The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Friday, October 18, 2013

The Myth of the Narrow Fourteenth Amendment: A Correction for James Taranto

Buckle up folks, because this is a long one.

So the other day the Supreme Court heard argument in arguments in Schutte v. Coalition to Defend Affirmative Action.  You can read a great deal about the case, here, but the short version is Michigan amended its Constitution by ballot initiative so that affirmative action—termed as racial preferences—was banned across the state.  I haven’t looked very deep into the temperature of the justices on this, so I won’t predict any outcomes but the case has gotten a bit of noise in the last few days because one of the pro-affirmative action side’s lawyers, Shanta Driver, had this exchange with Scalia:

Driver: We ask this Court ... to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.

Scalia: My goodness, I thought we've--we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only--only the blacks. But I thought we rejected that. You--you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

Driver: I think it is--it's a measure that's an antidiscrimination measure.

Scalia: Right.

Driver: And it's a measure in which the question of discrimination is determined not just by--by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.

Scalia: And unless that exists, the 14th Amendment is not violated; is that right? So if you have a banding together of various minority groups who discriminate against--against whites, that's okay?

Driver: I think that--

Scalia: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?

Driver: No case of yours.

So in short, according to Driver the Fourteenth Amendment is not designed to protect white people, at least as long as they are in the majority.  As Josh Blackman noted dryly, “This is what proponents of affirmative action think but aren’t supposed to say at the Supreme Court.”  (Hat tip to Overlawyered on that quote.)

Now, look, here is the reality.  When they wrote the Equal Protection Clause of the Fourteenth Amendment, there can be little doubt that the founders thought that the greatest beneficiaries would be non-whites and even perhaps some people we now think of as white but faced a great deal of discrimination back then.  For instance, in one speech, my Constitutional hero Thaddeus Stevens said that the Equal Protection Clause would benefit Irish and Dutch Americans.1  Presumably the commonplace discrimination against German Americans would also be prohibited and perhaps they also envisioned Italian Americans being equally benefited.

But this wasn’t because the clause was only designed to protect beleaguered groups.  No, it was always understood that all “races” (recognizing that what we today merely call “ethnicities” were called races back then) were equally protected.  But the majority whites who were not Irish, German or Dutch generally didn’t need any Constitutional protection against discrimination: the fact they were in the majority generally meant that they would never face unfair discrimination.  So while the Fourteenth Amendment’s Equal Protection Clause was always understood as a neutral rule, the founders and anyone else who really thinks about it would expect the majority—whoever they are—to have little legitimate need for it.

But I wanted to talk a little about a single line from James Taranto’s column on this.  He was talking about how Scalia and Driver both sparred over the originalism, Taranto noting first correctly that Scalia is actually a textualist, rather than an originalist—that is he sees the text as the primary (but not quite exclusive contrary to what Scalia often says) source of understanding of any law.  Originalists, by comparison spend much more time digging into sources other than the text.  I would say I am closer to Scalia, but I do think historical context is more important than he does.

So this leads Taranto to try to “correct” Driver’s originalism

And Driver's interpretation isn't really an originalist one, either. Michigan's "affirmative action" policies did not discriminate only against whites and in favor of blacks. They also disfavored Asians and favored Hispanics and American Indians. Indians have a history of oppression in America, although quite different in character from blacks' history. But so do Chinese- and Japanese-Americans. As for "Hispanics," that category dates back only to the 1970s. The 14th Amendment was ratified in 1868. Further, a truly originalist interpretation of the Equal Protection Clause would permit government to discriminate not only against whites but against anyone on the basis of such nonracial categories as sex and sexual orientation.

The first part of that paragraph is pretty good.  Very often affirmative action is not only discrimination against white people, but also against racial minorities, too.  Racial discrimination against Asian Americans, for instance, is real and has a real economic impact contrary to popular myth.  Yes, it’s not as bad as what African Americans have traditionally faced, but that is not an excuse to ignore the problem completely.  So if affirmative action is justified for black people, then it is justified for Asian Americans, too.  Justice is not a zero-sum game even if admissions to a particular school might be.

