Old Anglophile Rock

I am a big fan of the British Invasion bands of the sixties. Status Quo was a late entrant, but I've always thought that Quo's "Pictures of Matchstick Men" is somehow evocative of the time and the genre.



The Troggs are best known for "Wild Thing" and are sometimes cited as a precursor of punk rock. You don't get that from "Love Is All Around" - apparently written in the afterglow of a roast dinner. The video seems to be getting at something else.



There was a certain innocence in these bands. Gerry and the Pacemakers sing "Ferry Across the Mersey" in this video - taken, I think, from the movie of the same name. I like the part with the dog.





And, for something a little harder, Small Faces' "Tin Soldier."

The politics of fear on health care

State Sen. Kathleen Vinehout just doesn't understand health insurance. She first entered the fray by complaining about the fact that, after she left a job with insurance to go into politics, her son required expensive medical care that was uncovered. In what may be the only story that Shark and Shepherd will ever break, I disclosed that, during the period that she went uninsured and her son came to require care, Vinehout had contributed sizable sums to her own campaign. Her tragedy amounted to a complaint that someone else would not provide her with something that she would not pay for herself.

In this piece in the Tomah Journal, she still doesn't quite get it. She is upset with insurance companies who refuse to cover preexisting conditions. They ought to be required to do so. She laments the fact that "[n]ot only can an insurance company deny coverage to a person suffering from illness, but there are no limits on how long someone can be denied coverage of the very problems for which they most need health insurance."

Here's the obvious problem. Insurance is a form of polling risk. We pay premiums when we don't need it so it will be there when we do. We choose to pay a smaller amount now to protect against the possibility of a larger cost later. The result is that those who don't incur the insured against risk subsidize those who do. Because no one knows ex ante which class they will fall into, it makes sense for all to participate.

This does not work until you wait to buy insurance. At that point, you are not pooling your risk, you are simply trying to shift your loss to someone else. A person who has cancer or, like the Reddess has a raft of athletic injuries requiring frequent orthopedic care, can't really buy anything that can be called insurance. If there is a high probability that a potential insured will incur, say, $ 30,000 in annual costs, any premium that is less than $ 30,000 is not enough. The individual will simply be buying the right to present her bills to someone else and not paying enough to cover the cost.

If any one insurance company decided to cover persons with preexisting conditions, then it would quickly assemble a book of business comprised largely of sick people. It must either dramatically increase premiums or go out of business. If the state requires insurers to take on persons with preexisting conditions, people have an incentive to wait to buy insurance and the same things happens.

If you don't quite follow, imagine what would happen if I was able to wait until I had an accident to buy auto insurance.

But, Sen. Vinehout says, insurers deny coverage to persons with "old" preexisting conditions. They are "too" conservative. Maybe they are. But it is hard to believe that insurers, who have every reason to accept profitable business and who are in competition with others who will penalize them for making the wrong decision, need to be told by the government when they are being too restrictive.

She complains about the following "hideous" practice of insurance companies:

You paid all your premiums and are up-to-date on all requirements of the policy. The insurance company receives your claims for the new health problem and begins digging back into your medical history -- looking back months or even years. The company then alleges you failed to disclose or should have known about some pre-existing condition for which you are now receiving care. The company denies the payment of your claim based on these allegations.

Well, if you lied about a preexisting condition then you haven't complied with the "requirements of your policy." If you didn't lie, if it turns out that you did not have the preexisting condition or were unaware, say, that treatment for x implies condition y, the insurance company isn't going to win this one. Although the matter is complicated with employer-provided group health plans (with respect to which most preexisting conditions can't be excluded), a company that denies a claim in bad faith runs the risk of liability exceeding what it would otherwise be required to pay under the policy.

As I have blogged before, there are complications with application of the insurance model to health care. First, most employer-provided plans are not really insurance against the risk of expensive that will be incurred by some and not others. They cover routine costs which we know everyone will incur and health care costs, unlike auto accidents, are far more certain. They tend to come as one gets older. Health insurance is not only a subsidy of the sick by the healthy but a subsidy of the old by the young. This gives it the element of a forced savings plan in which you pay into a fund that you will probably have to draw on one day. But like other forms of insurance, if the healthy and young can opt out, it won't work.

Second, while we are willing to let someone be stuck with the cost of a wrecked car if they failed to insure it, we are not willing to let them die if they failed - or could not afford - to insure their health. That is why, in the United States, persons who are uninsured are not uncared for (albeit, in some cases, not as well as those who are insured.)

This creates difficult policy questions. You want to find a way to create insurable pools while still maintaining a market for health care because that is the best way to control costs and spur innovation and attention to consumer demands. Everybody agrees that we aren't quite there, but the cause is not evil, mean and greedy insurance companies.

This suggests one final point. Isn't what Vinehout in engaged in here the "politics of fear?" Isn't it demonization of the "other?" Isn't she evading difficult problems by seeking a scapegoat?

Davis v. FEC: The day's most important decision

Heller is a huge case, but, in terms of affecting policies that might actually be enacted, it may not be as important as today's decision in Davis v. Federal Election Commission.
Simply put, Davis involved a challenge to the "Millionaire's Amendment" to the McCain-Feingold Act (officially known as the Bipartisan Campaign Finance Reform Act of 2003 or "BCRA"). The amendment is complicated but, for our purposes, it suffices to say that it raises the campaign contribution limits applicable to a candidate whose opponent has self-financed in excess of a particular amount. For such candidates, it removes the limit on coordinated party expenditures. The idea is to "level the playing field" when someone faces a wealthy opponent. It is important to note that, when the Millionaire's Amendment becomes operative, the "self-financing" candidate (i.e., the one who has spent more than the specified amount of his own money) is still subject to the normal limits on contributions and coordinated party expenditures.

The Court found that this places an unconstitutional burden on the self-financing candidate's exercise of her First Amendment right to spend her own money to coomunicate on behalf of her campaign. For a variety of reasons that I won't get into here, I think this was the right decision.

But what I find intriguing is the implication of the decision for public financing schemes when considered in conjunction with last term's decision in Wisconsin Right to Life v. FEC. That case struck down limitations on the use of corporate and union treasury funds to communicate on matters of public interest during a period immediately prior to an election if the communication mentions a candidate running for federal office in that election and was directed toward persons who would vote in the election in which that person was running.

This means that it may well nigh be impossible to restrict independent expenditures during an election. Again, for reasons that I have given before, I think that is the right outcome.

To combat this, public financing schemes will often provide for additional public funding to be directed to the candidate against whom these expenditures are made. For example, the bill currently pending in the Wisconsin state legislature for the public funding of judicial campaigns would do exactly that.

But if asymmetrical campaign contribution limits (i.e., one side gets to raise more money than the other) burden a candidate's constitutional right to spend his own money, then asymmetrical public financing (i.e., one side gets more public money than the other) burden the constitutional right of persons to communicate on issues of public importance during an election? Wisconsin Right to Life, for example, couldn't urge Russ Feingold to vote on judicial nominees without causing Feingold to be able to raise more money.

The answer isn't foreordained. I suppose one could argue that it doesn't really burden WRTL's speech rights for Feingold to get more money since it is ostensibly not advocating Feingold's election or defeat. You may regard this as a "phony" distinction (as campaign finance reform advocates do), but maybe maintaining the fiction would preserve these schemes. You might also argue that there are corruption concerns present here that aren't present when a candidate spends her own money, but, if those concerns don't support limiting the expenditures, its not clear why they should support burdening it in this way.

But consider a world in which this distinction carried the day. Congress would not be permitted to level the playing field when someone faces a wealthy opponent, but would be able to do so when interest groups seek to speak to issues of interest during an election in a way that implicates a particular candidate, i.e., in a way that is likely to accomplish something.

Davis may signal the death of public financing. But even if it doesn't, it certainly suggests that the First Amendment and campaign finance restrictions are at war with each other in a way that suggests that advocates of the latter ought to surrender or radically rethink their approach.

Blogging Heller

Over at SCOTUS Blog, we learn that Heller will be the last decision announced this morning. I suppose that means that Scalia or Kennedy wrote the majority opinion. I can't imagine that it could be Stevens.

