Amy Coney Barrett’s Constitutional Canards Redux

About a year ago, on Facebook, I shared a lecture given by Judge Amy Coney Barrett of the 7th Circuit Court of Appeals, noting that:

(1) it was an excellent lecture, and

(2) she could well be the next Associate Justice of the Supreme Court of the United States.

I can see now from this video’s pathetic view count (791 views!) that most of my Facebook friends did not take me up on my invitation. However, now that Judge Barrett is indeed the frontrunner to become the next Supreme Court justice, maybe it’s time you, my public readership, corrected the errors of my Facebook friends?

Feel free to watch this at 2x speed. It makes the time pass much faster. Also, the actual lecture ends at the 44-minute mark. The last part of the video is Q&A, which is much less interesting, because most Q&A at lectures of this sort is off-topic and low-quality.

The topic of the lecture is “Canards of Contemporary Analysis.” Riffing on a 1989 lecture by Justice Scalia at the same school, Barrett names several very common legal ideas — ideas so commonplace they usually slip past without any scrutiny — and scrutinizes them.

SPOILERS –

The canards she dismantles are:

  1. “Textualism is literalism.”
  2. “A dictionary is a textualist’s most important tool.”
  3. “Textualists always agree.”
  4. “We must never forget that it is a Constitution we are expounding.”
  5. “Judicial activism is a meaningful term.”
  6. “Congressional silence is acquiescence.”

P.S. I think there’s a 75-80% chance President Trump’s nominee will be confirmed to the Supreme Court before Inauguration Day 2021, and a 55-60% chance that his nominee will be Amy Coney Barrett.

(Nate Silver also rates the odds of Trump’s re-election at about 25%, which would give any Trump nominee very roughly a 100% chance of confirmation.)

So I guess I’m giving ACB about a 58% chance overall of being the next Supreme Court Justice. So she’s the frontrunner, but there’s still a LOT of different people in contention.

For one example, check out my surprise interview with Supreme Court contender Thomas Hardiman, who strenuously and rightly objected to my characterization of him several years ago. Judge Hardiman is still on the President’s approved list, although it is unlikely a man will be appointed to fill the late Justice Ginsburg’s seat, may she rest in peace.

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Covid Weather Report for Minnesota: 19 September 2020

OVERALL:

As we enter a third straight month of a stable, low plateau in covid cases, it seems safe to say that what Minnesotans are doing to combat covid-19 is working, and we should continue doing it. We should also use this period of stability to experiment with reopening the state in more ways — starting with the return to school.

THE RETURN TO SCHOOL:

It is not clear to me why schools in my county have not resumed in-person instruction for at least elementary students, given the overall stability of the state’s case counts and the success other school systems have had with reopening (including our own local Catholic schools, now open for three weeks without disaster). Believe it or not, my six-year-old’s class has been really good about masking responsibly.

DETAIL:

The fluctuations from two weeks ago did, indeed, revert to the average. Case levels are stable. This data lags by (in this case) six days.

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Covid Weather Report for Minnesota: 2 September 2020

Over the past few weeks, I’ve been working on my opus And The War Came, about how America’s political institutions are considerably more fragile than widely believed. Since covid figures have been flat as a pancake for a while, I let these weekly covid updates lapse again.

But recent news reports have indicated a covid “surge” underway in Minnesota, and this seemed like a good reason to spend an hour updating my spreadsheets to see where we stand.

OVERALL:

There is no evident surge in Minnesota covid cases right now. Upward trends in confirmed case counts are largely due to increased testing, which is actually good news. Estimated cases are flat, hospitalizations are flat, deaths are flat.

Don’t get careless, because people are still catching covid and dying of it, and carelessness is how we get superspreading and actual spikes. And don’t assume these numbers will stay flat forever. But my recommendations largely haven’t changed.

THE RETURN TO SCHOOL:

I sent my eldest daughter to First Grade this week, full-time in-person, at a local Catholic school. They have been very creative about ways to ensure social distancing. I feel quite safe. However, as a precaution, I have stopped seeing my at-risk parents for the next few weeks while we see whether we actually are safe.

I’m much less confident that colleges and universities will be able to stay open for long, because their educational model simply doesn’t allow the level of social distancing my daughter’s First Grade class has achieved. Local colleges and universities have been ludicrously innovative in some ways (frustratingly pig-headed in others), but I’m not sure anything can keep them running. It will certainly be interesting to see which colleges succeed at in-person education over the next ten weeks or so.