But that last sentence is dismaying because it shows that James Taranto is buying into one of the most damaging liberal myths about the Constitution: the myth of the narrow original intent.

Now I am using “original intent” very loosely to encompass everything from originalism to Scalia’s more textualist approach, but one of the ways liberals have attempted to attack any attempt to be faithful to the actual, you know, Constitution is to trot out a parade of horribles that would occur if you did that.  A classic example is Ted Kennedy’s attack on Robert Bork’s belief in following the original intent:

In that shameful and downright defamatory display, Kennedy claimed that following the Constitution as written would result in 1) abortion being banned everywhere, 2) racial segregation, 3) police knocking down doors in midnight raids, 4) the banning of the teaching of evolution, and 5) writers and artists would be censored.

There is so much wrong there, it makes my head hurt.  All but one of them—the one on abortion—is fiction.  For instance, you have to have a strange view of the original intent of the Constitution to say that under original intent people can be censored given that the First Amendment is undoubtedly part of that original intent.  The same can be said for the other points, except on abortion, but I want to keep the focus on the Equal Protection Clause.

Bluntly James Taranto is wrong to say that the Equal Protection Clause is just about racial discrimination.  This is true if you look primarily at the text, or if you look at accompanying context.  First, it’s an abuse of the concept of “plain text” to say that plainly the Equal Protection Clause is about race.  There literally isn’t a single word in clause suggesting it is about race.  The common explanation for that is that is that the founders were worried that if they tried to ban racial discrimination explicitly they would accidentally leave open loopholes that would allow racists to still engage in racial discrimination.  But, first, that is not a textualist argument, and second, they didn’t seem to have that problem in the Fifteenth Amendment, which reads in relevant part:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude.

So the text of the Constitution, as amended, shows that the founders knew how to specify racial discrimination when it mattered.  And of course the founders of the Fourteenth Amendment are virtually the same as founders of the Fifteenth.  We are talking about virtually the same people.

But then that exposes the problem with Scalia’s text-centric approach.  Once you acknowledge that the equal protection clause—which says “No State shall... deny to any person within its jurisdiction the equal protection of the laws.”—is not simply about racial discrimination it starts to sound virtually limitless.  It starts to sound like all discrimination is bad, which is ludicrous.  Government discriminates all the time and most of it is considered fair.  For instance, farm subsidies are only given to farmers and not, for instance, steel workers.  That is technically a discrimination—that is treating two groups differently—but whatever you feel about farm subsidies no one seriously thinks that it violates the equal protection clause when a state does it.  Indeed, states discriminate against murderers all the time, treating them differently from non-murderers, by incarcerating and even occasionally executing them.  No one would say that murders, as murders, cannot be discriminated against in this fashion.2  So you almost have to look to outside sources for the meaning of the Equal Protection Clause, because the text is really not a very good guide to what it means.

The first thing that leaps out at you when you look at outside sources, for instance, is that it is really clear that it was not meant to apply to race only.  This is proven by a little bit of textualism of the original text of the equal protection clause.  It read:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color.3

It was a standalone proposal for an amendment that eventually got swept into the “omnibus” amendment that was eventually ratified but notice that originally you had two clauses addressing discrimination: one talking about discrimination generally, and one talking about race specifically.  The most logical explanation is that the equal application clause was talking about many forms of discrimination beyond racial discrimination, but its author felt it was important to be extra clear that racial discrimination was banned.  Additional evidence from the time of the founding equally demonstrates that the founders believed this amendment would reach beyond mere racial discrimination.

Of course, that presents the same problem I mentioned before about the concept having no limit, so that even murderers could claim that they are being discriminated against.  For me, I think the best limiting concept is what its author, Thaddeus Stevens, said about what he hoped to accomplish: “no distinction would be tolerated in this purified Republic but what arose from merit and conduct.”

