South Dakota Politics

Obama’s GM Policy Scares the Washington Post

Conservatives frequently claim that President Obama is leading us down the path that Europe blazed decades ago. But that is unfair. To Europe. The European governments socialized their economies by taking over more or less competitive industries and only then running them into the ground.

President Obama has decided to do an end run around decades of mismanagement and sink billions of tax payer dollars into corporations that are already on life support. I can't tell the story better than the Washington Post can. Well, maybe I could, but it's a lot more fun coming from the Post.

IN MARCH, we cheered President Obama when he extended a federal lifeline to General Motors and Chrysler. He was risking a fair bit of tax dollars -- $6 billion, on top of $17.5 billion in emergency loans tendered since December -- but he said he was setting tough conditions for anything beyond that. "We cannot make the survival of our auto industry dependent on an unending flow of taxpayer dollars," he said. "These companies -- and this industry -- must ultimately stand on their own, not as wards of the state."

So how did we get from there to here? Here, according to media accounts this week, is an imminent transformation of General Motors into a government-owned company, infused with upward of $50 billion in federal money. The United States will accept stock in lieu of the cash the company owes, and Washington -- that is, you, the taxpayer -- will become the owner of 70 percent of the new GM. When might the company stand on its own, to paraphrase Mr. Obama? When would the government exit the stage? The Post reports today that administration officials hope to depart within five years, but the truth is that nobody knows when or whether taxpayers would recover their investment. If you think the federal government is well equipped to manage a failing automobile manufacturer into profitability, you should jump at this deal.

I would like to say that the Post is shocked, shocked that the President has put us in this position. But that's what you say when someone isn't shocked at all. In fact, the Washington Post seems really bewildered that the President is sinking billions in public money into a corporation that has no realistic prospect of returning to economic viability.

So why is Obama doing something so obviously ill-advised that it is even obvious to the WaPo? As the WaPo points out, there was some reason behind the auto-bailout originally, when the collapse of the industry might have turned a developing recession into something much worse. But now, surely, we have reached the point where that policy pays diminishing returns. Keeping zombie corporations walking decreases confidence in the economy as a whole. The real threat to our economic future is much bigger now than the auto industry. Around the world the Money is now thinking, for the first time, that the U.S. is a bad investment. Trying to get out of the quicksand while carrying a bunch of Buick Enclaves might not be the way to reassure everyone.

The Washington Post answers the question:

Is a massive, unbounded federal commitment to a company that evidently still can attract no private capital really the only option? It doesn't take much imagination to forecast the political pressures that will buffet the government-as-auto-executive. We've seen one effect already in the preferential treatment of the autoworkers' union at the expense of private creditors.

The government sweetened its offer to creditors in the past couple of days, but they're still getting less return on their debt than the union is. Meanwhile, the union can boast that it has been promised no loss in "base hourly pay, no reduction in . . . health care, and no reduction in pensions." Influential members of Congress will insist on jobs in their districts; environmentalists will want electric cars; overseas sourcing will be frowned upon. How such decisions affect profits could become secondary.

President Obama is putting this weight on the shoulders of our children and grandchildren and great grandchildren so that, right now, the Union can boast to its membership that it hasn't given up anything.

This is nuts. We'd be better off dissolving GM and putting every union member up in a high priced hotel for the rest of his or her life. Of course GM may miraculously turn around. Its stock may soar. People might suddenly want to buy its cars. But one of the reasons it went into the ground was the union contracts, and President Obama is making sure that that problem won't get fixed. This isn't a long run solution for the workers anymore than it is for the rest of us.

The Washington Post is shocked. I am not. I never thought the President had any idea what he was doing.

Prop 8: Good for Democracy; Bad for Marriage

Friend of and valuable contributor to this blog, A.I., posted a comment on the Prop. 8 case before the California Supreme Court. It seemed to me that with all the attention I reproduce it in whole here:

Ken. It appears one of us will eventually have gloating rights over our arguments regarding laws against same sex marriage being discriminatory. I refer to the Ted Olsen/Davide Boies (unlikely duo extraordinaire) case being brought in federal court in California to strike down Prop. 8.

In part, they will argue what has been more-or-less my point all along, that: "Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment because it singles out gays and lesbians for a disfavored legal status, thereby creating a category of second-class citizens." Of course, that is only part of the case.

So will you or will you not gloat if your opinion prevails in this case. I should be a big enough person to say I will not gloat should my side prevail--I should be, but...

A.I.: I am not sure I earn any gloating rights here, and I am in no mood to gloat. The CA Court by a 6 to 1 vote did indeed uphold Proposition 8, which restricted marriage in California to a union of a man and a woman. As I understand the decision, it turned entirely on a procedural question concerning what kind of amendment is valid under the state constitution. . The Court ruled that Prop. 8 "was a limited constitutional amendment, not a wholesale revision that would have required a two-thirds vote of the Legislature to be placed before voters." That hardly validates my position, nor does it contradict yours.

I continue to say that your argument is wrong for the simple reason that it is logically incoherent. The other sex marriage restriction applies in exactly the same way to all citizens of California. For that reason it cannot be said to "single out gays and lesbians." Singling out is logically exclusive of equal applicability.

Consider an example: Marriage is sometimes used for other purposes than a loving union. Sometimes immigrants marry only in order to gain legal residence in the United States. What if two women wished to marry not because they were a homosexual couples, but only so one partner could extend her public insurance benefits to the other? They would be barred from marriage under the law even though they are neither gay nor lesbian. Therefore: no singling out.

This is a matter of simple logic. If no A is B, then all A are not B. If A stands for any person, and B stands for persons legally allowed to marry someone of the same sex, then under Prop. 8., all A are not B. There is no way that "all A" singles out "some A".

The people of California, including 70% of Blacks and 53% of Hispanics, admire traditional, i.e., opposite sex marriage and want to keep it at that. You admire same sex marriage just as much, and wants it to be legal, but I do not see you arguing for other possible forms of marriage, such as polygynous or polyandrous marriage. Those who believe in such forms, for religious or other reasons, probably see you as singling them out for disfavored status. What you want is for the Courts to bless your sentiments and not those of California's Black and Hispanic (excuse me, Latino) populations. There are no constitutional grounds on which to do so.

But if the passing and sustaining of Proposition 8 was good in terms of constitutional law, it was not good, I think, for the institution of marriage. The Court made it rather clear that all the tangible benefits of marriage have to be available to same sex couples (in effect singling out radical Mormons and polygynous Islamists). That means the creation of an institution parallel to marriage with all of the same legal consequences. I think that dilutes marriage and renders it less meaningful. That is one of the reasons I am in favor of same sex marriage. I think it would support rather than diminish the importance of this very important institution.

So as I said, A.I., I am not in any mood to gloat.

Sonia Sotomayor: Two out of Three?

There are basically three things a President looks for in a Supreme Court Nominee. First, he wants someone who shares his approach to constitutional questions. What is Obama's approach? This, he said, was his second criteria for making his selection:

a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

Now the trouble with that is that either Obama is closet conservative or he is lying. I am guessing the latter, as his previously stated desire for a judge with "empathy" is at odds with the idea of "impartial justice." You simply can't be empathetic and impartial at the same time. Besides, if Obama really did believe in the above things, he wouldn't have nominated Sotomayor. For we know what she thinks the role of a justice is, from YouTube:

Um, all of the legal defense funds out there, um, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. Um, um — [laughter] — I know. I'm not promoting it, I'm not advocating it, and, I'm … you know. [laughter]

Hat tip to Hot Air. Sotomayor is both admitting, in a nod, nod, wink, wink, so or way what everyone knows: that Judges do make policy and law, and that the left thinks that's precisely what they ought to do. President Obama now understands that he has to say exactly the opposite of what he thinks and intends, and that the major press won''t cause him any troubles about it. The Sotomayor nomination tells us more about Obama than about the nominee: that his judicial views are on the radical end of the spectrum.

The second thing a President wants is a nominee who will win political points. Think Bush 41 and Clarence Thomas. Sotomayor may help the President with Hispanics (as if he needs help), but more importantly it shores up with support on the left. Sotomayor's identity politics, as in:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life.

This will be music to the ears of folks who are appalled at Obama's Bush 3 antiterrorism policies. To reach the best conclusions, you have to be the right kind of person: female, Latina, born in the Bronx, etc. One can only wonder what would have been the fate of a nominee who was on record as saying that White men who belong to the Little Rock Country Club are more trustworthy.

The last thing a President might look for is a Judge who is effective on the Court. This consists first of all in a sharp legal mind, and second, and perhaps more importantly, in the ability to persuade her fellow judges.

The trouble is that it's hard to find one candidate who is really in the top 1% in all three categories. President Obama clearly made the job harder by limiting his search to female judges. That summarily excludes half (or more than half, given the history of gender distribution) of otherwise qualified nominees. Putting a lot of number two emphasis on a compelling story makes the job even harder. What are the odds that the person with the best qualifications and intellect, combined with the greatest powers of consensus building, will also be the person with the most compelling personal story? Only in the movies.

By all accounts, Sotomayor is qualified for the job. No evidence has surfaced so far that she is at or even near the top in legal thinking and writing, or in the ability to persuade her brethren on the Court. She is almost assured of confirmation. Republicans can't mount a filibuster, and they shouldn't. That device, when it is available, should be reserved for the direst emergencies. Otherwise, the judicial nomination process breaks down. Republicans who object to her judicial thinking should vote no. That's enough.

Terminator Salvation ***

I watched The Terminator after it completed its initial run, at a midnight showing in a California theater. I had avoided it because it sounded bloody awful. But I still get chills remembering that first viewing. I think the movie was one of the best science fiction films ever made. This was largely because it presented an idea that is almost alien to modern, secularized Christian civilization: the idea of inescapable fate. At the end of the movie, the pregnant Sarah Connor sits in her jeep, and the Mexican gas station attendant says "a storm is coming." Sarah, knowing the world is about to be blown to bits by a conscious computer, and that her son is mankind's only hope, looks down the road and says: "I know." Wow.

The second Terminator movie was not nearly so good because it Christianized the basic plot. Redemption (in advance of the fall itself) seemed possible at the end. Still, it was a very good film. The third put the story back on track, but was poorly cast and had little of the power of the first two films.

So what about the third? Well, it's better than number three. Christian Bale is fine as John Connor. Sam Worthington is more than fine as the cyborg who thinks he's human. The theme of robots who switch sides and fight for humanity is constant through the last three films. This is the best case, for the Marcus Wright character was human once: that makes it possible to play with questions about what it means to be human, and to be given a chance to redeem oneself.

Terminator Salvation has a lot of goofy plot twists, and confused story arc, but it is a very watchable film. For the first time we see the presence of Skynet, the computer trying to wipe out human beings (Helena Bonham Carter), and that was probably a mistake. When, in Lord of the Rings, do we ever see Sauron's facial expressions? But it is a mostly derivative film. We don't get any of the sense of fate that made the original movie immortal.