Update: It's Scalia suggesting a broad ruling.

Update: And it is. I am skimming through it but am immediately struck be a few things. As has been reported elsewhere, the Court held that the operative clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") creates an individual right to bear arms that is not limited by the preceding prefatory clause ("A well regulated Militia, being necessary to the security of a free State ..."). This has too implications. First, the right exists unconnected to service in the militia. The right exists to keep firearms for traditional use, such as self defense in the home.

This also means, Scalia appears to say, that the right is not limited to those firearms that would be useful to service in a militia, i.e., the right applies to handguns. This is so, the majority seems to say, because, although the prefatory clause does not limit the operative clause, it informs its interpretation and "[t]he traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense."

But its not an unlimited right. Indeed, interpretation of the amendment to firearms in common use would justify prohibition of those that are not (the Court mentions short barreled shotguns. Thus, in a latter passage, the Court makes clear that the amendment does not bar the prohibition of "dangerous and unusual weapons.

Other limitations may be permitted as well. Here's a passage that will be seized upon by gun control advocates:

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.26


My initial reaction is that the opinion may not restrict most regulation that is politically possible in most places. There will be no handgun bans. There may be gun regulation.

But this is really preliminary. More later.

Update: David Schenck writing at SCOTUSblog, notes that more Second Amendment litigation is likely. Is the Second incorporated against the states? What standard governs firearm regulations and what regulations are permissible. Strictly speaking, Heller only establishes that a federal ban of the possession of a handgun in the home is unconstitutional. As he points out, four justices would not have even found that. Whether Heller has legs, i.e., whether it establishes a robust right to bear arms, will turn on the future composition of the Court. While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.

An object lesson in activism

I have been down in Chicago, attending a conference on empirical legal research at Northwestern University Law School. For me, it's a review of statistical concepts that I have understood conceptually, but, on which, have been really weak on the math. I'm learning how to use software that does the math for me, although I'll still need to work with a statistician. More to come.

While I was gone the Supreme Court decided Louisiana v. Kennedy, holding that the death penalty is unconstitutional for the rape of a child. As I have blogged before, I categorically oppose the death penalty on what are, essentially, religious grounds. So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists.

But finding such a law to be unconstitutional is another matter. Death for the rape of a child would almost certainly not have been regarded as cruel and unusual at the time of its adoption, but Justice Kennedy argues, we must discern evolving standards of decency in applying it today.

Fair enough, but what does that mean? One possibility would be to limit application of the 8th amendment to punishments that are clearly contrary to some observable national consensus. Imagine a renegade red state that imposes death for sodomy or a blue state that imposes it for exceeding your allocated carbon usage. On this view, the Eighth Amendment wouldn't prohibit much, but maybe that's implicit in its nature - it prohibits only things that are cruel and unusual. By definition, those punishments ought to be rare.

Another view - and this seems to be the one adopted by the majority - is to say that the Eighth permits the Court to prohibit punishments that strike it as overly punitive.

The majority does argue that death for child rapists violates a national consensus, relying upon the facts that only five states have enacted such a penalty and that the defendant here is the first such offender that anyone has tried to execute. But, it seems to me, there is a difference between noting that a particular policy choice is made by few states and, as would seem to be the proper question here, concluding that this choice would shock the conscience of those who have not adopted it. As Jim Lindgren points out, there may well be majority public support for death for child rapists. That both Obama and McCain found it necessary to denounce the decision further suggests this to be the case.

Ultimately, the majority's position is that it doesn't matter anyway. The Court must, Justice Kennedy makes clear, bring its own judgment to bear.

And this brings us back to the whole business of "activist v. restraint" and the proper role of the the judiciary. How does the Court go about exercising this judgment? Where does it find the authority for whatever principle that judgment will rely upon? We know its not the original understanding of what the eighth amendment prohibits. It apparently need not be an actual national consensus that a particular penalty is cruel and unusual. On this view, the Eighth Amendment is a warrant for the Court to substitute its own relatively unfettered judgement for that of the legislature.

People like me regard this as problematic. While I support the idea of judicial review (not everybody does) and the Constitution certainly enacts restrictions on legislative majorities, there should be some discernable standard - found outside a judge's own sense of how the world should be - that governs the application of these restrictions. To say that a cruel and unusual punishment can be anything that a majority of the Court thinks goes too far is not really rooted in any external standard.

The heck it's nap time! I've got rights!

I raised one child and have a fair amount of contact with another great little guy who is four years old. It has generally been my experience that one doesn't have to instill a sense of entitlement in the little buggers. They come with it. Apparently UNICEF feels differently.

H/T: K-Lo

Obama's experience

In today's Journal Sentinel, Craig Mastantuono, echoing (perhaps reprising) a comment posted here, takes me to task for suggesting that Obama might be the least experienced person ever nominated for President by a major political party. The opbservation wasn't the point of the piece, but offered as one the reasons that people naturally look to Obama's associates for information about his philosophy and judgment.

Mastantuono cites Wendell Wilkie (who never held public office) and George W. Bush. I can't agree. Bush ran businesses and, weak or not, was governor of one of the largest states in the country for six (not, as Mastantuono asserts, four)years. Wilkie was President of the largest electrical utility in the nation. (Eisenhower had never held public office either but had commanded Allied forces in Europe during WWII.) Obama has never ran anything (except, I suppose,the Harvard Law Review when he was a 3L).

He also cites William Jennings Bryan who, when he was first nominated, had served in Congress for exactly as long as Obama. I'll give him that. Bryan's lack of experience is comparable to Obama. His association with free silver may have made him more of a lnown commodity but I have not carefully studied the presidential election of 1896. In fact, there may be further parallels in that Bryan was an eloquent populist who tended to see things as he wanted them to be rather than as they are. Of course, he never won and its a good thing that he didn't.

One might also mention Lincoln who served four terms in the Illinois legislature and one in Congress. But Lincoln was instrumental in forming the Republican Party and had become well known nationally as an anti-slavery figure.

So I'll stand by what I wrote, although Bryan may have been as inexperienced and little known as Obama.

More on SSM and religious liberty

Writing at the Volokh Conspiracy, Dale Carpenter, a thoughtful and fair minded proponent of same sex marriage, comments on the "religious liberty" objection to SSM. That objection, most prominently pushed by Maggie Gallagher, was restated in a column on NRO earlier this week.

Carpenter, a lawprof at Minnesota, argues that many of the recent examples cited by SSM opponents as examples of SSM impinging upon religious liberty, involved the application of general antidiscrimination laws and some occurred in states where SSM marriage is not recognized. In Carpenter's view, the pressure on religious liberty (to which he is sympathetic) stems from the general movement toward nondiscrimination on the basis of sexual orientation. There is a great deal of merit in his argument.

Dan Markel, writing at Prawfsblawg (where yours truly will take a guest turn in December)picks up on Professor Carpenter's post and argues for a fairly broad (but not unlimited)principle of nondiscrimination anchored in Professor Markel's view that "in almost all cases, sexual orientation is about as morally irrelevant as the race of a person."

I think that Professor Markel's principle illustrates the weakness in Professor Carpenter's suggestion that SSM does not extend the principle of nondiscrimination in significant ways. Let's use the the case of Catholic Charities in Boston as an example. It was essentially run out of the adoption business because it would not place children with same sex couples. Professor Markel thinks that this was the right result while Professor Carpenter would have granted them an exemption.

But SSM marriage does affect the way in which we think about the application of the nondiscrimination principle to Catholic Charities. I may believe (in fact I do) that gay and lesbian persons ought not to be discriminated against in a variety of contexts.

But I may still view marriage as an institution that requires man and a woman because it is a cultural and legal response to the particulars of male-female sexual attraction, the fact that it makes children and the belief that, all things equal, it is preferable for children to be raised by their biological parents living together. In this view, what is relevant is not so much sexual orientation but gender. I may reasonably conclude that my opposition to SSM marriage is not so much discrimination on the basis of sexual orientation but a judgment that marriage requires the union of a man and a woman. That belief may well be rooted in religious belief (see, e.g., Roman Catholic teaching on the complementarity of the sexes)- although, in my case, I am powerfully committed to secular arguments.