This is a massive divergence from what the Supreme Court has come up with its tiers of scrutiny, but it would make for a simple test: is this discrimination based on merit or conduct, or is it based something else.  So discrimination against murderers, for instance, is obviously legal because murdering is conduct.  Likewise a state school choosing who to admit based on their merits as a student is obviously constitutional under this approach.  But if a school says “no blacks allowed” then it is not discriminating based on conduct or merit.

Or for that matter, if they said “no women allowed.”  Which circles back to James Taranto’s comment that I first took objection to:

Further, a truly originalist interpretation of the Equal Protection Clause would permit government to discriminate not only against whites but against anyone on the basis of such nonracial categories as sex and sexual orientation.

I have said that I do not believe that the Fourteenth Amendment can be stretched to protect most gay rights.  Of course I don’t think the states can discriminate merely based on the fact that a person is attracted to the same sex, but it is an abuse of the Constitution to say that it strikes down sodomy laws or that it mandates that states recognize gay marriage.  But it is a myth to say that the equal protection clause definitely doesn’t protect people from sex-based discrimination.  Feminism did exist back then, in that women had a dream that their daughters would be judged not by their sex, but by the content of their character (to borrow from Dr. King).

What I think is going on in part is that we have a fundamental philosophical difference between the founders and modern thinkers, when it comes to equal opportunity.  To quote myself:

To understand any theory of equal opportunity, one must first understand how discrimination is justified.  Logically, in order to discriminate between two groups, one must make two determinations, one factual and one philosophical.  First, one must determine that there is a significant difference between the groups in question.  It is not enough to that there is a difference; the color of a person’s skin is technically a difference, but it is not a significant difference.  Second, one must determine that this difference justifies unequal treatment.  It is one thing to believe, as Justice Bradley did in Bradwell v. Illinois, that women are not suited for the practice of law; it is another matter to believe that one is justified acting upon that belief.

Therefore a person could justify equal opportunity either by arguing that the two groups in question are equal, or by arguing that even if the two groups are not equal, this does not justify the discrimination contemplated.  Thus Kenneth Stampp began his examination of slavery by saying that “innately Negroes are, after all, only white men with black skins,” (and “Caucasians [are] black men with white skins”) indicating that it was important to Professor Stampp to believe that the races were equal.  By contrast, Owen Lovejoy, an abolitionist, justified his position as follows: “[w]e may concede... that [the black race] is infirm; but does it follow, therefore, that it is right to enslave a man because he is infirm?”  To Lovejoy, the question of equality was beside the point.

Aaron J. Walker, Note, “No Distinction Would Tolerated”: Thaddeus Stevens, Disability, and the Original Intent of the Equal Protection Clause 19 Yale Law & Pol’y Rev. 265, 291 (2000).  As you can see, I have made myself somewhat of a scholar of the founders’ understanding of the Equal Protection Clause.  This wasn’t something any teacher taught me, it was something I researched independently in my free time in undergraduate and law school until I felt ready to write that piece.  More than a decade later, I can see some ways to expand on the points I am making.

The first, is to get what I am saying, you have to break through your discomfort in talking about racism.  When I was going through the editing process, a colleague of mine took issue with this line “the color of a person’s skin is technically a difference, but it is not a significant difference.”  He actually wrote, and I am not making this up: “poppycock!  There is no difference between white and black people!”  I say that I am not making it up, because I myself couldn’t believe a person was actually using the word “poppycock” in a sentence, even at Yale.  Oy.

Hey, his heart was in the right place, but the discomfort we feel in talking about race was getting in the way.  So I talked to him and I had to get Socratic.  The conversation went like something like this:

Me: Black people and white people are equal in intelligence, right?

Him: Yes.

Me: And there is no differences between the races when it comes to character and all that, right?

Him: Yes.

Me: So the differences between the so-called races is literally skin deep, right?

Him: Right.

Me: But those are differences, aren’t they?  I mean black people tend to be, you know, darker than white people, right?

Him (the light coming on): yes.

Me: But that is not a significant difference, right?

And that is about when he got it and understood that what I said was 1) literally true and 2) inoffensive, and dropped his objection.