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And The War Came

EDITOR’S NOTE: A few weeks ago, I was looking for caulk on one of the high shelves in my garage, when I found a stack of about a hundred loose pages, held in place by a brick. I had never seen these papers before, but that wasn’t surprising; I’ve only lived in this house three years, and I am still sometimes discovering odds and ends the previous owners left behind in a corner of the attic or the garage. I’ve no idea how long the papers were up there. The first page was covered in dust and dirt, but it’s a garage, so that could mean anything.

The papers turned out to be a single lengthy document, written mostly on wide-ruled looseleaf paper in blue and black ink, with page numbers in the upper-right corners. There are only a handful of crossouts and insertions, so I have to assume that this is the second or even third draft. The document relates a series of events that putatively occurred in the United States of America. There are several graphics, which are printed out on standard white printer paper and, at appropriate places, pasted into what I have come to call The Narrative. These images were all cut very, very close to the edges, as if the author were either a layout perfectionist or trying to save paper by printing lots of images on the same sheet. In any event, these print images, common at the start of the narrative, become very uncommon later on, so that the second half is just page after page of the author’s handwriting. I can only speculate as to why. Perhaps it has something to do with the way the author seems to go through pens faster as he gets closer to the end, as if he had a limited pen supply and was now scraping the bottom of the barrel.

But here’s what unnerves me about these papers:

It’s my handwriting.

I don’t remember writing any of this. For reasons which will become obvious, I could not possibly have done so. But it’s unmistakeably written in my hand, full of my weird obsessions—like the sidebar about conventions in the first section—and distinctive turns of phrase.

The Narrative is written on 79 sheets of single-spaced, double-sided, wide-ruled looseleaf, plus a few toward the end where the pages have clearly been torn out of notebooks. The sheets are identical to the still-sealed pack of NavNeet-brand looseleaf I’ve owned for years; the notebook paper bears an eerie resemblance to the unused pages of my college history notebook. I keep both the looseleaf and the notebook in a cabinet over my desk. (I am looking at them as I type this.) The handwriting is flawlessly me as well, right down to the distinctively crappy way I write the § symbol. It’s so familiar, I can read the author’s mood through the curve of his “j’s”. I do not like what I find there.

This is all… unsettling… especially once you consider the content of the narrative.

So, of course, I decided to blog about it.

I’ve transcribed (or scanned) the entire narrative. This appears to have been the author’s intention; he did, in fact, include handwritten URLs in some places for me to link to. (I have done so.) At other times, especially closer to the end of the narrative, he wrote down an article title, or sometimes just a description of an article—as though he could not find it, but expected me to be able to, for some reason. I did my best, and I think I got most of them correct. I’ve also added a few links of my own where appropriate, particularly to statutes. Because of the strange nature of this document, I’ve left in all the typos and grammatical errors present in the original. Hopefully I haven’t added any more of my own.

With that, I’ll get out of the way and let you read this for yourself.


Looking back, the most surprising thing about it was how unsurprising each step along the road had been.

When we started out, nobody expected it to go where it finally did. Many believed it was actually impossible. Even afterward, we all understood, intellectually, that it could have happened differently.

And yet, looking back, it feels like, while history could have rewritten the details, the story was already written, the actors were cast and waiting in the wings, and the show was determined to go on, one way or another. 

The calamity could, perhaps, have been deferred—maybe if it had been Michigan instead of Pennsylvania, Jocelyn Benson instead of Kathy Boockvar—we might have limped on another 4, 8, 20 years before it came. But the tectonic forces of politics—the Greek gods of our downfall—would not be denied their blood sacrifice.

Maybe we were lucky that it happened when it did. Maybe, with a few more years for the wave to build, it would have been even worse when it broke.

Or maybe I’m just trying to make myself feel better. Maybe we could have avoided it altogether. Maybe it happened because, deep down, we wanted it. Maybe we chose it. Maybe we’re the stupidest, most ungrateful human garbage who ever lived.

Can I walk you through it? Step by awful step, in exhausting detail?

It’s not for you, it’s for me.

I want you to tell me where, in all this, reality went off the rails. I want you to point at something and say, “There! That‘s the weird part that doesn’t make sense! There! That was outrageously unlikely!” I desperately want this not to make sense. I want to blame it all on a fluke.

For myself and for my nation, I want absolution.