Worst of all, they didn't get the original musical score. We are constantly teased with music that sounds like the original, but it never quite consummates the great theme that was there for the first three movies. I am sure this was some Hollywood negotiation gone bad, but for heaven's sake! Couldn't the filmmakers have cut some kind of deal?

If you like the T-series go see this one. You won't be sorry you did. But you will be frustrated.

A Belated Reply to Anna on “Traditional Marriage”

My friend Anna at Dakota Women took a shot at Professor Schaff and myself over our recent discussions of marriage. Most of Anna's objections are directed to my colleague, but I note this one:

Both Ken and Jon throw around this phrase, traditional marriage, as though marriage hasn't changed drastically in the last century and a half or so - and as though "the family" that Jon is so worried about protecting - a nuclear family consisting of one husband, one wife, and their immediate offspring - isn't a product of the 1950s…

I have major issues with the institution of marriage, as it is now and as it has been used in the past - but I'd be wary of throwing around "traditional marriage" and the "traditional family" too often in your arguments for and against gay marriage in the future. Traditionally, marriage has transferred ownership of a woman from her father to her husband. Anything beyond that is a relatively new development. Traditionally, family has been much different than a husband, a wife, and their children.

To the contrary, Anna, marriage has not changed dramatically in recent times. Marriage is an ancient and ubiquitous institution (like prostitution and the priesthood). In almost all cultures, it is celebrated by very old symbols; for that reason, traditional has a pretty clear meaning.

Anna's statement that the "nuclear family… is a product of the 1950's", and that "traditionally, family has been much different than a husband, a wife, and their children," are certainly part of the conventional wisdom about marriage. Like much CW, they are obviously wrong.

Across history and cultures, marriage has always been about a man, a wife, and their children. The fact that some marriages are childless is irrelevant to the institution's basic function. Marriage has three basic forms: monogamous, polygynous, and polyandrous. Until recently, most human societies practiced some form of polygyny, but that was a privilege of men who could support more than one wife. Most families in such societies were monogamous out of necessity. Polyandry is extremely rare (only two cultures are well known), owing to the fact that women can have only so many children in a given span of time. To the degree that two or more men confine themselves to one woman, the population growth of that society will be limited.

To be sure, the "nuclear family" is not so common; in most societies, extended families and clans were much more important than they are in modern societies. But these larger families weren't "marriages", they were networks of marriages. Marriages were, until recently, always about a man, his wife or wives, and their children.

As for the feminist party line statement—"traditionally, marriage has transferred ownership of a woman from her father to her husband"—here Anna is doing what she accuses us of doing: projecting modern notions (in this case, modern property rights) backwards into the past. In most cultures, marriage was more akin to naturalization than to a contract exchange. Human cultures have been mostly patrilinear; men stayed put while women were exchanged between clans, villages, etc. To be sure, such exchanges were greased with gifts (dowries), but that was true of a lot of social intercourse. And to be sure, fathers had a dominant position in the negotiations. But that is a result of the patriarchy that characterized almost all pre-modern societies.

Specifically modern notions of property rights (see John Locke) had the inevitable effect of raising the wife and daughter to equal status with the father and suitor. I think that's progress. So I wouldn't be so quick to condemn the concept of ownership in such things.

But the modern notion is not "a drastic break from tradition," as Anna would have it. It is, as much of modern life, a modification of the traditional. Gay marriage is an unprecedented extension of the ancient institution. I am in favor of it, but it is obviously valuable if and only if it extends the benefits of the tradition to a new class of couples. For that reason, I think our use of the term "traditional marriage" is entirely appropriate.

Ps. I have missed you, Anna. I hope things are going well for you.

Bad Cars and Cap & Trade

President Obama, like most heads of developed (=comfortable) nations, wants major legislation to save the environment. A lot of European governments are way ahead of us (what did you expect after eight years of Oilman Bush?) and there is nothing wrong with their policies except that they are largely incoherent, hurt their respective economies, and are bad for the environment.

President Obama's current big idea is Cap & Trade. The Waxman-Markey Bill, introduced in Congress last week, would set strict limits on total U.S. greenhouse gas emissions (that's the cap); and it would give credits to industries that do the job quicker, which credits could be sold to industries that are having a harder time meeting goals (that's the trade). Waxman-Markey aims to reduce U.S. greenhouse emissions 83% by 2050. Whether that's possible or a good idea is a big question. Such a reduction would have negligible effects on global warming, but hey, anything is progress, right? But despite what the proponents are saying about 'green' jobs, the policy will be very expensive and that will mean a drag on the economy and a loss of jobs and wages.

Ronald Bailey, writing in Reason, is impolite enough to point this out:

To achieve these goals, the U.S. will have to spend money on clean energy technologies which are far more expensive than conventional energy technologies.

All rhetoric aside, mandates cost money. Today, for example, President Barack Obama declared that new U.S. automobiles must get an average of 35 miles-per-gallon by the year 2016. Yet it is widely acknowledged that meeting this new standard will add $1,300 to the cost of each new car. In general, when prices go up, people buy less. So, all other things being equal, less demand for a product (like cars) means fewer jobs, not more. (Of course, there is one way to raise prices and create more jobs: reduce worker productivity. If policy makers deliberately encourage inefficiency in an industry, more jobs will likely follow. But that reduced productivity also means workers will receive lower wages.)

Well… yes. Cap and Trade legislation will mean lost jobs and lower wages. That might be worth it if you think that we are avoiding environmental disaster. But that requires some confidence that such policies are coherent. Do we really have a good grasp of the costs of these policies, and the effect those costs will have on a dynamic economy?

Consider Honda's attempt to create an affordable, environmentally friendly car. Jeremy Clarkson, writing in the London Telegraph, has a review of the hybrid (=gas and electric engine) Honda Insight. It might be the most devastating car review I have ever read.

Much has been written about the Insight, Honda's new low-priced hybrid. We've been told how much carbon dioxide it produces, how its dashboard encourages frugal driving by glowing green when you're easy on the throttle and how it is the dawn of all things. The beginning of days. So far, though, you have not been told what it's like as a car; as a tool for moving you, your friends and your things from place to place.

So here goes. It's terrible. Biblically terrible. Possibly the worst new car money can buy. It's the first car I've ever considered crashing into a tree, on purpose, so I didn't have to drive it any more.

Clarkson goes on to describe, in the lethal prose that the Brits are best at, why the car is Biblically terrible. But does the car really add up to environmental progress? Clarkson is skeptical.

Honda has produced a graph that seems to suggest that making the Insight is only marginally more energy-hungry than making a normal car. And that the slight difference is more than negated by the resultant fuel savings… But I cannot see how making a car with two motors costs the same in terms of resources as making a car with one.

The nickel for the battery has to come from somewhere. Canada, usually. It has to be shipped to Japan, not on a sailing boat, I presume. And then it must be converted, not in a tree house, into a battery, and then that battery must be transported, not on an ox cart, to the Insight production plant in Suzuka. And then the finished car has to be shipped, not by Thor Heyerdahl, to Britain, where it can be transported, not by wind, to the home of a man with a beard who thinks he's doing the world a favour.

Why doesn't he just buy a Range Rover, which is made from local components, just down the road? No, really — weird-beards buy locally produced meat and vegetables for eco-reasons. So why not apply the same logic to cars?

That middle paragraph is exquisitely lethal.  I am guessing that Clarkson is right. Like corn ethanol, and wind power, Joe Biden, the Honda Insight is something that sounds good at the time and makes certain voters feel better about themselves, but in fact makes worse all the problems it is supposed to solve.

I wish I could believe that Cap and Trade legislation is more intelligently designed.

 

Blanchard Gets His Name on the Cover: Darwinian Conservatism

File this one under shameless self-promotion. Darwinian Conservatism: A Disputed Question, is now in print from Imprint Academic, in Britain. It consists of a manuscript by Larry Arnhart, previously published in book form under the title Darwinian Conservatism. The second part of the new book consists of a number of critical essays by a range of scholars. The third part consists of Arnhart's response to the essays, and my defense of Larry's thesis.

Larry's original book was very good. He argued that Darwinian theory supports conservative political principles. Obviously I agree, and you can find out why if you order the book from Borders or Barnes and Noble. The release date is June 1^st, and the publisher's price $34.90.

To give you a little taste, here is the final paragraph of my essay: "Natural Right and Natural Selection."

I have argued that Darwinian biology is consistent with a basically Aristotelian view of life. The former is therefore non-reductionist both metaphysically and morally. Everything that lives comes out of and is entirely composed of what is dead: mere matter. The organism is nonetheless robustly alive. Nothing like it could have been predicted from any knowledge of its material constituents or their laws. Human beings emerge out of the tree of life, but we are almost as great a leap from the other animals as the animals from the plants. We are capable of deliberation concerning justice and the common good, without which we are the worst of all the animals. We are not capable of perfection, and so every human society will require governments and laws. Human beings can be the best of animals, but we are also the most dangerous. That, I submit, is the basic insight of conservatism.

So: all of you who have been reading my blog for a day or more now have the chance to return the favor. Whip out your credit cards while rates are still low and a pre-order a copy. I highly recommend it. The editor is both handsome and brilliant.

California Does Thelma and Louise

I lived in Southern California, Claremont by Pomona to be specific, for about ten years. Being in Grad School, it never felt quite like home. But my children were born there, and I think that entitles me to style myself an expatriate.

So there is a little bit of sadness mixed in with schadenfreude, as I contemplate the wreck that California has become. The state now faces a $21 billion deficit, which used to sound like a lot before Barack Obama was elected President. For California it is a lot because, unlike Barack, Arnold can't print money to fill up fiscal canyons.

So Arnold tried a second time to fix California by a series of budget initiatives, submitted to the voters. This in itself is a sign of political dysfunction. California has a state legislature, and it is the job of state legislatures to balance budgets and on occasion reform the institutions of government. But California also has a very strong initiative process, by which interested parties can place legislation on the ballot for the people to enact or reject. The best thing I have read on this comes from Bill Maher.

It's not Arnold's fault that California has a worse credit rating than Louisiana, a state that's half underwater and half in the bag. You see, our state is designed to be ungovernable because we govern by ballot initiative, and we only write two kinds of them: "Spend money on things I like" and "Don't raise my taxes." More money for teachers and firefighters? Check "yes"! High-speed rail? "Cooool!" Drug treatment for former child actors? "Sure, why not?" But don't even think of taxing me for any of it.

When this sort of thing goes on for long enough, it wraps the legislature up in a straight jacket: it can neither cut spending (too many popularly ratified constitutional amendments for that), nor raise revenues (remember Prop. 13?) And of course, every great and expensive program, and every tax cut, has partisans in the legislature as well.

So Governor Schwarzenegger had no other option but to go to the very voters who helped create the problem and ask them to help him fix it. They didn't say no. They said "Hell no." All of the initiatives that included tax increases went down to defeat on Tuesday. The one initiative that passed bars an increase in salaries for public officials while the state budget is in deficit. That probably means no raises for the entire state bureaucracy until the year 3000. I wonder how that will work out.

