Category Archives: Politics

Law and Order, Politics

Originalism

I wrote this post a while ago and shelved it. But with SCOTUS hearings going on, I’ll go ahead and put it up for future reference.

One of the most infuriating straw men being trashed by the Left Wing is “originalism” in Constitutional Law. Some conservatives, most libertarians and I think that the Supreme Court should rule, Congress should legislate and the President should execute in accordance with the written word of the Constitution.

If this sounds rigid and dogmatic, it’s because it is. While “living Constitution” arguments are always tempting, they open the door to a very dangerous arbitrary law. Unless something is written in stone — and/or respected as thought it were — the law becomes whatever those in power want it to be. The entire point of a Constitution is to put a hard constraint on the behavior of our government; to make us a nation of laws not a nation of men (or women).

Still, instead of disagreeing with this view, critics to respond with plain and simple BS: viz David Souter claiming that an “originalist” interpretation would let Jim Crowe stand. This is categorical garbage:

Here’s the problem with Souter’s claims: The Plessy decision is wrong under an originalist reading of the Constitution. Originalism includes the original public meaning of the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Among those privileges or immunities is the right to economic liberty. Remember that the origins of the 14th Amendment lie in the anti-slavery politics of the Radical Republicans who drafted it and spearheaded its ratification. Their philosophy centered on a radically libertarian form of self-ownership, one that included both the right to armed self-defense and the right to liberty of contract. That philosophy was enshrined in the Constitution when the 14th Amendment was ratified in 1868.

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

They key point that critics of originalism miss is that the amendments are part of the Constitution. The most ridiculous criticism I ever heard was from Whoopi Goldberg saying that originalist argument meant she would only get 3/5 of a vote (granted, she have been trying to be funny; it’s hard to tell). But the 3/5 compromise was stripped by the 13th and 14th amendments. No originalist worth his salt would even contemplate that argument.

If you don’t like the implications of the Constitution, you can amend it — as we have done 17 times. If you don’t like the American people having guns, pass an amendment restricting the second. If you think the government should provide healthcare, pass an amendment expanding federal authority. If you think it should ban private discrimination, pass an amendment. That’s part of originalism — that the Constitution can be amended as time goes on.

The benefit is that amending the Constitution makes the rules apparent to everyone. It does not allow courts or legislatures to arbitrarily change our liberties on a whim. (And remember: living Constitution arguments apply to both sides. We saw, with the last Administration, that “living Constitution” arguments can lead to things like ignoring habeas.)

Of course, amending the Constitution is hard. But it’s supposed to be hard. That way, only massive consensus can change the fundamental basis of our government. “Living Constitution” arguments, seen in this light, become the lazy man’s way of changing the Constitution. It’s a way of getting what supporters want without having to get 75% support.

But it’s also divisive. Making “living Constitution” rulings divides the country. It makes opponents feel cheated. It allows motivate groups to simply steamroll the opposition. An amendment, by contrast, because it requires such a huge supermajority, requires building consensus, making arguments and persuading critics.

The suffragettes spent decades working toward the 19th amendment. Yes, it might have come earlier if a court had taken a “living” argument. And it stinks that millions of women never got to vote. But by going the hard route, the suffragettes guaranteed that no one would ever question or dispute women’s right to vote. The same is true of the amendments banning slavery, banning then restoring alcohol use and expanding the franchise to blacks. All of them started out divisive, built a consensus, passed an amendment and became an inextricable part of the American legal structure. Bypassing the process might have brought those positive changes sooner — but likely at the expense of long-term political chaos.

That’s the way originalism — real originalism, not phony-baloney Bush originalism — works. It’s not as easy or as fast as the “living Constitution”. It doesn’t allow for small groups to work their will on the public. But it has worked for two centuries. Maybe we shouldn’t mess with it.

Politics

Why I Left the Right, Part 765

Obama gave a speech yesterday on immigration where he basically endorsed Bush’s immigration policy. In the speech, he rejected amnesty for illegals, called for more border enforcement, said illegals should pay hefty fines and back taxes before even beginning the process of legalization and called for an overhaul of the broken immigration system that created the problem in the first place.

So naturally, every Right Wing blog in the universe is saying it was a call for amnesty.

