in original):

For a lie to be a crime under federal law, it must be material to the investigation meaning that the lies pertain to the issues being legitimately investigated. The role of the FBI is to investigate past crimes, not to create new ones. Because the FBI investigators already knew the answer to the question they asked himwhether he had spoken to the Russian Ambassadortheir purpose was not to elicit new information relevant to their investigation, but rather to spring a perjury trap on him. When they asked Flynn the question, they had a recording of his conversation with the Russian, of which he was presumably unaware. So his answer was not material to the investigation because they already had the information about which they were inquiring.

This territory is well-trod for the famous legal analyst.

Dershowitz was roundly criticized on Twitter in late 2018 after telling Fox News that lying to the FBI is not a crime.

I hope the judge understands when he has the case tomorrow that Flynn did not commit a crime by lying, Dershowitz told Bill Hemmer at the time. Because the lie has to be material to the investigation. And if the FBI already knew the answer to the question and only asked him the question in order to give him an opportunity to lie, his answereven if falsewas not material to the investigation.

Earlier this year, and well after a high-profile defense team shakeup, Flynns attorney Sidney Powell appeared to repay the public attention paid to her client by approvingly paraphrasing Dershowitz in a bid for probation.

Still, Dershowitzs column also calls Flynn out for hypocrisy:

There must be a single standard of justice and civil liberties including the presumption of innocence that transcends partisan politics. This message has been forgotten by both parties. Flynn himself was among those who shouted, Lock her up, regarding Hillary Clinton. Then when the Justice Department tried to lock him up, he got religion.

But Mondays column doesnt hone in too deeply on the details of Flynns case. Rather, Dershowitz appears to mainly be using Flynn as a cautionary tale to explain his perspective on law enforcement excess and the value of consistently prizing civil liberties.

Some may wonder why an innocent man would ever plead guilty, Dershowitz tees. Anyone who knows how the system works in practice would understand why an innocent manor a defendant in a close casemight be coerced into pleading guilty. The cruel reality is that if a defendant pleads not guilty and is found guilty, the sentence will be far greater than if he had pled guiltyperhaps even 10 times greater.

These are the kinds of pressures routinely used by prosecutors, the column continues. Civil libertarians have long been critical of these pressures, but fair-weather civil libertarians refuse to object when these improper tactics are used against Trumps associates. Partisan hypocrisy reigns.

The points raised in the column are particularly salient for criminal defendants in the country that locks more people up per capita than any other country. Over all, there are now more people under correctional supervision in Americamore than six millionthan were in the Gulag under Stalin at its height, The New Yorkers Adam Gopnik noted in 2012.

Law&Crime asked Dershowitz if he thought police routinely over-charge and if his admonishment for federal law enforcement to stop creating crimes bears any applicability to the overall criminal justice system.

To which he replied: Yes and yes.

[image via screengrab/ The View]

Read this article:
Dershowitz Defends and Criticizes Flynn by Railing Against Entrapment and Fair-Weather Civil Libertarians - Law & Crime

JACKSON, Miss (AP) Mississippi Republican Gov. Tate Reeves is having to balance his libertarian-leaning instincts with public health concerns during the coronavirus pandemic.

Its been his job the past several weeks to order some businesses to temporarily close and to restrict peoples face-to-face interactions to try to slow the spread of the highly contagious virus. His statewide shelter in place order remains in effect until May 25.

Reeves is gradually letting businesses reopen even as numbers of confirmed COVID-19 cases and deaths continue to rise.

Restaurants could start serving food and drinks their dining rooms and patios Thursday, after more than a month of being limited to carry-out service or deliveries. Barbershops, beauty salons and gyms are allowed to start reopening Monday. They all must meet safety standards such as limiting customers and taking extra steps for sanitation.

The governor has said repeatedly that people should use their own best judgment.

If you are in the vulnerable category, if you are over the age of 65, if you have pre-existing conditions, getting out of your home has risks, Reeves said Friday. Going to a salon has risks, but were trying to put measures in place to minimize those risks. We recognize also that the spread of the virus has risks. The spread of the economic collapse has risks.

Reeves spent eight years as state treasurer and eight as lieutenant governor before being inaugurated as governor in January. He has consistently advocated a limited role for state government. Legislators cut several thousand jobs from the state government workforce when Reeves had a big role in writing budgets as lieutenant governor.

Fairly early in the pandemic, Reeves said hes concerned about people facing abject poverty because of job losses. Its a phrase he has not often used in speeches or interviews during 16-plus years of serving in public office in a state that has been one of the poorest in the U.S. for generations. During news conferences about COVID-19, Reeves often mentions people who are having to file unemployment claims for the first time in their lives.

The governor says his top adviser during the pandemic is the state health officer, Dr. Thomas Dobbs. He is also listening to business executives and to people who express concerns about the economy.

Reeves frequently says that restarting Mississippis economy is not like flipping a light switch from off to on but like using a dimmer switch to go from dull to bright.

He emphasizes the role of personal responsibility, saying that people should mostly remain home and that they should wear masks in public, keep distance between themselves and others and avoid taking the whole family to the grocery store if possible.

If we do not want to return where we were several weeks ago, with more businesses closed and more shelter-in-place I have to ultimately make that decision, Reeves said last week. But the thing is, the people of Mississippi can make that decision first if the people of our state will be smart, if theyll stay safe.

Reeves said city and county law enforcement officers have done a fantastic job of enforcing safety orders during the pandemic, and state law enforcement officers are available to help them. As more businesses reopen, Reeves said the best enforcement of safety standards will come from within.

