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naraburns  nihil supernum  1yr ago (text post)   29714 thread views

Culture War Roundup for the week of December 12, 2022

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Anyone want to talk about test cases? Rosa Parks' name has come up again to remind us that there is a group of people who didn't know the incident was staged by the NAACP as a way to put segregation on trial. I hope that everyone knows test cases are a thing and I'm a little curious what percentage of the famous judicial cases this would apply to. I guess it tarnishes people's fuzzy feelings about the scrappy individual with pure motives facing off against evil oppression but it doesn't change the facts of the case. Personally I have the impression that the judicial system is skewed against the poor and un-savvy and rewards those who have resources behind them and know how to work the system. So it does seem to the outsider as if everyone could benefit from having an organization behind them to raise attention and mount a strong defense. Rosa Parks may have been one person but her case ended up helping the many not-so-sympathetic individuals who were also victims of the unjust system. So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

A relatively long comment, and yet, not one mention of Claudette Colvin and why she was eventually dropped as a test case candidate? Not even in any of the replies?

https://en.wikipedia.org/wiki/Claudette_Colvin#Legacy

Her story answers many of your questions, I think.

But, she wasn’t dropped as a test case candidate. There she is, in the case caption.

She wasn't made a face of the issue for the obvious reason that many people are stupid enough to think that the fact that she was pregnant out of wedlock is somehow relevant to whether Jim Crow was either legal or moral.

In Parks' case, it doesn't matter, because the problem was a systematic denial of rights. So how the particular instance of denial was occurring is immaterial, since it only illustrates one example of many, many similar denials. It was really a representative example, and thus it being set up does not taint it.

If the case is set up to be not representative - e.g. circumstances or outcome do not represent a typical circumstance or outcome, then it does matter. E.g. if somebody wants to ban guns, and finds a specifically unsympathetic gun owner, and provokes them until that person uses the gun unlawfully, and then claims that since all gun owners are dangerous, guns must be banned - then it would matter that it actually was a set up, since it's not typically what happens absent the setup.

So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

Not really. I mean, it's inevitable that a popular, sanitized version of the story is all the public generally remembers, but as you say, it's very hard to test a law all by yourself when you happen to be some random schmuck getting the law dropped on them. It usually takes an organization and a well-prepared legal team to pick and choose their battles, and the whole point of "test cases" is to test the law with the best argument against it.

This is true whether you are for or against the law being tested.

Can you give some examples of people using test cases to bring forward the best possible arguments against a law they personally support? Unless I'm confused, none of the examples in this thread match that formulation.

I didn't mean I think people test laws they personally support, though I see how you might have thought I was implying that with my last sentence. What I meant was that (assuming you believe in our adversarial legal process and the Supreme Court judging a law's Constitutionality, and I'm aware you don't so much), the point of test cases, which someone who does believe in those things should support in principle, is to test a law to determine its Constitutionality, and you would assume that the parties who think the law is unconstitutional will cherry-pick the best defendant they can find. If the law survives a rigorous Constitutional challenge, it's passed the test, and if it doesn't, it shouldn't have been a law in the first place.

Now I realize that's an idealized law school version of how the Supreme Court is supposed to work and that if I'm a bit cynical about how well this actually works in practice, you are far more so. But that's my explanation for why I don't think it's "cheating" or "shady" for an organization that believes the laws regarding, say, abortion, or segregation, or gun control, should be overturned to set up a "test case" that will give them their best shot at challenging it.

Yeah, I think I misunderstood the last line, my apologies.

Good cases make bad law. Common law is meant to develop organically and so be optimised for the general case. Setting up specific test cases to force it in the direction you want is very much against the spirit of the thing.

This assumes that successful cases spring fully grown from the brow of Zeus, but that is not true. For example, Brown v. Board of Education was the culmination of a series of successful legal challenges to segregation in higher education, including Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Oklahoma, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950) and McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950).

If I understand you correctly, you’re saying that you need a ladder of successful cases to get you up to the point where significant precedents can be made. Your final case functions as the lynchpin of a long campaign, and you should therefore choose it meticulously. Is that about right?

Whereas my (idealistic) conception of common law is that low-level cases arise stochastically as the law meets the public. Precedent is therefore slowly formed, and the law slowly shaped, by the real effects of that law in relation to the broad mass of humanity. Cases at the higher level then codify and rationalise this consensus. In this conception, deliberately forming test cases is a sin because you are biasing your training data at the lower levels and distorting the results at the higher levels.

(I speak mostly in relation to the UK, which has no formal constitution.)

In the UK, class actions are extremely limited. So a "test case" normally refers to a typical case chosen by mutual agreement between the two "sides" of what would be a class action in the US system. This is a different type of situation to a unusually sympathetic test case chosen by the plaintiffs side.

As a separate issue, in all common-law systems, cases decided below a certain level do not create precedent. So a test case can also be one chosen by either or both of the parties post-judgement (to appeal and set a precedent, where the value of the individual case is too low to justify the cost of an appeal if it wasn't a test case), or by the Court (to hear at a higher level than the value of the individual case justifies because of the precedent-setting aspect).

Given most civil cases settle, precedents are in some sense the core output of the trial process.

Thanks for the detailed explanation! My knowledge isn’t nearly as in-depth.

I am not 100% sure what you mean by "real effects of that law in relation to the broad mass of humanity," but if I understand you correctly, that does not seem to me to be much of an issue. If you look at any Supreme Court decision, you will find that appellate judges spend most of their time thinking about how the precedents they create will affect everyone else other than the specific parties involved.

In this conception, deliberately forming test cases is a sin because you are biasing your training data at the lower levels and distorting the results at the higher levels.

This is a very good description of the problem with these kinds of cases because the case itself is a rhetorical weapon and becomes the exemplar of the dispute in the elite public mind (elite in the sense that no one else really is able to follow court proceedings).

So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

Because the rest of your framing is wrong.

Rosa Parks may have been one person but her case ended up helping the many not-so-sympathetic individuals who were also victims of the unjust system.

Rosa Parks was one person but her case ended up helping the many not-sympathetic individuals who were kept in check by broad rules. If you want to assert that the system that produced order was "unjust" you also have to own what Detroit and Newark and Camden and Gary look like without that "injustice".

That's the problem with test cases - they present an implicitly false case intentionally designed to confuse people and play on sympathies. The legal principles would have been the same if the case was about Corner Man and it would have been much less deceptive.

If you want to assert that the system that produced order was "unjust" you also have to own what Detroit and Newark and Camden and Gary look like without that "injustice".

Of all the problems Detroit has, blacks sitting in the forward portion of the bus isn't one. Let's not pretend that forcing old black women to the back of the bus was keeping the poor parts of the worst cities safe.

old black women

For the record, Rosa Parks was born in 1913, and so was 42 years old at the time of her protest in 1955, although she does look older in her mug shot.

I won't disagree with your contention that forcefully supressing a population keeps them, you know, surpressed. But I will contend that this imprudent and short-term civilisational management, because oppression degrades a people culturally and spiritually. Oppression makes brutes of a people, and the oppressor ends up riding a tiger.