What color is the sky in their world?

Politics

Friday Linkorama

Non-political links:

  • Best wishes to Christopher Hitchens. I frequently disagree with him, but am rarely disappointed and usually enlightened.
  • Educated women are having more children. I’m not sure why this would be so.
  • As it turns out, our kids is safe on the internets. Not that the media would let you know this. And it’s going to get safer if the xxx top-level domain starts moving porn sites into easily identified and blocked areas of the web.

    • Political links:

  • Another of the worst of the worst is released from Gitmo.
  • Our cowardly media. And they have the temerity to call out Rolling Stone for printing quotes from McChrystal.
  • Remember when Bush held funding hostage to things like abstinence education? Looks like the Obama Administration learned the wrong lesson from this. They’re now holding aide hostage to a pro-choice agenda (modulo National Review’s inevitable exaggeration).
  • Finland creates a right to broadband. But you can not have a right to things; that means you have right to someone else’s labor.
    • Politics

    The Enemy Within

    I’m working on a fisk of some recent utterances by Sarah Palin. But I thought I’d precede that with a short post that tacks in the opposite direction.

    There’s been a recent spate of articles attacking Palin and other conservative women as traitors to the cause of feminism. According to articles like this one in Slate, forwarded or Facebooked by many I know, these conservative women are simply the latest wave of anti-feminist feminists.

    The invocation of the word feminist at a meeting of anti-abortion women can be confusing, but it shouldn’t be. There’s no real reason to consider Sarah Palin a feminist. She’s just the latest incarnation of a long and noble line of feminist anti-feminists: women who call themselves feminist but also object to the existence of the feminist movement and organize in opposition to it.

    It’s been a while since I read Catherine McKinnon, so I don’t have the background to justify my belief that this is categorical bullshit. Fortunately, Cathy Young is here to take this argument apart and give us some background on the writer, who said some truly vile things during the Duke Lacross incident. Her summary?

    The real mystery is why a publication of Slate’s stature, and its “women’s section,” Double XX, would run an article whose main purpose is to exclude dissent from feminist discourse and smear the dissenters … What happened to letting a hundred flowers bloom?

    (More from Reason on this here.)

    The reason this debate caught my eye is that a similar debate is going on in the conservative side of the political aisle, one in which I am deeply immersed. Certain politicians and certain views are being deemed “unconservative” even if they are, at their base, completely conservative. For example, I think taking global warming seriously is a very conservative position. But that has now become a litmus test. Agreement on philosophy and outlook is longer enough; agreement on dogma is required.

    Here we see the same thing. Having a philosophy of equality is not enough; agreement on a platform is required, even if that means denouncing all pro-life women (who comprise half of American women) as anti-feminist. Even though I’m opposed to Palin on cultural issues generally (and abortion specifically), I just don’t see that conflating “feminism” with “the Democratic party platform” helps anyone. It’s certainly not advancing the debate.

    The genesis of this debate is the appearance of Sarah Palin and Michelle Bachmann on the national scene. I can certainly understand why they’re driving some people — especially liberal people, but even moderate people — around the bend. But is it not a sign of progress that female politicians can be just as crazy, stupid and full of shit as their male counterparts? Why must they be seen as some kind of anti-feminist trojan horse?

    Politics

    What Conservatism Has Come To

    Dave Weigel is a libertarian journalist. For the past couple of months, he’s been covering the conservative movement for the Washington Post. Last week, private e-mails of his were leaked to the media and it included some nasty things he had to say about the Sarah Palin/Glenn Beck conservatives — those more interested in ideology than ideas; who confuse brutality with strength; who think “fiscal conservatism” means low taxes, no matter how much we spend; who seem to almost revel in their ignorance.

    I don’t agree with some of what he said — although he’s absolutely right about Pat Buchanan. And I’ve made no secret of my disappointment with Rush Limbaugh. In the 90’s, he blew smoke rings around the Clinton Administration, constantly countering them with facts and logic. He was so effective, the Administration secretly fed him information during the NAFTA debate (a rare occasion when they were on the same side). With Obama, he’s been pure bullshit and demagoguery. The final straw for me was when he described Obama as having had everything in life handed to him on a silver platter — you know, like most mixed-race kids who are effectively abandoned by their parents.