The Governor is about to be forced to cut everything he can legally cut, no matter what the human cost. He is also going to ask the Federal Government to guarantee loans to California to keep it afloat. Well, that just puts the Golden State in the same position as Chrysler.

President Obama likes to talk about responsible government. But there is this story from the LA Times:

The Obama administration is threatening to rescind billions of dollars in federal stimulus money if Gov. Arnold Schwarzenegger and state lawmakers do not restore wage cuts to unionized home healthcare workers approved in February as part of the budget.

Houston, we have a problem.

Credit Where Credit is Due

My Keloland Colleagues and cherished friends, Todd Epp and Cory Heidelberger are very disappointed that our South Dakota Congressional delegation (all three of them) has voted against the credit card bill. Apparently, Stephanie Herseth-Sandlin and Tim Johnson were the only Democrats to oppose it. The reason for the opposition of our Senior Senator and Congressperson at large is pretty obvious: we've a lot of credit card business located in our state, and those businesses have been very generous when it comes to political contributions.

Unlike my colleagues, I am not the least bit offended by this. It's how the political system is designed. Also unlike my colleagues, I am a little interested in what the actual effects of the legislation will be, apart from the emotional satisfactions of sticking it to predatory lenders.

Lenders charge interest on the money they lend. I know that is shocking to Cory's Christian sensibilities (does anyone remember Shylock?), but it is makes the system work. Under current laws, credit card lenders make most of their money off people who don't manage credit very well, in the form of fees, penalties, and higher interest rates charged on balances after a failure to pay on time. That generates enough profit that lenders can afford to keep interest rates very low for people who bother to count. It means that imprudent borrowers are subsidizing prudent ones. Indeed, subsides thus produced are great enough that lenders actually end up paying some borrowers to use credit cards.

Does this amount to predatory lending? Maybe. It is surely burdensome to a lot of people. The legislation about to be passed will seriously reduce the burden on irresponsible users of plastic. It places stricter limits on the charges that can be levied on credit card users who don't pay off on time.

But the inescapable math dictates that profits lost on this portion of borrowers will have to be spread more generally across the population. Prudent borrowers will now have to subsidize the defaulters, as well as provide the profits that make the industry work. That means that interest rates on cards will rise, and rebates will be reduced.

It means something else. With occasional defaulters no longer being cash cows, the industry will have much more incentive to weed them out. The greater the protection that this legislation provides for borrowers, the harder it will be for people to get and keep credit cards. The proportion, I think, will be precise.

I am not sure that this legislation is a bad idea. Making credit too easy to get is one of the things that got us into the present economic situation. Making it harder to get might do a lot of good to a lot of people. But it will make this kind of credit harder to get, and more expensive. Credit cards are very convenient. Under the current system, even relatively irresponsible borrowers could get them, they just had to pay a lot more. Under this legislation, many such borrowers will be denied. Maybe that's a good thing.

Of course, we will soon hear sorrowful tales of people who can't get credit cards. And we will learn that certain well-defined subpopulations have a harder time getting them than others. Congress will want to right that wrong as well, and that will push the system toward one in which prudent borrows must heavily subsidize imprudent ones. Or it will push it to collapse.

Obama at Notre Dame

I am not now nor have I ever been a part of the Roman Church. I was raised a Methodist. I am not qualified to say whether inviting President Barack Obama to give ND's commencement speech and receive an honorary degree was a violation of Catholic protocol. But I gather that the Catholic Church has more rules than the Methodist Church, which is an easy call since the former has at least some rules and the latter, so far as I can tell, has none. I like having a lot of different kinds of religious communities in the neighborhood. That's diversity. But that means that each community has to insist on being what it is. If Obama's invitation was a violation of the rules, as some allege, that represents a threat to diversity. How's that for a politically correct defense of staunch Catholics?

I listened to President Obama's speech this morning, and commented on it on South Dakota Public Radio. I thought it was a fine commencement speech, as such things go. The issue of abortion was obviously the center of gravity around which the whole affair revolved. I thought President Obama's handling of that issue was very interesting.

He said one thing that needs saying, and said it well.

One of the vexing things for those of us interested in promoting greater understanding and cooperation among people is the discovery that even bringing together persons of good will, bringing together men and women of principle and purpose -- even accomplishing that can be difficult.

The soldier and the lawyer may both love this country with equal passion, and yet reach very different conclusions on the specific steps needed to protect us from harm. The gay activist and the evangelical pastor may both deplore the ravages of HIV/AIDS, but find themselves unable to bridge the cultural divide that might unite their efforts. Those who speak out against stem cell research may be rooted in an admirable conviction about the sacredness of life, but so are the parents of a child with juvenile diabetes who are convinced that their son's or daughter's hardships can be relieved. (Applause.)

Yes. There are people of intelligence and good will on both sides of these issues. I wish he had made that the central theme of his speech. I liked this part as well:

Now, understand -- understand, Class of 2009, I do not suggest that the debate surrounding abortion can or should go away. Because no matter how much we may want to fudge it -- indeed, while we know that the views of most Americans on the subject are complex and even contradictory -- the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

So how do we deal with such irreconcilable differences on abortion? The President had some suggestions:

Let us work together to reduce the number of women seeking abortions, let's reduce unintended pregnancies. (Applause.) Let's make adoption more available. (Applause.) Let's provide care and support for women who do carry their children to term. (Applause.) Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics, as well as respect for the equality of women." Those are things we can do. (Applause.)

Now I liked one thing there: the "sensible conscience clause" part. I don't think that doctors or pharmacists who are opposed to abortion for religious reasons or reasons of moral conscience should be forced to choose between conscience and livelihood.

But it is also important to recognize that the President's position regarding people who disagree with him on abortion is one of tolerance. Tolerance was the mechanism by which the great politico-theological controversies of the Protestant Reformation were ultimately, if very gradually, resolved. The mechanism works like this: we, the people in power, will stop burning you guys at the stake; heck, we might even let you into the colleges. But in turn, you guys will accept that we are in power. It worked for Queen Elizabeth. Maybe it works for Obama.

The United States has a much more liberal abortion policy than most developed countries. A woman five days from natural birth can get an abortion if she has a doctor and a lawyer behind her. A healthy baby who survives an attempted abortion, well we know that Obama does not think that such a biological entity deserves protection. President Obama's bottom line is that this regime is no more negotiable than the Protestant Succession was for the Elizabethan regime. Accept that, and he will negotiate on other details. This is appalling. But for a political scientist, it is very interesting.

Obama = Bush 3 Updated

George W. Bush was vulnerable in 2004 because national building in Iraq was turning out to be a lot more trouble than he had expected. He was reelected not because John Kerry was a bad campaigner, or because Bush was an unscrupulous one. Bush won reelection because John Kerry could never formulate a coherent alternative to Bush's policy on Iraq, or anything else that mattered. I have been looking, since then, for any signs that the Democratic Party is capable of generating an alternative foreign policy.

So far, there is nothing. Take Iraq. Please. President Obama is reducing U.S. troop strength there, as the situation seems mostly stable and the Iraqis seem to want it. What would Dubya have done, if he had had a third term? Pretty much the same. President Obama is shifting troops to Afghanistan. Good idea, maybe. What would Bush have done? Well, I am guessing he would have done the same. Bush replaced Secretary of Defense Donald Rumsfeld with Robert Gates. Good idea. President Obama's Secretary of State is so much like Robert Gates that he is in fact Robert Gates. Another good idea, maybe. But not exactly change.

And then there are the questions arising from Bush policies on terrorism. Speaker of the House Nancy Pelosi accused the CIA of lying to Congress about the "enhanced interrogation" of terrorist suspects. The Obama Administration sided against her, with CIA Director Leon Panetta insisting that the CIA doesn't mislead Congress. What would a Bush appointed CIA Director have done? President Obama said he was going to release a gob of photos showing abuse of prisoners in Iraq. That is what the Left was craving. But no, he changed his mind. Good idea, I'm thinking, but not change, so much.

And then there is this business of prisoners held at Guantanamo Bay. Obama piously announced that he would close the detention facility there. But what do you do with the cliental? The President has clearly tried to get some of our European allies to take some of the detainees. Since he is so much more understanding, and so much less cowboy, you'd think they would melt. So far no hotel rooms in Paris or Frankfurt have opened up. Strangely enough, Democrats in Congress don't seem to be any more willing to host the detainees in their own states. If President Obama has any idea what to do with these folks, he hasn't said on Meet the Press.

A lot of the detainees were captured in war, which is not exactly the same thing as being arrested. When the police make an arrest, they have to be careful to gather evidence. When soldiers capture an enemy combatant, they have to be careful he doesn't blow them away, or alter the other insurgents, etc. Evidence isn't first on the mind of an American soldier. That means that a lot of the capture terrorists can't be tried in civil courts.

The Bush Administration solution was to try them in military courts. Barack Obama thought this was a terrible violation of human rights. Then he got elected. Apparently he now is planning to reinstitute the military courts that he suspended upon his election.

I am not sure what John McCain might have done differently, but on all the items mentioned above President Obama is channeling for George W. Bush. It's not that Obama lacks imagination, or that he doesn't care enough or than he isn't courageous enough. It's just that foreign policy is hard and doesn't always offer a lot of attractive options. It might be a good idea to recognize this. A lot of people who voted for Obama never suspected it.

Update! 

On the same day that I posted the above words, Jack Goldsmith wrote a column in the New Republic defending President Obama against Dick Cheney on this very question. 

There is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

This paragraph obviously confirms my argument above.  Also interesting is this passage:

A good example of [Obama's] strategies in action is the administration's "new" rationale for detaining enemy forces indefinitely without charge or trial. The administration took the same basic position as its predecessor but placed it in prettier wrapping. It eliminated the dreaded label "enemy combatant." It narrowed the scope of those who can be detained from persons who "support" al Qaeda and its affiliates to persons who "substantially support" them--a change without large practical consequences, but a change nonetheless. And it grounded its authority to detain in Congress's authorization for the war and the international laws of war, showing that the president's detention powers were approved by bodies outside the presidency. This was the Bush position as well, but with an important difference: The Bush administration argued that it could detain enemy soldiers on its own constitutional authority, and without congressional support. The Obama administration dropped this argument (but did not reject it), and won favorable press coverage for its "departure" from the Bush position even though the change affected nothing in the president's present power to detain.

This is the substance of Goldsmith's defense of Obama: Bush 3 in prettier wrapping.  My position may be absurd, as commenter Jon says, but the absrudity seems to be catching even among Obama's defenders. 

Star Trek The Future Reincarnated *** (*)

Professor Schaff’s review can be seen below. I finally went to see Star Trek: The Future Begins this weekend. I give it three and a half stars out of four, which I think is at least a half a star higher than my colleague did. I expected to like it because even the bad reviews were good, which is a pretty good sign that one will not regret the ticket price. I was not disappointed.

I note first the basis of my half a star reservation: like almost all the Star Trek movies, the overall story was ad hoc and pedestrian. I enjoyed almost all of the Star Trek movies, including the Next Generation films, but I can only think of one that stands on its own (apart from love of the characters and context), and that would be Star Trek II: The Wrath of Khan. Pretty much all the others had throw away stories about on the level of the average original Trek episode.

