March 31, 2010

Finally A Sports Post Even Political Junkies Can Enjoy

A little bit more than two years ago (jeez, was it really that long?), I mused that in the 2008 primaries, which got a very early start, it might make sense for a well-heeled candidate to take out a Super Bowl ad. 

Turns out, you'd get more bang for your buck should you attempt a stunt like that if you're a Republican, because NFL viewers, like most viewers of major sports, skew noticeably to the GOP.  The exception is NBA, whose viewers skew significantly Democratic, although viewership is not nearly as high.  So look for Mitt Romney to jump-start his campaign in 2012 that way.

It sort of makes sense that the best value for your sports advertising dollar (if you're a Republican) is for golf -- its viewers are the most conservative and the likeliest to vote.  Almost certainly income is the driver there.  But yes, I've noticed that Democrats like golf, too -- but maybe they're more likely to spend a Sunday afternoon playing golf rather than watching it on TV. 

What I can't figure out is how the NBA can attract reasonably high-propensity voters who tend to vote Democratic as viewers, but college basketball attracts a similar number of higher-propensity Republican voters. That doesn't make sense.

Divorce Court

While waiting to get called back at my doctor's office I was treated to some afternoon television:  Divorce Court. 

Man, was it bad. The judge was mugging for the camera whenever the shot was on her, and the bailiff wasn't much better. Everything was exaggerated to almost comic levels. The "litigants " were ill behaved and had deeply unappealing things to say. Domestic violence (at a somewhat petty level, on the order of pushing and shoving) came out in "testimony" about disputes over money, and neither party seemed able to restrain themselves from interrupting the other. They both looked like liars and there was no way to figure out which of them (if either) was telling anything with a passing resemblance to the truth. The judge did what I would have done -- she said "A pox on both your houses and get the hell out of here."

Now, I realize that a daytime TV show has as much resemblance to real court as a pickup truck resembles chop suey. It's the amazingly low quality of the programming that struck me. How can people watch this dreck at all? And if this is what they think real courts are like, it's no wonder they act like kindergartners when they show up for the real thing.

As for the show itself, let me sum up by saying that I felt noticeably stupider for having watched it than I had felt before.

Ten Rules For Dealing With The Police

Watch this. Especially if you are an innocent, law-abiding person. The introductory remarks are about five minutes long.
And as noted before, you don't have to offer information to the police, and when you do offer information, you're taking a risk.

Why An Office Is Necessary For Productivity

March 30, 2010

The Sixty Second Patriot #6

The Liberty Bell was originally ordered to for use in the provincial government building of Pennsylvania in 1751.  Its inscription reads:  "Proclaim LIBERTY throughout all the Land unto all the Inhabitants thereof ," which is a quote from the Book of Leviticus.  It cracked almost immediately after its first testing.  It took two years to re-cast the bell, which by then weighed 2,080 pounds. 

It was rung to announce the first Continental Congress in 1774 and the battle of Lexington and Concord in 1775.  During the Revolution, the bell was hidden from the British Army so that it would not be melted down and made into a cannon.  The American army hid it in a haypile of an ordinary farmer turned soldier, and the bell survived the war, and was returned to Philadelphia, where it was rung to announce elections and the deaths of many important Americans.

The old crack started to show again in 1835 after many uses, and in 1846 on George Washington's birthday the bell was run many times and the crack we see on the bell today grew to the point that the bell had to be retired.  In the nineteenth century, anti-slavery activists adopted the bell as a symbol of an America where everyone could be free.  Today, replicas of the bell -- some with the crack and some without -- are used by many states and given as gifts from the United States to other countries, as symbols of a commitment to freedom.

The Sixty-Second Patriot series of posts is intended to provide teachers who are required to engage in patriotic exercises with truthful, age-appropriate, meaningful, educationally-rich, non-controversial, secular alternatives to rote recital of the Pledge of Allegiance, as well as brief meditations on American history, civics, and values accessible to all people.  Suggestions and contributions to this series from Readers are welcome.

More Junk Science

I'm glad I don't have a neighbor like Arthur Fristenberg.  I use dimmer switches, cellular phones, laptop computers, and wireless internet routers too.  Fortunately, my neighbors on the one side use all the same things, and my neighbor on my other side is owned and operated by a public utility.  If you're less fortunate than me, then read the linked article and be very, very scared.

Random Thought About Demographics

Kentucky and Modesto -- powerful symbols of the nation we have become.

It's interesting to note that the country the Framers were trying to govern was very rural, very thinly populated, and very difficult to spread news through efficiently.  In those senses, our 300,000,000-strong nation, evenly-split between rural and urban (and with a much greater than historical population density defining "rural" to boot), wired with telephones, television, and the internet, is a very different nation than the one that existed in 1790.  In other senses, though, we are still much the same in our desire for individual freedoms and insistence that "we the people" are sovereign rather than our leaders.

But the question is not how the Framers would govern a nation such as ours.  The Framers made their choices, choices that made sense to them at their time, with the facts of life that they confronted.  The question is how will we govern ourselves now.

Talk About Diminishing Personal Freedom!

Oh, what's the world coming to when a young Republican can't even take out some friends to an afterparty at a lesbian bondage themed strip club anymore? It was only two thousand dollars they dropped at Voyeur! Creeping totalitarianism, that's what I say.

Project Reason Video Winner

March 27, 2010

Yes, A Call For Calm Applies All Around

Mainstream media has not yet picked up this story, so the only place I can find it this morning is on conservative blogs and the Washington Times.  Make of that what you will.  However, it's utterly obnoxious. Our speaker here is Mike Malloy,on his syndicated talk radio show.  Malloy may not have as big an audience as Beck, O'Reilly, or Limbaugh but we should judge him primarily by what he says to his audience. 

Clearly operating in an irony-free zone, Malloy is decrying Republicans and conservatives who are engaging in intemperate rhetoric, likely in reference to the nutjob in Nashville who (allegedly) intentionally rammed into a car sporting an Obama sticker, and then addressing his right-wing talk radio counterparts: rat bastards are going to cause another Murrah federal building explosion, you are. And then - what is Beck - maybe at that point Beck will do the honorable thing and blow his brains out.

Maybe at that point, Limbaugh will do the honorable thing and just gobble up enough - enough Viagra that he becomes absolutely rigid and keels over dead.

Maybe then O'Reilly will just drink a vat of the poison he spews out on America every night and choke to death! Because that's what's gonna to happen, that's what they are pushing these right-wing, nut case, fringe, militia jerk-wads to doing!
On the Washington Times article, the very first comment was a defense of Malloy in that he was calling for these conservative pundits to suicide rather than for someone else to kill them. This would be a good example of what those of us in the legal profession call "picking a bad argument."  Nothing productive happens when you call for people to die. 

Guess what, my friends on the left -- just because you hear my friends on the right indulging in intemperate, sky-is-falling, even fringe-of-violence type language does not give you license to do the same thing.  The First Amendment does not relieve you of your social obligation and ethical responsibility to engage in responsible, mature public discourse.  Conservatives may be outspoken in their very different vision of America from you but they have just as much right as you to articulate it.

Part of what it is to live in a free democracy is a commitment by everyone to tolerate the differing opinions of other people, to submit those disagreements to the court of public opinion and, within Constitutional limits to guarantee individual liberties, the rule of the majority.  This necessarily excludes calling for the death of people who happen to disagree with you.

Now, will everyone please calm the hell down?

March 26, 2010

Calm Down Already

The rhetoric has become too shrill.  Even bloggers I normally like, respect, and find intellectually resonant have reverted to fear and hysteria.  And, if one reverses the ideological polarity, there is a remarkable resemblance to the ideological panic of 2002.

