The limits of startup culture

Elon Musk has only owned Twitter for two weeks. Given his spectacular success at Tesla and SpaceX, I'd be a fool to count him or Twitter out over the long haul. I loathe his public persona and what I know of his management methods but he has made both work for him at a business level.

Nevertheless, what he has done to and with Twitter in his two-week ownership stint is kind of sublimely moronic.

Anybody can have an idea to whose shortcomings he's blind. That's why most of us chew over the idea for a while, and/or discuss it with others, before we throw ourselves into making it happen.

When you're the world's richest man, though, and you own a business outright, you can put your pet uncooked idea into effect with a snap of your fingers. Constantly being hailed online as a genius also apparently dulls your sense of caution, the hard-won knowledge the rest of us have that we can and will make mistakes when we move too fast and don't think clearly enough.

"Move fast and break things" is a motto credited to Mark Zuckerberg. It's a natural follow-on to another risk-taking motto, "It's better to seek forgiveness than to ask permission". I've worked in bureaucracies and I get the appeal of both ideas.

I can also say, I've worked in bureaucracies and I've had to clean up after brash idiots who broke things they didn't understand and therefore weren't competent to fix when the breakage caused others to suffer.

Musk, like so many tech bros, is infatuated with himself and the "obvious" correctness of his own vision. What's worse, he has a proven track record of achievements and a cheering section that I can only call terrifyingly loyal. (His online supporters act like a bully's henchmen.)

Tech bro-dom is way, way, way overestimated as an expression of genius, especially by the bros. What's far worse, though, is that its culture elevates not giving a shit about other people to practically a holy commandment.

What Musk has demonstrated in his brief stint as Twitter's sole proprietor is the limit of startup culture, of tech bro-dom, as an operating philosophy. He can move fast and break things but he can't force everyone to stay in the building while he whacks at the foundations.

He has tried, to be sure, threatening to "name and shame" advertisers who have "paused" their advertising on Twitter until the long-term picture becomes clearer. That doesn't mean he'll get them all back on board, though. His pettiness isn't charming and it isn't a desirable trait in a CEO or business owner. Arrogance, which he also has in immeasurable quantity, isn't well-tolerated either, unless it's crowned with success.

If Twitter doesn't regain its footing under Musk, it will be because of his shortcomings as a manager and as a human being.

Latest question for Judge Cannon

Judge Aileen Cannon denied DOJ's request to exempt the classified documents DOJ identified in the materials removed from Mar-a-Lago from review by the special master.

Judge Cannon, in this latest decision you explicitly declared that Donald Trump is more trustworthy in your eyes than the Department of Justice. You prefer to believe Trump's uncorroborated and flatly nonsensical assertions that the documents in question could be unclassified, rather than the expert judgment of DOJ and FBI staffers that the documents are classified.

You're willing to let not only the special master you just appointed review these documents (which has no precedent because it's a terrible idea), but Trump's attorneys as well. Trump's attorneys, who, last I checked, did not have security clearances at all, much less clearances at the extraordinarily high levels that would be needed to review these documents if they were government workers.

So here's my question to you, Judge Cannon:

Why the fuck are you endangering our national security by granting access to even potentially highly sensitive documents to whoever the fuck Trump hires as his latest legal representative?

Actually, I have a second question which might be even more important:

What the fuck is wrong with you?

Here's where you stand. You are so fucking indifferent to national security that you're okay with obliging Trump far beyond the ethics of your profession. (Admittedly it's a profession to which you're extremely new, but you're not that new to it.) You're also playing fast and loose with information so sensitive, it led to an ongoing damage assessment.

The people who worry about national security are uniformly scared about what might have happened. Yet you aren't.

So again, what the fuck is wrong with you?

You're not just a Trump toady any more. You're now a threat to our national security — because you're so fucking willing to middle-finger the government, just to show your patron that your priority is what he wants rather than justice.

Judge Cannon erred

Judge Aileen Cannon unexpectedly threw a wrench into the Justice Department's criminal investigation of Donald Trump by ordering the appointment of a special master to sift through the documents the FBI seized from Mar-a-Lago on 8 August 2022.

I went over the sequence of events that led up to the FBI's execution of a search warrant that day. Surprisingly, further revelations on an almost daily basis since then have not contradicted that basic timeline. Rather, they've only deepened the public's understanding of the reasons the Justice Department was driven to the extraordinary step of seeking a warrant against a former president of the United States.