In this case the sin was a bit worse, as several bits of the story, established in the original series, were changed in significant ways for no apparent reason. One might speculate that the people in charge (J. J. Abrams?) want to establish some freedom from the original story, for they must surely be planning sequels. They are, after all, about to run into the original series, but reconciling story lines can be a great source of creativity and I think ducking that is a big mistake.

That said, the chief task facing Abrams was to create new characters that had resonance with the old ones while keeping self-parody to a minimum, and in that he succeeded spectacularly. That is to say that I do not agree with my colleague or with Jonah Goldberg that the less you know about the Star Trek stories, the more problem you will have with the movie. This is character driven film making, and I will focus here on the characters.

Chris Pine did not remind me very much of William Shatner, but he did something even better: he reminded me of James T. Kirk. It is something of a shock to recall that the original show was produced when TV was still a relatively new thing. Nineteen-sixty TV characters tended to be one dimensional and, like the sets they stood on, made of cardboard. Pine's Kirk is not exactly deep, but he has a more flesh and blemish than Shatner ever did.

Zachary Quinto's Spock was superb. I was a big fan of Heroes in its first season, and if you watched the show you will scarcely believe that I never once thought of Quinto's character Sylar. He had one big advantage in recreating the Vulcan science officer: Leonard Nemoy's look was mostly in the Meet the Beatle's hairdo, dark eyebrows, and pointy ears. Still, it was eerie how much he reminded me of the original Spock. He is also a damn fine actor, and he presents a half-breed Vulcan with his human side ratcheted up a few notches.

But the star of the show, in terms of casting and acting, was Karl Urban's Dr. Leonard "Bones" McCoy. Urban recreated DeForest Kelley's character and voice with such consummate skill that he seemed to be channeling more than acting. But he also carved out some space for his own interpretation, making his Bones a little more reflective and vulnerable than the original.

The remaining three basic characters, Uhura, Sulu, and Scotty, all had less resonance with the original. Uhura had to be updated a great deal for purposes of political correctness. Nichelle Nichols, the original Uhura, had the job of being the serious black character in 1966. Back then, that meant stressing poise and a cool maturity (see Bill Cosby on I Spy, 1965). These days it means combining competence with sex appeal. Is that progress?

Simon Pegg was great as Scotty, but he transformed the character more flamboyantly than any of the others did. James Doohan's Scotty was modeled on the Scottish guy you know because he works in the hot part of the factory and maybe you stood him a few shots down at the local watering hole. He's down to earth and union all the way. Pegg's Scotty is the crazy Scottish guy you know from work. And he is followed around by this three foot tall walking walnut critter. Where did that thing come from and what is he/she/it doing in the movie? Still, he will fill the role quite nicely.

This is movie making where scenes are organized around the characters and context, and the story as an excuse for the scenes. But the characters and context are obviously worth the investment. The Franchise has been in business for more than forty years. Star Trek: The Future Begins proves that the Franchise is still as vital as ever it was.

Pelosi’s Incoherent Mendacity

It's one thing to be a liar, and another to be an incompetent liar. Or maybe it's not. Most people are bad liars. When Al Gore lied, and knew he was lying, he got even more stiff and waxy than his default condition. Bill Clinton on the other hand…

Speaker of the House Nancy Pelosi is no Bill Clinton. When the "enhanced interrogation" scandal began to heat up, Pelosi was shocked, shocked to learn that the CIA has approved what she now calls torture. That knee-jerk was followed by an admission that she knew about it, but only before it was used. She couldn't say that she objected. Well, that was clear as the mud under a waterboarded suspect, so she and her staff have been in a tizzy since.

At her weekly press conference (hat tip to politics daily),

Pelosi tried to stick to her original story that she was never briefed on the waterboarding of terror detainees. But she also acknowledged for the first time that she did know, at least of as February 2003, that America was using this method of interrogation, even though it's defined as torture and barred under the Geneva Conventions.

"I wasn't briefed,'' she explained today. "I was informed someone else had been briefed." That someone being her top security adviser. Parsing isn't pretty, is it?

In this case, the parsing was butt ugly. But it got uglier. In a stammering, shaking, let me read, let me read this again kind of way, she ended up accusing the CIA of lying to her. "I am saying," she said, that "the CIA was misleading the Congress and at the same time the administration was misleading the Congress on weapons of mass destruction in Iraq."

It is not at all clear that she had planned to say that. The Speaker enhanced interrogated herself at the conference, and put herself in a much worse position than she was already in. Having accused the CIA of lying, she was in fact accusing them of criminal behavior. If she is serious, the charge ought to be delivered to the Justice Department. But that puts her at odds with the Obama Administration, which is now in the position of having to defend the CIA.

Obama's CIA Director, Leon Panetta, had to come out and all but accuse the Speaker of the House of lying. From Glenn Thrush at Politico, here is what Panetta said:

"Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing "the enhanced techniques that had been employed." Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened."

It's pretty clear that Panetta is right. The CIA has released a summary of briefings of members of Congress, including Speaker Pelosi, in which the facts were revealed. Pelosi has treed herself, and that means that all the hounds are barking at her just now.

And that is what lying often accomplishes. It puts you at odds with yourself: the you that knows the truth and the you that says the opposite. Why did Speaker Pelosi cleave her own soul in twain? She could have just admitted the obvious: in the aftermath of 9/11, not knowing if the next blow was about to fall, the Bush Administration and Congress were focused on deflecting such a blow. They weren't being so fastidious about the rights of terrorists. This is the kind of thing that looks like a sin only in retrospect.

But to admit that is to give up the game on enhanced interrogation. It admits the obvious: that both parties and both houses of Congress were in fact complicit in whatever the Bush Administration did. And that also gives up the fondest hope of Bush haters everywhere: that Dubya will someday end up in his own orange jump suit.

Ms. Pelosi is a mess right now. The Obama Administration, meanwhile, is affirming Bush national security policy on one issue after another. The Democrats remain incapable of generating a coherent foreign policy of their own.

On the Meaning of Marriage

Every now and then I get to visit Chicago, and I usually stop in for a Guinness at Kitty O'Shea's, a faux Irish bar on the ground floor of the Chicago Hilton. Katherine O'Shea was the lover of the great Irish politician Charles Stuart Parnell, the "uncrowned King of Ireland." Unfortunately, O'Shea was her married name, and the exposure of Parnell's adultery led to his political demise and his death from exhaustion.

It turns out that morality matters. If you don't believe me or Parnell, ask the uncrowned king of everything, John Edwards. While Edward's wife was being treated for cancer, and he was preparing a run for the Presidency, Edwards had an affair with one Rielle Hunter. The mainstream press did what it does best: paper over the indiscretions of Democrats, and so it was up the National Inquirer to blow Edwards' cover and expose the existence of Hunter's love child. The scandal almost certainly put an end to any political ambitions this smarmy man might have held onto, and just recently resulted in his wife's humiliating reappearance in public on Oprah and elsewhere. I am not sure quite what she I playing at, but it isn't going to be Edwards 3.

Dee Dee Myers has a pretty honest evaluation of the monkey business in Vanity Fair:

Elizabeth Edwards has refused to name her husband's mistress, Rielle Hunter. And in a cringe-inducing moment on Oprah, she said that she didn't know if the baby was John's, but that "it" didn't look like her children. How could she not know? How could he not know? The mystery is easily solved—and the consequences of "yes" are profound.

As my friend and former Edwards speech writer Wendy Button pointed, John made fighting poverty a central cause of his presidential campaign. And, as he knows, "one of the leading causes of poverty for women with children is a negligent father." He owes it to himself—and to the cause he championed—to step up, confirm whether or not the child is his, and, if she is, to do what he must.

He also owes it to the family of his former assistant, Andrew Young, a married father of three who implausibly claimed the baby was his. Why on earth would Andrew do such a thing—unless John asked him to? Could it be that the then presidential candidate believed the baby was his, and was trying to keep his world from crashing down around him?

But more than that, both John and Elizabeth owe it to their children to face the truth. I have no doubt this is an excruciating dilemma for Elizabeth. If the baby is John's, his former mistress—a woman she understandably loathes—will have a permanent call on her husband, and the other woman's baby forever will be connected to Elizabeth's children, a half-sibling about whom they will surely be curious and to whom they will surely feel a connection, despite the circumstances of her conception. It might seem easier not to know.

You don't have to look further than this to understand marriage. It arises from facts of nature that we humans share with many other species. In most species, males invest little or nothing in the rearing of offspring. Where males do invest, a moral problem arises: males have to be sure they are investing in their own offspring, and females have to be sure that the promised investment will be forthcoming. Both sides are tempted to cheat, and so both seek (more or less consciously) means of verification.

Marriage is an artificial institution designed to solve this problem. The rules are simple: the male will take responsibility for his spouse and children, and the spouse will give him every reason to believe that the children are his. This is the foundation of civil societies. When it works, most children have the support of two parents. When it fails, that is always accompanied by every kind of social dysfunction. Myers is right to think that, in betraying his wife, John Edwards was betraying the causes he stood for.

That is the point of marriage, and any thinking about protecting, reforming, or extending the institution must bear it in mind. I am guessing that same sex marriages generate some of the same dramas as traditional marriage. While children are not usually the issue (forgive pun), jealousy and infidelity probably feel much the same. If marriage is to work for anyone, it needs a social sanction. We ought to demonstrate the same indignation toward adultery as we due towards racism and other forms of intolerance. If you really believe in gay marriage or any other kind of marriage, that indignation is what it means.

The Big Budgetary Sinkhole

President Obama appears to be digging a very deep financial pit, and it seems likely that all his ambitions for great legislation are doomed to fall into it. It may well be deep and broad enough to consume everything else as well.

I posted yesterday on the story that the deficit for this year and next look to be significantly larger than the Administration projected. This is no surprise. I predicted the same a while ago. We are looking at almost two trillion dollars added to the federal debt this year alone, and more than a trillion next year. Everything points to larger numbers once the real totals are in.

Meanwhile there is the structural problem which President Obama inherits and for which he is now responsible. The biggest items on the federal budget are Social Security and Medicare. These are structural in the sense that they are built in costs that Congress cannot control except by changing the laws. Until recently, both programs took in more money than they put out, a fact that has long underwritten irresponsible federal spending. They are about to become really big liabilities. From CBS News:

The financial health of Social Security and Medicare, the government's two biggest benefit programs, have worsened because of the severe recession, and Medicare is now paying out more than it receives.

Trustees of the programs said Tuesday that Social Security will start paying out more in benefits than it collects in taxes in 2016, one year sooner than projected last year, and the giant trust fund will be depleted by 2037, four years sooner.

Medicare is in even worse shape. The trustees said the program for hospital expenses will pay out more in benefits than it collects this year and will be insolvent by 2017, two years earlier than the date projected in last year's report.