The end began the same way it did in 1860: with an election.



On November 3rd, 2020, American voters went to the polls and cast ballots for the office of President of the United States.

This was never supposed to happen. The Founding Fathers established the electoral college specifically to prevent popular elections for President of the United States, because they knew such elections would be dominated by demagogues, money, and the “convuls[ion] of the community with extraordinary and violent movements” (Federalist 68). The electors were supposed to be appointed through something resembling the convention system the Founders adored,* or at least through the state legislatures. The electoral college would thus avoid the destructive, partisan hellscape of direct popular elections for the most powerful man in the country. With indirect elections for both President and U.S. Senate, direct popular elections under the Constitution were supposed to be confined to the House of Representatives.**

The electoral college was the Founders’ first and greatest failure. State legislatures immediately started transferring the constitutional authority to appoint electors from themselves to The People. Within fifty years, every state but one (South Carolina) held a statewide, popular election for President, usually without even listing the names of electors on the ballot. Electors themselves became loyal, bound partisans devoted to their candidates, not the deliberative, flexible citizens the Founders had planned on. The small-r-republican electoral college, designed specifically to escape the corruption inherent in mass democracy, had been subverted into a tool of mass democracy.

Except not quite. Even though it usually functioned like a direct popular election, the electoral college system would—very occasionally, very quirkily—vomit up an electoral college winner who did not win a plurality of the votes. It is impossible to say whether the Founders “intended” for this to happen from time to time, since the whole system where individual citizens cast ballots for President is so divorced from what the Founders envisioned that the question has no meaning. But it is no surprise that, when one side wins a national popular election (that was never intended to exist), and the other side loses the national popular election but happens to win in a few specific territories that let them win the electoral college… this makes people on the losing side feel like they’ve been cheated.

This semi-direct election of the President was, by 2020, a well-established part of America’s unwritten Constitution. Unfortunately, by a bizarre and unlikely coincidence, the popular vote winner had lost the electoral college twice in the same generation… and, both times, the fluke benefited a Republican. Democrats came to feel that the entire system was rigged against democratic outcomes. (They were, of course, correct, but it was not rigged against democracy even a tenth as much as the Founders had hoped.)

*SIDEBAR: While the “convention system the Founders adored” no longer exists, its nearest modern equivalent in 2020 was the model the North Dakota Republican Party used to select its delegates in the presidential primary. The Wyoming GOP also got close. Democratic Party rules specifically forbade a convention system, even in the primary. Outside North Dakota and Wyoming, very nearly everything, even at the primary stage, was decided by direct, partisan, popular vote. And we wondered why our political system was seized up by demagogues, money, and violent convulsions! END SIDEBAR.

**SIDEBAR 2: Direct elections were not just supposed to be contained to the House of Representatives; popular voting was supposed to happen, specifically, in small Congressional districts, with a population of no more than 50,000 people apiece. Local issues and neighborly friendship were supposed to prevent the electoral hellscape from becoming too unbearable. A constitutional amendment ratifying this limit came within a hair’s breadth of passing back in the late 1700s. Instead, by 2020, a Congressional district had more than 700,000 residents, nearly fifteen times larger than what the Founders considered a maximum. Predictably, our Congressmen were remote, distant powers most of us rarely (if ever) met, and they were slaves to campaign cash much more than they were slaves to voters, because they had to have cash just to advertise to all 700,000 of their constituents every cycle! END SIDEBAR 2.


Thus, on the first Tuesday of November 2020, scores of millions of Americans did what they mistakenly considered their “civic duty” and marked ballots for either Donald Trump or Joe Biden to serve as the next President of the United States.

The whole thing played out eerily close to the way it had four years before. Maybe that’s the least believable part of all this: that, after the madness of spring and summer 2020, politics would revert to the mean in a matter of months, even with the pandemic drum continuing to beat steadily into the fall. But the long-term memory of politics is chronically defective, and deep polarization arguably makes reversion to the mean faster and stronger than it is in normal times.

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Covid Weather Report for Minnesota: 12 August 2020

Thanks for your patience. I was on vacation last week. We went up north to the Brainerd area to a cabin resort we favor. It was weird doing everything socially distanced and/or outdoors, but we got through the week with a lot of great outdoor times with old friends, and it seems that nobody at the 30-person resort caught the ‘rona. And the kids enjoyed the lake. I’m back now.