The number one person that it is going to enforce this is the person that is actually opening the business. Its the employees. Its Mississippians. Its people who care about not only themselves, but about their fellow man, Reeves said. I am convinced that the industries that we are reopening are going to do a better job of monitoring it themselves than any governmental entity ever will.

____

Emily Wagster Pettus has covered Mississippi government and politics since 1994. Follow her on Twitter: http://twitter.com/EWagsterPettus.

Read the original here:
Analysis: Reeves tries to balance concerns of health, jobs - Associated Press

Last month, Adrian Vermeule wrote an essay titledBeyond Originalism. The Harvard Law Professor contended that originalism had already served its purpose, and our polity should shift to what he called "common-good constitutionalism." Co-blogger Randy Barnett responded to Adrian, and warned about the risks of any non-originalist approach to the Constitution.

Last week, my friend Josh Hammer wrote another reply to Vermeule that seeks to stake out something of a half-way position. He calls it "common good originalism." Here is a snippetthough I encourage you to read the entire essay.

Common good originalism should adopt the conservatism of Hamilton, Marshall, and Justice Joseph Story as its jurisprudential lodestar. The interstices naturally permitted by a more expansive constructionism will, assuredly, provide ample room for jurists to deploy substantive moral argumentation along the lines favored by scholars like Jaffa and Arkes. Furthermore, by rejecting hyper-literalist free speech absolutism, common good originalism permits (within reason) natural law-undergirded arguments about the moral worth of one's speech, such as Alito's dissent inSnyder: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."

Common good originalism also rejects natural law-subversive "originalist" claims aboutconstitutionally mandated marriage redefinitionthat would undermine the common good, risible anti-sovereigntist "textualism" claims aboutconstitutionally mandated open bordersthat would wreak havoc upon the common good, and so forth.

This is only a bare-bones beginning. And I know, of course, that I will not persuade Vermeule himself. But my aim is to lay out a framework upon which to build an assertive, moralistic, Burkean/Hamiltonian conservative jurisprudence. This jurisprudence is also legitimate, from a positive law perspective, because it is rooted in (an expansive construction of) the constitutional text and thereby avoids the "oath-breaking problem" posed by Article VI of the Constitution.

Vermeule has now responded to Hammer.

JoshHammer has written a characteristically thoughtful and engaging response toCommon-Good Constitutionalism, arguing for an approach he calls "Common-Good Originalism." I see Hammer's approach as a laudable development, a movement half-way to the right approach. But as with many half-way positions, it is unstable. The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common good (however defined) will prescribe an interpretation that cannot be justified in originalist terms.

Adrian adds that Hammer's position may become something of a middle-ground:

To be sure, even if originalism and the common good cannot be combined in a stable manner, a house with shaky foundations may happen to be shored up by external buttressing. I wouldn't be wholly shocked to see a position like Hammer's become a new political equilibrium, one that supersedes the currently reigning libertarian originalism, and theoretical coherence be damned. But that contingent political dimension is not my concern here. My point is one of theory: common-good originalism, whatever its political appeal, has an inherent tendency to break down into one or another of two distinct views, one which subordinates the common good to originalism, and the other which subordinates originalism to the common good.

And Adrian praises Hammer's non-libertarian approach to originalism:

There is much to admire in Hammer's argument. It is a long step away from the libertarian form of originalism that has colonized the legal right at least since the second Bush administration, and that until recently dominated the scene. Justice Scalia'smodus operandi (viewed from the outside; I do not suggest that this was a deliberate strategy) was to stake out a principled position, resting on internally coherent arguments, that would expand the range of the thinkable on the Court, and then to watch his colleagues struggle part-way towards his views with positions that were uneasy compromises. In that Scalian sense, Hammer's piece,internally conflicted though it may be, amounts to an ominous sign of the times for conventional originalists. When a prominent young conservative commentator like Hammer expressly rejects "pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia," one can almost feel the winds of change freshening.

We are watching an important debate play out in front of our eyes. And the stakes are high. In the past, I have described the "libertarian" wing of the FedSoc legal movement as "ascendant." I still think that is the case, but there is movement afoot. Contrary to left-wing caricatures, we are not monolithic lemmings. There are some common grounds of agreement, and there are other areas of sharp disagreement. Randy wrote about this shift:

In particular, I have sensed a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists. They are disappointed in the results they are getting from a "conservative" judiciarynever mind that there are not yet five consistently originalist justices.Someattribute this failing to originalism's having been hijacked by libertarians. Some have been drawn to the new "national conservatism" initiative, which makes bashing libertarians a major theme. These now-marginalized scholars and activists will be delighted to fall in behind the Templar flag of a Harvard Law professor like Vermeule.

Josh Hammer makes this point expressly, and ties it to a current case:

Within this broader context of conservatives reconsidering orthodoxies, Vermeule's proposal fits quite neatly. What Georgetown University Law Center Professor Randy Barnett calls a "disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists" could evolve into amore thorough exodusaway from originalism if, as is heavily rumored, putative originalist Justice Neil Gorsuch sides with his progressive colleaguesthis termby reading into Title VII legal protection thebiological and linguistic liethat is "transgenderism."

I agree with Josh Hammer that Adrian has shifted the Overton window. This issue warrants far more discussion.

More here:
Originalism, Common-Good Originalism, and Common-Good Constitutionalism - Reason