    But the point here is that Weigel’s e-mails private communication. And such communication is easily taken out of context. And should probably not be used to judge someone. Remember when it was bad that someone hacked Sarah Palin’s mail account?

    Well, the conservative echosphere has reacted to the e-mails. Weigel — a libertarian who is no friend of the Obama Administration — had the temerity to express anger over faux conservative and people like Dale Robertson (He’s the Tea Party guy whom all conservatives despise because he showed up to a rally with a racist sign; you’ve seen the picture of him; it shows up a lot in criticisms of the tea party even though he was there for about ten minutes and was asked to leave because of his racist sign). Weigel was also very critical of movement conservatives, Limbaugh and Matt Drudge.

    So he must be a flaming liberal. Read Dr. Zero’s post here and the comments.

    This flare of ideological purity is not an isolated incident. When I express concern about global warming or oppose torture, I frequently get bashed for my “bias” and branded as an Obama-loving liberal. Praise for any “enemy”, especially Obama, is denounced. Criticism of “our side” is left wing hatred.

    Here’s Julian Sanchez:

    But contemporary movement conservatism is apparently so Manichean, and so tightly in the grip of a bunker mentality, that such fine distinctions are no longer possible. To take a dim view of the self-serving demagoguery of a handful of prominent conservatives like Matt Drudge or Newt Gingrich is apparently, now, to display contempt for conservatives as such. If the Princess-and-the-Pea brigade now cheering his departure would bracket their persecution complex for five minutes, they’d realize that he was consistently delivering coverage about as fair and sympathetic as could reasonably be hoped for. What they apparently wanted was a movement hack to dole out indiscriminate praise to anyone claiming the mantle of conservatism–whereas Dave took the right seriously enough to make distinctions between what he saw as its credible thinkers and its nuts and opportunists. Memo to my friends on the right: If you bristle at being stereotyped as an undifferentiated bloc of racists and crude blowhards, maybe you shouldn’t take automatic umbrage when someone points out particular individuals who are.

    Read the whole thing.

    Now to be fair, this criticism applies to the loud minority who are controlling the conservative commentariat and the message boards. The vast majority of conservatives and Tea Partiers are simply concerned about where this country is headed and uncertain, at the moment, as to what to do about it. So they tend to glom onto anything popular without looking too closely at it.

    And that’s why I know that this storm will pass. RIght now, there’s a lot of bitterness on the Right feeding this. They were utterly betrayed by Bush, something the still haven’t come to terms with. And now a liberal is in the White House and all their spleen is being vented on him, even to the point of inventing the kind of man he is out of whole cloth. (Example: I’ve had numerous long and pointless debates on various websites on the restrictive ROE our soldiers are enduring in Afghanistan. I point to articles that clearly show the rules come from the generals. They insist that Obama is a military-hating liberal and the rules are coming from White House lawyers).

    But there the occasional signs of sanity. Mitch Daniels called for a truce on culture issues. The voters of South Carolina completely rejected the vile and somewhat racist smear campaign against Nikki Haley. Whatever his other faults, Bobby Jindal is showing competence in handling the Deepwater Spill. And voters are turning on incumbents of every stripe.

    It may take a while, but eventually this bunker mentality will ease. And something reasonable will emerge. I just hope it’s not too late. The fiscal direction that this country is taking is too dangerous for the conservatives to spend too much time screwing around trying to find themselves.

    'Culture', Cool Stuff, Culture War, Politics, Science and Edumacation, The Nanny State

    Friday Linkorama

    Non-political links first:

  • This is absurd. Law schools are deliberately inflating grades to make their students more competitive. Where does it stop? What happens when every student is Maxima Cum Laude with a 5.0 GPA?
  • They are still digging bodies out of the WTC.
  • Awesome and inspiring story.