An indisputable, well-documented fact at the heart of the investigation is, Trump repeatedly lied. He lied first to the National Archives and Records Administration, then to DOJ, by pretending on multiple occasions to comply with each organization's requests for the return of all documents that by law belong to the government, not to him. That's why DOJ had to keep returning to Mar-a-Lago and on each visit found more documents he illegally retained.

Trump has kept lying to the public, claiming variously that he declassified documents automatically (a claim all but two of his advisers will not substantiate and which, in any case, is not borne out by the documents themselves, which bear none of the legally required marks indicating they've been properly declassified) or simply that the documents rightly belong to him.

That latter claim is, to repeat, a lie. Nearly every document a president touches during his time in office is the property of the U.S. government. That's because the president is not a king, he is a public servant, like every other elected official, and what his administration produces belongs to the people.

Trump's lies have been in service of delegitimizing DOJ's criminal investigation of his mishandling of these illegally held documents. Now Judge Cannon has supported Trump's subversive campaign with her indefensible order.

She spends pages emphasizing that an ex-president is not a typical target of a criminal investigation, solemnly invoking the need to bend over backwards to ensure the appearance of justice in pursuing such an atypical target. She all but accuses the Justice Department of misconduct and treats Trump as a respectable figure for whom "reputational damage" looms large.

Her concern for his reputation is laughable. Remember, the world first learned of the FBI's 8 August entry to Mar-a-Lago from Donald Trump. He, not DOJ, attracted all the public attention.

However, that's a relatively minor defect of Cannon's bonkers decision. The much bigger problem with her order is that she bends over backwards to treat Trump with overweening deference neither he nor any ex-president deserves — certainly not when the ex-president has exhibited the bad faith Trump has.

The facts are clear. NARA and then DOJ did their level best to get Trump to comply with the law voluntarily and without undue publicity. He illegally kept hundreds of documents despite multiple attempts to gain his voluntary cooperation. Some of those documents seem to have been incredibly sensitive and their disclosure to other nations could be incredibly damaging to national security.

Judge Cannon's order disregards these outrageous and undisputed facts in favor of protecting hypothetical "rights" or "privileges" of an ex-president that the law does not recognize.

Judge Cannon doesn't state a single reason why an ex-president might legitimately claim "executive privilege" (which is understood to be the province of the current president, consistent with the idea that the privilege belongs to the office, not to its occupants individually). She merely asserts that such a claim might exist.

I can claim dragons might exist. For that to mean anything to you, though, you'd expect me to explain why. Since Judge Cannon can't be bothered to explain herself, the rest of us need not give her assertion any credence.

Even if we did, why should we deem that possibility more important than the possibility that Trump was engaged in criminal misconduct? That's exactly what Cannon does, in defiance of the balance of evidence for each — a lot of evidence for criminal misconduct, no evidence that anything Trump illegally retained somehow "belongs" to him rather than to the presidency by virtue of an unexplained "executive privilege" belonging to an ex-president.

Cannon also prioritizes the attorney-client privilege of a criminal investigation's presumed target above the national security of the United States, by putting the evidence the Office of the Director of National Intelligence needs to conduct its damage assessment in the hands of a special master. How can she expect the ODNI to share control of evidence with a third party whose mission is to remove any items from that evidence that the third party deems improperly seized? If the ODNI deems an item crucial to its damage assessment, can the special master nevertheless remove it from consideration by returning it to Trump? (Cannon's order is silent on any such conflict.) Moreover, according to a former general counsel for the FBI, the ODNI damage assessment requires assistance from the very DOJ and FBI officials whom the order forbids to review the evidence pending the completion of the special master's work!

Speaking of the special master, Judge Cannon's order totally disregards the extraordinary difficulty of finding suitable candidates. The special master in this case must be expert not just in attorney-client privilege but in executive privilege, and must have the highest security clearances or be qualified to receive them where they can only be given on a discretionary basis. Judge Cannon's disregard of the difficulty of finding a special master with these qualifications is a dereliction of her duty to safeguard the government's, and thus the public's, rights.

(By the way, that "attorney-client privilege" business raises an awkward question: why would Trump have so much attorney work product at his residence? Moreover, why would that attorney work product be intermingled with "souvenirs" from his presidency? I find it hard to believe either is normal, even for an ex-president.)

Finally, Judge Cannon suggests that both DOJ and the FBI treated Trump disrespectfully. She was bothered by the fact that the FBI allegedly seized items that it should not have, items of an indisputably personal nature. (The best-known were a couple of Trump's passports.) My understanding is that seizing items not actually covered by a search warrant is not unheard of while executing one; the mistakes are understood to have been made in good faith unless there's clear evidence of misconduct. Trump has not provided a scintilla of evidence that any misconduct occurred. By all appearances he was treated like any other investigative target, no better and no worse.

