Tuesday, June 25, 2013

Some Thoughts on Shelby County v. Holder and the Roberts Court: Part II, The Sloppiness of John Roberts

In my last post I discussed why I think John Roberts is brilliant. This post will discuss why I think he is wrong, and often sloppily wrong.

Roberts' opinion today in Shelby County v. Holder held that the current formula for which jurisdictions are subject to pre-clearance of new election laws is an unconstitutional infringement on the sovereignty of the states because it is no longer necessary. Everything about this holding is wrong.

First, the law is still necessary. Justice Ginsburg, in her dissent, points to multiple instances in the last twenty years of discriminatory voting laws that were stopped by pre-clearance, including an instance where an election in Kilmichael, Mississippi was canceled when the all-white Board of Aldermen realized there were an unusually high number of black candidates running for office. Cancelled the election! 2001! Chief Justice Roberts cites relative parity in voter registration and turnout rates as his primary factual justification that pre-clearance is no longer necessary. But if white officials can preemptively cancel elections, what good is being registered to vote? In the wake of this morning's ruling, various news outlets have highlighted other instances showing racially motivated electoral laws are not a thing of the past. See Mother Jones, The Nation, The Atlantic and The New Republic.

Second, even if the law were not necessary, that is for Congress to decide. We are not dealing with a law that discriminates against individuals on the basis of race and is thus subject to strict scrutiny by the courts. Congress was given plenary power by the Fifteenth Amendment to the Constitution to enforce the provisions of that amendment. The Supreme Court should therefore defer to Congress on whether the law continues to be necessary.

What really gets me about this opinion though is the invocation of "state sovereignty." The evolution of "state sovereignty" in our founding documents has been to progressively reduce it. Why the new federalists on the Supreme Court have been trying to resuscitate this doctrine is beyond me. Here is a brief historical survey as to why no argument as to "state sovereignty" will ever convince me.

When the colonies declared their independence in 1776, it was assumed that each of the new states would retain their sovereignty within a loose confederation. This was codified by the Articles of Confederation. The Articles of Confederation did not work. They did not work because the central government, such that it was, had no real authority because actual authority resided in the states.

The Constitution of 1787 was crafted to reduce the power of the states. The federal government was given authority over, for example, interstate commerce. It contained a supremacy clause that made the Constitution and federal law superior to state law. The states retained significant authority, however. The Bill of Rights, for example, restricted the authority of the federal government, but not state governments.

The Constitution, as stated in the preamble, came directly from the people. It was created by a special convention and ratified by special conventions. It was not a compact between the states. States cannot withdraw from the Constitution because it is not a contract to which they are parties. We fought a civil war to settle this question once and for all.

In the wake of the Civil War the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution were adopted. These amendments restricted the sovereignty of state governments. States can no longer endorse slavery, apply the law unequally based on race, or deny the right to vote based on race because of these amendments. Prior to the Civil War, these actions were firmly encompassed with the sovereignty of the individual states. The fact that Congress did not exercise its enforcement authority to any great degree between the end of Reconstruction and the 1960s did not change the basic fact that the Civil War and the Civil War Amendments fundamentally altered the sovereignty balance in our federal system.

Reduction in state sovereignty did not end there, however. In 1913, the Seventeenth Amendment established the direct election of United States Senators. Prior to that, Senators were chosen by state legislatures. Senators thus went from being representatives of state legislatures to representatives of the people of a state. The Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments all also reduced state sovereignty over elections.

In discussing state sovereignty, Supreme Court Justices rarely invoke any one provision of the Constitution. They tend to talk about the structure of the document as a whole. They have used this structure to create a  judicial gloss on the Constitution recognizing the dignity of the sovereign states. In his memoir, Justice Stevens called this the most pernicious development in his years on the bench.