    • Political links:

  • I’m not surprised that the author of “Party of Parasites” collects farm subsidies.
  • I never thought I’d call Thomas Sowell a hack, but … well. It’s so depressing to watch so many conservative icons go off the deep end. And for all the Republicans going into hysterics about Obama being a dictator, here is Foreign Policy, to remind us of what a dictator is really like.
  • The tiny DC Vouchers program was a success. So naturally, one of the first things Obama did was kill it. The prose here does not quite capture how much this angers me.
  • It’s amazing how silent all the global warming bad skeptics are on the latest temperature measures.
  • Oh, or Christ’s sake. The Food Grabbers are after happy meals now, bouyed by their imposition of calorie counts on menus — an innovation that … um … increased caloric intake actually. I’m sure that toys draw kids to buy McDonald’s. However, I think it’s very likely that it’s drawing them away from other fast food joints, not platters of asparagus. Where to go for fries is the kids’ choice; whether to go for fries it the parents’ choice.
    • Healthcare, Politics, Sports

    Tuesday Linkorama

    One non-political link:

  • Is FIFA censoring the US non-goal goal? It would not surprise me, actually. When the Olympics were coming to Atlanta, I remember how sensitive the IOC were to any criticism whatsoever.

    • But mostly political links today, I’m afraid.

  • Yet more of the Right Wing’s alternate reality. BP comes up with the idea for an escrow fund at the behest of Republicans. Talk radio denounces it. So do Republicans. Story here. Honestly … if this idea has been proposed by Bush, the talk shows hosts would be hailing it as genius.
  • I must agree that the addiction metaphor for oil doesn’t work for me either. Until we have a viable alternative, oil is all we’ve got. We’re not addicted to oil, we’re addicted to having lots of energy. But casting the issue in that light would change the paradigm from oil enriching oil sheiks to oil keeping our economy going. Can’t have an honest debate, now, can we?
  • Yet another data point on why healthcare is so expensive — a new hospital is being denied. But more hospitals should, in theory, drive down prices, no? (H/T: rpl).
  • Here’s a question. Why is the Right Wing mocking Obama for stopping federal payments to dead people? It’s not like he started the practice. Should we keep writing those checks?
  • Another reason I’m glad I don’t live in Baltimore. And another reason I’m glad I never lived in California.
  • Slight quibble with the point made here about the Saville Commission’s report on Bloody Sunday. I agree that it’s disgusting that no one wants to look back at the awful bloody behavior of the IRA. But, at the same time, we have higher standards for governments than resistance movements. That’s why terrorists cutting people’s heads doesn’t justify torture.
  • Did the Church of Scientology force women to have abortions? At this point, they have yet to earn the benefit of a doubt. But the suggestions is so harsh that I hesitate to believe it.
    • 'Culture', Healthcare, Movies, Politics, War on Terror

    Thursday Linkorama

    2 Comments

    This linkorama is brought to you by the letter H.

    Non-political links:

  • More on the horrific torture and murder of children in Nigeria on witchcraft charges. Worse: the lead witch-smeller pursuivant is being feted by people in this country.
  • Gun cliches. These annoy the heck out of me too.
  • I actually think the discovery of vast mineral reserves in Afghanistan could be bad for that country. Natural resources are frequently more of a curse than a blessing. Think of war-ravaged Africa on the one hand and the British Empire on the other.
  • Coolness. A direct image of an exoplanet.
  • Another study looks at why there are fewer women in science. I expect this will be an unpopular study — note what happened to Larry Summers. But hopefully it will stimulate some discussion. While I think the study makes some points, I’m not convinced we are in the interest-limited regime for women in physics.
  • Jesus. (H/T: Astropixie).

    • Political Links:

  • Bill Kristol, the delusional hack who denounced predictions of sectarian violence in post-war Iraq as liberal hysteria, is advocating for bombing Iran. I should really fisk the shit out of this one. Well, somebody already did.
  • Why I Don’t Like Big Government, Part 135: Apple is getting castigated and threatened for not genuflecting to Washington. We’ve seen similar things happen to Microsoft, Paypal and Google. If you become powerful, you have to give Washington their pound of flesh. There is no opting out of the lobbying game.
  • I remember Margaret Thatcher. I admired Margaret Thatcher. You, Sarah Palin, are no Margaret Thatcher.
  • You can add Denmark to Spain and Germany as countries that have lost jobs as a result of “investment” in green industries. Broad tax incentives, not subsidies, are the way to go here. Subsidized industries are almost always an economic drag.
  • Illnois educators are retiring well.
  • Yet more unintended consequences, this time from bank charge restrictions.
  • As I feared, Republicans want to fix healthcare by removing the insurance mandate but leaving everything intact. This would be the only thing worse than the current bill — it would destroy the insurance industry.
    • Politics, Science and Edumacation

    Both Sides Backward on AGW

    1 Comment

    The latest temperature trends look grim. And the person saying so is not some Gore-sniffing alarmist lunactic — it’s Ron Bailey, a “good skeptic” on climate change. And yet the GOP remains less informed on the issue than on online humor magazine.