I contend that there's strong empirical evidence in support of the brutalising effect of harsh oppression. If you're willing accept that premise then please skip the next two paragraphs.

Despite what a lot of activists will claim, the vast bulk of sub-Saharan Africa only experienced European colonialism for a bit less than a century: 1875 or so until 1965 or so, arguably starting later with the Berlin Conference in 1885. The obvious exception is South Africa, which had much earlier settler colonialism as opposed to the later and more popular extractive model. Looking at the societies that have emerged post-decolonisation, a really striking fact is how much more violent South Africa is than any other country in the continent, even those that have experienced recent military conflict. I'm talking specifically here about murder rates, by far the most reliable measure of violence even in extremely badly-run societies (ie most of Africa). South Africa is notably more violent than almost any other African country; in some cases up to 30× more (note that oppression is colourblind, and SA's only large competitor in the murder stakes is Nigeria, anothe country cursed with intense ethnic conflict, and jockeying, alternating subjugation of the Yoruba by the Hausa historically, and the inverse now).

This presents a serious challenge for a strictly white supremacist position; South African blacks had by far the most contact with civilising whites of any peers on the continent, and have come out of the encounter by far the most violent. This pattern shows up throughout the world; Russia is famous for tsarist oppression of its populace, and really high levels of interpersonal violence. Brazil was the largest slave nation in the world (surely an oppressive institution...) and is far more violent as a result than the vast majority of African countries. Even thinking of my own lovely nation of Ireland; historically oppressed, and authentic brutes for much of history as a result. In our case we were a big European outlier for most of the 20th century as a country with vastly higher levels of interpersonal violence than others; but the longer we went post-independence, the closer we tracker to the European norm. This was separate too and preceded our (literal) enrichment; getting richer didn't make us less violent and ignorant, it was a precondition for same.

I could go on and on but to my mind there are more than sufficient natural experiments around the world showing that, whatever the quality of the biological substratum of a people in the first place, oppression en masse tends to coarsen and degrade en masse. There are certainly very many interesting sub-mechanisms and processes behind this but, sinilar to your own big-picture view of oppression working as a large-scale system, I won't bother to speculate on them here.

Given this observation about the development of peoples, oppression as you propose it is storing up trouble for the future. In a world than has experienced the French and American revolutions, it just doesn't seem tenable to me politically that any Western society is going to have the will to keep oppressing its untermenschen forever (or at least, not in the form of coarse and ill-fitting explicit racial oppression; something a bit more subtle like a class system can of course coexist with liberal democracies forever). You can genocide them, or you can fully emancipate them, but history demonstrates that you can't keep kicking the oppression can down the road forever. And about genocide, let's be realistic; it is the civilisational equivalent of murder, the guilt of which is analogous to the guilt in a single (non-deranged) individual. It cannot have no effect. If you want to argue for the desirability of an America which had sent its formerly enslaved population to concentration camps once it was done with them... that actually would be interesting and I'd engage with it. But I doubt it's your belief.

Full legal and social emancipation, with all the calamities it entails, is a plaster (band-aid in American) that the US had to rip off sooner or later. An interesting counterfactual for you is this; what do you think would be the state of the US today if reconstruction of the slave regions had been completed in earnest and totally? This has been pulled off successfully in other societies; my understanding is that it's not a sociological impossiblitiy but rather a particular project which failed and was aabandoned in the 1870s US, only to be picked up again from the mid 20th. Really fascinating "what if?" there. And incidentally, lest you think Haiti is the only possible model of post-slavery societies in the western hemisphere: no! Look at Barbados, look at Jamaica; both pretty respectable societies that made a much better go of the same raw material, through better stewardship, institutions etc.

I’ll note that South Africa, Brazil, and Russia have some of the world’s highest levels income inequality, which broadly speaking tends to track quite well with a society’s general crime rate that typically determines murder rates.

How do you then explain the Mfecane, which was an exceptionally brutal and genocidal conflict fought between blacks in this area, before it was colonized?

Notice that midway through my huge screed I talked about oppression of the Irish by the English, or Russians by themselves. Oppressive social structures don't need a racial dynamic (though they are still helpful colour coding who is oppressing whom).

Africans are perfectly capable of oppressing one another brutally without outside help.

This says nothing either way about my central thesis that oppressing a group while people in your society have access to books about the French Revolution is not a tenable strategy in the long term.

not a tenable strategy in the long term.

In the long term, no political system survives. Even if takes the bare minimum standard of egalitarianism, female suffrage, it only has a track record of less than two centuries. Even French revolution is less than three centuries old, less than many monarchies, making the Chinese proverb that it is too soon tell what its long term consequences will be on point.

Speaking of the Chinese people, when do you expect them to truly stand up? The Reds have managed to hold on to power for more time than segregation is illegal on the US.

Akshually... oppression isn't a binary state, it's a scale. I'd contend that the leash on the Chinese people has been loosened gradually but meaningfully since Mao's era, very skillfully, in such a way as to uplift them and allow a more advanced society without slackening too much and causing social disharmony

I won't contest that Jamaica and Barbados are better than Haiti, yet I'll contest 'pretty respectable society'.

Jamaica has one of the higher murder rates in the world. 44.5 murders per 100K as per 2020. Barbados is at 14.

Haiti was only at 6, surprisingly enough. I imagine a fair few murders are not reported there and even if that's not the case, it's still a very poor dysfunctional country outside of crime.

Chile was at 4, Argentina at 5. Neither of these countries are known for their spectacularly good governance, that's where a 'pretty respectable society' ought to be at or below.

Australia is at 0.8, Japan at about 0.25. These are definitely respectable societies.

The US, of course, is at about 6. Russia is at 7. Yet both countries have made many scientific developments, an ameliorating factor in my view. The entire black-African world, Caribbean included, has only a single Nobel outside Peace and Literature.

Source website is here: https://www.macrotrends.net/countries/ETH/ethiopia/crime-rate-statistics

What else should a society be graded on other than scientific achievement and not killing eachother? What is there apart from prosperity (albeit an abstracted precursor form) and harmony?

The US, of course, is at about 6.

How does the US look if you break the statistics out by race? My suspicion is there a minority population with a disproportionate contribution.

Is it the extra-judicial nature of the killing that feel warrents a poor grade? Many of the precursors to current western governments executed far more people than today.

IIRC Scott did this back in the day. Blacks are high, Southern Whites are at about 4-5, so equivalent with the white and stable parts of Latin America, non-southern whites(he didn't make a distinction between old-stock whites, ethnics, and urban/rural) are below 4 but still higher than Europe or Canada, and Hispanics as a whole are higher than Southern Whites but lower than the rates in places like Mexico or Black America.

How does the US look if you break the statistics out by race? My suspicion is there a minority population with a disproportionate contribution.

Of course there is, I considered including Detroit as a small Jamaica, the murder rate is about the same. I just wanted to be concise.

Is it the extra-judicial nature of the killing that feel warrents a poor grade? Many of the precursors to current western governments executed far more people than today.