Trump was told precisely what he should not have kept from his time in office. He had ample time in which to sort those items out from his personal possessions: after all, he (illegally) had those materials for over eighteen months! If, when the FBI executed its search warrant, his personal possessions were still intermingled with those illegally retained materials (and were thus subject to seizure by the terms of the search warrant, an awkward fact Trump ignores), whose fault is that?

Judge Cannon's order rewards Trump for being a slob and a hoarder and for disregarding the plain terms of communications from NARA and DOJ, while it simultaneously ignores the terrifying danger to our national security that his disregard for the law and proper security presented (and may still present if he has more documents, or copies of the ones already removed).

Her order also rewards Trump's amply-demonstrated bad faith during this saga by treating him as if he presented clean hands and honest assertions. Indeed, her order is so inexplicably deferential to him and so heedless of his demonstrated misconduct that it calls into question her own faithfulness to the oath she took when she became a federal judge.

Without a signed confession, I can't say Judge Cannon's a zealot who was determined from the start to favor Trump no matter what. What I can say is, she erred. She erred egregiously, and to her everlasting discredit as a jurist.

[EDITED: I toned down the likely exaggeration of "thousands" of documents and "many" of them being sensitive. I also word-smithed other spots and added a citation for my assertion that the ODNI's assessment needs DOJ assistance.]

Trump, the national security threat

Donald Trump illegally kept records from his time as president.

Worse, after the National Archives discovered his illegal retention and he was asked nicely to hand the records over, he turned over some but not all of them. He could and should have turned over everything, but he didn't.

He has no defense for illegally retaining records. He has no defense for failing to comply in full with the Archives' polite request.

What he has is a manifest pattern of disregarding his obligations under the law.

The Department of Justice learned he still illegally held records and, understandably, the department could have little confidence he would comply fully with another "request". The only way to ensure that the records made their way back to their legally authorized custodians was for the federal government to take charge of the work.

The government first had to get permission from a federal judge. No federal judge will be eager to authorize a warrant for the FBI to enter the home of a former president. The government has to provide a hell of a good reason, or reasons. Evidently, it did.

That's the backstory for the FBI entering Mar-a-Lago under the terms of a search warrant.

In response to the FBI search (and resulting seizure of multiple boxes of documents), Trump has claimed either that he declassified any or all of the classified records he held or that there was no need for FBI agents to barge in and search, he would have been happy to comply with a request.

Trump's claims are nonsensical.

First, I very much doubt that declassifying something automatically and by itself gives even an ex-president the right to keep it. There are all kinds of unclassified records to which a private citizen has no right of access. As a private citizen an ex-president ought to have no right to have someone else's FBI file or Social Security number, for instance. So even if everything he held was declassified, he still almost certainly didn't have a right to keep it all.

Second, declassification doesn't just happen with a snap of a president's finger. As Asha Rangappa, Norman L. Eisen, and Bradley P. Moss explain in a detailed and careful piece for Just Security, declassification only takes effect after a careful and deliberate process:

If Trump did in fact order the declassification, he still needed to make sure his staff took the necessary next steps to modify the classification markings on the documents before he could actually handle and store the records (as a private citizen) as if they were unclassified. Under security classification rules, a classification marking on a document has to be treated as valid and binding unless and until a subsequent marking replaces it. Appropriate government staffers would have needed to cross out the classification markings in the headers and footers, and stamped “declassified” on the record noting when it was declassified, by whom and under what authority. Since that does not appear to have been done with the classified documents reportedly identified to date, the documents remain classified and had to be treated as classified for handling and storage purposes.

No matter what Trump claims, if the documents he held didn't go through the process described above, the documents remained classified. If they remained classified, he had no legal right to hold them since he is no longer president. (Even while president it would have been illegal to hold those records at Mar-a-Lago unless the resort had the right secure facilities. It's not clear that Mar-a-Lago did.)

As for Trump's plaint that all anyone had to do was to ask for the records the FBI found and seized, he doesn't deserve the benefit of the doubt.

No honest, patriotic, and law-abiding person who attains the presidency will leave office believing he or she has a right to the records that cross the Resolute Desk; legal counsel will make clear that the law prohibits that. At most, one might imagine that personal notes of no consequence to the nation could be retained, and even that decision would have to be vetted by qualified experts.