Another thing to unpack is what I was saying about Stampp and Lovejoy.  Stampp was a historian who wrote one of the seminal books on slavery, called The Peculiar Institution.  It was important in changing the perception of slavery.  Previously the absolute evil of this institution was minimized in academic literature, but Stampp’s book was influential in making historian realize how profoundly evil it was.  This had a symbiotic relationship with the civil rights movement.  That is, the civil rights movement made Stampp more inclined to see black people as human beings and thus to recognize the evil of slavery.  And meanwhile his book helped white people to see the evil of slavery and the humanity of black people, which  in turn helped the civil rights movement.  I don’t want to make too much of it, but it did have a positive influence, especially among history professors.  One of my professors at the University of North Texas said that reading that line about black people being white people with black skins literally changed his life.

Academics understood that, so I was engaged in a bit of “academic code talk” in that piece.  That is something I usually avoid on this blog, because it is written to be understood by people who don’t know stuff like that, to be accessible to regular folks who frankly aren’t as much of a law and history nerd as I am so I felt it was important to explain, now.

So what I am saying is that to Stampp it was important for him to see black people and white people as equal to see the evil of slavery.  By comparison Owen Lovejoy didn’t care about equality.  Even if black people were inferior, he reasoned, they didn’t deserve to be treated like this, to be enslaved, forced to work, their women raped and so on...

This helps us understand what I think is the fundamental disconnect between the founders of the Fourteenth Amendment and modern thinkers on the subject of equality.  Indeed, the behavior of the founders is deeply paradoxical to many modern thinkers.  They see the founders saying profoundly racist things and they say, “then I guess they would accept things like segregation.”  Yes, with the notable exception of Thaddeus Stevens, most of the founders were racist, but to them, equality was beside the point.  Even if black people were generally inferior—and most of the founders believed they were—it did not justify racial discrimination.

A significant part of it was a belief that merit should be determined individually.  Take for instance, college admissions.  Again with the exception of a few like Stevens, the founders believed that any fair admissions process to a college would tend to weed out black candidates.  But where those who favor racial discrimination would say that such inferiority justifies discrimination, the founders would not.  They would say, “if a fair admissions process would tend to weed out black people, then why do you need to explicitly consider race?  Just let the admission process do its work.”

To use a modern metaphor, imagine the Cowboys and the Redskins are playing.  And you are a fan of the Redskins and you are convinced that they are clearly superior to the Cowboys and in any fair game they would win.  So you don’t then hope that the referee is unfair to the Cowboys, do you?  No, if you really believe the ‘Skins are superior, you want the game to be fair and expect the Cowboys to lose as a matter of course.  There is no need to “fix” a game you know you will win.

That’s how the founders saw it.  If white people are superior they don’t need any special advantages to succeed.

There were three reasons I can see for this approach being favored by the founders.  The first is actually well described by Justice O’Connor, when she said that

At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.

(Internal quotations omitted.)  In other words, you have a right to be judged as a person, not as a black or white person.  I am not sure how seriously O’Connor was looking at the historical evidence, but she definitely hit the nail on the head.

This extreme individualism in turn was motivated by the remaining two reasons.  First, while the founders believed black people were inferior generally, they recognized that there were exceptions to the rule.  They knew that every black person was not inferior to every white person.  For instance, every person alive could think of at least one white person less impressively intelligent than Frederick Douglass.  And indeed Douglass specifically exceptional example (seriously, how many people could rise from slavery to become such a powerful thinker?), as well as other extraordinary black persons, probably weighed in their minds.  If a school proposed to exclude black people, they would think “even if he was the next Frederick Douglass?” and that thought would counsel against that policy.