Absolutely, extra-judicial killing is the problem. Perhaps I should've been more specific in my last paragraph. If I included executions, I'd probably have to include war as well. Anyway, executions are for a different purpose. Chemotherapy kills healthy cells like diseases do but its purpose is to improve the health of the body, not reduce it.

Yes people are selected for death via execution much differently than war casualties.

Would you think over periods this selection would apply a selection pressure?

https://journals.sagepub.com/doi/pdf/10.1177/147470491501300114

Every country is the same for that. I don't think there has ever existed a country with equality in murder rate.

No multicultural country anyway.

Your suggesting honor games are behind the disproportionately murderous minority?

More comments

The obvious exception is South Africa, which had much earlier settler colonialism as opposed to the later and more popular extractive model. Looking at the societies that have emerged post-decolonisation, a really striking fact is how much more violent South Africa is than any other country in the continent, even those that have experienced recent military conflict. I'm talking specifically here about murder rates, by far the most reliable measure of violence even in extremely badly-run societies (ie most of Africa). South Africa is notably more violent than almost any other African country; in some cases up to 30× more (note that oppression is colourblind, and SA's only large competitor in the murder stakes is Nigeria, anothe country cursed with intense ethnic conflict, and jockeying, alternating subjugation of the Yoruba by the Hausa historically, and the inverse now).

Sub-Saharan Africans in RSA aren't native to the region and so don't even have traditional African levels of crime control. That's what you're seeing the effect of.

An interesting counterfactual for you is this; what do you think would be the state of the US today if reconstruction of the slave regions had been completed in earnest and totally?

Detroit but with hot weather - the same results as you got when progressives actually did get to use their pets to enact their violence revenge fantasies on their class enemies.

Detroit but with hot weather - the same results as you got when progressives actually did get to use their pets to enact their violence revenge fantasies on their class enemies.

You're getting some slack for the same reason a strident leftist often does - so many people reporting you that inevitably something will be over the line, and that's not a dynamic we want to encourage.

But this is over the line. It breaks most of our discourse rules.

Regardless of segregation’s general effect on crime, Rosa park’s case was about segregation of buses, and the rule of ‘blacks sit in the back of the bus’ has nothing to do with the crime rate except creating an additional crime that could be committed.

The connection is there, but it's a lot less direct than our local George Wallace fan is making it out. Once anti-discrimination became one of the core principles of the Federal government and any actions with disparate impact on blacks became suspect or verboten, crime was allowed to thrive; this crime was instrumental in driving whites out of Northern cities (and thus turning their rule over to Democrats), a phenomenon usually called "white flight".

Honestly, you seem to be making this all up.

First, you assume that issues of disparate impact had any legal relevance to the operations of the criminal justice system; outside the narrow issue of jury selection, I know of none, The closest is claims of selective prosecution, but those claims almost never work, and are limited to claims that a specific prosecution of a specific defendant is racially motivated, not that a prosecution is invalid because prosecutions have a disparate impact in general.

More importantly, the disparate impact of prosecution actually increased in the wake of the Civil Rights Movement, as is made clear by the data on page 5 here -- blacks made up 30% of prison admittees in 1950, 32% in 1960, and 39% in 1970.*

Finally, northern cities were largely governed by Democrats long before the "white flight" of the 1970s: [New York[(https://en.wikipedia.org/wiki/List_of_mayors_of_New_York_City) was, Chicago was, [Philadelphia]9https://en.wikipedia.org/wiki/Mayor_of_Philadelphia) was, Detroit was, Cleveland was.

*Note to the inevitable person who will misconstrue what I just said. I am not saying that that is good, or bad, or evidence of improper discrimination, but only that it demonstrates the dubious nature of OP's claim.

More importantly, the disparate impact of prosecution actually increased in the wake of the Civil Rights Movement,

Isn't disparate impact only increasing if actually criminality is constant, declining, or increasing at a rate slower than the prosecutions?

Otherwise is just an increase in crime and prosecutions by a criminal class.

Also something, something sexual revolution, something something marriage, family formation.

But the whole point of OP's bogus claim rests on the fact that African-Americans commit a disproportionate pct of crimes. Disparate impact by definition refers only to outcomes, regardless of cause: "disparate impact theory prohibits neutral employment practices which, while non-discriminatory on their face, visit an adverse, disproportionate impact on a statutorily-protected group." E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000). In OP bizarro legal world, criminal laws violate civil rights laws because they disproportionately affect African-Americans. If OP's legal claim were true (it isn't, of course), then authorities would have been powerless to put a disproportionate pct of African-Americans in jail, regardless of rates of offending. Indeed, that is precisely what he claimed happened. The fact that the opposite happened demonstrates that his claim is wrong.

Well yes, but you can easily imagine a scenario where governments don’t carry out explicit racial discrimination, but laws still get enforced. Notably this policy is what drove down crime rates in the 90’s.

I can imagine such a scenario, but it didn't actually happen. And that wasn't mere accident.

That policy was mainstream democrats for a while- Clinton and all the rest actually did drive down crime by enforcing the law evenhandedly and not really caring if that meant blacks were more likely to be in prison.

But no, you can't because then you have a dispute between progressives who say "the law is so unfair because mostly blacks get arrested" and a pathetic side who says "the law is even handed" - which concedes the frame that if the law was somehow unfairly applied, they'd concede and just allow the progressive pro-crime position. Of course, progressives are able to find some case that they convince themselves is unfair and GOPe types cuck on it as is their job.

On the other hand, if a society has an attitude of "we don't care if you find some specific unfairness, things happen and massive amounts of crime are way way more unfair" then the progressive gets shut down.

You'll note that crime did get driven down in the 90s and this low crime drove progressives into a frenzy and they desperately reversed it as soon as they were able.

You can totally have Michael Bloomberg policies and Michael Bloomberg policies totally work. The fact that progressives are often retarded is not specifically about race.

Except that progressives hated that Bloomberg's policies worked and only Bloomberg's persistence in the face of progressive opposition (rare) and the level of power he was able to exercise as mayor (also rare) allowed them to continue. Bloomberg would even point out when asked about stop and frisk "disproportionally" targeting blacks that blacks weren't stopped and frisked disproportionally compared to the population of felons.

Yes, progressives are retarded about crime(and likely many other issues). This does not mean you can't tell them to pound sand without reintroducing Jim Crow, which we know because Michael Bloomberg did that.

That's the entire point of my post.

More comments

If I understand correctly, your argument is that forced segregation and requiring blacks to sit in the back of the bus was actually just because without those measures, blacks are criminals who make cities unliveable?

If the case were about Corner Man, the legal principal would still be whether it is just to treat black people, criminal or otherwise, different than white people. Making Corner Man sit in the back of the bus and use different water fountains doesn't become defensible because Corner Man is a criminal (unless you're actually suggesting we can identify criminals as a class and segregate them).

You may believe that blacks should be treated differently based on your moral or social principals, or you may believe blacks are extra-prone to criminality and this justifies treating them as such, but that's not a legal principal that can be found under the Constitution.