The first rule of holes is this: when you want to get out of one, stop digging. President Obama has been furiously digging with a larger shovel than ever before, deeper than ever before. Meanwhile, larger machines over which he has no control are digging steadily right beside him.

Now in this situation, the President wants to provide an expensive universal health care program and a cap and trade environmental law that is designed to retard the economy that pays for all this. This, Ladies and Gentleman, doesn't look like reality based policy. Maybe there is some secret here that I am not privy to. But it is hard not to think that we are now in a hole we won't get out of in our lifetime.

A brief reply to Professor Schaff

Professor Schaff responds to my comments, and as he has yet to follow my lead and allow comments, I reply here.

Jon says:

Prof. Blanchard does not find my argument in favor of traditional marriage convincing.  The question is not whether it is entirely convincing, but whether it is reasonable, which is the only point I was making (see the argument's juxtaposition with the comments of Frank Rich, et. al.). 

To the contrary, I think I said that I agreed with his argument in favor of traditional marriage. I certainly found it reasonable. I just didn't think that it amounted to a successful argument against gay marriage.

I endorsed his distinction between marriage as a set of mutual obligations and marriage as a set of claims for self-satisfaction (my terms), as well as his preference for the former. I think that he thinks that the battle against gay marriage is a losing one, and I think he is right. But we can still insist that marriage be about serving others rather than about what's in it for me.

South Dakota Politics as Political Discourse

My Keloland Colleague Professor David Newquist frequently criticizes bloggers and the people who post comments on blogs. Case in point:

Blogs express the nature of the personalities and character of those who produce them. By their very nature, blogs tend to attract the obsessively narcissistic. They are easily identified by the self-preening and self-stroking of the ego. They inspire a lot of derisive snickering of which their authors seem unaware.

And while blogs are by their nature geared to certain perspectives, what separates the valuable from the worthless is the difference between those that do attempt to inform and discuss and those devoted largely to disparagement, denial, and malignity.

I humbly submit that the threads attached to the last several posts of mine are an example of blogging at its best. I cannot claim the major credit for this. I like to think that my posts are thoughtful and well-informed, even if and when I am wrong. I declare that many of my interlocutors have presented excellent examples of what political discourse should look like.

To be sure, I attract the occasional hothead and/or airhead, both for and against my positions. But I would single out A.I. and Miranda as having gone out of their way to post many thoughtful and bold challenges to my ideas, expressed in a perfectly civil way. Many other thoughtful people have participated, some once or a few times. I would also mention my old friend BB, though he has been absent of late.

I post this to pat myself and my interlocutors on the back. They, at least, richly deserve it.

Marriage, That Blessed Arrangement

Below I will post the American News piece Ken Blanchard references in a previous post.

Prof. Blanchard does not find my argument in favor of traditional marriage convincing.  The question is not whether it is entirely convincing, but whether it is reasonable, which is the only point I was making (see the argument's juxtaposition with the comments of Frank Rich, et. al.).  If you want a detailed argument in favor of traditional marriage go here. 

Prof. Blanchard argues, "But many traditional institutions get adapted to new purposes without the old ones being undermined."  To be sure, we have altered the institution of marriage.  Through legal and cultural changes such as easy divorce, the near eradication on the taboo on extra-marital sex, readily available contraception and abortion, the explosion of single-parenthood marriage is not what is once was.  In this sense, the traditional institution was already altered in the direction of making personal gratification the center of the institution rather than fidelity, children, and self-giving.  This illustrates my point: the habit of marriage was already weak and same-sex marriage almost naturally follows. 

Prof. Blanchard, citing Andrew Sullivan, think that same-sex marriage will "promote more responsible sexual behavior among gay males."  Again there is no evidence that this is true, all the evidence from Europe (with a longer experience with legal recognition of same-sex unions as in the U.S.) says the opposite, and even Sullivan, in almost the same breath in which he makes this "conservative" case for same-sex marriage, says that a looser definition of fidelity will be needed for homosexual men.  Sullivan doesn't believe his own argument. But perhaps hope will triumph over experience.

Why does same-sex marriage not fully demonstrate self-giving?  I should think the piece made it quite clear, but perhaps I was too subtle.  First, same-sex marriage cannot create new life, a profound act of self-giving.  Second, same-sex unions involve someone of the same sexual nature, another self.  Traditional marriage involves the adventure of discovering someone who is profoundly different from you.  Of course, this assumes that men and women have differences that go beyond how they pee, or put differently, that the differences in our bodies represent a difference in our natures.  Surely there is a common human nature, but perhaps there is also a male nature and female nature in addition and the differences in these natures are socially and politically relevant in ways skin color is not.  But perhaps I am all wet and male/female biological differences are meaningless and with the right social arrangements all male/female differences can be eliminated. 

All this is discussion is moot.  I could give the most sober, well thought out, deeply evidenced, logically indisputable argument in favor of traditional marriage possible.  As my piece suggests, the position in favor of same-sex marriage has one important virtue: it is hip. 

Here's the piece with one egregious typo fixed:

Virtue depends on habits learned over time. When a thing becomes a habit it is not perceived as a burden. No one thinks of laws against murder as burdensome, but this is precisely because the moral proscription on murder is so habitual to us.

Our culture is moving steadily towards recognizing same-sex marriage. The habit of marriage as between one woman and one man is being eroded, which is why that definition of marriage increasingly is felt as a burden. It is only a matter of time before the law catches up with opinion.

In its recent decision validating same-sex marriage, the Iowa Supreme Court argued only hatred could explain opposition to same-sex marriage. Frank Rich of the New York Times calls opposition to same-sex marriage “the bigots' last hurrah.” Recently Miss California, Carrie Prejean, was denied the Miss USA title, reputedly because she openly opposes same-sex marriage. It won't be long before opposition to same-sex marriage is a position as embarrassing to hold in polite company as support for racial prejudice.

Is there a rational defense of traditional marriage? Marriage teaches us to love someone who is truly an other, as someone of the opposite sex is of a different sexual nature. Further, traditional marriage, open to children, is obviously necessary for the continuation of a civilization. Finally, marriage and family are the best institutions to raise responsible citizens.

Same-sex marriage will perpetuate disconnect between marriage and children. Forty percent of all children in America are born outside of marriage. Children born in this situation are statistically more likely to be poor, struggle in school, get involved in drugs and crime, and suffer a number of other pathologies. Having a mother and a father in the home divides the work of parenthood and brings complementary gifts to raising children. When society endorses a view of marriage as self-fulfillment rather than self-giving, these familial habits get that much weaker.

The modern American starts with a different set of assumptions. As Patrick Deneen puts it, “Begin with a belief in human beings as naturally autonomous and free, and after a time...that belief will act as a corrosive agent that will destroy all forms of culturally transmitted and embedded restraints.”

Skeptical of any moral constraint on our autonomy, marriage is increasingly seen as an individual good, not a public good. Given these assumptions, it is hard to see the objection to same-sex, plural, or incestuous marriages. If society's duty is to affirm love genuinely felt, why limit the number of people in a marriage or the prohibit marriage between close blood relations?

Law professor Eugene Volkh, a same-sex marriage supporter, argues that promotion of same-sex marriage will potentially lead to restrictions on religious liberty. If opposition to same-sex marriage is mere bigotry, then the state should deny certain benefits to or place heavy burdens on religious groups that oppose homosexuality just as it does with groups that promote racial inequality.

Perhaps the law should enhance its already strong endorsement of radical individualism and punish those who resist. If society suffers, perhaps the greater freedom of individuals is worth it. And regarding religious liberty, the Christians who oppose same-sex marriage believe that the persecuted are blessed. If this is the case, then Christians in America will soon find themselves well blessed.

Deficit Grows Larger.

The Obama Administration is now admitting that this year's deficit will be much larger than it projected a few weeks ago.  From David Lightman at McClatchy: 

The new administration budget said that the fiscal 2009 deficit would reach $1.84 trillion, or $89 billion more than forecast in February, while the 2010 figure now is estimated at $1.26 trillion, or $87 billion above the previous number. The fiscal 2008 deficit was $459 billion.

But of course, the projections are a fantasy.

Economists scoffed at the latest administration predictions.  "If they keep playing this game, they're going to have real credibility problems," predicted Brian Bethune, the chief U.S. financial economist at IHS Global Insight, an economic research firm.

The real 2009 deficit will be considerably larger.  I am betting on more than two trillion.  Bear in mind, that's not the total debt, but the figure added to the debt this year.  It might be that this will matter.  President Obama would like to do all kinds of wonderful things about health care and the environment.  But those wonderful things come with wonderful price tags attached.  Obama will approach them having not only run out of our money, but having run out of everyone's money for the next decade.

The Incorporation Doctrine & Stare Decisis

Reader Miranda adds a fifth comment to a recent post of mine that is worth responding to in a separate post.  In one of the comments I appended to the post, I said this:

The First Amendment indeed applied only to Congress when it was first written. In the twentieth century the Court began to apply it to state government acts under the Incorporation Doctrine. According to the latter, the due process clause of the Fourteenth Amendment (which explicitly applies to the states) incorporates all or almost all of the first ten amendments. One may well wonder whether that doctrine was correct, but that ship sailed a long time ago.

This morning Miranda shot back this comment:

I think is is preposterous to say that just because something has been happening for years that it is legitimate. One might have made a similar argument about
slavery.

To the contrary it is reasonable to say precisely that, if one is talking about Court cases.  Under the rule of stare decisis, Courts are obligated not to decide a case in a way that contradicts a rule established in an earlier decision unless (and this is a big unless) there are compelling reasons to do so.  Among the latter would be either a finding of a basic and systematic miscarriage of justice (see Brown v. Board of Education), or a finding that changes in circumstances have rendered the previous decision unworkable (see Brown v. Board of Education again).  In practice, the Court almost always argues the latter rather than the former. 

The rule is certainly well-established in American law, and there are good reason for it.  It gives assurance that the law will remain stable, which allows citizens to know what the law is and when they are afoul of it.  That is a basic element of the rule of law.  Moreover, the longer a precedent is observed, the stronger the argument in its favor becomes; a body of case law may develop around the precedent so that it cannot be overturned without throwing large areas of the law into doubt.

Both of these considerations create a very strong presumption in favor of the incorporation doctrine.  The citizens have come to understand their rights under state governments in terms of the doctrine.  Vast realms of case law rest on it.  Nor can I see any compelling argument for overturning it.  It is not unworkable in any sense, and it involves no miscarriage of justice as generally applied.  To be sure, I might disagree with certain applications, but the same is true where the First Amendment is applied to acts of Congress, where it is explicitly legitimate. 

Miranda makes a familiar argument, much beloved by my fellow conservatives:

The court's usurpation of power here may not be as obvious an evil as slavery, but it is, I think, still dangerous. It means that our government's powers are not as separate as they ought to be, and that threatens our freedom. I do not dispute that some good might have come from the Court's decision, but it was not the court's place to make that decision.