SSM, if widely accepted, undercuts that argument because it denies the relevance of gender to marriage. It extends the principle of nondiscrimination and leads us to Professor Markel's view that sexual orientation is almost always irrelevant.

What Andrew Greeley Just Must Know

The Wall Street Journal wonders whether the election of Barack Obama should mean the end of affirmative action. Andrew Greeley says that racism is so pervasive that his victory is unlikely. He suggests that all of the many reasons that someone might not support Obama may just mask racism. I was struck by this passage:

How many of the male readers of this column who are habitues of bars, locker rooms, commuter train bull sessions, pool rooms and men's clubs have not heard the indigenous racial slurs of such environments applied to Obama?

I can't say that I have been in a lot of pool rooms and, while I have been a member of private clubs, they were not "men's clubs." (Do these even exist anymore?.)But I do regularly hang out with some fairly conservative folks in environments where one eats red meat (but not too often, Karen) and drinks scotch. I have certainly been in bars and locker rooms and have had bull sessions. If racial slurs are "indigenous" to these environments, I have failed to hear them.

But Father Greeley is an old man. Let him indulge his smug little bigotries.

H/T; K-Lo.

Merit selection agnostic

The Wisconsin State Journal has endorsed merit selection for the judiciary in Wisconsin. I am a merit selection skeptic, particularly when it comes to a court of last resort which will be called upon to resolve cases of first impression, make common law and decide matters of constitutional interpretation.

There's a huge irony in the move toward merit selection and appointment in Wisconsin. While there are certainly people who tend to a more conservative view of the judiciary who favor some form of appointment, the energy behind the movement - both in Wisconsin and nationally - is from those who tend to have a more liberal view of the judicial function. By this I mean those who tend to reject many of the traditional restraints on the judicial function, be they attention to the original intent of the drafters of law, or a strict adherence to its text. These folks are more likely to see the judiciary as a branch that empowers those who they believe to be unfairly disadvantaged in the political process. This does not require adherence to the letter and intent of the law as much as it requires the willingness and judgment to interpret it in a way that is thought to correct the imbalances that infect the political process. Thus, Senator Obama's most important qualification for the judicial appoinments is that someone "knows what its like to be" certain people that he believes are disadvantaged.

This view is, of course, counter-majoritarian so it as at odds with the very idea of elections. The irony is that it seeks to appropriate the judicial philosophy of those with a more conservative view of the courts, i.e., those who are more willing to accept traditional constraints on the judicial role. Judging, in this more conservative view, might also be countermajoritarian in that it insists on enforcement of the law as the legislature and executive - or framers of the constitution - have enacted it without regard to public sentiment about its enforcement in the case before it. But it is, at the end of the day, a rather modest counter-majoritarianism. It also rests in tension with the idea of elections but is not anchored in a belief that courts ought to react against and shape what political majorities have done. To the contrary, it is concerned with discerning what they have done and holding them to it. We wouldn't have to have a free speech guarantee in the Constitution but we do, so it must be interpreted and enforced. We could have a right to privacy encompassing the right to abortion in our Constitution, but we don't so we ought not to act as if we do.

This is what Chief Justice Roberts meant when he called judges "referees." Those who take a more expansive role of the judiciary are very critical of that analogy. In their view, judges cannot and should not be referees. They say it's an oversimpflication. (In part, it is, but mostly it's not.)

But when it comes time to oppose judicial elections, the analogy comes in handy so the very folks who tend to reject it jurisprudentially, embrace it politically. We need good referees and we certainly wouldn't let the players and fans vote on who they should be. What matters is that they are fair and that they are good.

But the problem is that, if there are folks and existing and potential jurists who don't believe that judges are referees, then competence is no longer the only thing we need to consider. Fairness becomes less important because these folks reject, in significant ways, the very concept of neutrality. In this world - where there are significant differences on what judges ought to be doing - saying that one candidate is more qualified than another - if by qualification we mean legal acumen -is only one relevant consideration. Nino Scalia and Ruth Bader Ginsburg are both very talented lawyers. If I gave them a Civ Pro exam, they'd ace it and critique my stupid questions. But we certainly should not be indifferent to the choice between them or pretend that it can be resolved by resort to "qualifications."

A sophisticated defense of merit selection is to say that it will result only in consideration of the Scalias and Ginsburgs. I wish that were so. Experience suggests otherwise. In further irony, the State Journal offers as a virtue of a potential merit selection plan that the commission that will screen for merit might be made up of a majority of nonlawyers. But if merit consists of legal acumen, only lawyers are able to evaluate that.

How awful is that Bobby Jindal anyway?

National left of center websites and our locally Illusory one seem to think that its funny and perhaps even politically significant that Lousiana Governor Bobby Jindal participated in an impromptu exorcism as a college student. (NB: This is something the Roman Catholic Church says that you should not do.)

I have never been anywhere near an exorcism and doubt that I ever will be. But I have encountered - and those close to me have encountered - events and perceptions that are not readily explained. So I don't discount or laugh at the others' experience of evil or the notion that it can be overcome by faith or prayer.

But let's just concede that this dormitory exorcism was an excess of youth. We have a young man who turned to prayer in an attempt to help a friend. This is supposed to be disqualifying while a young law student immersing himself in radical chic and a young college graduate losing himself in cocaine are entitled to dismiss these youthful indiscretions.

Kathryn Jean Lopez reports the conclusion that Jindal drew from his experience, expressed in a descriptive piece in the New Oxford Review:

“I learned a lasting lesson in humility and the limits of human understanding. Was the purpose of that night served when so many individuals were inducted into the Church? Did I witness spiritual warfare? I do not have the answers, but I do believe in the reality of spirits, angels, and other related phenomena that I can neither touch nor see.”

Well that certainly should disqualify him for higher office.

For Father's Day

Not as old as I usually do, but here's Creed

The last thing it takes is a family

In what certainly has to be in the running for most embarassing op-ed of the year, Judy Warner says that the difference between a father-daughter ball promoting abstinence and a man who kept his daughter locked in the basment and raped her is "only a matter of degree." For Warner, the idea that fathers may have an interest in helping their daughters avoid the perils of the hook-up culture is a "horror" and an "emotional violence" not unlike incest.

Yeah, right.

It's ironic that those on the left who see the family as a model for the state often have great antipathy for actual families. If I had a daughter, I doubt I'd ever attend an event like that and I am uncomfortable with some of the language that is used. I don't think that someone who has sex before marriage is "unpure" although I also realize that social conventions often require a powerful narrative to be inculcated and its more compelling to call for young women to be "pure" than it is to ask them to be "prudent" which in my view is the value underlying abstinence or, at at least, for young girls, the avoidance of casual sex.

But it takes a powerful bigotry to equate it with rape.
.

Shark on Dead Tree

Read my column on Obama in today's Milwaukee Journal Sentinel.

Canadian liberty

Some of us remain under the false impression that Canada is a free country. Free speech, however, is not apparently not a Canadian value. The Alberta Human Rights and Citizen Commission recently ordered that a preacher "shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals ...." The minister had published a letter in the Red Deer Advocate that harshly criticized what it called the "militant homosexual agenda" which he regards as "evil" and "wicked." Harsh and provocative stuff but clearly protected speech in the US.

Last week, a complaint against Mark Steyn was considered by the British Columbia Human Rights Tribunal. Steyn has written a book suggesting that demographic changes in Europe dramatically increasing the proportion of the population that is Muslim will dramatically change the nature of those societies. This is, of course, almost certainly true. (It is already happening in the UK and the Netherlands.)

But it's unlawful in Canada to say so.

Eugene Volokh points out that the Canadian Supreme Court originally upheld the Canadian "hate speech" ban because it thought that it would be limited to extremely offensive statements. That was incredibly naive. The purpose of hate speech laws is to remake society. It is, quite literally, to abolish heresy and that can't be done by abolishing only the most vulgar and inflammatory statements.