    That Cracked article, in addition to being funny, outlines many good points on the debate. Specifically, the potential positive effects of global warming but the necessarily dangerous risks we are taking. In the end, that’s what the issue comes down to for me. The planet is pretty habitable right now. It’s certainly possible — in fact, very likely — that the deleterious effects of global warming are exaggerated. But do we really want to find out what how bad AGW is by irreversible experimentation? Again, I’m not on board with radical solutions. But a carbon tax combined with an overhaul of the corporate tax code and investment in R&D that is doled out by scientists (not politicians) seems a low price to pay to mitigate a potential danger.

    That having been said, I think the science community is wrong in praising the decision to let the EPA start setting global warming policy. Yes, the Court decided that this was within the purview of the Clean Air Act. But with such a contentious issue, i would much rather have Congress be making the decisions. Not because they will do a better job, but because Congress is accountable and the decisions it reaches have to come from something approaching a consensus. Putting these decisions into the hands of an unaccountable bureaucracy that can rule by fiat is a recipe for political, if not scientific, disaster.

    Moreover, pawning this off on the EPA is Congress trying to weasel out of their obligations and pawn difficult choices onto an unaccountable bureaucracy. This is simply the latest iteration in their general refusal to govern. Congress won’t pass a budget this year. They notoriously punted the decision on the Iraq War to the President. I’m disinclined to allow more of this nonsense. They need to govern, if it means occasionally means doing something unpopular and getting unelected.

    One aspect of my libertarianism is that I am obsessed with process. The reason, a Megan McArdle likes to say, is that if you govern with a good process, you will, on average govern better. Too many people are focused on the goal — doing something about global arming — and not focused enough on the process. The Iraq War is a perfect example of what happens when you ignore the process. If Congress had done its Constitutional duty — debated the War and then issued a declaration of War — we might have gotten a better result than we ultimately did.

    I doubt those applauding this decision would applaud Bush if he’d authorized HHS to regulate abortion. Or would cheer if he’d given the military authority over all national security issues, including habeas (although, in the latter case, they’d probably have defended the Constitution better than Bush’s Legal Creeps). And therein lies the dilemma. People cheer when their side “does something”. But they shudder when the other side does. If we respect the process, these problems are mitigated.

    For several decades, the liberal agenda was advanced by judges, not legislatures. And while some of the causes were worthy (civil rights, for example), the manner in which the agenda was advanced hardened the opposition; made them feel like the were being controlled by an unelected and unaccountable judiciary.

    If we go the same route this time, it will simply give the Right more ammunition to claim that AGW is all a big conspiracy to empower government. Do we really need more of that?

    'Culture', Healthcare, Humor, Politics

    Saturday Linkorama

    Bouyed by Tim Howard’s soft hands…

    Non-political links:

  • I swear this isn’t political, it’s funny: Barack Obama was apparently not in the video for Whoomp there it is.
  • A nice post from my favorite web movie critic on the birth of his son.
  • Woman claims she was fired for being too hot. I’m dubious.
  • Heh.
  • The inevitable articles about the world economy suffering from the World Cup miss the point entirely. Life has to be about something. It can’t all be dollar and cents. Joy and excitement have value too.

    • Political links:

  • Is one-third of healthcare spending wasted? Maybe. But it is so difficult to tell, in advance, what will be effective and what won’t be.
  • This crosses me as an extremely bad idea. Giving the President the authority to control the internet in an “emergency”? All we need is to get Sarah Palin elected and she’ll declare a national porn emergency and shut down the whole smash.
  • Again, I ask: what is the point of electing liberals if they’re not going to do some liberal things like cut our bloated defense budget?
  • I’m with Bainbridge. The change in budgeting rules could save us a lot of money. It’s a good idea from the Obama team.
  • It comes as no surprise to me that some anti-Walmart sentiment is being stirred up by the competition.
    • Cool Stuff, Movies, Politics

    Wednesday Linkorama

    Fueled by Abby taking swimming lessons…

    Non-political posts first:

  • OMG, are these photos beautiful.
  • See, this is what God (or Gore) invented the internet for.
  • Another stunning post from TNC.