If I understand correctly, your argument is that forced segregation and requiring blacks to sit in the back of the bus was actually just because without those measures, blacks are criminals who make cities unliveable?

Breaking it down into specific rules which are questioned on the basis of the justice of the particular rule changes the framing of the question from one that is fundamentally about results - "we care that we have cities that don't drive whites out through targeted robbery, rape and murder" to one about process and procedure - "the most important thing is that our procedures be found valid by a cabal of people - but those people aren't responsible for the results of the system as a whole". Yes, without a framework of many rules - none of which is individually necessary or sufficient - blacks wage a continual war of aggression against whites. Stopping that is more important than the details of the rules. Having to sit in the back of a bus is a small price to pay to live in society where order hasn't broken down entirely such that someone on the bus is smoking meth which is the end result of subjecting every particular rule to scrutiny and finding an exceptional case where that rule seems unjust.

You may believe that blacks should be treated differently based on your moral or social principals, or you may believe blacks are extra-prone to criminality and this justifies treating them as such, but that's not a legal principal that can be found under the Constitution.

I could say that this is just as much found in the Constitution as any of the things that the Regime has found in it in since FDR threatened to pack the Supreme Court and Earl Warren decided to totally re-write American law but instead I'll be honest - I don't care at all if it's "a legal principle that can be found under the Constitution" because I have observed that my enemies don't care about that either and they don't care about having a functioning society either. Turning the legal system into a game of who can lie most convincingly about what is found in a document when it plainly isn't there has run its course - the incentives for playing such a game are nothing but bad.

You can, in fact, just criminalize someone on the bus smoking meth. And most places do.

Why criminal behavior goes unpunished has some racial influences, but extreme progressive ideologies that are theoretically race neutral have more to do with it than racial politics. So does general neglect of law and order in things poor people use(eg, public transportation, convenience stores).

Great, it's technically criminal.

Now lets see if the paper that the law is written on will enforce that prohibition.

Okay, then write down on a sheet of paper that old black women are forbidden from the front of the bus. Now let's see that piece of paper restore our ruined cities.

American authorities are generally reluctant to expend state resources enforcing the law in areas mostly used by poor people(such as public transit, section 8 housing, convenience stores, and payday lenders).

Solving this problem is more complex than ‘make the blacks sit in the back of the bus’, in large part because that doesn’t actually prevent anyone from smoking meth. If you can solve this problem(which a lot of countries have done), then you also don’t need to make black people sit in the back of the bus.

Breaking it down into specific rules which are questioned on the basis of the justice of the particular rule changes the framing of the question from one that is fundamentally about results - "we care that we have cities that don't drive whites out through targeted robbery, rape and murder" to one about process and procedure - "the most important thing is that our procedures be found valid by a cabal of people - but those people aren't responsible for the results of the system as a whole".

I admire the skillful tap dancing you are doing, but this is merely using a lot of circumlocution to avoid stating your premise explicitly. If you believe that forced segregation and unequal treatment is the only practical way to avoid "cities that don't drive whites out through targeted robbery, rape and murder," then you need to make that argument explicitly, you don't get to handwave in the direction of "results" and therefore claim that forced segregation and unequal treatment was justified based on what you perceive to be the downstream effects of not doing that.

Stopping that is more important than the details of the rules.

Actually, no, it isn't, because that's an infinitely generalizable argument. "Stopping rape and murder is more important than the details of the rules." "Stopping terrorist attacks is more important than the details of the rules." "Stopping narcotics trafficking is more important than the details of the rules."

The details of the rules matter a great deal. They matter even when you think they will only be applied to your outgroup.

I could say that this is just as much found in the Constitution as any of the things that the Regime has found in it in since FDR threatened to pack the Supreme Court and Earl Warren decided to totally re-write American law but instead I'll be honest - I don't care at all if it's "a legal principle that can be found under the Constitution" because I have observed that my enemies don't care about that either and they don't care about having a functioning society either.

I think this is nonsense, but even if it's not, until you get your white nationalist revolution and get to impose your will by force of arms, you are arguing for a position that can only be defended and implemented through the laws in existence.

I admire the skillful tap dancing you are doing, but this is merely using a lot of circumlocution to avoid stating your premise explicitly. If you believe that forced segregation and unequal treatment is the only practical way to avoid "cities that don't drive whites out through targeted robbery, rape and murder," then you need to make that argument explicitly, you don't get to handwave in the direction of "results" and therefore claim that forced segregation and unequal treatment was justified based on what you perceive to be the downstream effects of not doing that.

There's no "tap dancing" going on here. Segregation and "unequal treatment" (we have equal treatment now? you sure?) aren't "the only practical way to avoid" [ethnic cleansing and people getting pushed in front of subway trains by "serial random assaulters"] but they are a way of doing so - certainly one that produced demonstrably better results. You seem to be operating under a very strange impression that what matters is that the proper procedure must be followed with zero concern over whether the procedures produce good results. This is an outgrowth of the mindset implanted by operating in a society run on the ideology of the bureaucrat - no one can be faulted for anything as long as proper procedure was followed. Though this seems normal to many people today, it is actually quite insane.

Actually, no, it isn't, because that's an infinitely generalizable argument. "Stopping rape and murder is more important than the details of the rules." "Stopping terrorist attacks is more important than the details of the rules." "Stopping narcotics trafficking is more important than the details of the rules."

Sure, all those things are true technically.

Stopping rape and murder - more important than any societal rules because these are of the highest priority of men to stop and if you society does not stop them then you make an enemy of all capable men who will quietly step out of society which then make it impossible for your society to do anything as you lose all forms of cooperation.

Stopping terrorist attacks is more important than the details of the rules - plainly obviously true. Preventing military attacks on civilians is the most basic of government functions so it can have a prosperous society.

Stopping narcotics trafficking - this is only a problem that's downstream of about a zillion things that the current bizarre government we have does.

you are arguing for a position that can only be defended and implemented through the laws in existence.

There are no laws in existence - there's only who / whom. That's not a reflection of the only possible state of affairs but it is a correct description of what we have now and I'm not going to pretend that it isn't.

There's no "tap dancing" going on here.

Do you think we should reimpose racial segregation or not?

Segregation and "unequal treatment" (we have equal treatment now?

Yes.

you sure?)

Yes.

aren't "the only practical way to avoid" [ethnic cleansing and people getting pushed in front of subway trains by "serial random assaulters"] but they are a way of doing so - certainly one that produced demonstrably better results.

There is no "ethnic cleansing" happening in the United States. As for people getting pushed in front of subway trains, yes, we do have demonstrably better ways of preventing that than segregation: law enforcement.

Sure, all those things are true technically.

In other words, all of those things are true.

Yes, we care about stopping rape and murder and terrorism and drug trafficking, but we also care how we stop those things, and just as we do not give the government infinite power to stop those things by any means necessary, we also do not endorse every solution that might, in theory, reduce or eliminate those things. What you're getting at is that black people commit more crimes (true) and what you're darkly hinting at is that we should segregate them or Do Something else to lower the black crime rate. Even accepting the first premise (higher black crime rate) it does not follow that a just solution is to to impose racial segregation or whatever else you have in mind.