The states do retain a role in our system, but they are not sovereign. The people, and only the people are sovereign. The people, through the Fifteenth Amendment to the United States Constitution have entrusted the United States Congress with ensuring that the right to vote is protected. The Supreme Court owes Congress deferential treatment in this arena. There is no legitimate state sovereignty claim to the contrary, no matter what five men in robes say.

The people are sovereign and each citizen is equally sovereign. Citizens exercise that sovereignty through the franchise. Statutes and judicial rulings that limit the ability to exercise the right to vote strike at the very heart of our system of government.

Some Thoughts on Shelby County v. Holder and the Roberts Court: Part I, The Brilliance of John Roberts

I finally finished reading the opinions in Shelby County v. Holder and I am once again struck by the sloppy brilliance of Chief Justice Roberts.

First, the brilliance. Roberts' opinion is basically a procedural one. He goes to great lengths to emphasize that the substantive rights embodied in Section 2 of the Voting Rights Act (VRA) are not impaired by this decision. After today's sturm und drang there will be no immediate revolutionary actions that will focus the mind of the public. It is still illegal for a state or local government to, for example, pass a law requiring a literacy test to vote.

What has changed here is the procedure for enforcing this right. Instead of relying on the Justice Department pre-clearing election laws before they go into effect, either the Justice Department or individuals negatively affected by the law must sue to stop the law. This process is more time consuming and expensive. The natural result of this will be less VRA litigation.

Actually, I have skipped ahead of myself because Roberts' opinion does not even do that. It merely invalidates the current formula for determining which jurisdictions are subject to pre-clearance. This only adds to the brilliance. Theoretically, Congress could change the formula and still require some jurisdictions to submit to pre-clearance for changes in election laws. Due to the nature of the current Republican majority in the House of Representatives, this will not happen. You know that, I know that and Chief Justice Roberts certainly knows that. It's a brilliant tactical move that turns a seemingly minor procedural change into a major substantive one.

This is one more in a series of rulings from the conservative wing of this court that do not change substantive rights but place limits on procedures and remedies that makes the enforcement of these rights difficult or impossible. For example, Clapper v. Amnesty Int'l, U.S.A., where the court held that nobody has standing to sue over the constitutionality of the FISA amendments because nobody can prove the kind of particularized injury required in their too-stringent test of standing. This case was a big deal when it was handed down in February, but I have not seen anyone talking about it in the last few weeks since the Snowden revelations. President Obama's justification of the NSA's surveillance programs is that they are legal, necessary and effective. I am not in a position to independently judge whether they are necessary or effective. None of us are in a position to truly judge whether the programs are legal because the Supreme Court has ruled that nobody has standing to bring the case. Your Fourth Amendment rights still exist, they just cannot be enforced and there is no remedy for their violation.

This same spirit pervades yesterday's two employment discrimination cases. Hostile work environments are still against the law. But an employer is only liable for one if a supervisor was responsible or management knew or should have known about a hostile environment and did nothing to correct it. Vance v. Ball State University narrowed the definition of supervisor for purposes of Title VII. Your right to be free from a hostile work environment has not changed. What has changed is your ability to enforce that right effectively. It reduces the burden on the employer to be sure a workplace is not hostile and increases the burden on those who have been discriminated against to prove their case. Retaliation for attempting to enforce one's right to a non-hostile environment or adverse employment conditions resulting from one's race or ethnicity had previously been seen as just as bad as the action itself. No longer. University of Texas Southwestern Medical Center v. Nassar changed all that. Under Title VII if you are fired because of your race, you only need to prove that your race was a substantial factor in that decision, not that you never would have been fired but for your race. Due to a strained reading of the statute, the Court held yesterday that if you are fired in retaliation for speaking up about workplace discrimination you must prove that retaliation is the only reason you were fired, a much higher standard for an individual to meet. Again, the basic right has not changed, but obtaining a just remedy when your rights have been infringed is more difficult.

