South Dakota Politics

Direct Democracy Takes A Hit in Hollingsworth

The other Supreme Court decision on same sex marriage-Hollingsworth v. Perry-is certainly a blow to those who want to preserve traditional marriage, at least in California. It would seem to doom CA Proposition 8, an initiative passed by the voters of that state that defined marriage in traditional, i.e. man and woman terms. Less noticed is what it means for the initiative process.

The Orange County Register sees this as a blow to direct democracy, which it surely is.

The Supreme Court's ruling Wednesday in Hollingsworth v. Perry was celebrated in much of California. By a 5-4 majority, the justices held that defenders of Proposition 8, the voter-approved 2008 ballot measure defining marriage as a union strictly between a man and a woman, lacked standing to challenge a federal judge's ruling that the law was unconstitutional.

Standing indicates the right to bring a question before the court. I may think that the President's actions in Libya violated the War Powers Act (which I do). I cannot sue the President and thus bring this question before the Court because I lack standing. I cannot show that I have been personally injured by the supposed violation. The Court's decision in Hollingsworth turned entirely on the question of standing.

The justices declared that, if state officials refuse to defend a ballot measure duly enacted by their state's voters, not even the private citizens who actually sponsored the measure may defend it in court.

The voters of California passed Proposition 8. Opponents of Prop 8 sued and a federal court struck it down. Defenders of Prop 8 appealed and the High Court heard the case. It ruled that only the state government had standing to defend the proposition in court.

This looks to me like a big defeat for direct democracy. The initiative process is designed precisely to allow voters to go over the heads of their state legislatures and make laws that those legislatures were unwilling to make. Now we see how easy it is for the Governor to nullify a proposition passed by the voters. All that has to happen is for someone to sue before a sympathetic court. Then the Governor need merely decline to defend the proposition. Apparently no one among the millions who may have voted for or pushed for the proposition has standing to defend it in court.

I am not particularly disturbed by this because I have long been a critic of the initiative and referendum process. If voters are not satisfied by the action or inaction of their state legislatures, the solution is to vote the rascals out. The Court's rule of standing in Hollingsworth clearly weakens the initiative process by making it relatively easy for the state government to nullify any proposition. I am okay with that.

Most of my friends on the left are very fond of direct democracy. They should be very disturbed by the Court's action in this case. They won't be. Winning on the issue is all that matters.

Gone With the Windsor

The general consensus on both the left and the right is that U.S. v. Windsor was a victory for gay rights advocates in particular and liberals in general. On the one hand, Justice Kennedy's opinion affirmed the power of the state governments to define marriage against the power of the Federal Government to interfere; on the other, the opinion striking down The Defense of Marriage Act (DOMA) seems to articulate grounds that will make a constitutional right to gay marriage all but inevitable.

Whether the latter turns out to be true will depend on where five of nine decide to go in the future and on nothing else. I side, however, with Randy Barnett at the Volokh Conspiracy regarding the logic of Justice Kennedy's opinion. It is not at all obvious that it victory for liberals or for gay marriage.

In the first place, the Court clearly does come down on the side of state's rights.

State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, "regulation of domestic relations" is "an area that has long been regarded as a virtually exclusive province of the States"…

The significance of state responsibilities for the definition and regulation of marriage dates to the Nation's beginning; for "when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States."

In the second place, as Barnett observes, Kennedy's opinion introduces a wholly novel trigger for heightened judicial scrutiny and one which depends on the state's power to define and regulate marriage.

Ordinarily, a law need only have a rational basis to pass constitutional muster. That is to say, it must only be a reasonable means to some purpose that is within the powers of government to pursue. So, for example, a speed limit is rationally related to the cause of public safety. When, however, a law seems to violate some fundamental right (due process or equal protection, for example), it triggers strict or at least "heightened" judicial scrutiny. That imposes a very stringent test. The law must serve some compelling purpose and it must be narrowly tailored to that end. When the Court announces that strict scrutiny has been triggered, that usually means that the Court is going to strike the law down.

What is novel in Windsor is that the trigger for heightened scrutiny is not the violation of a constitutional right but the violation of a state-granted right. Kennedy argues that, while a state may be free to define marriage, that definition creates a set of rights and privileges that must be uniform in that state for all married couples. This is where DOMA goes wrong.

DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

As the Court reads the case, DOMA effectively singles out part of the married population in a same-sex marriage state and denies some of the benefits of marriage to that subpopulation. It does so without identifying a legitimate federal interest in this departure from traditional deference to state laws. That violates the rights of persons in marriages targeted by the law.

I will close with three points. First, this case may indeed be the Griswold in advance of Roe that everyone seems to take it for. I merely point out that the logic of the opinion does not point in that direction at all. Kennedy finds no constitutional right to same sex marriage. Instead, he finds a right to "a dignity and status of immense import" that is uniformly conferred by a State's "its historic and essential authority to define the marital relation."

Second, while the Court found it "unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance," the entire decision seems to rest on the power of a state to define marriage and (presumably) restrict that institution to opposite sex couples. That hardly strengthens the hand of those who want a constitutional right to same sex marriage.

Third, DOMA is precisely the kind of legislation that conservatives are supposed to dislike. Apart from the issues of liberty and equal protection, it is a federal meddling in the essential business of the state governments.

I am in favor of legal same sex marriage. I do not, however, confuse my political preferences with Constitutional mandates. I see nothing in the Constitution that requires legal same sex marriage. I think that the states do indeed have the authority to define marriage, subject to certain constitutional restraints. Uniformity seems to me to be a valid restraint. I haven't read the dissents yet, and I usually agree with justices Scalia and Thomas. So far I do not see anything in this decision that I would take issue with.

On NSA surveillance: Open up this process before it gets out of hand

My latest in the Pierre Capital Journal, on the NSA surveillance programs.  Here's a sample:

On a recent podcast on the invaluable Mars Hill Audio Journal, scholar Matthew Dickerson discusses J.R.R. Tolkien’s depiction of heroism and warfare. Dickerson notes that those who have only seen the Peter Jackson films will get a jaundiced view of Tolkien on these matters. As Mars Hill host Ken Meyers puts it, Jackson’s films look more like a World of Warcraft video game than Tolkien’s novels.

Dickerson notes that the character of Faramir, in the third novel, “The Return of the King,” has a confrontation with his father, Lord Denathor. Denathor chastises Faramir for being too “gentle,” which may lead to defeat in war. Faramir’s response is a simple and to the point, “So be it.” Faramir is saying that he would rather retain his morality than win while debasing himself.

Perhaps we can keep this in mind as we consider the recent revelation of the National Security Administration’s surveillance of American phone calls and Internet activity. Perhaps these endeavors are necessary for the security of the American people. But do we want to live in a nation where the government systematically and massively gathers data on the most intimate parts of our lives?

 

Pure Food & Liberalism

Jonathan Haidt's fascinating survey work on the moral foundations of politics identifies a number of dichotomies that define the political culture in the U.S. These are care/harm; fairness/cheating; liberty/oppression; loyalty/betrayal; authority/subversion; and sanctity (or purity)/degradation. Haidt argues that what distinguishes the left and right in America is which of these dichotomies they hold to be most important. Here is a quote that I take from an earlier blog post:

Political liberals [in the U.S.] tend to rely primarily on the moral foundation of care/harm, followed by fairness/cheating and liberty/oppression. Social conservatives, in contrast, use all six foundations. They are less concerned than liberals about harm to innocent victims, but they are much more concerned about the moral foundations that bind groups and nations together, i.e., loyalty (patriotism), authority (law and order, traditional families), and sanctity (the Bible, God, the flag as a sacred object). Libertarians, true to their name, value liberty more than anyone else, and they value it far more than any other foundation.

One interesting thing that Haidt notes is that conservatives are much better at guessing what values liberals hold than vice versa.

I am guessing that liberals may be just as bad at guessing what they themselves believe as they are at guessing what conservatives believe. As I recall, the further to the left you go, the less emphasis you get on sanctity/degradation. Most on the left, I suppose, would be uncomfortable those terms. However, anyone who pays attention to the liberal culture in America will note that they spend a lot of time, energy, and money on achieving purity.

The fair trade culture is one glaring example. I can buy a pound of "Peace Coffee" at my local coopt. Such labels as "fair trade" and "sustainable" are nothing if not certifications that the purchase and consumption of a product is kosher. A couple of articles illustrate the character and the absurdity of this culture of purity.