There are no laws in existence - there's only who / whom.

That sounds like a catchy expression untethered to the legal reality in which you live.

Segregation and "unequal treatment" (we have equal treatment now?

Yes.

Lets play dueling anecdotes.

My turn: black attacker, elderly asian victim, racial slurs used, charges dropped.

https://www.sfchronicle.com/crime/article/SF-Bayview-attack-Second-suspect-surrenders-to-15098296.php

https://www.dailymail.co.uk/news/article-9437615/Two-teenage-girls-accused-car-jacking-killing-Uber-Eats-driver-reach-plea-deal.html

Your turn: white attacker, elderly black victim, racial slurs used, charges dropped.

My turn: black attacker, elderly asian victim, racial slurs used, charges dropped.

Did you read the actual articles or just go off the headlines?

In the first case Grayson (the person whose charges were dropped, but did not touch the victim) was the person videoing and the DA claims the victim expressed an interest in restorative justice for him and the charges were dropped, while the actual attacker WAS charged with robbery and elder abuse, his case is still pending. Charges were not dropped against the actual attacker. So this does not meet your own expressed criteria. Grayson was a racist asshole I would suggest but did not attack the victim. So we have black attacker, elderly asian victim, racial slurs used (though not by the attacker), charges not dropped (against the attacker).

**"According to the District Attorney's Office spokesman Alex Bastian, Grayson is not being charged for now and will instead be placed in a restorative justice program, at the victim's request.

Jonathan Amerson, 56, appeared in court Tuesday on charges of robbery and elderly abuse in connection with the attack on the unidentified 68-year-old man in front of a housing complex on Osceola Lane who was hauling large bags of recycled material."**

Charges were not dropped in the second case, as pointed out in the article and indeed the title(!). A Plea deal is not the same as charges being dropped. Indeed they both received the maximum sentences as noted below given they were juveniles.

**"A 15-year-old girl will be held in a youth detention facility until she turns 21 for a D.C. carjacking with another girl that left a Virginia man dead.

The girl received the maximum sentence in juvenile court Friday after pleading guilty last month to felony murder in the death of Mohammad Anwar, a Virginia man who was working as a delivery driver.

The second perpetrator, a 13-year-old girl, pleaded guilty Thursday to second-degree murder. Under the maximum sentence, she also would be released once she turns 21. "**

So given the charges were NOT dropped in your examples we just have to find a single case where a white attacker, racially motivated attacked an old black man and then charged to establish equal treatment by YOUR own standard, no?

Timothy Caughman 66 was killed by James Jackson 28 in New York because:

"Jackson also stated that the killing was intended to start a race war in a manifesto written by him: "The racial World War starts today. This political terrorist attack is a formal declaration of a global total war on the Negro races."

To be fair we don't know if he used a racial slur at the time given no witnesses, but the motivation seems clear.

If I can suggest that the lesson here is to pick your examples so that they actually match your contention? Because here, if nowhere else someone is likely to actually check.

Just to point out I am not condoning the behavior in the articles here, but if you are going to use dueling anecdotes (and this is a good example of why we probably shouldn't), you should at least make sure you are well armed. Check and clean your pistols carefully, before you consider issuing the challenge.

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Lets play dueling anecdotes.

No. Also, you've been told to change your username. Do it. The only reason I am not banning you right now is so you don't whine that I did it in the middle of a thread where I was a participant, but the next time you post with this username, you will be.

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Do you think we should reimpose racial segregation or not?

We have racial segregation and it's ever more competitive as the legal system more and more reflects the progressive view that blacks are not subject to anything as mundane as "law".

Legal segregation would be an improvement over that system; do I think that's what should be imposed? Not necessarily - an Ottoman-style millet system would work as well as would Singaporean style legal environment - loads of workable options but they have to begin with the clear reality about the vastly different evolutionary backgrounds of the different species involved.

Segregation and "unequal treatment" (we have equal treatment now?

Yes.

you sure?)

Yes.

This does not match up with reality. The sheer volume of evidence that there's an entirely separate legal system for blacks where cops are sent out to arrest them when they make too much trouble but then they're let out vs the legal system for non-blacks where there are massive penalties for criminal conduct and downright glee on the part of prosecutors for getting to finally prosecute someone who isn't the usual was old enough to be described by Tom Wolfe in the 80s as the "hunt for the great white defendant". Almost every crime story you read about on the New York Post's twitter feed includes lines about how the latest perpetrator of a horrible crime had been "arrested 37 times before on felony charges". There are dozens of whites murdered by blacks every month with no spectacular media coverage and in fact, often times no charges filed in totally egregious cases like a firefighter defending a woman in a convenience store who gets executed by the attacking woman's boyfriend and wasn't charged - or the gas station robber in California who killed a clerk and wasn't charged because it was self defense when the clerk shot at him. Contrast that case to...

We have racial segregation and it's ever more competitive as the legal system more and more reflects the progressive view that blacks are not subject to anything as mundane as "law".

For this to be true, you would have to explain why so many blacks are in prison. You can't have it both ways and claim that the black incarceration rate demonstrates that blacks are more criminal but also they aren't subject to laws.

Legal segregation would be an improvement over that system; do I think that's what should be imposed? Not necessarily - an Ottoman-style millet system would work as well as would Singaporean style legal environment - loads of workable options but they have to begin with the clear reality about the vastly different evolutionary backgrounds of the different species involved.

I'm not that familiar with the Singaporean legal environment, but do they actually assign people legally subordinate status based on their race? As for patterning our society after the Ottomans, I can think of many reasons besides my objections to your racialism why that seems like a terrible idea.

This does not match up with reality.

It does, actually. The argument you could credibly make is that law enforcement is often politically motivated and influenced by politicians, so in present times there is undue sensitivity about being perceived as racist, which results in minorities often being prosecuted less harshly. While this is true, it's certainly not some sort of carte blanche for black people to commit crimes (see above re: the high black criminal incarceration rate.) Moreover, we've discussed many times in this sub cases like San Francisco and Portland, where there are open air drug markets and homeless people basically allowed to do anything short of murder without prosecution. Most of those people are white.

There are dozens of whites murdered by blacks every month with no spectacular media coverage

There are many more whites murdered by whites and even more blacks murdered by blacks with no spectacular media coverage.

and in fact, often times no charges filed in totally egregious cases like a firefighter defending a woman in a convenience store who gets executed by the attacking woman's boyfriend and wasn't charged - or the gas station robber in California who killed a clerk and wasn't charged because it was self defense when the clerk shot at him. Contrast that case to...

I don't know which specific cases you're referring and don't care, since almost inevitably when one digs into these one finds details that don't quite fit the picture the person offering them is trying to portray. But sure, there are are daily horrors committed by black people - granted. Scott wrote an article about this that is still valid.

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certainly one that produced demonstrably better results.

Is there any evidence for this claim anywhere?

but they are a way of doing so - certainly one that produced demonstrably better results.