    • Then political ones:

  • Let me get this straight. We pay $3 billion a year to subsidize cotton growers. Brazil takes us to the WTO. Instead of ending the subsidies (remember the budget crisis?), we will now pay them $150 million per year to make up or it, a bounty that will presumably extend until we are paying billions in subsidies to cotton growers around the world. OK.
  • Government is different. If you blow the whistle on a corporation, you get rewarded. If you blow the whistle on the government, you go to jail. It’s not just supposedly classified info either. Obama has ramped up prosecution of government whistleblowers throughout the system.
  • More form the Right Wing Fantasyworld. That’s twice I’ve linked to thinkprogress in one blog post. Damn you, Sarah Palin! It used to be the Left that just made shit up (3 million homeless, murder being the leading cause of death in women, no history of gun ownership, etc.)
  • Speaking of Fantasyland, Reuters gets caught again doctoring photos. Not that the American media is exactly covering themselves with glory.
  • I have to agree with Morrissey and Bainbridge. The Zogby poll being touted by people as proof of liberal ignorance about economics seems more designed to get a certain result than to show anything. While I agree with some of the points stated as “enlightened”, those point are not beyond dispute. Besides. I shudder to think what a poll of conservatives on scientific issues would show.
  • Once again, we don’t need more regulation. We need to enforce the ones we have.
    • Civil Liberties, Movies, Politics

    Monday Linkorama

  • A Tale of Two Counties that perfectly illustrates how we’ve gotten into such a deep fiscal hole.
  • I love the graph at this site about Cash for Clunkers. It perfectly illustrates the point the critics were trying to make. The program just changed when people bought cars, not whether they bought them.
  • This is amazing.
  • Nope. No such thing as defensive medicine. Nothing to see here. Move along.
  • Jesus. Why do politicians have to stick their noses into everything.
  • There is no place in America more dangerous than between Chuck Schumer and a microphone. Now he’s on about call centers. Because the Future of America is in answering phones? Or because people bitch about their calls being handled in India?
  • It’s depressing to read stories like this. The Obama Administration is no friend of liberty. Oh, and Jim Bunning is an asshole. But you already knew that.
  • However, one of the things I like about Obama is his calm demeanor. Apparently, this isn’t sitting well in some quarters that think he should blow his stack more often. I’m sorry. The last thing we need in this country is another president who promotes a perpetual sense of crisis.
  • Another hilarious review of the recent S&C movie.
    • Humor, Law and Order, Politics, Science and Edumacation

    Midweek Linkorama

    Fueled by my re-discovery of the Purple Rain album.

  • The Democrats aren’t happy with lawyers who do their jobs and represent terror suspects. Again, what’s the point of electing Democrats if they’re going to cave on every civil liberties issue?
  • No, the BP oil spill does not validate socialism, as anyone even vaguely familiar with the environmental records of socialist paradises should know. Yet another example of “Disaster Socialism”. BP, however, ain’t exactly what people envision for a free market.
  • Shit like this is why I can’t stand the Right Wing. They live in their own reality. Some kids are punished for wearing American flags; the ACLU defends them; conservatives blast the ACLU for not defending them. WTF, man? These things are not difficult to check in the Age of Google. And this is not an isolated incident. This happens all the fucking time, especially on the environment.
  • Yet another data point on socialized medicine. In the meantime, pressure builds to provide “free” birth control. We tried this when I was a grad student. And no one could grok why their insurance rates went up at the exact same cost as the pills.
  • How Education Policy Works. The DC voucher program showed measurable progress in improving kids’ performance; it was axed. The DC public school system is a catastrophe; it’s teachers are getting a 21% raise.
  • Pre-obituaries. Do not read if you are liberal.
  • Violent crime continues to plunge, as it usually does during tough economic times. Maybe there’s no one worth robbing anymore.