Judith Shulevitz at The New Republic exposes the "cleansing" fad as a quazi-religious bit of numbskullery.

One afternoon last month, I made a nervous visit to the office of Ghiora Aharoni, an Israeli sculptor and architect of some renown. The awkward part was that I hadn't come to interview him about his work. I was there to hear about his gut. He had just finished a 21-day cleanse, the kind with supplements, protein shakes, and endorsements by the likes of Gwyneth Paltrow. (It's called the Clean Program.)…

What draws sophisticated and healthy people like Aharoni's friends to commercial quasi-fasts? Cleanses, whether they last a day, a weekend, or three weeks, and whether they consist exclusively of fruit and vegetable juices or just a severe restriction of solids, are quickly becoming a part of what you might call the cosmopolitan diet, consumed in the more urbane sectors of New York and Los Angeles and Austin or wherever you find Whole Foods–levels of gastronomic consciousness and sufficient disposable income…

Aharoni and others made it clear that they fast for more than the mere improvement of their psycho-physiological wellbeing. Aharoni described his cleanses as "journeys" or "traveling while staying at home," phrases that echoed (to me, at least) the visionary transports achieved by fourth-century Christian desert ascetics and medieval holy women. As it happens, these saints starved themselves only partly out of piety; rejecting food, they also rejected a church committed more to institutional growth than the extremes of religious experience. Another explanation I heard was that people cleanse out of a sense of shame: Their eating and sometimes their lives feel out of control. In the past, this same feeling might have provoked atonement, particularly for the deadly sins of greed and gluttony. These new cleanses are "religion without theology," my friend Ruby quipped.

That is how I see it. Cleansing is religious fasting without the theology but not without the superstition. The ubiquity of such practices in various religious traditions testifies to the psychology need that it attempts to satisfy. However, the practice makes a lot less sense without the theology. It's one thing if God or my recommends a diet. But Gwyneth Paltrow?

A second article in The Atlantic by David H. Freedman exposes the locavore/anti-processed food cult to withering scrutiny. Freedman is chiefly concerned with America's big health problem, which is big Americans.

He goes after natural food gurus Michael Pollan and Mark Bittman. They peddle the tale that the food and restaurant industries are making us fat. If only we would stop eating processed foods and eat only something our great grandma would recognize can we burn off the pounds and be healthy again. Behind them is the establishment press and a range of commercial enterprises (the New York Times and Whole Foods figure prominently).

Thousands of restaurants and grocery stores, most notably the Whole Foods chain, have thrived by answering the call to reject industrialized foods in favor of a return to natural, simple, nonindustrialized—let's call them "wholesome"—foods. The two newest restaurants in my smallish Massachusetts town both prominently tout wholesome ingredients; one of them is called the Farmhouse, and it's usually packed.

A new generation of business, social, and policy entrepreneurs is rising to further cater to these tastes, and to challenge Big Food. Silicon Valley, where tomorrow's entrepreneurial and social trends are forged, has spawned a small ecosystem of wholesome-friendly venture-capital firms (Physic Ventures, for example), business accelerators (Local Food Lab), and Web sites (Edible Startups) to fund, nurture, and keep tabs on young companies such as blissmo (a wholesome-food-of-the-month club), Mile High Organics (online wholesome-food shopping), and Wholeshare (group wholesome-food purchasing), all designed to help reacquaint Americans with the simpler eating habits of yesteryear…

If the most-influential voices in our food culture today get their way, we will achieve a genuine food revolution. Too bad it would be one tailored to the dubious health fantasies of a small, elite minority. And too bad it would largely exclude the obese masses, who would continue to sicken and die early. Despite the best efforts of a small army of wholesome-food heroes, there is no reasonable scenario under which these foods could become cheap and plentiful enough to serve as the core diet for most of the obese population—even in the unlikely case that your typical junk-food eater would be willing and able to break lifelong habits to embrace kale and yellow beets. And many of the dishes glorified by the wholesome-food movement are, in any case, as caloric and obesogenic as anything served in a Burger King.

In other words, the whole whole foods movement is very well designed to satisfy the desire of a prosperous elite for purity but poorly designed to address the real problem of obesity and hopeless when it comes to meeting the needs of those who most suffer from it.

Freedman rigorously establishes three points.