Conservatives tend to believe that the Courts should construe the Constitution very narrowly, to mean just what it says, no more, no less.  They also think that the meaning of its terms should be what the Founders intended those terms to mean.  But there is an obvious problem with this view: strict construction may be the right principle, but it isn't in the Constitution.  Nowhere doe the document tell you how to read it.  Likewise, it is not at all clear that the Founders intended for their "original intent" to be decisive. 

The evidence goes the other way.  The first great Supreme Court Chief Justice, John Marshall, was a Federalist if ever there was one.  He clearly used the powers of the Court to mold American Constitutional Law in a creative way.  One can make a good argument that he was right on all counts, but he was still going far beyond what the text said.  Perhaps the Court was doing the same when it first applied the Bill of Rights to the States; but if so,  they were following Marshall's lead.  This is in fact the only kind of Court we have ever had. 

The Constitution says very little about the powers of the Court.  It limits those powers to "cases and controversies" but that is about it.  So long as the Court remains within those limits, it is difficult to prove usurpation. 

Also: the incorporation doctrine looks like a sensible reading of the Constitution.  The Fourteenth Amendment says this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law. 

But what are "the privileges and immunities of citizens of the United States"?  And what does "due process" mean?  The Constitution does not say.  Fortunately, the Bill of Rights gives us a lot of hints.  It means protection against unreasonable search and seizure, and a warrant requirement.  It means a right against self-incrimination, a right to confront accusers, a right against cruel and unusual punishment.  Deriving the meaning of the Due Process Clause of the Fourteenth Amendment from the Fourth, Fifth, and Sixth Amendments seems to me to involve more fidelity to the Constitution than any alternative. 

Once the Court started to read some of the Bill of Rights into Fourteenth Amendment Due Process, where were they to stop?  If a state government should abridge the freedom of speech of some person under its jurisdiction simply because it dislikes the content of his speech, is that a violation of due process?  I think it is altogether consistent with the design and function of the Constitution to say so.  Of course this is a judgment call, but the Court has to interpret Fourteenth Amendment Due Process to means something, and I see no alternatives that don't involve judgment calls. 

I am a conservative with regard to judicial principles because I think judges should act like umpires, enforcing the rules of the game.  But umpires do shape the way the game is played, guided by their best understanding of what makes the game work.  What the courts should not do is act like angels in the outfield, intervening in the game so the right team wins.  Much less should they employ their power for the sake of social engineering.  The courts have no wisdom or expertise to guide them in such adventures, and the results are nearly always terrible.  I happen to think that the incorporation doctrine, though questionable, is still respectable umpiring. 

Cap and Trade: Bad Almost Anyway You Look At It

Here's a decent article outlining some of the debate on cap and trade energy plans.  As I argued here, cap and trade not only makes energy far more expensive for consumers, but sets up a trade scheme that is not transparent and is open to manipulation by politically connected industries.  This is why a carbon tax makes more sense if we want to raise the price of energy to encourage conservation.  At least a carbon tax is uniform and simple. 

Time will tell how South Dakota's delegation will vote on these matters.  There is little doubt that cap and trade adds high potential for corruption to its economy crushing increase in energy prices. 

Left & Right of Gay Marriage

My NSU colleague (and SDP colleague) Professor Jon Schaff has a piece in the American News on gay marriage.  He will probably post it here, as he usually does, but let me spoil part of the surprise: he presents no strong argument in favor of it.  His column is clever and guarded, so much so that one can not exactly say he is against it either.  But the column surely looks like a list of reservations. 

As such it is very good, and I think I agree with everything he says.  Consider this:

Is there a rational defense of traditional marriage? Marriage teaches us to love someone who is truly an other, as someone of the opposite sex is of a different sexual nature. Further, traditional marriage, open to children, is obviously necessary for the continuation of a civilization. Finally, marriage and family are the best institutions to raise responsible citizens.

Same-sex marriage will perpetuate disconnect between marriage and children. Forty percent of all children in America are born outside of marriage. Children born in this situation are statistically more likely to be poor, struggle in school, get involved in drugs and crime, and suffer a number of other pathologies. Having a mother and a father in the home divides the work of parenthood and brings complementary gifts to raising children. When society endorses a view of marriage as self-fulfillment rather than self-giving, these familial habits get that much weaker.

As a defense of traditional marriage, this is very good.  It represents the best side of traditional conservatism. 

The trouble is, it doesn't add up to an argument against gay marriage.  To be sure, traditional marriage pairs the only two kind of human beings who are biologically distinct, and it exists because, as Aristotle pointed out, men don't know who their children are.  Marriage provides assurances to the male that these children are his children, thus encouraging him to invest in them.  It provides both a mother and a father as influences for sons and daughters.  But many traditional institutions get adapted to new purposes without the old ones being undermined.  The use of Black churches as rallying points in the Civil Rights Movement comes to mind. 

I think Professor Schaff is right on target when he criticizes "a view of marriage as self-fulfillment rather than self-giving," but it is not obvious to me why homosexual marriage necessarily involves or promotes such a view.  Marriage is about mutual obligations more than self-fulfillment or rights.  Anything short of that is not marriage, but something else.  It is an unfortunate feature of the campaign for gay marriage that it has been almost totally oblivious to this fact. 

But I see no reason why gay marriage cannot be defended on traditional grounds.  Gay thinkers like Andrew Sullivan have argued (if I remember correctly) that marriage would promote more responsible sexual behavior among gay males.   A "monogamous" same sex marriage would be a bulwark against veneral diseases just as monogamous heterosexual marriage is, when the partners honor one another with a sacrifice of fidelity. 

I am not here arguing with Professor Schaff, as he takes no explicit position against gay marriage in his essay, but I think that his arguments represent the best grounds that conservatism (unassisted by Divine law) has for a rejection of gay marriage, and it seems to me that they are weak for that purpose. 

              * * *

The arguments for gay marriage are, in general, similarly wanting.  As I have argued many times here, restrictions on marriage to heterosexual relationships do not violate equal protection for they are generally applicable.  A homosexual man cannot marry another man, but neither can a non-homosexual man. 

My cherished interlocutor, A.I., makes a good point in a comment that I believe I never got around to replying to.  But I remember it: he asked about poll taxes.  Poll taxes were fees that a person had to pay in order to vote.  These were generally applicable; does that mean they are okay?  No, I reply, it just means that whatever is wrong with them, it can't be selective application.  Polls taxes were specifically designed to keep Black voters, who were disproportionately poor, from voting.  Like laws against miscegenation, the purpose of poll taxes was to keep a certain subpopulation "discrete and insular."  On in the words of the majority opinion in Plessy, to keep the races from "commingling." 

By contrast, traditional restrictions on marriage cannot function to keep the homosexual population more isolated.  If anything, such restrictions invite commingling.  Similarly, such restrictions cannot be a violation of the right to marry whomever one wants to, since no such right exists or should exist.  Lots of restrictions on marriage are valid.  One cannot marry one's sister, or someone under age, or a third person, or a horse.  Apart from racial restrictions, the Constitution offers no guidelines as to which restrictions are valid and so the question is political rather than legal.  Courts that have ruled otherwise are merely writing their own political opinions into the law. 

With no decisive arguments for or against gay marriage, I suspect that its eventual legalization is inevitable.  But it seems to me that the gay rights movement and conservatives might find common ground on this one.  Both have an interest in seeing that marriage means "self-giving" more than "self-fulfillment."  I have little hope for this. 

In the first place, it would split both sides of the chamber.  Religiously motivated conservatives would never forgive more libertarian minded conservatives (like myself) for giving up, and a large part of the gay activist community is not the least bit interested in any sort of marriage that implies restrictions on behavior.  Moreover, both the left and the right are probably less interested in the issue than they are in disappointing the other side.  In the current climate, that means that conservatives lose twice.  Gay marriage becomes a reality, and as Professor Schaff predicts, the institution of marriage is futher diluted. 

Star Trek: A Review

In his review of the new Star Trek film, Jonah Goldberg suggests the less one knows about the original franchise the better.  After seeing the film, I must admit that he is correct.  The film takes some liberties with various characters, in some cases reshaping them in ways inconsistent with the original series (e.g., a lusty Uhura and a Spock whose human side comes out frequently) and in other cases enhancing familiar characters to almost caricatures (see the new Chekov and Scotty characters). There are some goofy time-travel games and, like too many sci-fi/action films, a passing familiarly with physics and common sense is often a detriment to viewing.  Despite these qualms, and the fact that I actually have little good to say about the film, I must say it is a fun enough film that seeing it on the big screen is probably worth your money. 

Let's mention the highlights.  The special effects are excellent and once some preliminary plot setting is taken care of the film moves with a good pace that keeps the attention.  The film is funnier than anticipated, if sometimes the humor seems a bit misplaced within the film's action.  Over all the cast is up to the task.  While I suggested above that Scotty almost becomes a caricature, Simon Pegg's performance is a scene stealer at every turn.  Chris Pine strikes the right tone with Kirk and, despite his relative lack of screen time, I really liked John Cho as Sulu.  I am less enamored than some with Zachary Quinto's Spock and Karl Urban as McCoy, but still their performances make the grade. 

But perhaps I actually am too familiar with the original series to fully enjoy the film.  The new Kirk is more cowboy and anti-authoritarian than even William Shatner's Kirk, who, yes, was something of an anti-authoritarian cowboy.  But this Kirk is sometimes flippant, which is a quality one didn't see in the original Kirk and strikes a discordant tone in the film.  There is a wildly implausible (by original series standards)love affair broadly hinted at in the film.  Again, this is an annoyance. 

THIS IS WHERE YOU STOP READING IF YOU DON'T EVEN WANT A HINT OF A SPOILER

In short, this is Star Trek for people who really don't like or care about Star Trek. Without giving away too much, I will say that the time travel gimmick referenced above is used as a device that allows the filmmakers to essentially rework the entire Star Trek world without having to care about discontinuities.  For example, there is a character who appears in the original series who dies in this film.  But it doesn't matter, because we are on a new time line.  I think John Podhoretz is right: when time travel is used in a story, it should present deep conflicts to characters as they struggle with what is destiny versus what might be.  But Star Trek uses time travel as a "get out of jail free card" that ignores the tensions created by time travel and trivializes choices characters have to make. 

The entire film, in some sense, is a triviality.  In a story in which entire planets are destroyed, the overriding conflict driving the plot is whether Kirk and Spock end up as friends.  I saw an interview with Elijah Woods regarding the Lord of the Rings films in which he said that the message of LOTR is the power of friendship.  Umm, no, actually, that is not the point.  That view of LOTR and this version of Trek are similar to many recent war movies in that they divorce the actions of individuals from the monumental circumstances in which they find themselves.  Great events become simply devices for illustrating the small effects on individual lives.  Nowhere is this more evident than in the execrable Pearl Harbor, the message of which is essentially that WWII was a tragedy because it kept good looking people from hooking up.  Or consider The English Patient, which would have us believe that there is a nobility in selling out the free world to the Nazis as long as it is for true love.  In Star Trek, there are horrific occurances, a really nasty villian, and billions of lives at risk, but this is all secondary to Spock and Kirk becoming buddies.  If I had more time and was more pretentious I'd discuss how this illustrates the decay of public life in favor of concern with private desires.  But it is late and this post is long enough, so I will spare the reader. 