Another example from this year is American Express Co. v. Italian Colors Restaurant. That case upheld an individual arbitration clause prohibiting class actions imposed by AmEx on the businesses it contracts with. The amount of damages owed to any individual small business wronged by AmEx's violation of antitrust law is only in the tens of thousands of dollars. Proving the violation would cost hundreds of thousands of dollars. The only economically feasible way to enforce the rights of small business under antitrust law is to allow them to file a class action. The court held that they bargained away that right by agreeing to AmEx's terms and conditions for accepting AmEx cards. These businesses still have rights under antitrust law, they just cannot afford to enforce them, effectively extinguishing any remedy.

Why do all this? I am not sure, but I do have a theory. Making the law of procedure more complex makes the priestly class of lawyers more necessary and reduces the untrained layman's access to the law as a means of redress of wrongs. The expense of obtaining a legal degree makes lawyers expensive and reduces the number of lawyers available to the non-wealthy and powerful, i.e., most everybody. The effect of prioritizing procedural gimmicks over substantive matters of legal rights and wrongs therefore further entrenches the power of the already wealthy and powerful while maintaining the legal fiction that all are equal before the law. The fact that everyone has the same rights and is therefore equal, even though there is a huge imbalance in the resources necessary to the ability to enforce those rights, dovetails nicely with the political ideology that we all have equality of opportunity, even though structural impediments at all levels of our society privilege the already privileged over the mass of society.

That brings me to the second level of Roberts' brilliance: the way he set up today's Shelby County opinion with 2009's opinion in Northwest Austin Municipal Util. Dist. No. One v. Holder. Northwest Austin was an 8-1 decision disposing of the challenge to the VRA on statutory as opposed to constitutional grounds. The four liberal justices on the court at the time (Stevens, Souter, Ginsburg and Breyer) went along with the decision because they could deal with the outcome at the time. Chief Justice Roberts' opinion, however, noted that the VRA pre-clearance formula raised constitutional questions. Roberts cites Northwest Austin extensively in today's opinion in Shelby County. He even includes a slap at Justices Ginsburg and Breyer:

"The dissent states that '[i]t cannot tenably be maintained' that this is an issue with regard to the Voting Rights Act, post, at 9, but four years ago, in an opinion joined by two of today's dissenters, the Court expressly stated that '[t]he Act's preclearance requirements and its coverage formula raise serious constitutional questions." Northwest Austin, supra, at 204. The dissent does not explain how those 'serious constitutional questions' became untenable in four short years."

Slip Op. at 22. Here, Chief Justice Roberts may have let his obnoxiousness get the better of him in a way more typical of Justice Alito. The difference between holding and dicta is generally covered in the first week of law school. The "constitutional questions" raised by Northwest Austin were not remotely essential to the basic holding of that case, which was decided on statutory grounds. But this gets into the sloppiness of Chief Justice Roberts, which I will address in more detail in my next post.

The Shelby County-Northwest Austin nexus also spells trouble for affirmative action at public universities. Yesterday's 7-1 holding in Fisher v. University of Texas is similar in that it did not change the substance of the law and ruled narrowly, but signaled that change could be in store. Again, it did so with votes from the liberal wing of the court. This time, however, Justice Ginsburg was having none of it. The opinion in Fisher was written by Kennedy, but it had the Chief Justice's crafty fingerprints all over it.

Friday, January 25, 2013

The Latest on Institutional Dysfunction

Yesterday, the U.S. Senate reformed its rules in a way that largely leaves the filibuster intact. Today, the D.C. Circuit Court of Appeals today ruled that President Obama's recess appointments to the National Labor Relations Board in early 2012 were unconstitutional. Taken together, these two actions are a recipe for another two to four years of institutional dysfunction in Washington.