That's not to say that ideological or policy opponents of health care reform should relax their efforts to articulate their vision of a better America or to undo the damage they think has been done -- far from it, although I'm not sure what, exactly, they could argue for at this point.  There are two kinds of members of the opposition:  the ones who actually engaged in the legislative process (and realized a moderate degree of success in doing so, an example of the hated "Broderism" of a true moderate in action) and those who chose plugging their fingers in their years and stamping their feet while saying "no-no-no-no-no-no-no-no-no-no-NO!" over and over again as the tactic of choice.  The President rightly does not fear the latter tactic because it's a new middle-class entitlement, which means that like Social Security or the home mortgage interest tax deduction, we might as well chisel it into granite as a permanent fact of American economic life susceptible to only marginal change from this point forward.  It can be changed incrementally but good luck trying to repeal it.

But it is not worth engaging in domestic terrorism.  Knock off the bullets* and the knives and the other implied threats of violence already.  While not all the reports of petty acts of domestic terrorism are accurate or even plausible, the right way to express your distaste for Congress' recent activity is through the political process.  What we're reading about now is terrorism -- the use of violence against those who have personally done nothing wrong in order to effect political change motivated by fear.  Violence as a form of protest against passage of the health care reform laws should be condemned by everyone on all points of the political spectrum immediately and without reservation.

So it's time for some perspective. Health care reform is big, expensive, and inefficient government in action. As enacted, it is an extension of the Bush Administration's big-government, compassionate-conservatism ideology -- it piggybacks government supports for private industries, uses fines to incentivize behavior the government finds desirable, and despite a lot of rhetoric and a willingness to cross ideological lines, it will both have much less effect that either its proponents hope or its opponents fear.

The big deal about it is not that it diminishes our civil liberties, because it doesn't.  It is that we have more important things to be spending our money on -- or more accurately, to be spending our children's money on.  That is worth raising and sustaining a political stink and working to minimize its fiscal impact.

*  The bullet found in Eric Cantor's office window is being treated by the police as a "random act" rather than one with a political motivation. Okay, but the timing of this "random act" still seems very odd.

March 25, 2010

Bruce Bartlett on David Frum

This is exactly the reason why I became disaffected with the conservative "movement:" it isn't a movement, it is an orthodoxy. Any deviation from the party line is quickly identified and punished, at best with a lampooning and at worst with what happened today to Frum.  (UPDATE:  Please read Rick Moran on this same point.)

Great New Blog

Thanks to an e-mail tip, I've stumbled across what looks like a very nicely-written blog about education by a psychology and education professor, which is just getting off the ground.  For instance, take a look at his most recent effort, a how-to about how to inflate your student's grades.  After all, you could ask your students this question:

The third president of the U.S.A. was:
A. John Adams
B. John Hancock
C. James Madison
D. Thomas Jefferson
Or, you could ask your students this question:

The third president of the U.S.A. was
A. George Washington
B. Thomas Jefferson
C. Bill Clinton
D. George W. Bush
In theory, both questions test the student's mastery of the same body of knowledge in history.  But you needn't be an expert in educational theory to confidently predict that you'll get a higher percentage of correct answers to the second question because the first is "tricker."  You can decide for yourself whether you want to commend or condemn the student who attempts to justify his answer of "John Hancock" or worse yet, Peyton Randolph or Thomas Mifflin, after getting the unfavorable results back.

I'll let Prof. Stillman take it from there, and I commend his blog to all my Readers.

Visiting A Super-Secret Location

What to do with the large tax return the accountant tells us to expect?  I have an idea....

... but I'll have to see what The Wife thinks of my plan.

March 24, 2010

Referrer Strength

Since I use a variety of hit-tracking tools, I've noticed over the last week that Legal Satyricon has more strength as a referrer to this blog than any other link I've had in recent history.

Congratualtions, Marco Randazza and crew; it turns out you've got more kung fu in your blog than Hugh Hewitt, Andrew Sullivan, Popehat, or the League of Ordinary Gentlemen (in whose NCAA pool I am being abyssmally crushed).  That's saying something.  Who knows, maybe I'll get a hit from Glenn Reynolds one of these days and Blogger will shut me down from the excessive traffic.  That would be pretty cool.

This Is Almost Certainly Correct

I've little time for blogging right now.  In between a heavy work schedule and a mission from The Wife to build a table that seats eight for the back patio in time for a dinner party on Saturday* (she is doing a lot of the work on the project too), by the time I sit down to a computer I've little writing left in me -- much as I want to do it.  So for the time being, I have to point to some other writers and await the day when I can sit down and organize my thoughts about something of general interest, not related to a case I am actively handling, and unrelated to my feeble attempts at carpentry.

But I came across one thing that I think is dead on.  Barack Obama and Nancy Pelosi have killed Mitt Romney's chances at getting the 2012 GOP nomination for President.  The just-passed health care reform plan is too similar to the one Romney handled and praised as governor of Massachusetts, and the GOP is lined up lockstep in opposition to it.  While it might be a principled and appropriate thing for a Constitutional law professor to say, "It's one thing for a state to do it and something else for the Federal government to do it," to a Presidential candidate, it's either a good idea or it's a bad idea, and Romney can't criticize something he once endorsed. 

Well, then again, Romney was pro-choice before he wasn't, and he was anti-balanced budget until he wasn't, and he was anti-gun until he wasn't, was anti-Department of Education until he wasn't, and so on -- so why should he have been pro-health care entitlement until some point in the future he isn't?

Anyway, it's off to a late-night client meeting, so more from the busy busy busy TL when I have a chance.

* On that note, thanks to Commenter zzi for a recipe for pesto alla Trapanese that I intend to use as the foundation for my pasta sauce on Saturday.  Unless I get my mind changed for me, and do rosemary roasted potatoes instead.  The good news is, I should have my sous vide at last for the meat!

March 21, 2010

Healthcare Procedure

The Washington Post is reporting that House leaders have decided to not use the "deem and pass" rule suggested by House Rules Chair Louise Slaughter. Also, I've come across indications that Republicans have used the Slaughter Rule, or a similar procedure, when they controlled the House, but even conceding that point arguendo, this does nothing to rescue the fundamental problem I have with the proposed procedure. What they're apparently planning to do instead is this:
Rep. Chris Van Hollen (D-Md.) said Saturday that the House would take three votes Sunday: first, on a resolution that will set the terms of debate; second, on a package of amendments to the Senate bill that have been demanded by House members; and third, on the Senate bill itself.

Van Hollen, who has been working on the issue with House Speaker Nancy Pelosi (D-Calif.), said House leaders concluded that that order — approving the amendments before approving the Senate bill — makes clear that the House intends to modify the Senate bill and not approve the Senate bill itself.
Now, Commenter Dan from Bleakonomy raised a valid question a few days ago about the procedure -- if the end result of these procedural and parliamentary gyrations  is that both houses of Congress approve, by a majority vote, the same bill, who cares how they got there?  At minimum, isn't it up to Congress itself and no other judge to determine whether Congress has done this in the right way.  This argument got me thinking about the "political question" doctrine, by which the federal judiciary will abstain from deciding questions that properly are allocated to other branches of government.  It got me thinking that whether "deem and pass" by itself is good procedure or even Constitutional is probably not a worthwhile question since the President will likely sign the bill regardless of its procedural pedigree and the courts aren't going to get into the question of analyzing Congress' internal procedures.

Of course, we're pretty much guaranteed a detailed Constitutional analysis of all these procedural questions if the bill passes.  But after some thought and consideration of Dan's comment, my thought is that what the courts will actually look at will probably be relatively minimal.