OVERALL:

Minnesota’s covid epidemic is not getting better. But it is also not getting worse. Given what a good position we’ve been in for the past few months, “not getting worse” is really, really good. Continue enjoying your summer safely.

DETAIL:

Our estimated case count over the past almost-month has been remarkably stable. It’s not going down like in, say, Sweden. It’s not going up like in, say, France. (Yeah, Sweden’s getting better, France worse.) Our numbers are just holding steady. This data lags by (in this case) six days.

No photo description available.

“LTC” is short for “long-term care” (basically, nursing homes). The above estimate is for non-LTC cases.

But nursing homes also remain stable, with covid nearly but not quite eradicated in LTCFs. (This estimate assumes test positivity rates between LTCFs and the general population are more or less the same.)

No photo description available.

As I state every week, my daily estimate of “actual new cases” is derived by taking the current 7-day average positivity rate, dividing it by 2% to yield a multiplication factor (minimum 1.0), and multiplying the officially reported non-LTC cases by that factor. This is crude enough that, when positivity is significantly above 2%, the precise numbers may be way off… but it should be accurate enough for us to trust the trendline.

Here is the raw, official state data I use to build these estimates:

No photo description available.

Some media has made some hay about this chart. They have observed that Minnesota is now registering its all-time highest daily case numbers. That is true! But a large portion of that (not all, but lots) is thanks to our expanded testing capacity, which is way, way, way above what we had during our first peak in April/May. You can see that expanded capacity doing its job here:

No photo description available.

Lower positivity rates = fewer undetected cases = more accurate and higher official counts = lower actual cases.

As I noted at the top, all this data lags by 6 days. However, I’ve been eyeballing the preliminary data for this week (as I always do), and we seem to be on track for a continuing plateau.

How are the hospitals doing? They’re working hard, but keeping their heads above water. This data is current as of yesterday at 4 PM:

No photo description available.

The new hospitalizations seem to be reaching their own plateau after a steady rise — exactly what we would expect to see a few weeks after new cases plateau. Critically, we are still far short of our emergency capacity, which I’ve added to the Total Hospitalized chart this week (thanks to the reader who suggested it). I’ve had to double the height of the chart just to fit the capacity lines:

No photo description available.

I still don’t really know quite what non-LTC deaths are doing, but they have definitely gone up since the start of August. That’s not surprising, given the increased hospital demand. (It’s actually surprising it’s taken this long, as I’ve mentioned in previous reports.) Death counts are still not very high.

No photo description available.

Why’s this happening? Not sure. There still hasn’t been time for Gov. Walz’s mask mandate to have an impact on most of these figures.

I remain inclined to give some credit to the apparently spontaneous increase in Minnesotan social distancing (in terms of miles traveled per day) that started 4th of July weekend. That data lags by weeks, so we won’t know for sure until September, but that decline in Minnesotan travel does seem to line up nicely with covid’s slowing growth. I’ll keep tabs.

How long will this plateau last? Not sure. As I’ve said before, covid outbreaks are part opportunity and part luck. It seems unlikely that this delicate stability can last for long, but it’s difficult to predict whether the curve will bend upward or downward next.

IN CLOSING, SOME OTHER NUMBERS:

Some of these numbers have changed slightly from previous weeks. This is due to new data, mostly old tests that didn’t get reported in a timely manner:

Average week-over-week growth in est. cases, June 25th-July 1st: 32%

Average week-over-week growth in estimated cases, July 2-8th: 32%

Average week-over-week growth in estimated cases, July 9-15th: 36%

Average week-over-week growth in estimated cases, July 16th-22nd: 18%

Average week-over-week growth in estimated cases, July 23rd-29th: -4%

Average week-over-week growth in estimated cases, July 30th-Aug 6th: 2%

Date I expect Minnesota’s second peak to surpass its first peak: [not currently trending in that direction].

Please note that predictions I have made about this pandemic have had some hits and some very notable misses.

All data is either directly from here or derived from data from here: Minnesota Department of Health: Situation Update for Covid-19 . I went into a little more detail on some of these data in my post Covid Takes A Breather a few months ago.

Reminder: I break these out between long-term care (LTC) and non-LTC residents where possible. Furthermore, I focus on non-LTC because most of the people reading this are not LTC residents, and most of my advice is not applicable to them.

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Covid Weather Report for Minnesota: 28 July 2020

OVERALL:

For about the last month, Minnesota’s covid epidemic has been trending in the direction of a “second peak”. However, this week, that trend stalled out. By any measure, cases this week climbed much less than they did in recent weeks.