Trump didn't hold onto just a couple of notes with sentimental value, either. The first round of records recovery from Mar-a-Lago in January netted fifteen boxes of documents. He showed no sense of responsibility, no sense of his obligation to the country by holding onto so much material he knew he had to right to keep.

It turned out that wasn't even all the material he had. Yet another DOJ visit in June sought (and got) the "voluntary" return of yet more records.

This time, though, Trump swore that was all he had. The New York Times reports that a Trump lawyer "signed a written statement in June [after the DOJ visit] asserting that all material marked as classified and held in boxes in a storage area at Mr. Trump’s Mar-a-Lago residence and club had been returned to the government".

It's clear from the NYT piece, which lays out the history of the interactions between the Trump team and DOJ, that the government tried repeatedly to get Trump to cooperate voluntarily.

So when it became clear he still illegally held records after the June visit, it also became clear that he could not be trusted to comply with the law on his own.

His most ardent supporters will say he made a mistake. While that's hard to believe given what we know, it doesn't matter if they're right because it doesn't matter why he didn't return everything when informed of his "mistake" months ago. The bottom line is, he didn't, and neither the law nor the public is required to give him unlimited at-bats. It was time for the professionals to get the job done.

For the umpteenth time, let me ask ardent Trump supporters to picture a different scenario. Suppose Barack Obama had been found to hold dozens of boxes of sensitive and classified information from his time in office in his basement. When asked nicely to return them, he only sent back about half. Multiple followup visits revealed more material each time. Would you be willing to extend to him the courtesy of asking nicely forever? Of course not. You'd assume that he willfully failed to comply. Ex-president or no, you'd have no patience for an apparent willful disregard for the law.

(Trump, incidentally, has made the incendiary claim that Obama did take a ton of records, illegally, when he left office. The National Archives has flatly declared Obama did not do that. If you take the word of a serial liar like Trump over that of the National Archives — which, if pressed, will back up its statements under oath, something Trump has shown a marked disinclination to do — then we can't have a real discussion because you live in an alternate reality. I hope you find your way back to the real world.)

(By the way, the Republican politicians vehemently condemning the FBI, DOJ, and Attorney General Merrick Garland know all of this. The likes of Kevin McCarthy, who are threatening retribution against Garland and DOJ if Republicans take back the House in November, are contemptible, snivelling Trump toadies unfit to hold office.)

So, Trump illegally, willfully, and tenaciously held onto many documents from his time as president.

The big, hairy, unanswered question is, why?

The best case he could make for himself would be disorganization: "I had all this crud lying around the White House the night before the movers were due, so I ran around just dumping it into boxes. I figured I'd sort it out later."

It's an amusing image, to be sure, but do you buy it? I don't.

Trump's known for tearing up and disposing of documents once he has read them. A man with such a distaste for paperwork wouldn't burden himself with dozens of boxes of it, even if he never had to lift even one of those boxes himself. That is, he wouldn't burden himself with it unless he thought it would be worth his while.

Mar-a-Lago is visited by all sorts of people. While Trump was president, Mar-a-Lago was visited by a woman, a foreign citizen, bearing a thumb drive containing malware. Why did she attempt to enter? (She was stopped.) The obvious inference is that she was trying to spy — on Trump, his staff, and/or other guests — for her country.

Has anyone kept track of who has visited Mar-a-Lago since Trump left office?

The Secret Service's job is to protect Trump and his family from physical threats, not to safeguard whatever sensitive information might be on the premises. That information would only be as safe as Mar-a-Lago's private security could make it, and in any case, the information would be in Trump's apparent custody so he could do what he liked with it.

It's possible, then, that Trump has sold classified and/or sensitive information.

This is a staggeringly alarming possibility. It's one that we could not have imagined of any previous president. It's one that I frankly would rather not imagine even of Trump.

Yet an objective appraisal of Trump's behavior while in office (indeed, for his entire adult life) makes it impossible to discount that possibility. He has never hesitated to put his own interests above everyone else's. For example, it was unbelievably dangerous for him as president to have private talks with Vladimir Putin with no other American present, as he did at least once. (Putin's translator did double duty.) Subsequent to another Putin chat he confiscated the American translator's notes and forbade the translator to discuss the conversation. Those actions were not in the public interest; they endangered all of us by giving Putin incredible leverage over Trump. Trump has never explained why he acted with such breathtaking recklessness and indifference to the national interest.