So these are serious faults.  But hey, the film is a fun ride to cultural oblivion.

As an aside, watching the previews before the film leads me to believe that this is going to be a bad summer for movies.  Will Ferrell's Land of the Lost looks positively awful. We will also get Terminator IV, Transformers II, and GI Joe, all of which feature giant robot monsters smashing things while heroes fly around on cool transports and lots of explosions occur.  Basically the same movie three times.  And if you liked the original Night at the Museum (and I did), well get your tickets early because they've made a remake that appears to be the exact same movie but with a crucial plot difference: it take place in a different museum.  How original!   

Please, Sir, Can I have some more?

File this editorial under "hope."  From the Washington Post:

POWERFUL evidence of the worth of the D.C. school voucher program was on display at yesterday's rally in support of the program. Hundreds of children, outfitted in the uniforms of the private schools they attend through vouchers, sat in rapt attention as one of their own read a poem he had written: "Surrender me from the typical stereotype of a black young man . . . I am a whole different guy." It is to President Obama's credit that he wants to uphold the right of fledging poet Carlos Battle and 1,715 other voucher recipients not to have their educations disrupted. We can't help but wish, though, that other needy students would get the same opportunity of choice.

Just as the rally was breaking up in Freedom Plaza, word came that Mr. Obama would seek to extend the program until all participants in the D.C. Opportunity Scholarship Program graduate from high school, although no new students would be admitted. Considering that some of the students are in pre-kindergarten, that would be an admirable commitment. It also would be welcome relief to parents who, since the program's start in 2004, have had to worry about Congress yanking funding for the federal grants of $7,500. Details of the president's plan remain sketchy, but we hope he has included provisions that would allow the siblings of voucher participants to enroll.

So the issue is this: Congressional Democrats want to shut down the D.C. Opportunity Scholarship Program.  This program allows some students to escape very bad schools and enroll in very good private schools.  Why do Democrats want to shut this program down?  It is to the Washington Post's credit that it recognizes the motive of the guilty party. 

It was the Democrats who wrote what they hoped would be a death sentence for the program by cutting off any future funds unless the program was reauthorized. The National Education Association, a teachers union allied with the Democrats, has been on a mission to end the program as soon as possible, with no regard for the children whose lives would be affected. We hope Mr. Obama will fight for the compromise he has embraced.

Well, yes.  The NEA doesn't' give a half-inch piece of chalk for the kids benefited by the program.  The Post clearly wants to believe in Obama, but the "compromise" he is reluctantly considering would only continue the program for students already benefiting from it.  The Editors can only "hope he has included provisions that would allow the siblings of voucher participants to enroll," and they "can't help but wish that other needy students would get the same opportunity of choice."  Well, hope was the theme of the Obama campaign, wasn't it?  

Barack Obama's every instinct is to give the teacher's union what it wants, except for the instinct to avoid a "teaching moment."  Well, this is a teaching moment if ever there was one.  It teachs one what Obama's turn to the left means, and who it will benefit. 

For a more vivid perspective, see this clip from Reason T.V.

Darwinist Teacher/Establishment Clause 2

My last post on this topic attracted some very thoughtful comments, and I thought it best to give them the visibility of a new post.  In C.F. V Capistrano Unified School District, a Federal District Court in California found that a high school teacher (James Corbett) violated the Establishment Clause of the Constitution when he said that "creationism" was "superstitious nonsense."  I thought this a bad decision for reasons I stated there, but I also thought that the District Court has an argument based on recent Supreme Court Jurisprudence.  The best question was stated by A.I. this way:

Perhaps I'm being a bit obtuse or need another cup of coffee, but I must ask the rhetorical question: How do Corbett's statements rise to the level of being "law" and thus violating the establishment clause?

Miranda asks the same question:

How does what a teacher says rise to the level of being a law? Or, for that matter, how does another student's prayer become such? These things seem to fall under the establishment clause, simply because a court decided they should.

Now I don't know the law on this question very well, but here goes nothing:  the Establishment Clause, like the rest of the Constitution, places limits only on governments and never on private persons.  In such cases as the Constitution makes something illegal altogether (like slavery), it is directing federal and state governments to control the activity by ordinary law. 

However, governments are composed of people, and "people" of persons.  A person may be controlled by the Constitution if he or she is acting in a public capacity.  Mr. Corbett is, I presume, an employee of the State of California.  So it is not out of the question that his conduct might be proscribed by the First Amendment.  For the same reason, the teacher has limited recourse to a freedom of speech appeal.  Government speech clearly can be controled by the Constitution.  Free speech would enter the picture only if some government tried to interfere with the teacher in a manifestly partisan way. 

Miranda goes on:

But if courts have ruled against even a moment of silence in schools merely because they might make a student "contemplate religion", and says that such a thing violates the establishment clause, certainly this falls under the same umbrella.

The High Court's Establishment Clause jurisprudence has frequently involved collisions between school and school board policies and the Constitution.  Like Miranda, I think that a lot of this jurisprudence is ill-advised and poorly constructed; but it is not student prayers that are said to violate the E.C., it is such policies as mandated, teacher-led prayer or Bible reading at the beginning of the school day, or at graduation ceremonies, etc.  Off hand, I don't know of another case where a teacher's choice of words in the conduct of his class has come under First Amendment scrutiny.  I think that this is a very bad precedent, and I am guessing this case is headed uphill. 

Miranda corrects me on one point.  I said:

"Creationism" isn't religion.  It is a doctrine which holds that scientific facts support the literal truth of the Old Testament creation story.  I agree with Cory that this is nonsense, and that it distorts both science and the Biblical text. 

Miranda says:

I disagree with you, Dr. Blanchard, on the issue of the lemon test.  The word "Creationism" dates back to the 1800s. It's meaning, according to The Random House Dictionary, is, "The doctrine that matter and all things were created, substantially as they now exist, by an omnipotent Creator, and not gradually evolved or developed." A doctrine is merely a teaching. The word often has religious connotation. But the definition says nothing of creationism being a "scientific theory." Creationism itself might not be a religion, but it is PART of a religion. Attacking it is like attacking someone for praying, or washing their feet.

I concede that the word "Creationism" sometimes means a belief the Biblical story of creation. 

But the "ism" implies, as Miranda points out, a doctrine about matters on which science is competent to speak.  To say that the doctrine that "matter and all things were created, substantially as they now exist, by an omnipotent Creator, and not gradually evolved or developed" is nonsense, is a perfectly reasonable thing for a history or biology teacher to say.  It has firm secular ground, as the said doctrine flys in the face not just of Darwinism but of geology, astronomy, and physics.  If saying such a thing violates the E.C., then so does illustrating it by teaching those subjects.  

In my defense I would point out that "Creationism" in the context of Constitutional Law almost always means Creation Science, which is all or mostly all nonsense.  The Grand Canyon was formed sometime in the last six thousand years when the universal flood receded?  Where did all that water go? 

At any rate, C.F. v. Capistrano has exposed a logical problem in the Court's E.C. jurisprudence.  In Edwards v. Aguillard and the Dover case, the Supreme Court identified the mandated teaching of Creation Science and Intelligent Design Theory respectively as promoting religion.  Okay.  But the E.C. forbids either promoting or inhibiting religion.  So isn't anything in a classroom that explicitly criticizes Creation Science and Intelligent Design Theory inhibiting or siding against religion?  On the question whether the Constitution forbids states to mandate such teachings, I am conflicted.  I think such things surely should not be taught in public schools.  That is because I think that they amount to bad science.  But as Scalia points out in his dissent in Edwards, the Constitution doesn't prohibit bad science. 

Cory and I agree with Miranda's theologically careful statement:

And if there is any doubt over whether or not Mr. Corbett was attacking the religion or what he saw as a scientific theory, one has only to look at his comment about the "Jesus glasses." Jesus has nothing (at least nothing obvious) to do with the Creation story.

Miranda is speaking of this comment by teacher Corbett:

When you put on your Jesus glasses, you can't see the truth.

That crosses two lines.  It is obviously a direct attack on the Christian viewpoint and it seems calculated to single out religious believers in class.  But I think there is general agreement among us in this exchange that this is not a matter for the courts.  The school authorities should have reined in Mr. Corbett.  Since they apparently failed to do so, there were other avenues of redress for students and their parents.  Bringing a teacher under First Amendment scrutiny looks to me like an unprecedented interference in the teacher's business. 

Finally, A.I. adds:

that Mr. Corbett's student also appears to be an ass and an anti-science bigot. That does not excuse Corbett's "assiness", but it may explain his frustrations with the student.

A.I. is heroically trying to find some disagreement with me here, for which effort I applaude him.  As he says, where's the fun in agreeing?  So I will go along and say that the student is entitled to be an ass.  Education should, on occasion, be offensive.  Otherwise it is not genuinely challenging.  But if so, we can hardly blame a student for being offended. 

The Humans Are Dead

Darwinist Teacher Violates Establishment Clause?

My Keloland Colleague Cory Heidelberger beat me to this one.  From FoxNews:

A federal judge ruled that a public high school history teacher violated the First Amendment when he called creationism "superstitious nonsense" during a classroom lecture.

U.S. District Judge James Selna issued the ruling Friday after a 16-month legal battle between student Chad Farnan and his former teacher, James Corbett.

Farnan sued in U.S. District Court in 2007, alleging that Corbett violated the establishment clause of the First Amendment by making repeated comments in class that were hostile to Christian beliefs.

Cory provides a very helpful list of all the objectionable things that the teacher, Corbett, said in his class.  Cory takes issue with one in particular: "When you put on your Jesus glasses, you can't see the truth."  But the Court took issue with the remark about creationism being superstitious nonsense. 

I don't disagree with much that Cory says, but I find the ruling very disturbing.  From a quick glance at the opinion, the California Federal District Court employed the Lemon Test.  The First Amendment says that

Congress [and the States, under the incorporation doctrine] shall make no law respecting an establishment of religion.

Under the Lemon Test, a law violates this clause if 1) it has no secular purpose; 2) it's primary effect is to either to advance or inhibit religion; or 3) it involves and excessive entanglement with religion.  As The Volokh Conspiracy argues, for Mr. Corbett, a state employee, to say that creationism is superstitious nonsense, does not violate the first "prong" of the test.   Corbett was teaching science and wished to convince his students that the theory of evolution was true and challenges to it from creationism were false.  Whether one agrees or not, trying to encourage a belief in science among students qualifies as a secular purpose. 

But the Court found that the statement about creationism violated the second prong: Corbett was taking sides against religion in general and Christianity in particular.  I respectfully dissent. 

"Creationism" isn't religion.  It is a doctrine which holds that scientific facts support the literal truth of the Old Testament creation story.  I agree with Cory that this is nonsense, and that it distorts both science and the Biblical text.  To say as much is to take a position regarding what is and what is not science.  There are a lot of ways to reconcile Biblical creation with evolution that do not involve creationism.  Unfortunately, the Court has identified creationism and intelligent design theory with religion in cases involving state-mandated teaching such doctrines.  So the California court had a point.  But I don't think that such a remark in class is on the same level as curriculum design. 