Today's decision on recess appointments is particularly important. The president has the power under the constitution to fill positions requiring Senate confirmation for the duration of the current Congress while the Senate is in recess. The rule was designed for the eighteenth century, when the Senate would not meet for months at a time. The rule allowed the President to ensure the government continued to function while the Senate was away, without completely abrogating the Senate's right to advise and consent on Presidential appointments. In more recent times, Presidents have used the procedure to appoint controversial candidates while the Senate was on vacation. George W. Bush, for example, used this procedure to appoint John Bolton as Ambassador to the United Nations.

In the last Congress, enough vacancies occurred on the five-member National Labor Relations Board so that it could not achieve a quorum. Republicans in the Senate filibustered all of Obama's appointments, so the Board could not function. Obama threatened recess appointments to the Board. Republicans in the Senate did not like this, so they refused to allow the Senate to formally recess. So during the 2011-2012 holiday break, the Senate was gaveled into session and gaveled out of session every business day, but nothing substantive was done. The Obama administration made a finding that these pro-forma sessions were not real sessions, so Obama was free to make recess appointments.

The Court of Appeals disagreed. As a general proposition I think the court got it right. Determining whether the Senate is in session or not should be up to the Senate, not the President. The Senate plays an important role in approving presidential appointments. This is especially true when it comes to independent regulatory agencies like the NLRB and the federal courts. The President should not be able to easily circumvent this process.

This is where the relatively toothless filibuster reform comes in. Obama's recess appointments were not made because the Senate would have or did reject his appointments. They were made because the Republican minority would not allow them to come to a vote at all. The filibuster reform may change this for district court judges and lower-level appointments (that remains to be seen), but it will not change a damn thing for NLRB appointments. There are 55 Democrats in the new Senate. At least 51 of them will vote with the President on virtually every appointment he makes. The Republicans still have the power to prevent this.

This is not right. Arguments can be made as to the extent of the advise and consent authority of the Senate. Some argue that the President is entitled to his team and appointments should only be rejected in egregious cases. Some argue that the Senate is co-equal, or nearly so, in the appointment process and should extensively vet all appointments. Even if you accept the latter argument, there is no reason why a minority should be able to prevent any vote whatsoever.

A Senate minority should not have the power to completely shut down duly established governmental boards. This is exactly what the Republicans in the Senate are doing because they will not allow a vote on any new members of the NLRB because they are anti-Labor. They do this without great fanfare and largely out of view of the electorate. It is not part of the design of the Constitution and it is grossly undemocratic.

The only solution is the elimination of the filibuster as we know it. There are various plans for this afoot, but they will likely not be implemented any time soon. Harry Reid has already said no new reforms in this Congress. It is possible reforms will be passed at the beginning of the next Congress in 2015, but I am not optimistic.  

Friday, December 14, 2012

Our Plague of Gun Violence

It has happened again. Today there was a mass-shooting at an elementary school in Newtown, Connecticut. A few days ago, it happened in a shopping mall in Portland, Oregon. We are still not that far removed from the atrocity in Aurora, Colorado. Mass shootings seem to be becoming a disturbing trend, but maybe that is just a byproduct of media hype. Even if they are not happening more often, I think it is fair to say that the issue should be discussed with a goal of amelioration.

After one of these events, the same arguments take place, with the various sides barely listening to one another. The gun control crowd talks about how we need more gun control. The anti-gun control crowd usually has a little more diversity of opinion. Some say the answer is more guns and less control. Some say we need to do a better job of enforcing the laws already on the books. Some throw their hands up and say that nothing can be done, crazies are going to find a way to kill people. And then there is the group that always seems to say "too soon." As in, "it's too soon to have any kind of discussion about this." President Obama's spokesman said as much today. Frankly, that is an abdication of leadership.

Jeff Goldberg has a provocative piece in the current issue of The Atlantic. He is generally a moderate, maybe a shade to the left of center, and treats the issue of gun violence and what to do about it fairly. His conclusion is that maybe more guns really is the answer.