Anachronistic Rock

In honor of the One that will save us - work us hard and not let us return to our miserable present selves - make us, for the first time, proud of our country - fix the holes in our souls - and turn the rock into living waters, I offer Barry McGuire:

Thinking About the O

I am working on a column for next Sunday's Journal Sentinel on the relevance of the Rev. Wright and related phenomena to the Obama campaign. Today, the paper ran a piece on Obama's performance among blue collar workers in Wisconsin which was significantly better than it was elsewhere. The story skirts around what I believe to be the most plausible explanation. It comes closest at the end when it suggests that part of the reason may have been that Wisconsin voted before the Wright controversy (although, as author Craig Gilbert points out, Obama did poorly among blue collar voters in other states before the Wright controversy began as well).

Where I begin to differ is with Gilbert's summary of the Wright controversy as a matter of race. I don't doubt that it has racial aspects, although they are not so easily characterized. Part of the reaction to Wright might be a sort of racist revulsion at an overly assertive black preacher associated with Obama. Or it could be, as Linda Chavez points out in the recent issue of Commentary, a perception on the part of whites of a breach in the conditions for racial reconciliation. Her argument, as I understand it, is that whites who see Wright (and the reaction of his parishioners) are stunned by black hostility toward the white world and become wary about voting for a black candidate who has associated with that hostility. In fact, I suppose it is hard to know where the latter ends and the former begins. I imagine that some people would see no distinction between the two.

My own sense is that Obama has - and continues - to go through a process of definition. He has tried to run a post-ideological campaign. But he is, of course, anything but post-ideological. He is, in fact, probably one of the most ideological candidates to run for President and probably well to the left of any Democratic nominee since George McGovern.

He may also be one of the most arrogant.

You can see both characteristics in his gaseous victory speech last week in which he noted, with self described "humility," that perhaps his ascendancy is the moment that our 233 year old country- the most prosperous and free nation in human history - "began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal… This was the moment — this was the time — when we came together to remake this great nation… ."

Dude, get over yourself.

As Mark Steyn puts it, Obama has to order the receding of the waters. He doesn't want to have to use a stepladder whenever he wants to walk on them.

But this may work this year. Bush has made too many mistakes. The stars are aligned with the Democrats. Although Obama, near as I can tell, wants to return to the policies that brought us the economic stagnation and global impotence of the 70s, our communal memory is short. They may be a mistake that we need to make again.

It also be that the desire to elect a black president as a statement of racial redemption - a desire that I regard as admirable - may prove decisive.

The truth about Janesville

The closing of the Janesville GM plant is certainly a blow for that community. GM and the other American auto manufacturers are certainly subject to criticism for failure to anticipate market changes that would reduce demand for SUVs and trucks. The rush on the left to find out who else is to blame for not preventing this reflects - once again - a misunderstanding of basic economics.

Jay Bullock, for example, can't resist blaming George Bush (although he lacks even a plausible reason) and (literally) everyone else for not saving GM from itself. His argument is, essentially, that GM shouldn't have built SUVs, it shouldn't have been allowed to build SUVs and consumers should not have wanted them. The underlying assumption is that someone should have done something to make sure that whatever was built in Janesville should never become unwanted.

That type of "industrial policy" is, of course, a recipe for economic stagnation. It would result in far fewer plants to risk one day being closed because it would necessarily require policies that restrict market changes and would require the government to interfere in the market, artificially manipulating supply and demand in a way that would stifle innovation and responsiveness to consumer needs and desires.

In Jay's world, the government would have acted to prevent GM from building SUVs so that now it would not have to stop making them and, as a consequence, throw people out of work. Putting aside the obvious, i.e., that in such a world, GM may have produced nothing in Janesville, the government has no particular expertise in determining what people should or not should not build and want. Rather, the market - through prices - best matches demand with supply.

Sometimes this results in companies going out of business and people losing jobs. Plants that manufacture film, paper checks, and audio or videocassettes are probably not doing well. But the government should not have decreed that they stop producing these things or prevented others from producing digital cameras, developing on-line payment systems or DVDs. As market conditions change or new products are developed, some companies and individuals will lose.

If there is a role for public policy here, it is in internalizing market externalities and helping persons in transition. While some may argue that SUVs or gas should have been more heavily taxed to reflect their contribution to air pollution, certainly no one in Janesville would have supported that. That would have reduced demand - which is precisely what higher gas prices have done.

But what happened here - as tough as it is for Janesville - is what ought to have happened. GM was slow to see changes in the marketplace and is now responding to those changes. It's not the fault of George Bush, the GOP, NAFTA, taxes in Wisconsin or the failure to manage the economy from Capitol Hill.

Of course, the closing (and the circumstances that compel it) are tragic for Janesville and GM. But the claim that we can live in a world where these things never happen is a false - and ultimately cruel - promise.

Obama cannot be permitted to lose

South Dakota and Montana can't get him there but Barack Obama is just about over the line in his pursuit of the Democratic nomination. But is Hillary Clinton unveiling a new end game? Most of the talk about how close Obama is and how Hillary can't win is premised on the understandable assumption that superdelegates who have announced the support for him are somehow irrevocably "his."

It's a good working assumption but, of course, it's not true. "Obama" superdelegates are perfectly free to change their minds. The public debate over what they ought to do (reflect Obama's lead among the committed delegates or follow a mythical national "popular vote" which can itself be measured in multiple ways) doesn't much reflect what they should and will do.

The whole point of having uncommitted superdelegates is to allow supposedly seasoned professionals to make a judgment about what is in the best interests of the party independent of what the voters have done in the state primaries. At this point (and contrary to my own earlier assumption), it appears that Hillary is a somewhat stronger general election candidate than Obama. It's not clear that her advantage is clear enough to warrant a reversal of the party's movement toward Obama as its voters are increasingly moving toward Clinton.

But even if it was, the Democrats are in a box. Dumping Obama would threaten to break the modern connection between African-American voters and Democrats. These voters have come to believe (with some justification) that Obama has earned the nomination and that taking it from him would be an act of disrespect toward an important constituency. Without African-Americans, the Democrats can't win. Ever. Even if, given the likely identification of Obama with far left politics, Clinton is the stronger candidate, there is no choice to be made here.

That's why its over and has been since Super Tuesday.

Marriage amendment survives first challenge

Judge Richard Niess' decision to reject a challenge to the manner in which Wisconsin's amendment banning same sex marriage was enacted is not surprising. The issue before the court was whether the amendment, which provides that "only a marriage between one man and one women shall be valid or recognized in the state" and that a " legal status identical or substantially similar to that of marriage for unmarried individuals" shall also not be valid or recognized, should have been broken into two and voted upon separately. That argument was based upon Art. XII, sec. 12, which requires that "that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such
amendments separately." The idea was that the amendment banned both same sex marriage and civil unions and these ought to be regarded as separate amendments.

The problem with that view is that requiring separate votes one separate but related propositions would probably invalidate most of the amendments to the state constitution, some of which are far more complex and contain multiple provisions expressing different legal principles. Thus, the Wisconsin Supreme Court has held that "[i]t is within the discretion of the legislature to submit several distinct propositions to the electorate as one constitutional amendment if they relate to the same subject matter and are designed to accomplish one general purpose."

Under that standard, rejection of the Art. XII, sec. 2 challenge was an easy matter.

It is still possible that someone will challenge the amendment as contrary to the federal constitution (I think that challenge will be unsuccessful) and, of course, there are a series of potential questions as to its scope.

Shark about town

The Reddess and I spent a pleasant evening out at the Seven Seas at a Club For Growth event featuring a talk by Jonah Goldberg. He gave a hilarious and insightful talk and he and Karen compared notes about our dogs. His Cosmo (long featured at NRO) has arthritis and our Derry has gotten rather needy in his old age.

Jonah talked a bit about his book Liberal Fascism which I have read and enjoyed. It is an intellectual history written for a general audience which makes the point that fascism was a movement from the left. He does not argue that liberals in 2008 are Nazis or that they want to throw people in concentration camps. But he does connect fascist movements in Europe with early twentieth century progressivism (the racist nature of which is often ignored) and traces the desire to remake and collectivize society in contemporary liberalism to the same desire in these earlier movements. This does not mean that this desire will lead to the same things or be expressed in the same ways, but there is a danger, as we say, in trying to immanentize the eschaton.