It's only the Constitutional issue -- the one the House and Senate can't get around because it's in the explicit text of the Constitution -- that anyone other than Congress itself can analyze here.  That rule is this:  Either both Houses of Congress have passed the same bill, or they have not.  If they have not, then they have not yet passed any bill.  If they have, then that is the bill that goes to the President.  The transmittal of the bill to the President is a ministerial act, one requiring no discretion or political activity by Congress.

If the House amends the Senate bill and then passes it, it has passed a different bill than the Senate, and Congress as a whole has not (yet) passed the bill to make it eligible for transmittal to the President.  The next step in the process in that case would be for the amended bill to go back to the Senate, which would then either say "yea" or "nay" to the House amendments.

If the House does what Congressman Van Hollen suggests, then what will happen is the first alternative in this scenario -- the House will have passed a different bill, and the Senate has to vote on it.

The only other alternative to rescue this is that these House amendments can be considered a separate bill to amend a law that has been reported to the President.  There is no Constitutional requirement that the House consider a bill in any of a number of committees and pass it out of the Committee of the Whole or any of the other usual procedural niceties -- it can vote directly on a bill at any time the Speaker agendizes it.  It seems odd to vote to amend a law that has not yet been passed, but I think it's probably within the power of the House to say "If Bill X becomes law, we would immediately amend it with Bill Y," and I suppose that they can do that even before Bill X is even transmitted to or signed by the President -- although it's questionable as I understand the rules, we're back to a political question there.

So if Van Hollen's plan goes through, then Bill X -- the Senate bill -- will be passed out of Congress and transmitted to the President.  But then Bill Y -- the House amendments -- need to be approved by the Senate.  If the Senate approves Bill Y, then Bill Y will go to the President also.  If the Senate can act quickly enough, then both Bills X and Y could in theory wind up on the President's desk at the same time and be signed together.  But either way, the Senate can't be cut out of the equation because both houses have to pass identical language before a bill becomes a law.

This would mean the House would be passing the Senate bill, something which is apparently unpalatable to some of the House's more progressive members because of restrictions on abortion rights and other kinds of symbolic issues that had to be conceded to obtain Senate passage.

One way or another, the House amendments need the Senate's approval before they, too can become law.  The Constitution requires that.  Sadly for progressives and happily for conservatives, that means the House amendments will have to make it through the Senate's fearsome filibuster process before they can get an up-or-down vote en bloc.

To all my Readers on both the left and the right, please note that I offer this opinion without offering any normative opinion whatsoever about the policy merits of either the Senate bill or the House amendments.

This, of course, will not satisfy those who want to pigeonhole me as "pro-healthcare reform" or "anti-healthcare reform."  So as to the merits of the bill, as best I can figure, quality and availability of health care will not really be impacted all that much for the typical American health care consumer, although some people who otherwise would not have got any health care at all will have minimal access.  They want to know whether I am happy about all this procedural stuff -- despite my insistence that good procedure is as important as good substance, that it's not important only that government do something good but also that it do it in a legitimate way.

So the question is not whether this is going to make a huge difference in Americans' lives -- seems to me it will not -- it is a question of whether it is a better or more cost-efficient way of doing what we're doing already.  So my policy concern (big surprise to all you Loyal Readers) is the impact it would have on the budget.  Although the CBO has said that over the next ten years, it would reduce deficits a very moderate amount, which sounds good, there are also serious analyses from people who are qualified to opine on such matters that conform to common sense better and indicate that no, the bill would increase the deficit.

I have great difficulty imaging how a bill that adds nearly a trillion dollars to the federal budget will, in reality, wind up reducing the deficit.  So you may classify me as "anti-healthcare reform" for that reason.

As of the time I'm writing this morning, it's not even clear whether the leadership has the 216 votes necessary to pass any of this, but it seems to me that they wouldn't be going for it, especially on a Sunday, if they weren't pretty sure they could pull it off.  It'll be close, either way.  The real question, though, is whether the next step will be sending something to the President or whether it gets kicked back to the Senate.

UPDATED:  It appears that indeed, the intention is to send the amended bill, called the "reconciliation," to the Senate. That's going all-in for the House, and bypassing the filibuster under the reconciliation rules.  Since I've concluded that both the House and the Senate can break their own rules when they wish and only have to answer to themselves and the voters for doing it, that much seems okay.  So if the "reconciliation" fails in the Senate, that will mean that no law will be presented to the President.  If that's how it plays out, the Constitution would be satisfied.

March 19, 2010

In Which I Defend Myself From Accusations Of Weenieness

Marco Randazza at Legal Satyricon linked to my analysis of the Ninth Circuit’s recent decision in Newdow v. Rio Linda USD. A commenter there named “Alan,” however, takes issue with not only my prohibition against anonymous commenters (for reasons which will become apparent in a moment) but also with my admitted decision to not make a very public spectacle of my objection to the contents of the Pledge when interacting with my clients:

OK, really, stop being such a weenie with your “aspirations for the bench” (see About Me) and “I stand silent”. This is exactly why the unmoral majority can run ruff-shod you and everyone else–BECAUSE YOU ARE TOO MUCH OF A WEENIE TO STAND UP FOR YOUR OWN RIGHTS. If you want things changed, you have to take it to the streets, the schools, the convention halls, NOT THE COURTROOM. When the pledge gets recited, ACT UP. Make it clear you object to the words “under god”. Instead, SHOUT OUT, at the TOP OF YOUR LUNGS, “…one Nation, NOT UNDER ANY GOD,…” That will make it clear you will not be bullied. If enough people are willing to act up and make a scene, people will stop saying the offending words, and we’ll be back to simply, “indivisible”. Until then, don’t ask someone else to stand up for your rights when you are not willing to fight for them yourself. How un-American.
Alan, I don’t know why having aspirations for the bench makes me a weenie.

I also don’t know why registration and posting under even a pseudonym on Blogger (when I can plainly see that you are able to thus post on Wordpress) is such a great burden that you feel the need to challenge me here. But, as you can see, I have posted your remarks on my own blog anyway so as to spare you this tremendous burden.

I categorically reject your notion that courtrooms are not appropriate places to seek vindication of individual rights. I can appreciate that for some kinds of efforts, a democratic appeal can also be effective and can produce better results. But that does not mean that someone who files a lawsuit to assert their rights is doing anything wrong or even necessarily anything counterproductive -- and given that atheists are the most despised minority in the United States today, a democratic appeal on its own is not something that seems calculated to achieve success.

Even the civil rights movement of the 1950’s and 1960’s adopted a blended approach of democratic and judicial activities, and without judicial successes, the democratic efforts would likely have failed.  It took the leadership of the courts to articulate the moral wrong of Jim Crow laws, and only then did the democratic systems of the various states, and the attitudes of the public as a whole, respond and change.  Courts are entirely appropriate places for people to assert their rights. That's why we have them. We've seen what happens when the basic human rights of disliked minorities are put to a popular vote.

I view your criticism of my choice of presenting a politically palatable public face to my clients and my community despite my objection to something they find of great symbolic importance in the same way I would view you for criticizing a soldier for going to war and not earning a Bronze Star for valor in combat. Just because the soldier didn’t earn a Bronze Star doesn’t mean he didn’t do his part or that he wasn’t brave.

Let's take Michael Newdow, the plaintiff in the case we're talking about.  Michael Newdow is fortunate enough to be not only scary smart but also to have a non-legal career (emergency medicine) in which his skills and services are in high enough demand that he doesn’t need to worry about losing his patients (who don't select him, since he does emergency medicine) or have hospital privileges based on his political activism (since a hospital is not legally allowed to deny privileges to a doctor based on his religious or political beliefs and good doctors are scarce enough that no sensible hospital would do that anyway). Nor does Newdow have to help support a staff working in an office dependent on his work -- particularly a staff of people who never chose to sign up for a political fight and some of whom disagree with his political beliefs. In other words, Newdow's circumstances provide him with substantially more buffer from bigoted economic retaliation than mine do. Newdow also has a flexible enough schedule to allow time for him to pursue these goals. And he’s got the energy and passion and interest and intellectual ability to capitalize on those good circumstances. Good for him -- and he absolutely deserves the equivalent of a Bronze Star for valor in the fight to enforce the Constitutional rights of all Americans despite the unpopularity of his efforts.