Whether you like it or not, there are guns everywhere in America. We cannot ban or confiscate our way out of this problem. However, there are some things we should seriously consider:

1-Close the gun show loophole. Forty percent of guns are purchased at gun shows where background check and waiting period regulations either don't exist, are not enforced or are relaxed. Nobody should be allowed to purchase a gun without a background check and everyone should have to wait five days before picking their gun up.

Yes, this will impose a burden on law-abiding citizens who just want to exercise their right to bear arms. Yes, it will not fully stop guns from falling into the hands of felons and crazies. But it will prevent some guns from falling into the wrong hands. To me, that is an acceptable trade-off.

2-Civilians should not be allowed to privately own certain classes of firearms. I don't know exactly which weapons should be banned, but some have no purpose other than mass killing and nobody needs them.

Any Second Amendment argument against this is specious. Every right in the Bill of Rights is qualified in one way or another. You cannot yell fire in a crowded theater and expect to escape punishment. Also, just in case anyone was wondering, there is no need to keep automatic weapons on hand to start an insurrection when the UN takes over. It is not going to happen. If you think it is, you really ought to see a psychologist.

3-Maybe we should require x number of hours of safety training prior to allowing someone to own a gun. This likely won't cut back on mass shootings like the one that happened today, but could prevent accidental shootings, which are still a problem. We make people take a test and get licence before they can drive a car. Guns are dangerous and it is not unreasonable to expect people to take a test and get a license before they use one.

4-Maybe, just maybe, it is time to start issuing more permits to carry and carry concealed handguns. Permits would require additional training and not be handed out as of right. But if there are more proven responsible people floating around with more guns maybe the death toll won't be as high. Goldberg even thinks that it may have a deterrent effect. I tend to doubt that. People who do this stuff generally are not the type to be deterred. Anyone who approached a mass slaughter rationally would realize that the gunman is always captured or killed. However, maybe these mass shooters would be taken down after only 2 or 3 dead instead of a dozen.

It is grim to think of things in those terms. But that is where we are. We can make progress around the edges, but we are never going to confiscate the hundreds of millions of firearms at large in this country. And we are never going to completely eliminate the risk of these mass shootings. The counter-argument is that more concealed weapons will equal still more violence. Read the Goldberg piece. The evidence does not bear this out.

If we could completely transform our society and eliminate the culture where firearms are valued, we wouldn't have this problem. But let's be honest, that is not going to happen. People own firearms for a variety of reasons. Most of them legitimate. I don't own a firearm now and have no reason to. I live in a well policed city in a high rise with 24 hour desk attendants and sturdy doors. If I lived on a farm in the middle of nowhere, maybe I would buy one.

But everyone, especially responsible gun owners, should realize that simply parroting guns don't kill people, people kill people is irresponsible nonsense. Guns do make it a lot easier to kill people. If every gun disappeared today, would all murders cease. Absolutely not. Twenty two people in a Chinese school were just knifed and severely injured.  But we need to start thinking about societal problems in a different way. We've got lots of problems and most of them have been with us for a long, long time. The solutions are never instant and rarely easy. The way to go about solving problems is one step at a time, working diligently to make life better little by little.

Just because relatively minor  regulatory changes and an assault weapon ban won't solve the problem completely and will involve some inconvenience for law-abiding citizens does not mean that they are not worth doing. I would like to think that even most gun owners accept this fact. And maybe, just maybe it is time to start experimenting with allowing well-trained individuals to carry more guns in public. It would make some people nervous. But if it reduces the death toll of the next mass shooting, that would be worth it too.

Thursday, November 01, 2012

The Truth is Still Inconvenient

 Read this.

It is directed at the journalistic community, but it really applies to all of us. What are we doing to fight climate change? I will be the first to admit that rarely does a day pass when I do not reflect on climate change, but it is even more rare that I take any action against it. This has to change today.