And the third factor is also closely related: because of exceptional examples like Douglass, the founders were starting to question the very inferiority of black people (and if that seems contradictory, bear in mind that I am describing the feelings of many people, who might mix these reasons in different doses).  Mind you, it was not just Douglas and I believe it was not just black people who were causing this to happen.  Abraham Lincoln, for instance, didn’t have more than what today we would describe as an elementary school education.  Further, historians describe him as speaking, for lack of a better term, like a western hick.  But he educated himself by reading law books and endlessly reading Shakespeare, among other things so that by the time he ran for president, he was in fact an extremely deep and articulate speaker... with a “hick” accent.  And it was a common experience for people to hear him start to speak and to stereotype him at first as an idiot, only for people to gradually realize as they listened they were in the presence of a profoundly intelligent man—probably our smartest president.  Indeed I think that it was part of his charisma: there is something attractive about a person you begin by underestimating exceeding your expectations.  And in turn by overcoming people’s stereotypes about “hicks” perhaps Lincoln made people question other stereotypes.

This was not limited to politicians and escaped slaves either.  I have long believed that social advances for disabled people also had a profound effect on race relations.  After all, these people were actually “infirm” to borrow Lovejoy’s words.  Both Braille and American Sign Language were invented about a decade or so before, which meant all across America people were watching blind and/or deaf people go from an almost feral state to suddenly being educated and articulate.  And I have to think that some people, upon seeing the transformation in those persons’ lives, often said to themselves, “if being deprived of education can have such a profound effect on these deaf or blind white people, what does depriving the black slaves of education do to them?  How much is their presently degraded state due to simply being denied education.”

Indeed Stevens himself, like Lincoln, might have changed attitudes about others.  Like Lincoln, Stevens dealt with prejudice of his own: he was born with what is called a clubbed foot.  It appears that the deformity is very rare today and this Mayo Clinic page suggests that in most modern cases it can be treated easily, suggesting that it has been mostly eradicated medically.  The practical upshot of having this disability was that Stevens couldn’t run, couldn’t do much heavy work that requires strength in his legs, and had so much difficulty walking that most people didn’t realize he was unusually tall for his day (approximately six foot) until he stopped walking and straightened up.  But that’s just the physical effect and it shouldn’t have mattered so long as he lived “a life of the mind.”  There is little reason, for instance, that his handicap would have any effect in his career as a lawyer, or his long crusade against slavery and eventually for full legal, political and social equality for African Americans.

But you see, at that time, there was a superstition about people with clubbed feet that they were children of the devil.  People would refer to them as “cloven feet” suggesting that it was a vestigial leftover from the mating between Satan and a human (his mother, I guess?).  To some degree all disabled suffered from the common belief that outward deformity reflected inward deformity, but it seems that the clubfooted got more of it than most, so that even one of the allegedly serious biographers, Richard N. Current, even suggested Stevens had the smell of brimstone about him.

Which is profoundly stupid and for the founders, this was seen as profoundly stupid.  Indeed, to those who admired Stevens—he was also beloved by many Americans, called “The Great Commoner—it was part of his appeal, to feel proud of themselves for looking past his disability and rising above that superstitious silliness.  Those people were overrepresented among the founders.

By the way, here’s a clip of Tommy Lee Jones portraying Stevens as deflecting a question about the equal creation of humanity:

I don’t remember Stevens saying those exact words (and I have read a lot of what Stevens wrote and said), but I can say that if they were made up, it would have been a profoundly in-character thing for him to say.  He was a great crusader for equality, but unlike, say, Dr. Martin Luther King, Jr. who used souring rhetoric that was profoundly beautiful, Stevens was a sour, sarcastic, and darkly funny advocate.

So back to the point of this post, what I am trying to illustrate to you is that the founders didn’t believe that equality in fact between the races was necessary to justify prohibiting racial discrimination.  It came from a mix of the following 1) a belief that it was unnecessary to give white people any unfair advantages, 2) a belief in treating people as individuals and not simply member of race, 3) a belief that while black people were inferior generally, there were exceptions, and 4) some doubt as to whether white people really are superior and not simply equal.  They saw no good reason to practice racial discrimination and many reasons why it might be a profoundly bad idea, so they prohibited it.