This could be just a short blip, but it could also be the start of a second decline. Either way, it’s very welcome news, because it means Minnesota will remain in a covid “valley” for at least a little while longer. Continue enjoying your summer safely.

DETAIL:

As you can see, Minnesota’s case counts plateaued this week. That could be just a “pause” like the one we had in late May, but it could plausibly be the summit of our “second peak”… which would be great news, because this “second peak” was barely anything. This data lags by (in this case) six days.

No photo description available.

“LTC” is short for “long-term care” (basically, nursing homes). These are non-LTC cases.

As I state every week, my daily estimate of “actual new cases” is derived by taking the current 7-day average positivity rate, dividing it by 2% to yield a multiplication factor (minimum 1.0), and multiplying the officially reported non-LTC cases by that factor. This is crude enough that, when positivity is significantly above 2%, the precise numbers may be way off… but accurate enough for us to trust the trendline.

Good news continues in nursing homes. My estimates show the same thing the state data shows: that new cases have nearly vanished from long-term care facilities. (This estimate assumes test positivity rates between LTCFs and the general population are more or less the same.)

No photo description available.

Here is the raw, official state data I use to build these estimates:

No photo description available.
No photo description available.

Test positivity rates (higher rates = more undetected cases = higher case estimates) have also plateaued, which is good news. For a while there, it looked like they were just going to keep climbing at 1% per week, but, instead, it has frozen up for the past… almost two weeks! Here, let’s zoom in on this:

No photo description available.

Test positivity rates for this week aren’t final yet, but preliminary data shows they’re stable, maybe going down a little. We’re not yet streets ahead, but neither are we streets behind.

Back to bad news: hospitalizations are going up. This data is current as of yesterday at 4 PM:

No photo description available.
No photo description available.

…but this is to be expected. Cases went up for weeks. Hospitalizations go up a week or two after cases go up, and deaths go up a week or two after hospitalizations go up. If cases remain stable or start to decline, then I would expect hospitalizations to do the same in a week or two… and, happily, we have plenty of hospital bed capacity at this point, because our second wave is nowhere near the Red Zone.

Wait, did I say that deaths go up a week or two after hospitalizations go up? Am I sure about that?

No photo description available.

Last week, I thought the jump in non-LTC deaths was the leading edge of the expected increase in death toll after a month of increasing cases. So far, that hasn’t panned out. Indeed, as you can see, the non-LTC death toll jumped down this week just as aggressively as it jumped up last week.

Can we thank Gov. Walz’s new mask mandate for this? Absolutely not. I think a mask mandate is probably good, but the mandate was imposed on July 25th. We don’t even have full data from July 25th yet. Even if it were immediately adopted perfectly by everyone, the mask mandate would take a few weeks to have any visible effect on our numbers. (Besides, remember, we still don’t know how effective cloth face coverings really are, so I’m not getting my hopes up.)

A slightly more promising explanation for this week’s covid stall-out is an increase in social distancing statewide. We’re still waiting for complete data, and it may not pan out… but there was an apparently spontaneous increase in Minnesotan social distancing (in terms of miles traveled per day) starting 4th of July weekend. The timing is just about right to explain a slowdown today. My reservation is that it’s not a very big increase, nor do I see it in other data, but I’ll keep tabs.

So covid growth stalled this week. Why? Not clear. Hopefully it keeps doing that, though.

IN CLOSING, SOME OTHER NUMBERS:

Average week-over-week growth in est. cases, June 25th-July 1st: 32%

Average week-over-week growth in estimated cases, July 2-8th: 31%

Average week-over-week growth in estimated cases, July 9-15th: 32%

Average week-over-week growth in estimated cases, July 16th-22nd: 14%

Date I expect Minnesota’s second peak to surpass its first peak: [not currently trending in that direction].

Please note that predictions I have made about this pandemic have had some hits and some very notable misses.

All data is either directly from here or derived from data from here: Minnesota Department of Health: Situation Update for Covid-19 . I went into a little more detail on some of these data in my post Covid Takes A Breather a few weeks ago.

Reminder: I break these out between long-term care (LTC) and non-LTC residents where possible. Furthermore, I focus on non-LTC because most of the people reading this are not LTC residents, and most of my advice is not applicable to them.