By the way, I didn't "ask" Michael Newdow to take up the fight he did.  He did that on his own.  I applaud him for doing it, but he did not do it at my request, either explicit or implied.

I am not so fortunate as Michael Newdow. I reject your accusation that I am somehow morally deficient for not having those advantages. Maybe if I were independently wealthy, not dependent for my prospects for career advancement and regular income (nor responsible for providing for the income of others) on unsophisticated clients who would likely be deeply, deeply offended were I to do as you urge me to do, I might just be as brave as Michael Newdow and do the things he does. But I’m not in that position, so I’ll have to satisfy myself with the role of an "ordinary grunt" in this fight instead.

Maybe you think that’s somehow an unacceptable moral compromise. I don’t.

Alan, I can see that you find my manner of advancing my ideas and articulating arguments somehow insufficient and worthy of condemnation -- but so what? As I see it, I can’t do anyone any good if I’m broke and out of work and can’t even afford internet access. Each of us has to navigate the world as best we can and sometimes that means making compromises and foregoing certain benefits in favor of others.

I rather doubt you can honestly tell me you’ve never had to make compromises in your life that have left you dissatisfied. That's called "life."  The very difficulty of navigating those kinds of necessary choices is precisely why the "Bronze Star winners" are so praiseworthy.

I'll not apologize for anything, because I’ve neither done nor failed to do anything which would merit an apology -- and even if I had, I nevertheless owe you nothing.

I’ll ask instead -- what have you done, Alan, to fight this deviation from the Constitution’s spirit and text? How have you stood up to voice your objections? Have you filed any lawsuits? Have you protested during recitals of the Pledge, standing up and shouting that there is no God? Have you written a letter to your Congressional representatives? Have you even created a blog and anonymously (or pseudonymously, as I have done) articulated an objection so that at least the idea can be floated out there for others to consider? Indeed, I notice that your single comment on a blog linking to mine as “Alan” fails to fully identify you even as you condemn me for not identifying myself.

It’s easy for someone like you to hide behind the anonymity of the internet, complain when perfect anonymity is denied you, and then call me a weenie for availing myself of the benefits of using a pseudonym and the discretion to keep my thoughts to myself when it is politic to do so.  You're not sitting in my shoes.  But from where I’m sitting, I don’t see any of your critiques of the Ninth Circuit decision anywhere on the internet. I don’t see evidence of your protesting at your town hall meetings or making democratic appeals to change the Pledge of Allegiance to a form that non-theistic Americans can endorse as heartily as theistic ones. Unless you can point to some evidence that you have done the sorts of things that you condemn me for not doing, then I say that you’re at least as big a weenie as you accuse me of being.

The Sixty Second Patriot #5

Yellowstone National Park is located in Wyoming, Idaho, and Montana. It is a special place, which preserves the natural beauty of the Rocky Mountains and serves as a shelter for all kinds of wildlife. It also has unusual features like geysers -- natural fountains of water coming up from deep in the earth -- and it sits on top of a gigantic volcano.

President U.S. Grant created the park in 1872 after an explorer named Ferdinand Hayden surveyed the region and reported on its great beauty and the many geysers there.  He urged the President that this land was special and should be set aside for all future generations of Americans to enjoy.  This was the first time ever in history, anywhere in the world, that a country set aside a part of its land to be a national park, open to everyone, and kept preserved in a way that would let people appreciate nature.  Today there are over 400 parts of the country set aside as national parks in the United States, and almost every country in the rest of the world has copied Mr. Hayden's idea and created their own national parks.

The Sixty-Second Patriot series of posts is intended to provide teachers who are required to engage in patriotic exercises with truthful, age-appropriate, meaningful, educationally-rich, non-controversial, secular alternatives to rote recital of the Pledge of Allegiance, as well as brief meditations on American history, civics, and values accessible to all people. Suggestions and contributions to this series from Readers are welcome. 

March 18, 2010

Aristotle's Hedonic Salad

A longstanding philosophical disagreement I have with some is that there is a difference between happiness and pleasure.  Today, I got a good wrinkle on that debate.

I was asked whether I get more pleasure from my writing, from reading, or from watching football on television.  The context was mainly my interlocutor's observation that when he watches a football game, he generally finds it only moderately entertaining, and he observes that I seem to get a lot of pleasure out of it.  He was curious as to why he and I responded differently to the same thing, and even more curious about how he could find some way of measuring the degree to which our responses differed.

My answer was a bit off-the-cuff and called back on a concept I originally learned way back in high school when I took a philosophy class through the local junior college.  In the context of discussing utilitarianism, the professor had suggested that one way of looking at "the good" which utilitarian ethics are supposed to maximize would be to say that pleasure is good and pain is bad.  So, how then to measure pleasure and pain and thus evaluate whether a particular action was moral or not?  This isn't something you can quantify, right?

Well, let us posit that pleasure can be quantified.  My old philosophy professor suggested that the appropriate name for a unit of pleasure would be a "hedon."  So my response to the question about how pleasurable I found watching football to be was that if reading a regular book would generate ten hedons per hour, watching a football game would generate fifteen hedons per hour, and reading a really good book would generate thirty hedons per hour.

From there, we played with this intellectual vanity a little bit and suggested that there are quite a few activities that generate diminishing rates of hedonic production.  My friend observed that I seemed to like watching about one football game a day, but that I grew somewhat impatient and pensive during a second game; my response to a second game in a row was similar to his response to the first game.  Thus, diminishing returns -- the first game generates a lot of hedons, the second game, not as many.  This was eventually reduced to the idea of "saturation," meaning that we had varying appetites for the activity in question.

Now, yet another participant in the conversation pointed out that things he liked to do were not things that he considered pleasurable at all.  For instance, some of his hobbies cause him to endure some degree of physical pain.  Thus, the concept of the "anti-hedon" was worked into the conversation, as was teasing out the implication that a pleasurable activity, when its benefits and burdens are weighed, is really something that has a "net hedon production."  Presumably, the pleasure that this fellow gets from his activities outweighs the pains, so by doing them, he achieves a net gain of hedons.

And of course, the generation of hedons may create as a byproduct a certain number of anti-hedons, such as the pain endured by a mountain climber over the course of climbing the mountain, which the climber calculates as less than the pleasure that will be gained by reaching the summit.  Certain activities involve very little effort or cost to generate hedons, such as the initial example of watching a football game on TV -- the main cost of that activity is an opportunity cost because you could be doing something else with those three hours instead of watching sports on TV.

We briefly amused ourselves with the idea that this could create an entire hedonic calculus, by which the hedons and anti-hedons of a particular activity could be weighed and the curves of diminishing returns would lead to an economically-computed action plan resulting in the achievement of an Epicurean ideal state.  I think there is something to this, as I explore below.

So, after dealing with a sidebar about whether Epicureanism is about maximizing pleasure or whether it's really about minimizing pain, we returned to the question of mixed activities and evaluating net pleasure or net pain.  Our friend whose hobbies require him to endure pain resisted the idea of a hedonic calculus to his decision to do these things, intimating that his hobby generated very little pleasure at all and suggesting that indeed, his hobbies produced a net hedonic loss.