And that is the rub.  Mr. Corbett's many statements suggest that he is an anti-Christian bigot.  When bigotry of any kind is focused on particular students or groups of students in a public school classroom, there is a real problem.  The school authorities are certainly allowed, and may be required by law, to shut that behavior down.  In particularly egregious cases, a student or group of students may have cause for legal action.  Short of that, it's a matter of policy, and as such, I think the school should have given Mr. Corbett's leash a good hard yank. 

But when a court ends up combing over a teacher's statement of opinions in the classroom a dangerous line has been crossed.  Teachers have to be free to state their opinions in class; in the absence of final knowledge on all or almost all subjects, teachers do nothing else.  To be sure, students will sometimes be offended by these opinions.  There is no constitutional right not to be offended.  Classrooms must be open to offensive thought.  If a teacher needs to be admonished, it should be by the school itself.  If the school fails to act, there are political channels available.  To extend First Amendment protections to cover what a teacher says in the classroom threatens the very idea of a classroom. 

Mr. Corbett is an ass.  I believe in the theory of evolution, but I have found many Darwinists to be among the most pig-headed people I have ever met.  Mr. Corbett's pig-headedness may have succeeded in striking a blow against freedom of thought in education. 

Obama's Proposed Budget Cuts Visualized

This is an excellent presentation of the size of the Federal Budget and the relative size of President Obama's proposed cuts. 

The Unbearable Lightness of Obama's Energy Policy

There are three great concerns to be addressed by a national energy policy: one, to provide energy for the American economy; two, to promote energy independence, in so far as that is a reasonable goal; and three, to protect the environment. 

The big rub is between one and three.  Is there a way to reduce the increase in greenhouse emissions in the future (let alone reduce the actual amount of green house gases emitted) without drastically retarding economic growth?  The Obama Administration holds out green technologies like wind and solar power as solutions, and of course these are supposed to reduce our dependence on foreign oil.  But what happens if these pretty ideas fail, and the lights go off and the cars stop running?  I submit that Americans won't give a rats ass about global warming if they are reduced to cooking actual rat's asses on wood harvested from their cedar decks.  So maybe the first thing we need to do is make sure the lights stay on. 

Robert Samuelson, the most clear headed economist writing for the popular press, points out that the U.S. has a lot of untapped fossil fuel. 

Contrary to popular wisdom, the United States still has huge oil and natural gas resources. The outer continental shelf (OCS), including parts that have been off-limits to drilling since the early 1980s, may contain much natural gas and 86 billion barrels of oil, about four times today's "proven" U.S. reserves. The U.S. Geological Survey recently estimated that the Bakken Formation in North Dakota and Montana may hold 3.65 billion barrels, more than 20 times a 1995 estimate. And there's upward of 2 trillion barrels of oil shale, concentrated in Colorado. If only 800 billion barrels were recoverable, that's triple Saudi Arabia's proven reserves.

None of these sources, of course, will quickly provide oil or natural gas. Projects can take 10 to 15 years. The OCS estimates are just that. Oil and gas must still be located -- a costly and chancy process. Extracting oil from shale (in effect, a rock) requires heating the shale and poses major environmental problems. Its economic viability remains uncertain. But any added oil could ultimately diminish dependence on imports, now almost 60 percent of U.S. consumption, while exploration and development would immediately boost high-wage jobs (geologists, petroleum engineers, roustabouts).

So item number two can be satisfied, if only we exploit our own energy reserves.  Samuelson goes on to point out that the Obama Administration has a congenital bias against oil and coal.  Obama's decision not to begin exploiting these resources will not affect his own Presidency.  They will handicap the American economy ten or twenty years down the road.  We are already twenty years behind when it comes to tapping proven reserves.  That is the Democratic Party at work. 

So what about 'renewable energy'? 

In 2007, wind and solar generated less than 1 percent of U.S. electricity. Even a tenfold expansion will leave their contribution small. By contrast, oil and natural gas now provide two-thirds of Americans' energy. They will dominate consumption for decades. Any added oil produced here will mostly reduce imports; extra natural gas will mostly displace coal in electricity generation. Neither threatens any anti-global warming program that Congress might adopt.

Encouraging more U.S. production also aids economic recovery, because the promise of "green jobs" is wildly exaggerated. Consider. In 2008, the oil and gas industries employed 1.8 million people. Jobs in the solar and wind industries are reckoned (by their trade associations) to be 35,000 and 85,000, respectively. Now do the arithmetic: A 5 percent rise in oil jobs (90,000) approaches a doubling for wind and solar (120,000). Modest movements, up or down, in oil will swamp "green" jobs.

If Republicans want an issue, this is one.  "Alternative energy" is a joke.  The only viable sources of energy sufficiently cheap to power a modern economy are fossil fuels and nuclear power.  So far Democrats have not suffered from their relentless campaign to keep us from exploiting our own wealth.  Sooner or later that will change. 

President Obama Clueless About Constitutional Law

As was appropriate, the President's remarks on the impending retirement of David Souter from the high court are gracious.  Whatever one thinks about his jurisprudence, Justice Souter is due respect for his position and his public service.  It is not unfair or unreasonable to expect that the President's remarks would involve political calculations.  This is when he begins to make his case for his next appointment.  But was it really necessary to begin his remarks with a load of utter nonsense?  For example:

Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge.  He came to the bench with no particular ideology.  He never sought to promote a political agenda.  And he consistently defied labels and rejected absolutes, focusing instead on just one task -- reaching a just result in the case that was before him.

To say that Souter "came to the bench with no particular ideology" and that he "consistently defied labels" suggests either cluelessness or dishonesty.  Souter was very easy to label: he acted as a judicial liberal from the moment he joined the court.  Unless you are willing to imagine that he was struck down on the road to Damascus, he was probably a good judicial liberal before his nomination by Bush 41.  There is no blame for Souter in this; it was papa Bush's job to get it right and in fine family tradition he didn't. 

More disturbing were the President's comments on the kind of judge he wants to put in Souter's place. 

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President.  So I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Here's the problem: "abstract legal theory" and "footnotes in case books" are what constitutional law is all about.  Every time the High Court decides a case, it formulates rules that have to be abstract because they have to be applied by lower courts to a range of cases, many of which involve situations that cannot be anticipated.  When the Court decided (correctly) in Texas v. Johnson that the First Amendment freedom of speech protects the right to burn an American flag as an act of protest, the Court wasn't just thinking about the "daily realities" of Texas or Johnson.  It was of necessity thinking about any person who might come into a similar collision with some governmental power.  Is the President really as clueless about the nature of constitutional law as he seems to be? 

Worse still, the President's invocation of "empathy" is offensive to three or four hundred years of judicial tradition.  Has President Obama never seen an image of blind justice?  What is the point of the blindfold that the Goddess of Equity wears?  She wears it precisely so she can't "identify with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes," but instead must see every person as the same regardless of his or her status and fortune.  

Let's take an example.  Suppose a judge believes that a man was wrongly convicted of raping and murdering a child, even though the man is obviously guilty.  Let us say he confessed and revealed knowledge that he could only have had if he were the perpetrator.  But the evidence on which he was convicted was tainted by an illegal interrogation.  Should the judge be swayed by her empathy for the parents of the child victim (not to mention possible future victims), or should she uphold products of abstract legal theory like the exclusionary rule and the Miranda rule?  Does the President really want a judge who would abandon the latter out of a concern for whether people "feel safe in their homes"? 

The President does not seem to realize that his desire to factor in empathy in judicial decisions runs directly contrary to "the rule of law" that he also claims to believe in.  The "rule of law" means that the law as it stands must overrule the personal feelings and agendas of the people who administrate it.  That includes even those empathetic good persons that Obama wants to put on the Court.  

President Obama claims to believe in "our constitutional traditions," and the "constitutional values on which this nation was founded."  Let us hope that whoever he appoints will not be as clueless about these traditions and values as he is. 

Souter to Retire From High Court

This event is difficult to game.  If Ruth Bader Ginsburg or John Paul Stevens had made such an announcement, it would be a little easier.  They are reliable votes on the left wing of the Court, but both are intellectual light weights.  Obama could replace them with reliable judicial liberals of greater intellectual caliber, and that would advance his cause.  But that isn't easy to do.  The sad fact is that relative few judges in the history of the court have had more than mediocre legal minds. 

Souter is the only serious legal mind on the Court's left wing.  President Obama can easily find a replacement vote, and that is what counts most.  But if he replaces Souter with another Bryer or Ginsburg, that will leave all the intellectual weight on the right wing.  Scalia, Kennedy, Alito, and (despite the hostile Press) Thomas, are all judicial thinkers and writers well above the Court's typical membership.  That sort of thing can have consequences. 

For a good example of what left and right mean on the Court, consider jurisprudence on the Free Exercise Clause.  The First Amendment starts off like this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercisethereof. 

What does that bit about "free exercise" of religion protect?  Everyone on both sides of the Court agrees that this prohibts any government in the United States, Federal, State, or local, from singling out a belief or practice because of the religion with which it is associated.  Thus, in Church of Lukumi Babalu Aye v. Hialeah, the Court unanimously struck down a municipal act that was clearly designed to prevent adherents of the Santeria Relgion from operating a church in Hialeah. 

But in Employment Division of Oregon v. Smith the Court upheld an Oregon law that prohibited the possession and use of the peyote, even when this was part of the relgious practice of the Native American Church.  Antonin Scalia, writing for Court, argued that so long as a law was neutral and generally applicable it did not violate the Free Exercise Clause, even if happens to interfere with some religious practice.  Under Oregon law, peyote is illegal for everyone, regardless of the motive for using it.  That is a good example of the Court's "conservative" decisions. 

In the Hialeah case, Justice Souter wrote a concurrence that took issue with the Smith rule.  He argued, if I understand him, in favor of an early rule.  If an act of government has a substantial negative impact on a religious practice, then government must demonstrate that the act serves a compelling government interest.  A law forbidding human sacrifice might have a negative impact on a religious tradition that demand such a practice, but government has a compelling interest in protecting human life, so such an act would withstand judicial scrutiny.  But an act forbidding the ceremonial use of peyote might not. 

Scalia was right.  Souter was wrong.  Scalia thinks the Court should act like an honest umpire: enforce the same rules on all the players.  The Smith rule is easy to read and apply, and it is fair to everyone.  Souter thinks that judges should act as angels in the outfield, making sure the games come out right.  But his rule requires an endless series of judgment calls.  When does a policy have a "significant" negative impact on religion?  When military jets are allowed to fly over a pacificist church?  And what government interests are "compelling?"  Well, it turns out that a religious practice is significant when the Court likes it.  And a government interest fails to be compelling when the Court doesn't like it. 

I think Scalia is right about the role of the Court.  It should be an honest umpire.  Souter thinks it should try to right every social wrong it perceives.  That is what is at stake in the next Supreme Court appointment.