UPDATE 13 August 2020: This post originally posted the week-over-week growth rates incorrectly. Instead of 32%, 31%, etc., the post said case growth was 132%, 131%, etc.. This incorrectly implied that cases were more than doubling every week! Cases in the last week of June were indeed 132% the size of the cases the week before, on average… but that means they only actually grew by 32%. Sorry. Dumb error.

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Covid Weather Report for Minnesota: 21 July 2020

OVERALL:

In Minnesota, covid is climbing steadily back toward a new peak. Unless something about Minnesotan behavior changes within the next week or two, we are likely to surpass our April/May first peak in about a month.

However, for now, we aren’t there yet. Continue enjoying your summer safely. Squeeze in an outdoor cookout with 10 or fewer of your more responsible friends, go eat on the patio of that restaurant you love, continue not going to bars, and mentally prepare for the reality that life will likely become more restricted again as fall arrives.

A mask mandate is probably coming from Gov. Walz, and that’s probably good.

DETAIL:

As for the past several weeks, case counts continue to trend upward, but remain well below April/May peaks. This data lags by (in this case) six days.

“LTC” is short for “long-term care” (basically, nursing homes). These are non-LTC cases. As I state every week, my daily estimate of “actual new cases” is derived by taking the current 7-day average positivity rate, dividing it by 2% to yield a multiplication factor (minimum 1.0), and multiplying the officially reported non-LTC cases by that factor. This is crude enough that, when positivity is significantly above 2%, the precise numbers may be way off… but accurate enough for us to trust the trendline.

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Covid Weather Report for Minnesota: 13 July 2020

OVERALL:

In Minnesota, covid is still in a valley, not a peak, but there are growing signs of a second wave. Fortunately, the new wave is coming much more slowly than the last one, and it may still dissipate before developing into much of anything. Minnesota is by no means in the dire straits that some Southern states are currently in, nor is it likely to find itself in the even-more-dire straits that some of the Northeastern states experienced in April and May.

Continue enjoying your summer safely, with an emphasis on outdoor activities and small gatherings — but begin mentally preparing for a possible shift back toward a more restrictive outlook.

A mask mandate is probably coming from Gov. Walz, and that’s probably good.

DETAIL:

As last week, case counts continue to trend upward, but remain far below April/May peaks. This data lags by (in this case) six days.

No photo description available.

As I state every week, my daily estimate of “actual new cases” is derived by taking the current 7-day average positivity rate, dividing it by 2% to yield a multiplication factor (minimum 1.0), and multiplying the officially reported non-LTC cases by that factor. This is crude enough that, when positivity is significantly above 2%, the precise numbers may be way off… but accurate enough for us to trust the trendline.

The trendline is currently heading up after several weeks of steep decline, and that is bumming me out. On the graph, it doesn’t look like much, because the April/May peak was so much higher… but my estimate indicates that Minnesota’s case count bottomed out three weeks ago, on June 21st, and that the number of cases jumped 50% between June 24th and July 1st. That’s slower than the extremely fast spread we saw in late April… but, if we keep on this pace, we’ll get back to May/April peaks in fairly short order. Hopefully we won’t.

Here is the raw data I use to build this estimate:

No photo description available.
No photo description available.

I take great comfort from the fact that test positivity rates are still holding under 4%. The ideal is 2%, but 5% is the WHO’s official guideline. That means, even though covid is spreading faster again in Minnesota, it’s likely we’re still catching the majority of our covid cases. States like Arizona, with positivity rate over 25%, are likely catching fewer than 1-in-20 of their actual cases — which makes their high reported case loads all the more alarming.

Unfortunately, this is probably the last week we’ll be able to say that. Preliminary data for July 7th-July 12th is not included in these charts, because it’s preliminary… but I can already see that test positivity is going to be over 4% on at least two days next week. That means there will be a bigger gap between “officially reported” new cases and actual new cases.

Good news, though: hospitalizations are still flat, as they have been for nearly a month. Unfortunately, there are indications in the Southern states currently experiencing an outbreak that more cases is likely to lead to more hospitalizations, so we may see this number tick up in the next week or two — but we haven’t yet, and I’ll take that win.

This data is current as of yesterday at 4 PM:

No photo description available.
No photo description available.

Deaths, happily, continue to trend downward. This still appears to be simply because we’ve had fewer cases. Now that cases are going back up, we should watch out for deaths ticking up in 2-3 weeks… but, hopefully, the uptick will be just as slow as the growth in cases.