Why, then, would he do them?  These are hobbies we're talking about here, not work or government-compelled duties or any other sort of obligation.  He suggested that reducing a decision to do something to a question of whether it generates more pleasure than it does pain is to look through a lens that conceals more than it reveals.  But that doesn't take us away from the question that maybe my friend is a masochist?

While that's possible, I think what's really going on is that it is insufficient to quantify pleasure and pain.  Pleasures and pains are also qualitatively different from one another.  The pleasure of sex is qualitatively different from the pleasure of achieving a difficult task, and both of these are qualitatively different than the pleasure of receiving praise.  The physical pleasure-pain spectrum for my friend's activity is negative, but if the analysis is made along the achievement spectrum, my friend is able to defer seeking a reward for long enough that he will endure both physical pain and short-term frustration of learning how to do something, in exchange for the long-term satisfaction of achieving the difficult goal of succeeding and learning.

Now, perhaps for the masochist, pain is simply another qualitatively distinguishable form of pleasure.  If that is the case, then the masochist seems to be dysfunctional because pursuit of the qualitative "pleasure" generated by enduring suffering must necessarily negate and even outweigh a different sort of pleasure.  This eventually descends into a paradox in which negating hedons generates new hedons -- or perhaps not, if one "flavor" of hedon is converted into a different "flavor" through the psychological process of masochism.

Now, none of this really answered the initial question of why it is that my friend doesn't like football as much as I do.  But I think the larger point is that this provides an objective, or nearly-objective, platform from which happiness can be defined as a function of pleasure, without descending into the sort of sybaritic vision of life that seems unsatisfying when considered in the abstract -- after all, if pleasure could be generated by direct electric stimulation of the brain, why wouldn't we all become wireheads?  But it seems obvious that most people would reject such an existence if given a choice.

All this talk of quantifying and qualitatively classifying pleasure led me to think that happiness might be defined as a hedonistic salad.  There are many different kinds of pleasures in life, as well as different kinds of burdens and pains. They have to be balanced against one another. A well-lived life is one that has a range of different kinds of pleasures, likely ones which are generated by qualitatively different activities, each of which is quantitatively done to the point where the subject activity begins to produce diminishing returns.  Each person's individual happiness is a function of her ability to measure her net generation of multiple varieties of hedons through a variety of activities.

The result of this looks more Aristotelean than Epicurean to me.  If happiness is a hedonic salad, with just enough, but not too much and not too little of one kind of pleasure (eating) and a similar "just right" kind of another kind of pleasure (education) and the right balance of still a third kind of pleasure (sex), then aren't we really looking at life lived according to what Aristotle called "the golden means"?

The question of why different people take different levels of pleasure out of different activities is not one that I can answer with this bit of intellectual gyration.  But I can better define now what happiness means in terms of distinguishing it from and defining it in relation to pleasure.

The Sixty Second Patriot #4

Yesterday we talked about President John Adams, Founding Father and Patriot. President Adams showed us that sometimes even the best leaders are tempted to interfere with the liberties the Constitution recognizes. President Adams signed laws called the Alien and Sedition Acts.  He used them to try and have put people who criticized him in jail.  It is easy to see now that this violated the people's right to freedom of speech, part of the First Amendment to the Constitution.

The good sense of the American people prevailed. You'll remember that yesterday, we learned that Thomas Jefferson won the election of 1800 against President Adams, and Adams' Federalist Party lost control of the Congress in that election, too.  Adams' support of the Alien and Sedition Acts was a big part of the reason why. This is one example of how our democracy works.

Thanks to Commenter Ken (a contributor to a spectacularly good blog) for the skeleton of this post.
The Sixty-Second Patriot series of posts is intended to provide teachers who are required to engage in patriotic exercises with truthful, age-appropriate, meaningful, educationally-rich, non-controversial, secular alternatives to rote recital of the Pledge of Allegiance, as well as brief meditations on American history, civics, and values accessible to all people. Suggestions and contributions to this series from Readers are welcome. 

What Blogging Is All About

What I love about blogging is finding people who comment on weird combinations of interesting things.  Like the impact of facial hair on Presidential politics -- it's not a decisive advantage either way, but Republicans are always more hirsute than Democrats.  Or whether Cal-OSHA should mandate the use of condoms during the filming of adult movies.  Or finding a mash-up of Battlestar Galactica and the Beastie Boys:

It's the juxtaposition of differing areas of life that makes blogs so interesting to read.  Sometimes I just love the internet SO DAMN MUCH!

The Sixty Second Patriot #3

In 1800, John Adams was the President and he ran for re-election against his rival Thomas Jefferson. Adams and Jefferson had very different ideas about how to run the country and they did not like each other very much. Jefferson won, but there were a lot of hard feelings. Adams could have tried to hang on to power, but instead he allowed Jefferson to become President. Up until then, people with new political ideas could only come to power after violence. The Adams-Jefferson election showed the world that there was a different way. They set the example of how even when people really disagree with each other, power in America goes according to how the people as a whole cast their votes. In fact, later in their lives, Adams and Jefferson set their differences aside and became friends.

The Sixty-Second Patriot series of posts is intended to provide teachers who are required to engage in "patriotic exercises" with truthful, age-appropriate, meaningful, educationally-rich, non-controversial, secular alternatives to rote recital of the Pledge of Allegiance, as well as brief meditations on American history, civics, and values accessible to all people. Suggestions and contributions to this series from Readers are welcome.

March 17, 2010

The Sixty Second Patriot #2

The American flag is made up of thirteen red and white stripes, and a blue field with fifty white stars.  When the flag was first made, the color red was thought to mean not only the ties of brotherhood but also bravery and valor.  White was thought to mean peace and virtue, and blue was thought to mean equality.  The thirteen stripes stand for the thirteen original colonies that became the first states, as a tribute to their struggle for independence.  They are red and white to show that we are all Americans together, and while we love peace and justice, we will also fight for each other if we need to.  Each of the fifty stars in the blue field stands for one of the states in the union today.  The white stars on a field of blue mean that all of our states are equal to each other, and that all American citizens are equal to each other.  That is one way the flag serves as a symbol for our nation.

The Sixty-Second Patriot series of posts is intended to provide teachers who are required to engage in "patriotic exercises" with truthful, age-appropriate, meaningful, educationally-rich, non-controversial, secular alternatives to rote recital of the Pledge of Allegiance, as well as brief meditations on American history, civics, and values accessible to all people. Suggestions and contributions to this series from Readers are welcome.

A Note On Readability

One of my complaints about the Pledge of Allegiance is that schoolchildren do not really understand it, and they are not expected to spend a lot of time analyzing its words.  Well, interestingly, one reason that they are not expected to is that it is not written at a grade-school comprehension level.  And no wonder -- it is a long, run-on sentence using complex and obscure words denoting highly abstract concepts.

If you use this tool to assess the readability of the Pledge of Allegiance, you find that it is rated with an average requirement of 14.28 years of education before it can be understood.  Given that a senior in high school is in her thirteenth year of formal education, that places the text of the Pledge of Allegiance outside the grasp of what is expected from a high school student.

By contrast, my post "The Sixty Second Patriot #1" providing a brief meditation on George Washington is scored at 8.48 years of education, meaning it should be fully understood by a seventh-grader.

The Sixty Second Patriot #1

This is George Washington.  He is called the "Father of Our Country" because he led the army that fought the British for America's independence.  For six years, he had to be away from his home and family, fighting what was then the most powerful country in the world. It was difficult but Washington found a way to win.  When the war was over, he became the first President of the United States, and he created the tradition of Presidents serving two terms so no one man would ever become as powerful as a king.  Today he is a symbol of American bravery and moral values.