Is that in evidence? Notably the segregation laws in question would have allowed Rosa Parks to push you in front of a bus she could only sit in the back of. She would have been prosecuted for murder but that is still possible today.

It seems a just so story which can be matched by another just-so story where the act of segregation and legalized racism is what fueled animus towards whites, and so not having segregation would have been better.

Things like blacks pushing people in front of subway trains don't happen randomly or in a single step. It takes years of wearing down the barriers that used to be in place to keep behaviors like that in check - even lifting those barriers didn't immediately result in the things in this thread (any item in there is a thousand times worse than the dreaded racially assigned bus seating):

https://twitter.com/GodCloseMyEyes/status/1414619671056297984

First you attack the cultural confidence which is reinforced by things like bus seating, then people test the new limits to see what's actually permitted (as people do when the rules are uncertain) and when the new rules turn out to be "everything is permitted as long as you're attacking enemies of the Regime" then you get an orgy of violence.

Even asking the question of "did this specific change produce that specific result" is asking the wrong question. The motivation for that change was ostensibly because the old rule wasn't permitted in the legal framework. On a technical level that assertion is absurd - "oh that rule was there but no one knew it for 50 years" - but even that's not important; grant for a moment that this wasn't just a transparent power grab - did it produce good results? This wasn't an isolated change and it wasn't made as one or thought of as one - it was a cultural revolution to change the way of life of a lot of people. Was it a positive change? Was it such a positive change that it justifies the crimes detailed in one single town in that thread above? Why? Just to live more in line with what a document says when no one who signed that document would even have understood it to imply the rules imposed? Absurd.

The fact that it wasn't actually justified by holy document is just the cherry on top of the disingenuousness sundae.

None of this ranting repeat of what you wrote above changes the fact that you have yet to provide any actual evidence of your proposed causal process. Based on some recent discussion in the CW thread (I believe), it seems like a lot of the specific issue of "pushing people in front of trains" is schizophrenics going off their meds. Their behavior is not based on a logical reasoning process and therefore cannot be influenced by a cultural more that (allegedly) allows some people to get away with such behavior.

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You seem to be saying that Jim Crow kept crime in check. Yet, the places you mention saw crime rise in the late 60s to 70s despite never having Jim Crow. So removing Jim Crow could not have caused that. And if this data is accurate murder rose less in Mississippi and Alabama and Georgia and South Carolina

than in the US as a whole. So I am skeptical of your argument.

I think this is right, and I'll elaborate with stats.

From the 1940's to 1970's, the black population in the northeast and midwest increased by about 150%.

https://en.wikipedia.org/wiki/Second_Great_Migration_(African_American)#Statistics

So you seem to be suggesting his theory is wrong because over the same corresponding time period, regions where the black population increased 150% (northeast, midwest) saw an increase in crime while regions where the black population went down 20% (the south) saw a much slower increase.

So quite possibly the issue was merely overall size of the black population, not Jim Crow specifically. Good noticing!

Except that the vast majority of that increase took place long before the increase in crime. And, the Second Great Migration was over by 1970, yet crime kept rising in the 1970s. And, in fact, the murder rate dropped quite a bit after a1960. If the theory that blacks freed from the constraints of Jim Crow commit violent crime" were true, then that would not have happened.

The specific rules are not important - who rules and what they are permitted to do is what's important.

"The question is which is to be master, that is all." - USG asserted that it is to be master. Did USG provide better rule? Decades of horrific violence demonstrated that no, it did not. Why do I care about bus seating in comparison to that?

Don’t you need to control for large immigration during that time period?

I’m not saying Jim Crow was good (and it isn’t really on you to prove otherwise). I’m just saying this rebuttal isn’t iron clad.

Of course it's not ironclad, but if you aren't asking covfefe for data, this comment is just an isolated demand for rigor.

No it isn’t. I even noted proving this point wasn’t on the poster (because the poster was responding to a claim; not making one). But within the data laden argument made, I believe it is suspect.

Griswold v Connecticut. Estelle Griswold was a planned parenthood executive who collaborated with local law enforcement to get charged on the Comstock law in Connecticut. That was enough to get past the ripeness issue that resulted in dismissing Poe v Ullman and Tileston v Ullman. Justice Harlan had already signaled the outcome of a successful challenge in his dissent on Poe, so it was just a matter of creating the set of facts needed.

This sort of gamesmanship is almost de rigueur in any sort of specific-issue appellate practice. I don’t really take issue with the practice because courts do not rule prospectively (unless they want to.) If a law becomes absurd under a set of facts that can be reasonably passed off as naturally occurring, it deserves to be challenged.

Interestingly enough, Rosa Parks was not a plaintiff in the case which led to bus segregation being held unconstitutional. It doesn't appear that the plaintiffs there were test cases. Parks was the face of the Montgomery bus boycott, however.

I find that the use of test cases triggers about as tribal of a response as I have to anything. When Dick Heller has the strength for the Second Amendment, he is a hero. When Charlie Craig rings up Masterpiece Cake for refusing to bake the cake, he is an obnoxious little troll and the people backing him should go find a real problem instead of creating one intentionally. Of course, the facts of the cases matter, but it does seem more than a little like having this be the path to creating precedent will tend to create even harder feelings than would otherwise exist.

When Charlie Craig rings up Masterpiece Cake for refusing to bake the cake, he is an obnoxious little troll and the people backing him should go find a real problem instead of creating one intentionally.

The thing with that, though, is that gay marriage was illegal and unrecognised in Colorado when the pair asked for a wedding cake. If they had gone to court to sue the state of Colorado for discrimination, fine. But taking a baker to the Colorado Civil Rights Commission seems like the easy way out.

Craig and Mullins got married out of state in 2012. Colorado legalised same-sex marriage in 2014. When the baker refused to bake the cake he was, like it or not, in harmony with Colorado law.

Except that Colorado law made the baker's discrimination illegal, so it was obviously not in harmony with that law. Your argument would be stronger were the baker somehow being asked to provide acake necessary for the wedding ceremony, as opposed to a cake for a reception. It is like saying a plumber who refused to fix a pipe at a gay married couple's house was acting in harmony with Colorado law. The legal status of SSM is a red herring.

Well no, it was specifically a wedding cake, which is nothing like fixing a pope at a house that happens to be owned by a gay couple.

As a matter of civic responsibility, please spay or neuter your popes.

fixing a pope

Martin Luther: world's greatest plumber?

#nailedit

Just because the marriage would have been unrecognized, though, does not make the ceremony illegal in and of itself. If two people get married in a church and comply with all the requirements that that particular religion imposes, but don't get a marriage license with the state, then they'll be married as far as the church is concerned but not as far as the law is concerned. If the baker in question refused to bake the cake on the basis that he was opposed to the couple's religion, I doubt he could get out of a religious discrimination lawsuit based on the fact that they didn't have a license.

Yeah. Laws should be read as one body so as not to contradict as much as possible. So if Colorado has a law that you can’t discriminate based on sexual orientation AND Colorado had a law that gay people couldn’t get married, it doesn’t really make sense to apply the first rule to a situation where a person’s alleged discriminatory action wouldve been in furtherance of a non permitted activity. Instead, the first rule should be read to be limited to discrimination related to activity that is not non permitted.