There are places where I think he pushes the argument too far and there are also (as he acknowledges) fascist temptations on the right. But a belief in limited government and a healthy respect for alternative realms of authority, such as traditional culture and religion, serve as a type of firewall against the hubris that can succumb to the fascist temptation.

In this sense, I think that the book is a useful corrective to the contemporary allegations of fascism. If it succeeds, it shows that what we call fascism was a particular application of socialism and grew from its imperatives. In our tradition, it makes little sense to call fascism a movement on the right. It just doesn't look much like what we call conservatism in America in 2008. To the contrary, it contradicts core conservative principles. It may not resemble what we call liberalism in 2008 either, but, Goldberg says, if the book results in the banishment of the word from modern political discourse, it will have served its purpose.

Father Pfleger's minstrel show

I think this video of Father Michael Pfleger mocking Hillary Clinton and suggesting that white people (or at least those who have whatever he regards as wealth) need to give up everything they have is fascinating. I am not going to claim that Pfleger is another "problem pastor" for Obama. Although his relationship with Obama is far more significant than, say, John Hagee's (non)relationship with McCain, it's not the same as Obama and Jeremiah Wright. Wright is significant because of his long relationship with Obama and what Obama has said about him. Obama has, in effect, invited us to look at the man (and Trinity church) for a sense of Obama's own world view. Wright provides a bit of data (confirmed by many others) that this world view is well to the left of the post-partisan, hopefully-audaciously-unifying stance he wants to take for purposes of the election. It suggests something about who he is and who he may believe are desireable associates.

His relationship with Pfleger is not as close. But I still think that the video is interesting. Pfleger puts on a mock black accent and the congregation somehow manages not to laugh him out of the pulpit. I can imagine how he's come to do this. He wants to show that he is such a good white man that God has granted him some kind of racial transubstantiation. Why the folks at Trinity don't find it a bit creepy is less clear. I guess they are used to it.

The other bit of significance (and this does reflect on Obama) is the reaction of the congregation. As we saw in other videos, they just love this type of race baiting. I don't completely equate this with comparable reactions by white people. There are contextual differences arising from our history, but, at the end of the day, it's effect is just as toxic.

And this was Obama's spiritual home for twenty years. Is it even conceivable that it does not tell us something about him?

Ziegler decision just right

I am not surprised by the Wisconsin Supreme Court's decision to publicly reprimand Justice Annette Ziegler for her handling of some cases involving West Bend Mutual during a time when her husband was one of the directors. One of the things that I do is serve the Court as a referee in attorney discipline cases. Although the final determination as to discipline lies with the Court, I have to make a recommendation. To do that, I often try to find analagous cases and see what discipline was ordered/

It's difficult for two reasons. First, it is hard to find one case that is exactly like another because a variety of factors are considered in determining the appropriate discipline. Second (and this is partially a function of the latter point), for any general "type" of case, you can often find significantly different discipline. This is one of the reasons that type of anectodal analysis done by the hyper-ideological Wisconsin Democracy Campaign is of little value. For cases with a harsh result, you can often find more lenient counterexamples.

But you can get a sense of things. My sense about the Ziegler case has always been that, for someone with no prior disciplinary history on a violation that did not involve dishonesty or knowing disregard of the rules (the court concluded that she should have known that she needed to recuse, not that she intentionally declined to do so) and that resulted in no harm to anyone, a reprimand was the most likely result. In fact, my guess is that, for a matter that was not as high profile as this, the reprimand would most likely have been private. That was simply not possible here.

Some people have suggested that more serious consequences are in order because the former Judge Ziegler now sits on the Wisconsin Supreme Court. But that cuts the other way as well. She was elected to a multi-member Court by voters who were aware of this issue. To remove her - even temporarily - would frustrate the will of the voters. You can just as easily argue that this sets the bar for more serious discipline somewhat higher.

Baby, I'm guilty

Michael Mathias links (approvingly!) to this extraordinarily silly piece by Ron Rosenbaum on the virtue of guilt. Rosenbaum is critical of conservatives for recognizing the value of guilt with respect to historical mistreatment of blacks in America. If we recognize that guilt can be a useful corrective to human sinfulness, why isn't "white" or "liberal" guilt a good thing?

Rosenbaum goes off the rails when he suggests that conservatives should be "more" guilty than liberals. That's anachronistic thinking. The divisions on racial issues between those who call themselves conservatives and those who call themselves liberals in 2008 is quite different than the division in 1958. If I have some special obligation to apologize for an op-ed written by Bill Buckley the year after I was born, then Rosenbaum has some heavy lifting to do to make up for liberal segregationists like J. William Fulbright. As Jonah Goldberg notes, progressives ought to be guilty over their support for eugenics and for the explosion of crime and out-of-wedlock births from the 60's to the 80's.

It is certainly true that many conservatives were wrong on civil rights. Although, for many, the opposition was rooted in constitutional and institutional concerns, they were still wrong. But there are no serious differences over those issues today. One could argue, in fact, that in opposing racial preferences, it is conservatives who remain true to the moral imperative that underlie the civil rights movement.

The larger issue, of course, is this curious notion of feeling guilt over what someone else did. I can regret what others have done. I can recognize that it has lead to some current circumstance that requires attention. But can I - should I - feel guilty about it?

On the Corner, Ramesh Ponneru puts the real conservative critique of liberal guilt:

In complaining about liberal guilt, conservatives generally have other things in mind: the ostentatious display of liberals' superior virtue, for example, or the cheap grace that comes from repenting for other people's sins, or the foolish things that the feeling of guilt leads liberals to do. Rosenbaum doesn't address the actual conservative critique of liberal guilt.

Rosenbaum (or his editors at Slate) unwittingly illustrate this with the subtitle of the piece, "Why it's not wrong to favor Obama because of race."

Tell me all your thoughts on God

I am just about through all 170 of the exams that I had to grade at the close of this semester and am looking forward to more time to spend on some writing projects and preparation for the fall semester. I am writing a piece on the compatibility of notions of substantive neutrality and nonendorsement with the law's treatment of facially secular government speech that impinges in some way upon the audience's religious perspectives and an essay on the First Amendment issues raised by the aggressive use of the judicial canons and recusal standards in judicial elections.

But I also have to rework my Law & Theology seminar. One of the subjects that I treated last time was competing legal and theological reconciliations of the supposed conflict between religion and science. One way to go at this is the current controversy over Intelligent Design and, on that topic, I recently read an interesting review by Joseph Bessette in the wonderful Claremont Review of Books.

One of the things that intrigues me about the ID controversy is the tendency of both sides to treat it as something that it is not. If there is something to ID, it does not prove the God of Scripture. It may be consistent with that God but then, so is neo-Darwinian evolution. It certainly makes it likelier that such a God exists, but She may not look much like the God we apprehend through faith. The prominent atheist Anthony Flew who has, on scientific grounds, come to believe in some type of God does not, for example, believe in an afterlife.

Indeed, according to Bessette, prominent ID theorist Michael Behe - who argues that random mutation and natural selection, although it occurs, has insufficient explanatory power to account for the complexity of life - certainly believes in a superintending intelligence (God). But he prefers to argue that the element that is missing from the neo-Darwinian model, i.e., the extra something that must exist to arrive at the complexity that we see, is not necessarily the tinkering in history of this God. He suggests that "intelligent design is quite compatible with the view that the universe operates by unbroken natural law, with the design of life perhaps packed into its initial set-up."

If this is accurate (I have Behe's latest book but haven't gotten to it yet), then Behe does little more that critique the neo-Darwinian synthesis. He says that it's true (at least in it more modest and documented claims) but it is insufficient to explain the development of life. To use the (somewhat incomplete) example that many of us heard in high school biology, it may be that there is no number of chimpanzees banging on a typewriter that will produce Hamlet.

I can't say whether this is true or not, but its not really religion.

For the same reason, I am not moved by the charge from the other side that ID is some form of "creation science." Maybe some of it is, but there seems to be much more that is not. There is, I suppose, a category question here. Bessette also reviews recent books by astronomist Owen Gingerich and biologist Francis Collins (again I bought it, but have not yet read it) who seem to believe that science rather strongly points to design, but are adamantly opposed to calling that inference itself "science." (Collins also criticizes the notion of irreducible complexity which is part, but not all of, Behe's case.) Presumably, Collins and Gingerich would argue that atheist evangelicals like Richard Dawkins, Daniel Dennett and Steven Pinker also transcend the boundaries of science.