Trump also, of course, engaged in more public and obvious displays of self-interest during his time in office, funneling millions of taxpayer dollars to his own businesses by, for instance, requiring the Secret Service to pay for accommodations at his properties. However, the Putin episodes demonstrated that Trump was perfectly willing to endanger the nation's security, too, if he thought it best suited him.

So we are faced with the real possibility that a former president of the United States knowingly and willfully sold, or wanted to sell, national-security secrets.

For all our sakes I hope he didn't. However, his behavior in office (and before) proved that he is selfish and immoral enough that the idea can't be disregarded.

The best way to approach politics

Courtesy of Steven Pinker's 2018 book Enlightenment Now: The Case for Reason, Science, Humanism, and Progress, page 366:

Reason tells us that political deliberation would be most fruitful if it treated governance more like scientific experimentation and less like an extreme-sports competition.

That's the takeaway, for those afflicted with tl;dr (too long; didn't read). However, that's the conclusion of a longer passage worth quoting for context and nuance:

The facts of human progress strike me as having been as unkind to right-wing libertarianism as to right-wing conservatism and left-wing Marxism. The totalitarian governments of the 20th century did not emerge from democratic welfare states sliding down a slippery slope, but were imposed by fanatical ideologues and gangs of thugs. And countries that combine free markets with more taxation, social spending, and regulation than the United States (such as Canada, New Zealand, and Western Europe) turn out to be not grim dystopias but rather pleasant places to live, and they trounce the United States in every measure of human flourishing, including crime, life expectancy, infant mortality, education, and happiness. As we saw, no developed country runs on right-wing libertarian principles, nor has any realistic vision of such a country ever been laid out.

It should not be surprising that the facts of human progress confound the major -isms. The ideologies are more than two centuries old and are based on mile-high visions such as whether humans are tragically flawed or infiniely malleable, and whether society is an organic whole or a collection of individuals. A real society comprises hundreds of millions of social beings, each with a trillion-synapse brain, who pursue their well-being while affecting the well-being of others in complex networks with massive positive and negative externalities, many of them historically unprecedented. it is bound to defy any simple narrative of what will happen under a given set of rules. A more rational approach to politics is to treat societies as ongoing experiments and open-mindedly learn the best practices, whichever part of the spectrum they come from. The empirical picture at present suggests that people flourish most in liberal democracies with a mixture of civic norms, guaranteed rights, market freedom, social spending, and judicious regulation. As Pat Paulsen noted, "If either the right wing or the left wing gained control of the country, it would fly around in circles."

It's not that Goldilocks is always right and that the truth always falls halfway between extremes. it's that current societies have winnowed out the worst blunders of the past, so if a society is functioning halfway decently — if the streets aren't running with blood, if obesity is a bigger problem than malnutrition, if the people who vote with their feet are clamoring to get in rather than racing for the exits — then its current institutions are probably a good starting point (itself a lesson we can take from Burkean conservatism). Reason tells us that political deliberation would be most fruitful if it treated governance more like scientific experimentation and less like an extreme-sports competition.

I get as exercised as anyone when my own political beliefs are on the losing end of political contests, including when the U.S. Supreme Court goes against my cherished hopes and dreams. Yet it's all too easy to forget why we get exercised — that is, angry, frustrated, despondent, etc. — which is to say, we forget what really matters: the actions we take, or don't, as a society.

We're stumbling through this life together. We ought to commit ourselves to figuring out the best ways to do that, irrespective of party. Politics ain't beanbag, as the old saying goes. Well, it ain't football or baseball or any other sport, either. It's an ongoing experiment. Let's treat it like one, with care and respect — and with the sobering knowledge that we won't have the luxury of maintaining the status quo sometimes.

Arizona law protects police, not people

In September a new Arizona law will go into effect:

Under the law, it is illegal for someone to record law enforcement officers if the person is within eight feet of an area where the person knows, or should “reasonably” know, that law enforcement activity is occurring, or if they receive a verbal warning from an officer about the rule.

Law enforcement activity could include questioning a “suspicious” person, conducting an arrest or handling a disorderly person, according to the text of the bill. A violation is a misdemeanor offense, with a potential penalty of up to 30 days in jail and fines of up to $500.

There are exceptions for people on private property, in a vehicle stopped by the police, or those who are the subjects of police contact, as long as they do not interfere with officers’ actions. There are no exceptions for journalists.

Why was this law enacted?

State Representative John Kavanagh, the bill’s sponsor, said that there was little reason for bystanders to be within eight feet of an on-duty police officer and that the law would protect people from getting close to dangerous situations and prevent them from interfering from police work.