On the other side of the spectrum, of course, you have the shit-test case, where you rally behind the most unsympathetic, obviously in-the-wrong person you can find and dare people to call you on it.

US v. Miller, anyone?

Didn't even send a lawyer to the supreme court to present an argument.

I don't think that was intentional:

By the time of the Supreme Court decision, Miller had been killed, and since Layton made a plea bargain after the decision was handed down, there were no claimants left to continue legal proceedings.

It... was, albeit in a different way than normal test cases are selected. From the wikipedia summary :

The district court held that the section of the Act that made it unlawful to transport an unregistered firearm in interstate commerce was unconstitutional as violative of the Second Amendment. It accordingly sustained the demurrer and quashed the indictment. The government took a direct appeal to the Supreme Court.

In reality, the district court judge was in favor of the gun control law and ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the government's appeal to the Supreme Court would surely be a victory because Miller and his attorney would not even be present at the argument.

From the underlying summary by Fyre:

On June 2, 1938, Miller and Layton were both indicted on one count of violating 26 U.S.C. § 1132(c) by transporting an un-taxed short-barreled shotgun in interstate commerce. Both Miller and Layton pleaded guilty, but Ragon refused to accept their plea and appointed Paul E. Gutensohn as counsel. [emphasis added]...

Before he became a judge, Ragon represented the Fifth District of Arkansas in Congress from 1923 to 1933.111 As a congressman, he was a vocal advocate of federal gun control. In 1924, Ragon introduced an unsuccessful bill prohibiting the importation of guns in violation of state law,112 and vigorously supported another bill prohibiting the mailing of most pistols, which eventually passed in 1927. Basically, Ragon wanted to prohibit firearms used by criminals, including pistols.

I don't think Ragon intended for Miller to be dead at the time of the decision -- that actually risked making the case moot, if it had been discovered in time! -- but he almost certainly picked Miller as a particularly unsympathetic case, unlikely to present any defense, and unlikely to receive (or even be able to accept if offered) support from outside organizations. Ragon's unusual case profile (declaring the law null in a memorandum opinion) made it particularly narrow and fast for appeal, and easy for the prosecutors to request appeal at SCOTUS. And the clear mismatch with his previous and later political views make it very unlikely he was being a stickler for this one case.

Interesting! I wasn't aware of any of that.

I've mixed feelings. To some extent, these are adaptations to outside circumstances: the specific combination of requiring standing while allowing settlement means that just waiting outside of a courthouse for a person leaves too much risk of the clearest violations never percolating up to the appeals level, media has made it more important to have photogenic defendants, and selective enforcement can make finding anyone with standing hard even for cases where people are in wide fear of the law.

On the other hand, it's not hard to notice the places it hasn't adapted. Both areas like death penalty cases where you don't really get to pick your fighter (and, correspondingly, get increasingly reaching characterizations), those where the difficultly of finding a Goldilocks-Just-Right case kicks the can down the road for years or decades, or those where the test case was selected by opponents of the defendant, to undermine the rule of law.

I dunno. I'd rather have a system where rather than standing we had a genuine lawyer-on-lawyer position where a law could be debated from legal principles without someone's freedom or livelihood playing the ante to the case, but I don't know the possible downsides and I do know there's little if any interest for the state to support such a system (outside of a limited free speech and, until last year, abortion exception).

I dunno. I'd rather have a system where rather than standing we had a genuine lawyer-on-lawyer position where a law could be debated from legal principles without someone's freedom or livelihood playing the ante to the case, but I don't know the possible downsides and I do know there's little if any interest for the state to support such a system (outside of a limited free speech and, until last year, abortion exception).

Yeah, it's infuriating to me that the legislative and executive can pass and sign a law, spend lots of time and money enforcing it, and then only when someone's rights are actually infringed upon, does someone have to gamble by breaking the law and challenging it. And, this process may take years (all the while the state can often keep enforcing the law) and lots of money, and may result in failure for any number of technicalities, or result in the offending government pulling the rug out to render the exact case moot while keeping all of the substantial infringing provisions (like New York did before Bruen and I think is trying to do again), or result in the court granting relief on some specific case without addressing the big issue (like with one of the original Colorado baker/photography cases, which didn't address whether the law was constitutional, but was resolved based on the outright animus the commission in charge had for religion).

One issue is the strength of precedent--as zeke points out, you could rush to challenge a law in a way that is deliberately going to fail, and then use this precedent to prevent future challenges. Having a long process, requiring standing, requiring that other factors are not obscuring the relevant issue, etc. does make it harder to deliberately bring a weak challenge. Overturning precedent is difficult, but it does happen; it's probably net positive that courts are reluctant to say "no this previous court was just wrong from the get-go." On the other hand, the legal system already has a concept of "bad faith" and it seems like it should be relatively easy to identify that, say, an organization which explicitly supported some law is also supporting the lawsuit "challenging" it. Similarly it already has a concept of "vexatious litigants", as well as laws for specific cases like anti-SLAPP and PLCAA, even if such protections are probably under-utilized. So it seems like there are many avenues to prevent or invalidate bad-faith legal proceedings and punish those involved.

Yeah, it's infuriating to me that the legislative and executive can pass and sign a law, spend lots of time and money enforcing it, and then only when someone's rights are actually infringed upon, does someone have to gamble by breaking the law and challenging it. And, this process may take years (all the while the state can often keep enforcing the law) and lots of money, and may result in failure for any number of technicalities, or result in the offending government pulling the rug out to render the exact case moot while keeping all of the substantial infringing provisions (like New York did before Bruen and I think is trying to do again), or result in the court granting relief on some specific case without addressing the big issue (like with one of the original Colorado baker/photography cases, which didn't address whether the law was constitutional, but was resolved based on the outright animus the commission in charge had for religion).

Yes. You can't precedent or procedure or automate your way around the bedrock truth that societies work more smoothly when everyone (1) is approximately on the same page, (2) is willing to act on the spirit of the rules rather than the letter, and (3) trust the other side to do so as well.

Without those things, everything just devolves back into low-trust, cynical, you're-not-winning-if-you're-not-cheating hardball.

and it seems like it should be relatively easy to identify that, say, an organization which explicitly supported some law is also supporting the lawsuit "challenging" it.

It is, and the concept of the "friendly suit" is known to the courts. But of course these procedural issues work only if the court wants them to work; the courts are supposed to be impartial but they are often not. See for instance Bruen, where a number of gun cases in the appeals decision had their circuit-level decision vacated and remanded. The Circuit Courts, rather than deciding the cases according to the Bruen precedent, sent them back to the District Courts, nominally to have the issues re-litigated but more likely just as a delaying tactic to keep the laws in play until Bruen can be completely gutted by the lower courts.

Sadly, "the courts all make up their own laws" is not a problem that any system can solve, short of getting rid of courts (or making them so secondary to the legislature they may as well not exist); symmetrically, the legislature can ignore the constitution, unless restrained by another branch. Any legal system has to be enforced by people.