My own view has always been that inferring some design or other organizing is missing from the neo-Darwinian evolution is almost certainly science. One is arguing - from scientific evidence - that the posited mechanism for the origin and evolution of life is inadequate. At least at this point, further speculation about what that something is may be what belongs in the realm of philosophy or religion.

A bit more on same sex marriage

I am a huge fan of the Catholic legal theory blog, Mirror of Justice. On that blog, Rob Vischer of St. Thomas tries to tease out the Catholic objection to same sex marriage if the consequentialist objections to it were to be disproved. In posing the question, he does a nice job of summarizing those objections. He imagines it is 2038, same sex marriage is widely adopted and the following has not come to pass:

-children raised in households headed by same-sex couples are indistinguishable from children raised in traditional households in terms of emotional and intellectual development, rates of physical and sexual abuse, self-esteem, and other measures of well-being;

-children raised in households headed by same-sex couples are no more likely to exhibit same-gender attraction than the general population is, and that the overall percentage of gays and lesbians in society has remained fairly constant;

-rates of sexual promiscuity among gays and lesbians have been reduced in states legalizing same-sex marriage, and rates of committed, monogamous relationships have correspondingly increased in the GLBT community;

-marriage and divorce rates in the general population have not been impacted by the legalization of same-sex marriage;

-state legislatures and courts legalizing same-sex marriage have uniformly rejected calls to extend the concept of marriage to encompass multiple partners.

It is, of course, precisely the possibility that these things may come to pass that consequentialist opponents of same-sex marriage (like me) worry about. I can't guarantee that they will come to pass, but the risk of them - particularly given the existence of alternative solutions to most of the practical problems for same sex couples - and the essential nature of marriage, along with its somewhat embattled state, cause me to oppose redefining it to include same sex relationships.

Would there still be, for Catholics at least, a reason to oppose same sex marriage if we could know that these things we worry about won't happen?

Rob (who I do not know to be an opponent of same sex marriage) excerpts a passage from Princeton legal scholar Robbie George in which George, borrowing on Catholic theology, argues that the union of a man and woman in a potentially procreative relationship is an intrinsic good and that - not its instrumental benefits - is the rationale for legal protection of marriage.

Down with dignity?

Steve Pinker has written a piece in the New Republic criticizing the concept of human dignity in bioethics. It does nothing, he argues, that is not accomplished by a principle of personal autonomy - "the idea that, because all humans have the same minimum capacity to suffer, prosper, reason, and choose, no human has the right to impinge on the life, body, or freedom of another."

This is a classical restatement of contemporary liberalism's "thin" conception of the good. Because we cannot say what has value and what does not, the best that we can do is respect the right of others to choose it for themselves - limited by some type of notion that what one chooses not harm others.

As a prudential rule of thumb, this has a lot going for it. In a fallen world, the "top-down" imposition of values - particularly if accomplished by coercion - is a dangerous thing. (One would hope that our more left-leaning friends might develop a greater appreciation of this prudence in the economic realm.)

But as an assertion of moral philosophy or organizing principle for society, its problems are legion. With respect to Pinker's endorsement of personal autonomy, what exactly gives individual choice its value? Why should I respect the right of others to self determination? Their ability to "suffer, prosper, reason and choose" is not my own. To say that I would have chosen to do so were I behind the veil of ignorance is not particularly persuasive once the curtain is down.

How am I supposed to resist the temptation to act upon my perception that some others do not have the same ability to "suffer, prosper, reason and choose?" The Nazis denied this with respect to the Jews. Peter Singer denies it for infants. Pinker, who has famously said that "the supposedly immaterial soul can be bisected with a knife, altered by chemicals, turned on and off by electricity and extinguished by a sharp blow or lack of oxygen" exhibits a reductionist materialism to which I certainly would not look to protect anyone's life or well being.

As Leon Kass has put it, Pinker seems to know a great deal about science, but "dangerously little" about philosophy and "less than the village atheist" about religion.

H/T: Jay Bullock and Tom Foley

What she said ---

The late and brilliant Elizabeth Fox-Genovese has posthumously published a book entitled Marriage: The Dream That Refuses to Die . National Review Online has excerpted a chapter. Here are the concluding paragraphs:

Many Americans, who come to see same-sex marriage as just another step in marriage’s evolution, will accept the public pronouncements that they are doing no more than supporting “fairness” by extending some valuable benefits to people of the same sex who happen to love each other and wish to live together without shame or stigma. What could be more innocuous? But for the hardcore activists, the real goal is the destruction of marriage as the union of a man and a woman. They aim to discredit all forms of authority — especially God and nature — that dare to tell people how to lead their lives. In the view of queer activists, desire, like love in Carmen’s “Habenera,” knows no law — nor should any be imposed upon it.

In the current climate, the appeal of their position is not hard to understand, especially since most of those who accept it do not begin to understand its implications. If anything, the defense of same-sex marriage looks like yet another logical step in the gradual increase in freedom for all members of society. And since activists, the courts, and the media overwhelmingly encourage this deception, we may readily understand that many people may come to see same-sex marriage as another blow against outmoded and illegitimate forms of authority — a blow for freedom and equality. Buying into this view, however, they will remain blind to the ways in which they are playing into the hands of vast governmental and economic powers. The freedom for gays and lesbians to marry will decisively contribute to disaggregating all of the remaining social institutions that provide the foundations for any collective resistance against political and economic domination.

Contrary to many prevailing views, marriage is not the seat of oppression but rather the last best ground for resistance against it. In binding men and women into loving relations and shared purposes, marriage acknowledges the reality of sexual difference even as it works to bridge that difference and lay a foundation for a vital and, yes, grown-up social life.

Same sex marriage reprised

My post on Friday about same-sex marriage drew some critical comments. I wrote here extensively on same sex marriage in 2006 and am not particularly interested in rehearsing that now. But I do have a few quick responses.

1. My argument is not based, as one reader sarcastically put it, that people will "turn homo." I never said that. My concern is that expanding marriage to accommodate a type of relationship for which it was not designed seems likely to change our understanding of what marriage is for and, subsequently, the rules and mores surrounding it. We have already had a great deal of that over the last fifty years and, while there have been good things about the legal and social changes that have affected marriage, it's decline as an institution has had devastating social consequences.

2. These changes would not come about because someone else's same sex marriage would affect their neighbor's heterosexual marriage. Your neighbor's divorce doesn't affect your marriage either, but no-fault divorce laws did come to affect the way in which we think about marriage. In a legal system that works through precedent and analogy, changes in one rule often lead to changes in another. This is one of the reasons that the fear that same sex marriage will lead to multi-partner marriages is not idle. Indeed, there are legal theorists who explicitly see same-sex marriage as a step in "deprivileging" marriage generally.

3. The analogy between anti-miscegenation laws and laws restricting marriage to a union of one man and one woman is flawed. It is a traditional move on the part of a group that believes itself to be dispossessed to argue that they are just like blacks. Such arguments are almost always wrong. Here, there is a world of difference in interpreting the equal protection clause of state and federal constitutions to prohibit racial discrimination and extending their reach to sexual orientation. They were quite clearly intended to apply to racial discrimination. That courts failed to apply them properly for many years doesn't change that.

They were clearly not intended to apply to sexual orientation. If judges take them to prohibit what they were intended to permit whenever they believe that a democratically enacted distinction is "unjust," we have an imperial judiciary. The only stopping point is are the personal predilections of the court and whatever sense of prudence a majority of justices have at any one time.

Even if you adopt - either for purposes of judicial interpretation or legislative interpretation - a methodology for recognizing accepted distinctions, sexual orientation doesn't fit well within traditional methodologies employed for that purpose. While we can argue whether sexual orientation is immutable. It seems to be less immutable than race or gender but more so than, say, political preference. My sense is that can be changed although not often and only with great - some would argue damaging - effort.