No photo description available.

All data is either directly from here or derived from data from here: Minnesota Department of Health: Situation Update for Covid-19 . I went into a little more detail on some of these data in my post Covid Isn’t Killing Minnesotans Like It “Should” a few weeks ago.

Reminder: I break these out between long-term care (LTC) and non-LTC residents where possible. Furthermore, I focus on non-LTC because most of the people reading this are not LTC residents, and most of my advice is not applicable to them.

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For a Minnesota Mask Mandate

Gov. Walz is expected to issue a mask mandate this week. I’ve said very little about masks on De Civitate, because I’ve been unsure of the benefits. I think it’s quite ridiculous how masks have been turned into a culture war totem — on both sides. The level of mask-resistance and mask-shaming has been absurd, given how little we actually know about masks.

Most studies out there tell us very little about the efficacy of homemade cloth face coverings, and quite a few blithely compare mask mandates in the United States (where nearly everyone’s mask is homemade) to mask mandates in East Asia, where every man, woman, and child walks around in a full-blown N95 respirator as a matter of longtime social custom. These are not apples-to-apples comparisons, and there’s good reason to doubt that masks are going to be all that useful. Our own Dr. Osterholm has made this point repeatedly, but it doesn’t seem to have sunk in with the general public.

I also acknowledge that a lot of people resist masks because they don’t trust the “health authorities” that support masks. That’s extremely fair. Both epidemiologists and the media have been extremely dishonest with the general public at various points in the pandemic. It’s funny when you think about it: 90% of right-wing “conspiracy theories” about covid-19 were mainstream dogma just 1-3 months ago, and you were mocked for doubting them. (I’m old enough to remember when it was the “public health authorities” who were saying “it’s just a flu” and that it was being exaggerated for political gain!) Now they want you to believe the new dogma is true?

You gave the authorities your trust, and they squandered it. However, I’ve always tried to be honest with you, and so have the few epidemiologists I still take seriously.

What they’re telling me, and what the studies I’m reading are saying, is that there’s pretty good reason to believe that masks — even homemade cloth face coverings — do some genuine good in preventing the spread of covid. That’s not a promise that masks will end the epidemic. It’s very clear that continued social distancing and avoiding indoor close contacts are more important behaviors. But, if, for the next year or so, everyone wears masks when in close contact with others, there’s a pretty good chance that will save several hundred (perhaps even several thousand) Minnesotan lives, and it may spare our economy the trauma of another lockdown.

Meanwhile, the costs of masking are very low. Masks are annoying, but so are pants, and I had to wear those to Menard’s even before the pandemic. I would much rather wear a mask than face another lockdown. One sizable pay cut per year is enough for me, thanks.

Because the cost is low and the benefit potentially quite high, I think a statewide mask mandate, renewable every 3 months for up to 24 months, is a good idea.

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Retraction: Elector Freedom

Four years ago, I confidently informed my readers, in several places, that electors in the electoral college had a solemn responsibility to vote for the American they consider best qualified, not the candidate their party has “pledged” them to. So-called “faithless electors,” I told you, were not faithless at all, but were fulfilling their duty to the Constitution.

I explained why this was the system the Founding Fathers had intended, I cited some solid scholarship in support of this position, and I was greatly heartened when, last year, the 10th Circuit Court of Appeals upheld my position in a landmark ruling.

However, this morning, the U.S. Supreme Court unanimously rejected my position. This is deeply disappointing, because restoring the proper function of the electoral college was one of the diminishing number of ways we might have been able to fix our broken government and electoral system. Of course, the Supreme Court often gets it wrong. Chief Justice Roberts, in particular, is an unprincipled dumpster fire. (Much as it pains me to admit.) But this decision was unanimous… and the devoted textualist Gorsuch, fast becoming my favorite justice, signed on to both opinions giving separate reasons why I was wrong. Maddening though it is, I find it (as usual) difficult to argue with Justice Thomas’s concurrence.

The Supreme Court did not deny that the Founding Fathers wanted a system where electors had freedom and discretion. They did not reject any of the reasons why that system was a good idea. I stand by those. They affirmed that states could give electors discretion if they chose, and I maintain that they should. But the system the Founders wanted is not necessarily the one they legislated, and the Supreme Court determined that the original public meaning of the Constitution does not guarantee discretion to the electors.

I told you otherwise way back when, and I must now retract those statements.

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