Climate change is real. Failure to acknowledge this basic fact should disqualify you from any position of responsibility in any public or private organization. The polar ice caps are melting. The ten hottest years on record have all been within the last twenty years. The middle third of America has been gripped by the worst drought since the dust bowl. Last year massive forest fires nearly suffocated Moscow. Other extreme weather events are proliferating.

As global temperatures rise and more carbon enters the atmosphere, sea levels rise, the ocean becomes more acidic and weather becomes more extreme. The scariest thing about climate change today is that when we look back on the range of scary predictions from climate scientists of five and ten years ago, what has actually happened is between the median scenario and the worst case scenario. And time is running short.

How will this affect actual people? Certain small Pacific island nations will be wiped off the map. That's not great, but not a world-historical catastrophe. Think instead about Bangladesh. It is one of the most densely populated low lying countries in the world. It has terrible infrastructure and has suffered from devastating floods since well before climate change was recognized as a problem. At least one hundred million people will need to move. They will likely just walk into neighboring India. Aside from all the human suffering that that will entail, it is a recipe for geopolitical chaos.

Closer to home, coastal flooding will be a growing problem. Will we simply pay to rebuild every time or will we require massive population relocations away from the coasts? Insurance companies will surely not be writing flood insurance. The federal government would be the only entity able to pay, but is that really a good allocation of scarce resources?

That is only a very brief and incomplete review of the consequences of inaction. Time is short, but there are still things we can do to avert this catastrophe.

First, there are things that you can do to actually use less energy. The biggest one of these is simply to drive less. Yes, I realize most people in America need to do at least some driving, but most people drive more than is necessary. When public transit is an option, use it. Make shopping lists. Yes, make shopping lists. When you buy everything at once, you can make fewer trips. Every gallon of gasoline you do not burn is carbon that is not released into the atmosphere and four dollars in your pocket.

Be more energy efficient in your home. In most areas now, if you have a free-standing single-family home, you should be able to purchase solar panels with little up front cost. Set your thermostat two degrees colder in the winter and two degrees warmer in the summer and two degrees colder and warmer still when you are not at home. Invest in insulation and energy-efficient windows. Buy the most energy-efficient appliances available. Small differences add up when everyone contributes. And energy efficiency saves money.

If you have a position of responsibility in the company you work for, make these changes in your company too. Wal-Mart gets a bad rap in many ways and deservedly so in some. But Wal-Mart takes energy efficiency seriously. It is good for PR and good for the bottom line, so they design their stores to be more energy efficient, their packaging to be lighter and their truck routes to be more efficient. If you are in a position to do these types of things you should!

Personal action, virtuous as it is, is not enough, because not everybody will do these things unless compelled to. Advocacy is also important and everyone can become an advocate.

The first way to advocate is to write. Write a letter to your local paper asking why they haven't done a story on how climate change will affect your town. Write to all your elected officials from city council member to President. Do this especially if they accept climate science. They need to know not just that it is real, but that it is a priority. Every governmental entity should be addressing climate change, so every elected official deserves to hear from you about it.Four years ago both candidates for president agreed that action needed to be taken on climate change. Today, Mitt Romney wants to extract and burn every ounce of coal in Appalachia and barely even mentions the falsehood of clean coal. Barack Obama is basically taking the John McCain 2008 position with his "all of the above" policy. This is because the fossil fuel industry spends a huge amount of money buying politicians and cowing the public.

There are a variety of public policy changes that can ameliorate climate change. Cap and trade schemes. Replacing taxation on income with taxation on carbon usage. Sending more efficient cook stoves to sub-Saharan Africa. Closing government-owned lands to oil exploration and coal mining. Even enhancing safety regulations for coal miners (and thus increasing costs of production) would have a positive effect. This is an incomplete list, but do some research and let your elected officials know these actions are not just good policy, but priorities.

If you have money, give it. You are already, one way or another, giving money to fossil fuel companies that are acting to protect their interests. Give some to the Sierra Club so that they can hire more people to shut down coal fired electric plants. Buy carbon offsets for your energy usage (but be careful, some of these outfits are more reputable than others). Give to candidates that make climate change a priority.