But lots of (even more) immutable characteristics form the basis for distinction in the law. Age, intelligence, disability and even gender are all permissible bases for distinction if they are pertinent to the distinction being drawn. Sexual orientation and gender are relevant to an institution that is designed to channel sexual relationships that are potentially procreative and which occur between genders that experience sexuality in different ways into a form that maximizes the prospect that any resulting children will be raised well and that the different sexualities of men and women will be accommodated.

4. It doesn't matter that not all married couples will or can have children. Marriage is not simply a tool to be taken up when children arise but a social model for the way in which sexual relationships between men and women are best conducted. That the model is overinclusive doesn't undermine it's rationale. In fact, I would be far more opposed to domestic partner laws for heterosexual couples that do not intend to have children than I am to same-sex marriage.

5. Nor does it matter that not all men and women have successful marriages or raise children well. The research is quite clear that children do best when they are raised by their own mother and father in low-conflict marriage. Not all marriages will work out this way and there are single parent and even same-sex couple households that may raise children well, but society has an interest in encouraging the family form that maximizes their chances even while acknowledging that all children will not be raised in this way.

6. The best argument against my view is that there simply won't be enough same sex marriages to matter. I did some research during the campaign to ratify the marriage amendment and it turns out that the number of same-sex couple households is very small and the number with children is not even a drop in a bucket. Of course, this cuts both ways. The absence of marriage for such a small number - to the extent it causes real problems - cannot be a social tragedy and can count for only so much when weighed against concerns about further deterioration in an essential social institution.

But law has expressive as well as instrumental functions. It is not clear that the impact of same sex marriage can be measured by the relatively small number of persons who enter into it.

7. This does not mean that I "always favor" "social engineering" over "individual liberty." First, I certainly don't advocate the criminalization of homosexual relationships. But redefining an institution that is created by the community based upon recent changes in social mores and a desire to appear "tolerant" strikes me as ill advised. This is particularly so given that many of the practical concerns of same sex couples can be addressed in other way.

8. While I am not interested in making arguments about whether homosexuality is a sin (I don't feel that I can make such a judgment), I don't believe that those who do are "haters" or "homophobes." Nor am I willing to say that society has no interest in holding up heterosexual relationships as normative, What I don't think that the law or culture should do is condemn or ostracize those who are gay or lesbian. Refusing to redefine an institution that has arisen for other purposes to include same sex relationships simply doesn't do that.

9. I think it's boring and intellectually lazy to respond to arguments like this by suggesting that those who make it are "really" just motivated by what one commenter calls the "ick" factor. First, the motivation of those who make them doesn't much matter. They either persuade or they do not. Second, while sleeping with men has never struck me as a fun thing to do (women, thankfully, seem to think otherwise) and, on a cerebral level, I am drawn to Roman Catholic theory about the value of complementary in sexual relationships, the "ick factor" is not particularly strong with me. I understand that others can experience the world differently than I do.

10. I'll get to the California case eventually.

They cite cases so it can't be activism

Yesterday's decision by the California Supreme Court mandating same-sex marriage is probably unlikely to survive past November.

I haven't yet read the decision so I'll reserve commentary on it. As long time readers of this blog know, I oppose same-sex marriage on grounds that have nothing to do with moral judgments about homosexuality. Marriage is an institution with mores and legal characteristics that are rooted in the potentially procreative nature of heterosexual relationships and the resulting need to channel the rather different ways that men and women experience sexuality in a way that facilitates the raising of children. Love and intimacy are part of that, but not the whole of it.

It seems inconceivable to me, then, that you can take an institution that has evolved in a certain setting for a specific purpose and extend it to another setting involving a different set of relationships that, while similar in some ways, are not and cannot be the same without causing changes to that institution.

Part of my opposition is rooted in my Burkean nature. Part is informed by the fact that marriage can be adversely affected by things that are, in many ways, admirable (see. e.g., greater appreciation for individual autonomy and sexual liberation) and that these changes can have devastating social consequences (see, e.g., the stunning absence of fathers among the urban poor in the United States).

For that reason, I distrust rapid changes in marriage brought about by the application of abstractions about equality and individual autonomy. These principles may frame (parts of ) the discussion but they don't resolve it.

So the California Supreme Court has found that the state's constitution mandates a change in an essential and longstanding institution that virtually no one in any place or at any time would have dreamed of until, figuratively speaking, somewhere around last Tuesday.

This is why, contra Dahlia Lithwick in this hash of a column, I can call the court's decision activist. By this I mean that it cannot possibly be rooted in a source of authority other than the majority's policy preferences. You cannot reasonably conclude that the people of California intended their equal protection and due process clauses to require a result that, until a few years ago, virtually everyone, rightly or wrongly, would have thought preposterous. An interpretive method that allows you to reach such a result seems unlikely to have much in the way of restraint on judicial discretion.

I am sure, as Lithwick (who seems unable to grasp the concept of separation of powers) says, that there is plenty of "law stuff" in the decision. I'm sure there is. But, as Ed Whelan notes, "[i]t’s rather charming, I suppose, that after all the lawless rulings on same-sex marriage, one might be so naïve as to think that maybe, just maybe, there’s a right to same-sex marriage hidden somewhere in the penumbras and emanations of the California constitution ...."

I suppose that someone might - some day - prove that alchemy can turn coal into gold, but the presumption runs the other way.

Profiles in courage?

Over at Prawfsblawg, Rick Hills wonders if any of the presidential candidates can win the LaFollette Award, his prize for a candidate who is willing to "distinguishes himself or herself by conscientious indifference to public opinion in the service of truth as he or she sees it."

But will either clinch the deal by saying something risky that they obviously believe? (Denouncing the gas tax holiday garners, at most, a tepid honorable mention). Will Obama actually admit that NAFTA neither cost nor created a lot of jobs? Or that eliminating outsourcing would probably also eliminate the Indian middle class and risk economic collapse of unstable economies? Will McCain admit that tax breaks in an era of runaway deficits are silly and demagogic? Will either admit that slogans on Iraq regarding withdrawal time are essentially meaningless, because the situation there is too volatile to predict more than a week in advance? In short, will either address the voters as mature adults rather than as drunken fans at a tailgate who cannot understand sentences too long for a tee shirt?

It seems rather odd that Professor Hills fails to acknowledge that McCain has said some rather unpopular things on withdrawal from Iraq. I also am not entirely sold on the notion that tee shirt slogans don't convey valuable information that many voters use intelligently, but that's a whole other subject.

Do any of the candidates deserve Professor Hills' LaFollette Award?

Obama still stuck on changing the subject

Obama certainly will get the nomination and I still think it is likely to be a Democrat year. But can you really win the Presidency by insisting that issues that, for whatever reason, people seem to care about are "distractions" and "divisive."

The notion that Obama offers some kind of "new politics" or post-ideological reconciliation of the our past divisions has always struck me as fancy silliness. You can believe it only if you regard all attacks on the consensus of left-liberals as divisive. If you can dismiss being "overly" concerned with the war on terror or the cost in lives of a precipitous withdrawal from Iraq, then Obama (who has, essentially, nothing to say about either)appears to be talking about the right things. If your economics tells you that the answer to America's economic slowdown is to reduce the return to work and investment, close the border to trade while effectively leaving it open to an influx of low-wage workers and making an uncompetitive health care market even less competitive, then the other side will look like plutocrats. If you are relatively unconcerned about the integrity of marriage as something privileged over other lifestyle choices or about the threats to the sanctity of life posed by abortion and biotechnology, then those that feel otherwise are mired in resentment and fear of the other. Knock yourself out.

But, if there are (and there do seem to be)many people who believe otherwise - so many, in fact, that they have managed to win seven of the past ten presidential elections - then how does it work to dismiss their concerns as irrelevant? Won't that come off as arrogant and condescending?

If that's what Hillary's continued vitality demonstrates, then the large numbers of Clinton supporters who are telling exit pollers that they will not vote for Obama in November are more significant than they seem to be. Sure, the Democrats will come together, but the independents may not follow. It may be Obama's election to lose, but if he's to avoid that, he may be tasked with changing the narrative of his life and recasting much of what he has done in public life. He may need to learn that he doesn't get to say what others ought to care about.

While I was away ...