The Sixty-Second Patriot series of posts is intended to provide teachers who are required to engage in "patriotic exercises" with truthful, age-appropriate, meaningful, educationally-rich, non-controversial, secular alternatives to rote recital of the Pledge of Allegiance, as well as brief meditations on American history, civics, and values accessible to all people.  Suggestions and contributions to this series from Readers are welcome.

March 16, 2010

A Judicial Betrayal of America

I've been doing a lot of reading and re-reading of the case of Newdow v. Rio Linda Unified School District, the most recent Pledge of Allegiance case from the Ninth Circuit.  It is easily the longest opinion I've ever read from any intermediate court, and the first one I've ever seen to have an elaborate table of contents to its dissent.  As Readers following this issue know by now, a panel of the Ninth Circuit voted 2-1 to reject a Constitutional challenge to a policy of a Sacramento-area school board mandating "patriotic exercises" such as the recital of the modified Pledge of Allegiance because of its inclusion of the words "under God."

Now, I can tell you as an atheist that when I am in a social situation where I am asked to recite the Pledge, I am surrounded by clients and under immense pressure to conform, so it is difficult for me to figure out what to do and stay principled. As a practical matter, I remain silent while the others say the two offending words, and recite the balance of the Pledge with the rest of them.  No one has ever said anything and I doubt anyone has ever noticed.  Still, even though I think of myself as strongly self-actualized, sure of my own identity and belief system, and principled enough to articulate what I have to say, I wind up feeling as though I have compromised myself.

If I give in to that kind of pressure, can anyone really doubt that the government is compelling schoolchildren to say the words "under God" by instructing them to recite the Pledge?

In 1983, Justice William Brennan had the guts to admit that he had been wrong in previous Establishment Clause cases he'd decided.  Looking at the practice of opening each session of a state legislature with a prayer made him realize that "if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause."  The Newdow decision is no different -- the government compelling children to acknowledge God's existence and God's supremacy over even the nation itself is obviously -- obviously -- an Establishment of religion, in the form of favoring religion to non-religion.*  That may not be a problem to some, but it does run directly counter to recognized and settled Constitutional law:  "The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."

With that in mind, I'd like to point you to Model Canon of Judicial Ethics 3, in particular Canon 3A(B)(2) and (5):

A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism. … A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status … .
Now, my question to you is, did the majority panel in Newdow v. Rio Linda USD remain true to these ethical norms of judicial function? I submit, sadly, that they fell short. To support this contention, I point you to the reasoning they offered in support of not calling the modified Pledge of Allegiance an Establishment of religion.

First, they said that the words "under God" were not intended by Congress to be religious, but rather to be patriotic.  Really?  Consider the Pledge as it was first enacted into law in 1892:

I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all.
Now, consider the Pledge after its modification in 1954:

I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.
Does the modified Pledge contain any more patriotic content than the original Pledge?  I submit that it does not.  Indeed, after 1954, the loyalty of the Pledger is split between America and God, and ultimately, God prevails and not America.

Second, the majority in the Newdow case claimed that no one is forced to recite the Pledge.  Bullshit.  As I've demonstrated above with my personal anecdote, adults feel pressure to recite the Pledge even when it is obviously not mandatory upon them to do so.  When an authority figure and all your peers are reciting the pledge, it takes a truly exceptional child to resist and not conform.

Third, the modified Pledge obviously endorses religion over nonreligion.  By explicitly acknowledging God's sovereignty over the United States, it tells everyone that to be American is to submit to the will of God.  To be American is to believe in God.  Indeed, the dissent in Newdow makes very explicit that the historical context of the modification to the Pledge -- which was affirmed in 2004 by Congress -- was that to be American was to be religious; the two were inextricably intertwined such that the phrase "atheist American" was thought to be a contradiction in terms.

Fourth, the political pressure on the Court must have been great indeed.  The Supreme Court had already signaled its lack of desire to grab this tiger by the tail, when it decided Newdow's prior case on standing instead of on the merits.  The Pledge is immensely popular and the Ninth Circuit has made a number of immensely unpopular decisions.  There is great political pressure against "activist (read: liberal) judges," there have been calls to break up the influential and powerful Ninth Circuit, and the politics of judicial appointment are now a major factor in Presidential elections.

Fifth, it is clear that the judges favored religion over nonreligion. It does not matter to me that one of the judges publicly follows the Baha'i Faith rather than Christianity; she too is religious and doesn't seem to understand why someone nonreligious would want to be that way. They simply did not appreciate that it is a tangible, real harm to be in an environment where a nonreligious person is asked to publicly identify as religious in order to conform and be accepted. They pointed to the historic fact that most Americas are religious and most Americans have been religious. Well, that's great, but so what? Most Americans historically have been white. Alonzo Fyfe forcefully makes the point that were the government to ask someone to pledge allegiance to "one white nation" would obviously be morally wrong and no one would or should stand for it.

Sixth, they referred to the religiosity of the Framers. So what if the Framers were religious (and it's not clear that they really were and certainly were not religious in the way contemporary Christians are)? The Framers didn't want us to spend a lot of time agonizing over the kind of men that the Framers were, they wanted us to look at the words of the law, the words of the Constitution, and to figure out how to best govern ourselves with circumstances they could not have understood and knew they could not anticipate. Those words prohibit governmental Establishment of religion and that means the modified Pledge violates the First Amendment. As between a patriotic symbol of America and the Constitution, which in a very real sense is America, I'll take the Constitution.

Seventh, they claimed that the phrase "under God" lacks religious significance. If so, why is it that religious people are the ones who are fighting to keep this language in the Pledge and why are non-religious people fighting to get it taken out? People who care about religion care about this phrase. Anyway, how can a reference to "God" lack religious significance? They ignore the legislative history and floor speeches in support of this modification, and the explicit text of the modification itself, to reach this spurious and illogical conclusion.

Eighth, they said the policy of making schoolchildren recite the modified Pledge was okay because an individual teacher only had to lead a brief "patriotic exercise" that didn't necessarily have to be the Pledge, as long as it was patriotic and brief. But this betrays reality and common sense. A teacher has enough to worry about with a class full of students and subject matter that may not be civics or government, to bother coming up with a lesson plan that includes 200+ brief lessons in secular patriotism as an alternative to a theistic Pledge† – a theistic Pledge which the students have been taught by rote to expect and recite without ever pondering its meaning, but the absence of which would swiftly provoke bitter complaints from parents. Far easier for the teacher to simply do what is expected and prescribed.

Ninth and most risibly, they claimed that the phrase "under God" is intended to signify the notion of a limited government. [Slaps palm on forehead.] Oh, of course. I'm sure that's what all of you take away from that clause, too. Seriously – let me assure you all that never once has anyone ever tried to explain to me before this opinion that to say something was "under God" meant that it was somehow limited. This bit of judicial fancy bears no relationship whatsoever to the intent of Congress when the modification to the Pledge was passed, and it bears little, if any, congruence with the way the Framers thought about God and government. If the nation is somehow "under God," that indicates to me that God somehow approves of the nation, and God being omnipotent and all, an association of the government with God suggests to me that the government's power is more unlimited than it is limited.

Tenth and finally, the majority said that it was perfectly okay for a school to mandate recitals intended to inspire patriotism and love of country. In other words, they say it's okay for a public school to indoctrinate students with a government-approved political belief. I say, no way. Students should be taught facts and allowed to explore and form their own opinions, and if those opinions are critical of the government, well, perhaps the government ought to be spending more time earning the respect of its citizens instead of mandating it.