Find out what is hot on the climate change front in your area and go to meetings and make yourself heard.

This is clearly an incomplete list, but every thing you do tomorrow that you did not do today is progress. Your example may inspire others or it may dispel ignorance.

Robert Kennedy once said:“Few will have the greatness to bend history itself, but each of us can work to change a small portion of events. It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.”

It was true of the progressive movements of his time and it is true of the anti-climate change movement of our time. If you want your kids and grandchildren to inherit a world as good as the one we currently inhabit, you, we, need to take action today. We need to take action tomorrow. We need to take action next week, next month and next year until we solve this problem. If we wait much longer it will be too late.

Tuesday, October 23, 2012

Why I am a Democrat

Independence is seen as a virtue in our political system. Partisanship and even the mere existence of political parties are seen as, at best, necessary evils of politics and governance. People are encouraged to vote for individuals and largely ignore the D or R next to their names. By an overly circuitous route, this bias favors my party. Democrats, although outnumbering Republicans, are more heavily concentrated. If everyone voted their party all the time, the Senatorial map would look a lot like the Presidential map. Democrats would get more votes but fewer Senators because California gets the same number of Senators as Wyoming. Therefore, you often see Democrats running against their party and the party tolerates this. See Joe Manchin.

This annoys me. I will accept Senator Joe Manchin because even though he only votes the way I want to half the time, the alternative would be someone who votes that way I want one tenth of the time. What I do not accept is that political centrism (as opposed to true moderation and willingness to compromise) is an end in and of itself. Just because the Democratic platform espouses A and the Republican platform espouses B, it does not follow that the optimal answer is C.

The two major political parties in this country are now largely unified around values. I am a registered Democrat because I find my values align with the Democratic party.  Herein I offer an explanation as to why.  It may end up like a Ptolemaic astrolabe, but I'll do my best.

My primary political value is equality. My secondary political value is autonomy. These values are colored by my best reading of, for lack of a better term, the facts on the ground. Government has a role to play in promoting equality and ensuring autonomy to the greatest number of citizens possible. Conflicts occasionally arise and I do my best to reason through them.

A few illustrations.

I support gay marriage. So does the Democratic party. Gay marriage is a matter of equality. I can think of no reason why homosexuals do not deserve the same rights to marry the person of their choice as heterosexuals. Gay marriage also gives gay people autonomy over their own lives and does nothing to anyone else.

I support abortion rights. So does the Democratic party. Women deserve a choice as to when to get pregnant. They deserve autonomy over their own bodies. I cannot really answer the question of when a fetus becomes a child and I do not believe the government can either. This decision should therefore be left to the individual. There is also an equality interest here as unwanted pregnancies inherently affect women more than men.

I support aggressive environmental regulation and enforcement. So does the Democratic party. Equality and personal autonomy are dependent on certain public goods remaining public. Among these are clean air and water. Environmental degradation is a real threat. Whether via command and control or market-based regulations, direct government involvement has proven to be the only way to stop pollution. The unfettered free market cannot solve this problem. I also believe climate change to be a very serious problem, perhaps moreso than the median Democrat.

I support a comprehensive social safety net, including universal access to quality health care and vigorous anti-poverty efforts. In particular, I support Obamacare, as does the Democratic party. The goal is universal access to quality health care. Obamacare is likely the most conservative way to achieve this goal. I was not enamored of all the particulars. It is not nearly as elegant as Medicare for all would have been. However, it achieves the goal, and that is the most important thing. Equal access to basic health care is so important that it overrides the limits to personal autonomy it creates. Sometimes trade-offs are inevitable.