... there was a controversy over American TV's sponsorship of an appearance by Bill Maher at the Riverside. Should pressure be placed on American to withdraw their sponsorship? Of course, everyone involved - Maher and those who oppose him - are exercising their free speech rights. Folks have a right to pressure American to withdraw support for Maher, but should they? If we lived in a world in which media outlets and private sponsors had to avoid anyone who might strongly upset a significant number of folks, we'd have pretty thin public gruel. So there ought to be a presumption against this type of thing.

But what about Maher? He's not funny, being the type of guy who thinks that adolescent rebellion is profound. His insights seemed witty and meaningful when I was 17. He obviously wasn't the guy making them. Maher takes the kind of dumbed down apologetics for atheism engaged in by the likes of Richard Dawkins and Daniel Dennett and tries to render them in a way that would have went over at the cool kids table in 4th hour study hall.

But there are those who like it, so what is American to do? We tend to understand efforts to ostracize those who make fun of - or express contempt for - others based on immutable and generally irrelevant characteristics such as race (gender is more complicated). The idea is that we ought not to make fun of people for what they cannot change and what does not normally matter in assessing their character and value as human beings.

But we routinely poke fun at people for what they believe or do. It is fair game, we think, because they can choose these things.

Religion fits uncomfortably between these poles. Most of us do not actively choose our faith and, even if we do, it is a part of who we are and not easily discarded. Yet what we believe about God can have profound consequences for others.

As a consequence, some people argue that religion deserves a certain presumption of respect - something that Maher, who out of malevolence or ignorance, routinely mischaracterizes the nature of Roman Catholicism and other faiths does not observe.

I think a presumption of respect makes sense, but a rule of respect does not. Because drawing that line is difficult, I am generally not in favor of secondary boycotts (i.e., those aimed at those who host or sponsor them) of speakers and writers and entertainers. I wouldn't pressure American to drop its sponsorship of Maher.

But I wouldn't pay a nickel to see him either.

Old songs for Mother's Day

My Mom was a big fan of the Kingston Trio. Played constantly when I was barely knee high.




And, of course, Harry Belafonte:

Louise Bussiere 1935-2008

After a long struggle, my Mom, Louise Bussiere, passed away late Friday afternoon. Arrangements are pending. Mom was, in her later years, a difficult person but I remember her as bon vivant and a bit quirky. I used to joke that she seemed to have acid flashbacks without, as far as I know, ever taking LSD. She was an accomplished artist (but I can't draw a straight line)and, above all, fiercely loyal to me and my sister.

I can't say that I entirely understand it yet, but there is a special difficulty in losing a parent. Of course, you mourn for a loved one but also, at least when the chronology is the customary, for your lost youth, the loss of protection and the passing, in part, of the world you were born into. A new book suggests that this presents opportunities for growth, but, right about now, I'd rather not hear about them.

Mom died as my son arrived at the hospital. He didn't need to see her again.
He had said what he needed to say and she had been unconscious for six days, He told me that he just wanted to be with his dad and aunt and cousin at the end. She let him do that.

Many thanks to those who posted here or sent e-mails of support and sympathy. Blogging will resume shortly.

Blogging in perspective

Activity here has been and may continue to be slow. My mother, Louise Bussiere, took critically ill on Saturday morning. I could reflect on the uncertainty of medical intervention or praise the ICU staff at St. Mary's-Ozaukee (tremendous without exception). But that'll have to wait.

If you do prayers, we'd appreciate them.

Here's another form of anti-intellectualism

Yesterday, as is typical on Thursdays, I participated in Backstory on Eric Von's show. I was frustrated - as I often am - about the fiercely held economic ignorance of certain of my co-panelists. They haven't studied the subject and they are proud of it. For guys like Dave Berkman, the idea that the GOP and free markets have ruined the country is a matter of faith. Yesterday I heard that free markets do nothing for anyone except me and my rich cronies. (Note to cronies: I'm working hard for you here. Shake a little my way.)

One of the things that we constantly hear is that the average family can't get ahead. Real wages are stagnant. This has always struck me as about a third of a truth. We can find studies that claim this but many economists have come to believe that the CPI overstates inflation (because the market basket of goods doesn't accurately reflect what people buy) and, although there have been improvements, use of the CPI to generate constant dollars significantly understates wage growth over time.

There is some corroboration for that in what we see around us. Measures of consumption and product quality show substantial increases over time. Although housing is expensive and we have recently seen the subprime snafu, the percentage of households owning their own homes keeps rising and houses themselves keep getting bigger. College education is expensive but more and more people are going.

Having said that, it does seem that the divide between skilled and unskilled labor has gotten larger. When I was in college, the financial return to a bachelor's degree was rather modest. It has gotten much larger. It does seem that it is more important than it used to be that you get an education or otherwise develop marketable skills.

It also seems clear that, particularly over the past few years, compensation increases have increasingly gone to health care benefits. While some of the latter is certainly attributable to the aging nature of the workforce (if you have older employees, you buy more health care), that is not a problem that is going to go away soon.

Finally, there has certainly been an increase in income inequality in the sense of those at the very top of the income distribution gaining more than those below them, although that this comes "at the expense of" those below is certainly not self evident.

These things are worth worrying about, but the assumption that they can be addressed by things like higher taxes, more social welfare, heavy regulation and unionization doesn't prove itself. Europe has all of these things and folks there are complaining about - stagnant wages.

On yesterday's show, certain of my colleagues seemed to suggest that the solution to high gas prices was for the oil companies to make less money. This seems exactly wrong. We tried a windfall profit tax in 1980. It brought in about 25% of what it was expected to and depressed oil production. ExxonMobil's recently announced net profit margin is a bit under 10%. That's good but hardly seems excessive. If we want to encourage investment in new sources of oil and in alternative sources of energy, there has to be prospects for return to capital deployed in pursuit of those things. As the price of oil goes up, opportunities to develop alternatives or to sell things like hybrid vehicles will present themselves.

We could, of course, tax away those profits and have the government seek these alternatives, but the market - disciplined by consumer demand - is far more likely to develop the best alternatives than legislators who are disciplined by rent seekers. Put the solution in the hands of the government and you get ethanol - a product that is chosen not because consumers demand it but because those who want to supply it are politically powerful.

It is about Obama

It now seems that Reverend Wright has no friends. Either because he has lathered his previous remarks in "context" or because he has shown himself unwilling to take one for the team, the debate is now all about what his association with Obama means.

Our Democrat friends tell us to look away. Wright is not running for office. Obama hasn't said that he shares these views. He's said that he does not. Look at his position papers. They aren't so bad.

This reflects a misunderstanding of the way in which we elect Presidents and our recent history of Democrat candidates who try to run right in the hopes of governing left. Obama has little national history. We don't know who he is and he has been maddeningly vague about that. To paraphrase Hillary, he's heavy on poetry and light on prose. He'll slip into class warfare rhetoric occasionally and has random moments of candor. We can look at his relatively spare record in the Senate (and not like what we see)but his campaign is based on pretty words with little substance. We know he thinks that we "can" do something about "them" but the details are a bit fuzzy.

Policy wonks point us to his position papers but the details don't match the rhetoric. The country isn't going to be changed by a one percent tax credit for the creation of domestic jobs or rolling back the Bush tax cuts for people making over $250,000/year. We do know that he wants to get out of Iraq. We sense that he's an a naive internationalist in the sense of Jimmy Carter on foreign policy. We suspect that he might be a protectionist and that he is farther to the left on domestic issues than he wants to admit.

That he sought out Reverend Wright, adopted him as a father figure and mentor, took the inspiration and title for his campaign biography from a sermon that may have contained some of Wright's more noxious views, prayed with him before announcing his candidacy, had him perform his marriage and baptize his children tells us that what we suspect may well be true. It's not that he doesn't "love" his country or that he shares Reverend Wright's inflamed resentment. It's that Wright's views are apparently within what he regards as the scope of responsible discourse. They offend him now, but they obviously did not over the course of the past twenty years. That doesn't mean that he shares everyone of them, but it does tell us something about where hs is.

That he told us on (figureatively) Monday that he could no more disown Wright than his grandmother and then, with no new information other than Wright's refusal to shut up, disowned him on Tuesday is also instructive.