1. Much of the food peddled by the food revolution is "obesogenic as anything served in a Burger King."
2. The food peddled by the food revolution is too expensive both in money and in time to be available to the obese masses.
3. The one institution in America that can effectively address the problem is the fast food industry.

The last is the most provocative, but that is what The Atlantic is for. I would add that he is obviously right. No one is better than McDonalds or Carl's Junior at making food cheaply and quickly available and no one is better at marketing food to the masses. Getting the industry to move in that direction is not so hard. It is already happening, as Freedman demonstrates.

The desire for purity is a basic human instinct but it is not always a reliable guide. Modern liberalism has always been an elitist business, yet it purports to care about the many unwashed. If it is really to make good on that purpose, it will have to take a good hard look at itself. Don't hold your breath.

Illiberal Liberals

When I arrived at Northern State University in the late 80's, my department consisted mostly of folks older than myself and well to my left on the political spectrum. I liked all of them but when it came to policy, foreign or domestic, we could scarcely agree on the time of day.

We did agree emphatically on one thing. We respected one another not in spite of but precisely because of our disagreements. Each of us valued the freedom of thought and speech that we enjoyed and we recognized that such freedoms are impossible unless everyone is willing to allow his or her cherished beliefs to be challenged. I can't imagine any of my colleagues would accept the use of institutional powers at any level to stifle dissent. That is what a liberal culture looks like, if one means by liberal the same thing as liberty.

The President has been caught up of late in (at least) two kinds of scandal. One of them is due to the fact that the culture of the Administration is decidedly illiberal. There is no doubt that the IRS used its powers to discriminate against conservative organizations and especially against groups with "Tea Party" associations. Such groups were subject to special scrutiny. Their applications were delayed and they were subject to unreasonable and unprecedented demands. This heavy handed abuse was clearly motivated by a desire to chill dissent. Only the right was subject to such treatment.

It wasn't just the IRS. The Environmental Protection Agency regularly waived fees for Freedom of Information Act requests coming from traditionally left wing environmental groups. It did not extend this generosity to free market based organizations.

Was all this directed by the White House? That only matters if it becomes a matter for a court of law. The President is the Chief Executive. He is by definition responsible for what the executive branch agencies do. Moreover, it is hard not to think that this illiberal culture did not flow from the very top. Recall the President's petulant war against Fox News. The Administration attempted to push Fox out of the White House press corps.

If it weren't for all of this, the other set of scandals would be much less scandalous. As Steve Coll puts it at the New Yorker:

It has been apparent for several years that the Obama Administration has departed from the First Amendment norms established during the seven Presidencies since Branzburg. [Attorney General Eric] Holder has overseen six prosecutions of government officials for aiding the press, more than were brought by all previous Administrations combined.

That alone is cause for concern. Perhaps the Administration's conduct is justified. Like most Americans, I can see why the Administration wants to store a massive data base of phone records. If some terrible mischief is afoot or already committed, I hope that the good guys can tell who the bad guys called and when. But that kind of surveillance can easily be abused. If we are going to trust the Executive Branch with that kind of power, we have to be able to trust that they will not abuse it. President Obama's Executive Branch has forfeited that trust.

The root cause of the problem is that a lot of contemporary liberals are not at all like my colleagues mentioned above. When the Tea Party movement emerged, the American Left did not engage it in discourse; they went on a full court press to discredit it. They accused the Tea Party activists of racism, which was bitterly unfair, and of encouraging violence which was blatantly false. That is how an orthodoxy responds to heretics, not how genuine liberals respond to dissent.

Revive democracy by squashing a few needless regulations

My latest in the Pierre Capital Journal is here.  A taste:

If one wants a depressing read and Sylvia Plath poems aren’t enough, one should go online and find the Annual Snapshot of the Federal Regulatory State put out by the Competitive Enterprise Institute. Even the summary of the report is enough to make you want to put your head in the stove.

According to CEI, federal regulations cost the American people about $1.8 trillion every year. Each family in America pays over $14,000 a year in regulatory costs. Nearly everything you buy, from your mattress to your Cheerios, is regulated by the federal government, and that costs money.

The government is prolific in its production of regulations. CEI notes that in 2012 a new regulation was produced every two and a half hours. Most of these were not passed by Congress, but were rules promulgated by regulatory bureaucracies. In 2012 alone, Congress passed 127 regulations, but federal bureaucrats produced 3,708 new rules.