So according to the sponsor of the bill, the law is to protect people.

Then why doesn't it just call for people to stay eight feet away from police unless they're directly involved?

Why does the law limit its scope to recording police activity?

What is it about watching and recording police activity that constitutes interference with that activity?

These are rhetorical questions, of course, because we all know the answers.

This law isn't about protecting citizens, it's about protecting cops — from accountability.

Rep. Kavanagh, you and the other legislators who voted for this bill, and Gov. Ducey, are full of it.

Yo, Clarence!

In his concurrence to Samuel "Sammy the Bullshitter" Alito's abomination of a decision in Dobbs v. Jackson that ends the federal right to abortion, Clarence Thomas writes:

... in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. ... After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.

That's Thomas arguing for rolling back the rights to contraception, same-sex relationships, and same-sex marriage, respectively.

(By the way, to support his views in his concurrence, Thomas nearly exclusively cites his own words from other decisions, dissents, and concurrences. That he seemingly can't cite other Justices suggests something rather, um, lonesome about his views, doesn't it? That's quite a position for a Supreme Court Justice to find himself in, unable to cite anyone who agrees with him. Even so, he's willing to impose his singular and unrepresentative views on 330-odd million of us. That's some humility and self-restraint you have there, Clarence.)

But I seem to recall another exceedingly controversial — indeed, once-illegal — marriage-adjacent practice, namely, marriage between "the races". What about that, Clarence?

I hear only deafening silence from your corner of the room. However, a bystander is whispering in my ear. What's that? You say Justice Thomas himself is married to a woman considered not of the same race as he? Ohhh. I can see why it might be exceedingly inconvenient for him to broach that topic. Mm, yes.

However, there is such a thing as principle, isn't there, Clarence? It scarcely befits you, a self-proclaimed impartial arbiter of the Constitution and the law, to exempt yourself from your own judgment of what does and doesn't pass Constitutional muster. That would hardly be equal treatment under the law, would it? In fact, exempting yourself from the logical consequences of your judicial principles would make you — perish the thought! — a hypocrite, wouldn't it? And not just any hypocrite, but a hypocrite who has the final word, more or less, on any legal controversy in the land. That's hypocrisy and self-dealing on a level to which most of us can never aspire.

I'm not the only one who noticed that Thomas left out any reference to interracial marriage:

Jim Obergefell, the plaintiff behind the Supreme Court's landmark ruling on same-sex marriage, said Friday that Justice Clarence Thomas omitted Loving v. Virginia on his list of Supreme Court decisions to "reconsider" because it "affects him personally."

"That affects him personally, but he doesn't care about the LGBTQ+ community," Obergefell said on MSNBC's "The Reid Out."

Harsh. But true, though, eh, Clarence?

In fact, it's not just that you don't care about the LGBTQ+ community, your hidebound religious sect positively loathes that community, doesn't it? You're fine with dumping on that community, or on any practice, like contraception, that offends your sect, aren't you? You and your fellow religious fanatics have no reason other than your religious strictures for going after these activities and people, do you?

Silly me, thinking that the very arbiters of the First Amendment's Establishment Clause would themselves honor that clause as binding on themselves. ("It only mentions Congress, and we're not Congress!!", I hear you cackle in glee.)

But I've wandered from the main point.

The Ninth Amendment of the Constitution states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

As Justice Kennedy wrote in Lawrence v. Texas:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

However, as Scalia observed:

... the [Ninth Amendment’s] refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

(cited in note 5 of that congress.gov page)

In short, a person with human feeling and empathy will find, as some Justices have, more rights for people in the current Constitutional text. Scalia, Thomas, Alito, and their fellow reactionaries who recoil from "the manifold possibilities" of modern life will take those rights away on the grounds that they're not spelled out in the Constitution.

So the only long-term defense against the reactionaries on the Court is to list, with tedious specificity, the rights we want protected, via Constitutional amendments. Otherwise, there's no recourse against the Alitos of the world middle-fingering us.

That goes for your right to marry a woman of a different race, too, Clarence. Don't bet against other federal judges, including your five allies among the current Justices, revisiting that unenumerated right during your lifetime tenure. Even from your lofty perch you must have noticed that white supremacists are out, very loud, and very proud these days. They might like your wife, who puts out authoritarian-friendly noises they can construe to be supportive, but don't assume they like you. If you want your marriage to continue being recognized across state lines, I'd start gathering signatures if I were you. A judge is supposed to avoid political activism but you've never let that stand in your way, so go to it.