So the fact of the matter is that the majority visibly reached a pre-determined result – they looked in their robes and couldn't find a set large enough to handle the public criticism that would inevitably have come from striking down a mandatory Pledge policy. They then cravenly strained logic and credulity to come up with the politically acceptable response. And unless the Ninth Circuit agrees to hear the matter en banc, I would expect that this will be the end of this lawsuit – the Supreme Court has already indicated its lack of desire to address the issue on its merits. We can only hope that next time, the judges find a way to decide the case in such a manner as to fulfill and enlarge our ideals, to understand that non-theists can be great Americans too, and to stay true to the Constitution that is the true guiding spirit of America.


* I do not need to be reminded that the First Amendment also includes the Free Exercise Clause.  This case has nothing whatsoever to do with the Free Exercise Clause.  The Free Exercise Clause lets you recite the Pledge or any variation of it you want within the context of your own religious observances.  Hell, you can worship the flag as a religious icon for all I care.  This case is about what the government compels children to do.  If you think the modified Pledge is A-OK because of the Free Exercise Clause, then just swap out the word "God" for "Allah" and tell me what you think of the government ordering your child to acknowledge Allah's supremacy every morning.

† That would make for a good series of blog posts here – a series of sixty-second-or-less lessons that teach patriotic ideas without discriminating against anyone. Suggestions from Readers are welcome.

A Liberal Betrayal of America

Apparently unable to muster the votes to actually pass the Senate healthcare reform bill (and Speaker Pelosi and President Obama have reason to be not so confident), so that it can then be amended by way of reconciliation and thus made more palatable to progressives, the House of Representatives is going to entertain something called the "Slaughter Rule," so named after the chair of the House Rules Committee, Louise Slaughter of New York.

If you're not a deep government junkie, you may think that the House Rules Committee is the ultimately most boringest place for a legislator to be.  You might think that a member of the House of Representatives would want to be on a sexy committee like Defense or Intelligence or Foreign Relations.  And to be sure, those committees hear testimony on, and entertain legislation on, sexy stuff like spies and weapons systems and things like that.  But the Rules Committee is undoubtedly the most powerful of all the committees in the House of Representatives, making its chair almost as powerful within that body as the Speaker herself.

And she's proving it.  Her idea for getting health care reform out of the Senate and in to reconciliation is to implement a new sort of rule for the House to consider a pending bill under -- to "deem" the Senate bill passed, and then immediately amend it and send it back to the Senate for its reconciliation. 

See, the Senate passed a healthcare reform bill already, but it contains some red flags like no funding for abortions, so the somewhat more liberal House membership doesn't like it.  It's also too modest in its scope of healthcare reform for President Obama's taste.  Now, normally, we'd be seeing the House pass its own version of the bill, then the House and the Senate sending committees to work together to reconcile the competing versions of the bills and produce a unified version of the law for both houses to pass and send to the President.  At least, that's how I learned it:

Now, Congresswoman Slaughter insists that her idea is Constitutional.  But it seems to me that she is simply wrong. Let's go to the Constitution and see:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
So, that means that the House and the Senate must both pass the same bill into law, and then it goes to the President, who then either signs it, allows it to become law without his signature, or vetoes it.  Until and unless those things happen, it is not law.

Slaughter's rule would allow the House to "deem" the Senate bill as having been passed, and then immediately amend it again -- meaning that the bill the House passes won't be the same bill the Senate passed.  Which means the Senate's bill will have been rejected by the House, and the Senate will then have to consider the House bill.  Democrats are loath to do that because with the Republicans having gained a hunkilicious seat in the Senate, they could then filibuster and prevent any health care proposal from passing.  Unless, of course, a Republican or two were to be persuaded to break ranks with an appropriate inducement of pork or a concession watering down the impact of the House's bill, which would then need to be re-reconciled with the House where, as I noted above, things are dicey enough for the health care reformers as it is.

Or, if you want to say that the House is really passing the Senate bill and the Slaughter rule simply jump-starts the process of amending it, great.  But the Senate bill then still isn't law because the now-passed Senate bill would not be conveyed to the President for signature, veto, or enactment by inactivity -- it would immediately be sent to a reconciliation committee and the law that was passed by both Houses would not make it to the President as required by Article I, Section 7.

As Stanford Law Professor (and former Federal Judge) Michael McConnell points out, the Slaughter rule "may be clever, but it is not Constitutional."  No, the Democrats will need to do the hard work of actually politicking across party aisles now, and moderating the impact of their reform, such that they can actually attract a Republican vote or two in the Senate and enough votes to ensure passage in the House, which means that progressives aren't going to get the bill they want.  Politics is the art of the possible.  A bill passed by the Slaughter rule will be doomed to invalidation by the courts.

A Conservative Betrayal Of America

Social conservatives made a concerted effort to take over the otherwise-obscure government body that sets standards for schoolbooks and lesson plans for the state of Texas.  With the result that, much like the perverse effort to edit out the liberal parts of the Bible, American History is being rewritten by fiat so as to eliminate the unpleasantly liberal portions of its heritage.  For instance, where once the intellectual history of the European Enlightenment stood in the curriculum now is taken up with a study of Richard Nixon's leadership role in the Cold War, and all of Thomas Jefferson's political philosophy, to be replaced by Thomas Aquinas, John Calvin, and William Blackstone.  Because Jefferson, hey, what did he ever do for the country?

Now, it's certainly true that the intentional manipulation of knowledge and education for the purpose of ideologically molding an entire generation of children is not something confined only to conservatives.  Liberals, however, have tended to sin in this regard by overinclusion -- by including so many obscure and fragmented points of view so as to lose the ability to see the big picture of what is being taught.  This, however, is an exercise in redacting history.  Well, it's hard to imagine what else to expect from a group under the leadership of a lame duck who said of mandatory disparagement of evolution in Texas biology classes: "somebody's got to stand up to experts."

It would be laughable if it weren't so damned scary.  Those kids are going to get a huge shock when they get to college and learn that they've been taught a sanitized version of "alternative" history.  Or maybe one day Jefferson will be as roundly and unfairly condemned by amateur know-nothing historians as Woodrow Wilson is being disparaged today.

Miracles Of Modern Commerce

Grandma only turns 88 years old once in her life.  And she's had a shortage of real, just-for-her, birthday parties.  So The Wife and I got tickets for a weekend trip to Milwaukee, which is why I've not been blogging and instead spending a lot of time in airplanes and with family.  Living my life instead of blogging about it.  Sadly, my neck is still sore.

You know, there's still snow on the ground in Wisconsin?  Dirty, sooty, ugly piles of compacted snow left over from plows and clearing parking lots, mainly, and almost no clean white drifts.  And it's cold there.  Not insufferably cold, but I was glad to have brought my heavy coat and beanie.  And the lake next to my aunt and uncle's house is still frozen over -- over a square mile's worth of frozen lake.  Those are ice drifts, not waves, in the photograph.

And I got reminded, taking this photograph, of what is meant by the joking phrase "frozen tundra" for Wisconsin's environment.  When tundra thaws out, it is a swamp.  Wet, cold, and muddy.  Later in the year, this lakeside location will become a very pleasant place to sit and eat an apple while watching the lake and enjoying the warm Wisconsin summer.  Right now, though, it takes a willingness to get your socks soggy and a tolerance for wind blowing across that ice right in your face, all in the quest for a good shot.

Coming home was a wonderfully pleasant shock.  The Wife and I ate lunch outside in shirt sleeves after our plane landed, with half the clientele at one of my old haunts wearing shorts.  Tonight there was enough light and warmth in the air for us to walk the dogs after dinner.  I'll take California over Wisconsin, thank you very much.

March 10, 2010

Rogers Wet Lake

A few days ago, I had business at Edwards Air Force Base. While driving to the security station, I had to cross Rogers Dry Lake on the causeway. Rogers Dry Lake is a feature of the base because it usually provides a large, flat surface for testing and, if need be, emergency landing space.