There's the Scopes Monkey Trial, which has passed into pop culture as a brave stand for the cause of Science against craw-thumping ignorance, but which was a test case that both sides wanted. In spite of an admittedly dumb law being passed by a local politician who wanted to virtue signal and gain votes, there were so few Brave Heroes of Science being persecuted for teaching evolution in schools that they had to fix up a test case. The town fathers were happy to be cast as the prosecuting baddies, since Dayton was dying on its feet and they felt that national publicity and notoriety could only do it good. The Brave Heroes had to find a willing guy who wasn't too sure if he had actually ever taught evolution, but he was happy to be the patsy.

So what really was the result there? A victory for teaching science in schools? Not really, Scopes lost the trial but the verdict was overturned. Keeping religion out of schools? Maybe, but I think it was a win that cost too much, since now America seems to have an entrenched battle between creationists and 'I love Science' crowd, where it is possible to have "evolution cannot be taught in school" enforced and textbooks denying it used if the local school district bends to that influence.

So instead of a dumb law being quietly ignored and dying away, the whole thing was given fresh life and the pitched battle between Science and Religion in schools continues to be fought.

Biggest issues are: (1) there is a concern that someone sandbags and res judicata prohibits in earnest petitioners in the future and (2) constitutionally standing is an interpretation of case or controversy.

I do think standing serves a purpose but perhaps it could be relaxed (eg allow minority party in congress to have standing).

So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

It doesn't really matter to me. The practice seems like a natural outgrowth of the Supreme Court's precedent that federal courts are courts of limited jurisdiction, only empowered to decide cases and controversies (narrowly defined) before them. If there were some other way to get a binding court ruling about the permissibility of some law or policy I would probably think manufacturing test cases was silly, but if there was some other way people also probably wouldn't do test cases.

I recognize correctly-enacted laws as the rightful rulers of man, which makes me a small-r republican, despite my libertarian beliefs. Test cases smack of trickery, propaganda, and total war between cultures, and have the feel of a play or other fiction where people like me are sneeringly portrayed as the bad guy.

I dislike such guerrilla lawfare mostly because they involve someone breaking the law on purpose, even though I applaud the pragmatic attempts to clear out wrong-headed laws and the clever use of the system to change the system. They make it seem like the law is just there to punish people who disagree, not to protect society from malice.

Ironically, my family was involved in one of the most famous test cases of all time. A new civil liberties group, formed to push back against anti-Communist overreach, was shopping around for a case to test Tennessee’s law against teaching evolution, and in the process make their name.

Scopes' involvement in the so-called Scopes Monkey Trial came about after the American Civil Liberties Union (ACLU) announced that it would finance a test case challenging the constitutionality of the Butler Act if they could find a Tennessee teacher who was willing to act as a defendant.

A band of businessmen in Dayton, Tennessee, led by engineer and geologist George Rappleyea, saw this as an opportunity to get publicity for their town, and they approached Scopes. Rappleyea pointed out that while the Butler Act prohibited the teaching of human evolution, the state required teachers to use the assigned textbook, Hunter's Civic Biology (1914), which included a chapter on evolution. Rappleyea argued that teachers were essentially required to break the law. When asked about the test case, Scopes was initially reluctant to get involved. After some discussion he told the group gathered in Robinson's Drugstore, "If you can prove that I've taught evolution and that I can qualify as a defendant, then I'll be willing to stand trial."

He admitted to a reporter that he knew he had skipped the chapter on evolution, but the reporter held back the story until after the appeal had been decided in Scopes’ favor.

A relative of mine, Harvard geologist Kirtley F. Mather, was very familiar with Creationist arguments against evolution, so he and Darrow practiced some questioning with Mather portraying one.

Kirtley Mather, a descendant of Increase Mather and Cotton Mather, famous for their involvement with the Salem Witch Trials, later founded an anti-propaganda group, the Institute for Propaganda Analysis. It was shuttered during WWII, and has at least one successor organization. The Motte has a lot in common with the IPA, which pushed back against culture war overreach in its day.

A new civil liberties group, formed to push back against anti-Communist overreach, was shopping around for a case to test Tennessee’s law against teaching evolution, and in the process make their name.

Ironically, as I said above, I think this was a Pyrrhic victory. The new group probably did make their name, but this whole case gave impetus to the groups believing Christianity was being oppressed and the power of the state was being used to crush it. That this is still a live issue in schools in certain parts astounds me; my biology teacher was a nun and we certainly never skipped the chapter on evolution. Then we said the Angelus if science class was being held when it was 12 o'clock noon. There was no conflict, and certainly no "The Bible says..." one way or the other.

my biology teacher was a nun and we certainly never skipped the chapter on evolution.

The Catholic church officially endorses evolution. It's a subset of evangelical protestants who don't believe in evolution, because they believe in biblical literalism and sola scriptura (the Bible alone is the highest authority). So to these kinds of evangelical protestants, "seven days" literally means seven days, end of story.

Does teaching evolution in k-12 classrooms matter very much for non-sacred-cow reasons? Creationists have enough epicycles in their model that it gives the same results as evolution, except for a few edge cases, and anyone who’s majoring in biology is taking evolution classes anyways.

Well, it's the word "correctly-enacted" that is doing a lot of work here, isn't it? Presumably an anti-segregationist, for instance, would have very much challenged the idea of segregation laws being correctly enacted, as they were based on those most directly affected by them having been conclusively shut of the legislation process for decades.

Looking at your past comments, I remembered correctly - you've frequently opined against COVID vaccines, and generally taken a "COVID-skeptic", for a lack of a better term, stance. Would you have opposed the use of test cases to challenge, say, mandatory COVID vaccination laws?

How should unjust laws be dealt with if not for test cases?

I find "I broke this law so punish me, but I will fight it otherwise legally as best I can" to be an honorable stance, at least compared to much of today's behavior. Now I often see unlawful protesters surprised when laws are upheld against them, and largely acting like that's unfair and shouldn't have happened. They want the opposite of a test case, which I guess is anarcho-capitalism.

So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

Yes. Rosa Parks is one case, but so is 'Jane Roe' in Roe vs Wade, and the striking down of the Texas sodomy laws (which, depending what account you read, needed the parties involved to set it up so that the cops would come bust them, and they got them there on another excuse).

Some laws are permitted to quietly wither away on the vine as social attitudes change, so test cases sometimes don't do much. Apart from making the name of ambitious lawyers who scent an easy victory, they don't really change anything much.

Other cases, like Rosa Parks, do provide an impetus, but in that case there was a strong social prejudice remaining which backed up the law.

And then there's the "bake the cake, bigots" cases where you have people ringing around several bakeries/pizza parlours until they find the one exception that they can then use. Where you have nine out of ten bakers happy to bake your trans gay cake, and only one hold-out, that sounds less like "brave challenge to prejudice" and more like "everyone must be Havel's Greengrocer".

So yeah, it depends (1) what the case is (2) who is bringing it and why.

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A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

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