I support the right of workers of all types and stripes to unionize and bargain collectively. So does the Democratic party. The facts on the ground indicate that management and capital have inherent power advantages over individual workers and even labor in general. The only way for workers to achieve anything approaching equality is to band together. The enormous power employers have over employees also restricts the autonomy of employees. Not just autonomy, dignity. The modern American workplace is rife with indignities. Workers deserve someone on their side.

I am a Democrat because the Democratic party is committed to equality of opportunity. The Republican party, in my estimation, stands for autonomy above all. Power structures existing in society are either good in and of themselves, or it is simply not government's job to do anything about them.

This is why I am a Democrat.

Tuesday, September 11, 2012

Just When I Was Starting to Like W

In quiet moments over the past few weeks I have indulged in some fond reminisces of George W. Bush. Yes, I thought to myself, he had his faults, but he was generally decent. Decent in a way Mitt Romney is not. Bush went out of his way on September 17, 2011 to state that Islam is not the enemy of the United States and Muslims are welcome members of our society. Romney now embraces the purveyors of islamophobia in his party. Bush also ran two campaigns almost completely free of the taint of race-baiting. Romney continues to stand by his demonstrably false welfare attack ads, the only purpose of which is to exploit lingering racial resentment long associated with welfare.

Then I saw this.

Kurt Eichenwald, a reputable reporter, is asserting that the Bush administration knew much more about Bin Laden's plans well before the infamous August 6 daily intelligence brief. The people running his national security apparatus convinced themselves that this was just a clever hoax, a la Patton's fake army prior to the D-Day landings, to distract from the real threat: Saddam Hussein.

If this is true it should permanently destroy any lingering doubts about W's place in history. Disregarding evidence of Bin Laden's plans to continue focusing on evidence regarding Saddam Hussein that did not exist was gross negligence. This is not even a matter of hindsight being 20-20. This is what happens when policy is faith-based instead of evidence-based.

The opportunity costs of the war in Iraq haunt me regularly. If we had not fought that unnecessary war our national debt might be significantly lower. Or we might be well on our way to a functional high-speed rail system. Or we may have been able to finance massive upgrades in schools and public housing to increase energy efficiency and indirectly fight climate change. Or a combination of any of these or other worthy projects.

Now we need to consider the possibility that this obsession with Iraq may have prevented us from stopping the attacks of September 11, 2001.

Friday, September 07, 2012

God and Jerusalem and Party Platforms

A regular reader asked me what I thought about the brouhaha surrounding the Democratic Party re-inserting God and Jerusalem into the party platform. In short, it was politics at its silliest.

First, God. As Amy Sullivan points out, there was plenty of religiosity in the Democratic platform already and perhaps more than in 2008. As a firm believer in the separation of church and state, there was already too much of a Judeo-Christian God in the Democratic platform. Hindus and Buddhists are just as American as Christians and Jews. Ultimately, I don't care that much though. And the allegation that delegates were booing God is bogus. They were booing the party leaders forcing a change in the platform via voice vote. In fairness, Ron Paul supporters did the same thing at the RNC and were likely not booing Puerto Rico. If you believe this is a Christian nation where religious minorities are tolerated, but not real Americans, maybe the Democratic Party is not for you. But there is no reason to think that the party is a group of godless commmies.

Second, Jerusalem. Oy and vey. Every year, every party, all nonsense. Both parties platforms support moving the U.S. Embassy to Israel from Tel Aviv to Jerusalem. Presidents of both parties don't actually do it. Why? Because it is not worth it. Yes, Jerusalem is the capital of Israel, but it is not worth getting every single Arab government violently angry at us by moving the Embassy there. Jeff Goldberg explains. For the same reason, the U.S. Government does not explicitly recognize the Armenian Genocide carried out by the Ottoman Empire during World War I. It happened. Everyone knows it happened. Turkey likes to pretend it did not happen. Turkey is an important ally on a whole range of issues. So the government does not make any loud proclamations about it.

God and Jerusalem. Both represent identity politics at their silliest. Neither will have any effect after this weekend.