So given all of that, why would you assume that they wouldn’t apply the same attitude toward sex discrimination?  Yes, they said tons of sexist things.  They were pigs for the most part, yes, but I just got through pointing out that despite most of the founders being racist, they wanted to eliminate racial discrimination.  So why can’t they be sexists who wanted to eliminate sex discrimination, too?

As I said before, feminism was an actual thing back then, and the Civil War was a significant event in that movement.  I’m not talking modern feminism that holds that abortion is the most important right ever, but the Susan B. Anthony variety that simply wanted women to be given a fair chance.  You had educated women at the time like Lucretia Mott—who by the way, was linked to Thaddeus Stevens the Christiana Riots case (which I mentioned here)—and many others who were presenting examples of intelligent women, who wrote the Seneca Falls Declaration of Sentiments, intentionally imitating the Declaration of Independence to declare that women deserve to be treated as equals.

Further, the war itself was a significant event.  Women openly took on roles helping on the battlefield and in administration of medical supplies and the like.  There was even the story of one woman openly taking command of a unit when her husband was killed.  And then there were the women who helped in ways that were not so open...  It was a downright common experience, for a “man” to serve honorably for the Union only to be wounded one day, for “his” clothes to be partially or completely removed, only for the unit to discover that this “man” who fought bravely with them was in fact a woman.  Or in one case, the “man” in question gradually became obviously pregnant (she had joined the unit with her husband).  Of course at the time, the founders were overwhelmingly male, but consider how it would have challenged their perceptions about the role of women in society to see a thing like that.

So back to James Taranto’s comment, there is a strong, proper, original intent argument to be made for the idea that sex discrimination would be prohibited under the equal protection clause.  And to circle back to Ted Kennedy’s smear, I don’t know what Bork would have said, but segregation was against the original intent of the founders, not desegregation.  While Brown v. Board of Education ignored the original meaning of the Constitution, it was exactly in line with what the founders intended.  Plessy v. Fergusson was the aberration and in all frankness a judicial surrender to the intractable racism of the South at the time.  As I have said before, arguably our first war on terror was against the KKK and for a long time, we lost that one.  Plessy v. Fergusson was arguably our terms of surrender.

And it is important to correct that record, because this is precisely the hammer the left uses to discredit the idea of being faithful to the constitution.  “If we followed the constitution as written, we would still have segregation, and therefore the Supreme Court is justified in making up a right to an abortion,” or so the argument goes.  They have in essence argued that racial equality is like a hostage that will be killed if we take down Roe v. Wade and they use it to justify further distortions of the text.

It is also in the most profound sense a straw man.  No one is saying Brown was wrongly decided.  No one is saying that so-called miscegenation laws are constitutional.  No one.  No one is advocating for women to be excluded from the legal profession.  They are pretending that those who believe in following a faithful reading of the constitution—instead of just making crap up—are advocating for something we are not, in order to discredit our ideas.  It is a fallacy, which is to say it is profoundly dishonest.

Which is not to say James Taranto in particular is doing that.  I am sure his purpose is not to advance the cause of judicial activism if only because I believe he finds it as distasteful as I do.  But unknowlingly he is helping that cause, which is why I sought to correct the record—for his potential benefit and perhaps the benefit of others.



1          2 The Selected Papers of Thaddeus Stevens 198-99 (Beverly Palmer and Holly Ochoa eds., 1998).

2          Of course people do respectfully argue that the death penalty is “cruel and unusual punishment” and that the death penalty and our criminal justice system is racially discriminatory.  But the first complaint has nothing to do with equal protection, and the second is actually a wish that we more perfectly discriminated between murderers and non-murderers, rather than a believe that it is wrong to treat a murderer differently from a non-murderer.  That is, they believe that an unfair number of racial minorities who are innocent are being lumped in with murderers.

3          2 The Selected Papers of Thaddeus Stevens 74 (Beverly Palmer and Holly Ochoa eds., 1998).


My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.



I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.


  1. Interestingly, I recall reading a conservative article, I believe in the journal First Things, arguing the Brown vs. Board of Education was wrongly decided, despite having a moral and just outcome. I believe it was a critique based on judicial overreach.