Read the whole thing.

Our National Fiscal Weakness

The Washington Post, for all its faults, has been something of a voice of reason on fiscal policy. I offer this bit from a recent editorial:

WHEN THE Great Recession hit in December 2007, the United States' publicly held debt amounted to less than 40 percent of gross domestic product — well within the normal range since World War II, when the figure temporarily, and necessarily, soared above 100 percent. Consequently, the federal government was ­well-positioned to fight the plunging growth rate by spending more and taxing less; it had ample "fiscal space."

If a similar emergency — war, recession or some combination — struck now or in the next decade, the United States would begin its response burdened with a debt-to-GDP ratio above 70 percent, roughly twice the postwar average, according to the most recent Congressional Budget Office projections. "Fiscal space" would be correspondingly narrower.

Yes, that would be the problem. We can glide along for a while with this level of debt. Our shoulders are broad. They aren't all that broad. If something unfortunate happens, we are in big trouble. That is to say that we are in a state of fiscal weakness that is unprecedented and that would leave us ill-equipped to deal with a crisis.

We do not suggest that such a situation is likely or that the U.S. economy would collapse if it occurred. Nor do the debt projections prove that the Obama administration's fiscal response to the Great Recession was too large; much of it, in fact, consisted of long-established "automatic stabilizers," such as unemployment benefits that rise (as they should) during a downturn. Our purpose is simply to take note of one reason, among many, that it is far too soon to declare victory over the nation's budget problems.

Yet that is pretty much what a growing chorus of policy experts close to the Democratic Party are urging President Obama and Congress to do.

Of course. I know from years of comments on this blog that my readers to the left are all in favor of fiscal responsibility in the abstract and resolutely opposed to anything that looks like it in the particular.

Our long term fiscal trajectory is disastrous. Our great social programs are unsustainable. The Democratic Party is uniformly dedicated to making sure that nothing is done about this.

Why the Verizon Scandal is a Scandal Updated

You know that something odd is happening when the New York Times editorial board tears the Obama Administration a new exit strategy just as a story breaks. The British Guardian published a scoop today. The Administration has been secretly gathering all of Verizon's call logs. I think that means that they have a pretty comprehensive record of who called who and when. Here is how the NYT puts it:

Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.

Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency's phone records or secret orders to kill an American suspected of terrorism — especially coming from a president who once promised transparency and accountability.

The administration has now lost all credibility on this issue.

Wow. When Obama loses the New York Times, who does that leave? Hacks like E. J. Dionne, perhaps.

I have to say that I side with the Administration on this one. If a terrorist act has been perpetrated or if one is in progress, it would be helpful if the investigators could find out, quickly, who the suspects were in contact with. It turns out that this kind of information mining has been going on since 2006. If you thought that George W. was Big Brother, well, Big Brother is still in office.

I gather that the records were obtained with the consent of a judge and they include contacts but not content. Only if there were real evidence of mischief would the security people be able to inquire into the identities of callers and for that they would need another court order.

This one shouldn't be a scandal, but it is. It is a scandal because Obama promised us when he was running for office that he wouldn't do this sort of thing. It is a scandal because, as the NYTs put it, the Administration has lost all credibility.

Do we have any reason to trust the Administration to use its powers of investigation responsibly? The answer to that is obviously not. The AP and Rosen scandals were bad enough. We now know that an IRS agent told a prolife group that they could get tax exempt status if they promised, in writing, not to picket abortion clinics. That is an egregious abuse of the tax power to stifle dissent. Do you really trust these people not to abuse all the information that the government is collecting?

Not even the Times is that stupid.

ps.  George Will makes my point (alas, without citation). From National Review's The Corner:

“We are threatened by needles in a haystack — very few needles in a very large haystack,” he said. “We’re threatened not by a nation but by a network, and it is the nature of a terrorist network to be invisible until made visible, hence when there’s an attack, we talk about who didn’t connect the dots.” Will argued that the data being gathered by the NSA and the sophisticated algorithms the agency is applying to it may allow national-security analysts to connect the dots before terrorist acts occur. 

On the flip side, he said, “We’re using technologies of information gathering . . . that are terribly important but terribly invasive, and they require reposing extraordinary trust in the executive branch of government, which some of us think it has recently forfeited.”