So to see the lake actually holding water was quite unusual. I've lived in this area and been out here off and on for thirty years, and I cant recall ever seeing the dry lakebed filled with water.  Even if it was only about a foot deep, and very muddy, it was quite an unusual and disarming sight.

The Spanish Empire

Just a thought:  Today, the United States still stands as what is called a "hyperpower" -- it possesses territory, client-states, economic influence, technological superiority, prestige, political power, and even its language and currency are accepted the world over.  To be sure, there are rivals and challenges on all fronts but the U.S. is still the leader in every measure of global power that possesses any meaning.

If we spin up the ol' Wayback Machine and s look at the world in, say, 1560, we'd see another picture.  Another hyperpower dominated the world, facing many challenges to its hegemony but was obviously the dominant power everywhere you went.  That would have been Spain.  1492 was to Spain what 1776 was to the United States.  Spain's rise to global dominance after taking the New World was hallmarked by Spanish becoming the lingua franca of its time, by the fact that the Spanish real was accepted (and indeed preferred) as legal tender across the globe, by the fact that Spanish military might was unbeatable in Europe and elsewhere, and by Spain's territorial reach on nearly every continent. 

While King Philip never got to realize his dream of looking at a globe and seeing a map of Spain, it was nevertheless true that when you consider the Hapsburg holdings in Europe, Spanish possessions in Africa, India, Indonesia, the Philipines, and the Americas, the sun never set on the Spanish Empire in the sixteenth century.  History enthusiasts like to play the parlor game of comparing the United States to Rome.  Maybe we'd benefit more from comparing the U.S. to Spain.

Another Question About Government

Why, exactly, do we have a bicameral legislature?

Oh, sure, I know it's in the Constitution.  But why did the Framers want a bicameral Congress?  Nebraska seems to do just fine with a unicameral state legislature.  England and the UK do pretty well with an effectively unicameral legislature (the Lords have some power but not much that is meaningful).  Indeed, there's lots of countries with a unicameral, or effectively unicameral, legislature -- and like the UK, the executive is chosen from within the ranks of that body, which is what we call a "parliamentary" system of government.

The idea is that there is more deliberation, more compromise, more discussion and thought, if politicians with differing sorts of political incentives considered the same idea.  The apocryphal story is of Washington and Jefferson having coffee and arguing over what purpose the Senate fulfilled; Washington compared the Senate to the saucer in which Jefferson poured his coffee to cool it.

But as a practical matter, members of the Senate these days respond to a very similar set of incentives as do members of the House.  At the state level, members of a state's lower house respond to functionally identical incentives as to members of the state's upper house -- that's certainly the case here in California, it was certainly the case in Tennessee, and I imagine that's the case in 47 of the remaining 48 states.  At the Federal level, individual Senators tend to have a higher profile than individual members of the House, excepting either the most prominent House members (like the Speaker or certain key committee chairs) and those who are currently embroiled in scandal, such as until-very-recently Congressman Eric "tickle fight" Massa.*

Now, if you're a liberal or a progressive or a Democrat or someone who more closely identifies with those labels than their opposites, you're probably thinking that I'm talking about health care reform and why the hell don't the Democrats actually get their acts together and use that overwhelming majority they have.  Which is an interesting political question, I'll readily concede.  I'm not entirely sure I'm all that upset that things are stalled out the way they are, but I'm also not so sure that if something does pass that it will be all that awful.  I think I'm suffering from bogeyman fatigue, and just plain old healthcare talk fatigue on that score.

But what I'm really asking here is a more abstract question.  Given the possibility of split partisan control of different houses of the Legislature, in theory we would wind up with a Broder-esque world where leaders of both parties sit down, trade logs, compromise, and try to craft a policy acceptable to a wide majority of people.  In practice, we rarely see split control of both houses of a legislature.  I've not done much statistical research but it seems that especially at the Federal level, out of the 111 Congresses we've had since the Constitution was first adopted, only 18 have seen split partisan control (that's counting the 107th Congress, which saw the Senate go from effective Republican control on a 50-50 split with the Vice President casting the tiebreaker to effective Democratic control when Jim Jeffords changed his registration to being an independent and started caucusing with the Democrats).  When we do, we tend to see that sort of compromise only on "must pass" sorts of laws, like budgets, and the result is a bunch of pork being thrown around at marginal districts to buy votes needed for one side or the other to pass.  It makes for interesting political tactics but damn poor political strategy.

Now, the Connecticut Compromise was probably necessary to get the Constitution reported out of the original Convention in 1787.  So we keep it for that reason.  But the only requirement in the Constitution about the States is that they have a "republican form of government" (note the small "r").  What exactly this means we don't know because that ambiguous phrase isn't defined in the Constitution itself.  Obviously involves elections of some kind, and some sort of representative democracy.  All of the states have chosen to emulate the Federal pattern of republican governmental structure, which in turn followed Montesquieu's division of the governmental power into executive, legislative, and judicial.

The more I consider California's government, the more I realize just how messed up the structure of the government has become.  An incredible amount of power is delegated to very local sorts of governmental units, some of which are incredibly specialized.  Water boards hold huge veto power over nearly everything that gets done with land.  To the extent that such boards consist of elected members, contested elections are very rare; more often, the boards consist of people appointed by the Governor, who then create regulations (thus legislating) and then decide if people have violated those rules (thus adjudicating).  This form of government, in practice, does not strike me as particularly 'republican.'  Which isn't to say it's bad, or that the people who do it are bad people.  It was pointed out to me today that most of them are simply trying to do a good job and haven't given much thought at all to the political theory underlying their power and the way they exercise it.  And that as a practical matter, this is really the only way to do things in a way that gets anything done anyway.

"But 'ats not the point, innit?" as my British friend might say after he'd had a beer or two.  The point is, we're promised a republican form of government and what we get is a surplus of high-level legislature for no particular reason other than that's how the Feds do it, and little effective benefit in the quality of the resulting lawmaking product.  And we're given a tremendous amount of actual, everyday exercise of governmental power in these quasi-executive specialty agencies that do not coordinate with one another to work towards a broad policy goal and over which the public has at best only highly indirect control.  Maybe the system actually works in practice but as California's example (and Illinois is right behind us) demonstrates, too much of this has led to hyperpluralism, hyperdelegation, and hyperspending with few checks and balances to tame the beast. 

With the endgame, that we see now, of the beast consuming all available resources, growing large and unwieldy, and then finding that there are no more resources to consume and going into agonizing throes of starvation.  One of the symptoms of those starvation pangs is when people start seriously examining some facetious suggestions which I made nearly a year ago, right here on this very blog.

A unicameral legislature in Sacramento is not the immediate answer to the question of what to do about the state being twenty-six billion dollars in debt.  And unless the state government breaks free from corruption, it might actually make things worse.  But if a unicameral legislature were sufficiently large, it might be difficult to buy enough votes to get any particular idea through it.  The House of Representatives, at 435 members, is probably too small compared to the number and magnitude of issues it handles to avoid being a tempting and achievable target for corruption.  But if a unicameral California legislature had something like twice that many members, maybe that would dilute voting strength and thus the ability to engage in purchase ("rental" seems like a better word when you think about it) of a politician for a special interest, and create small enough districts that a high level of personal accountability to voters could be re-achieved.

I'm just thinking outside the box here -- but why don't we do this?  I'm sure there would be a significant downside to this.  The expense, for one, but frankly, that's actually not that hard or large a problem to solve.  What I want to focus on is what kinds of political behavior and policy outputs we might expect from a 900-member unicameral legislature as opposed to the 80-40 bicameral legislature we have.  Political theorists, have at it and tell me what you think.

* When Glenn Beck says he's sorry he wasted your time, your time has indeed been well and truly wasted.