May 20, 2012

When you can’t win on the economy, go after gay marriage.

May 9, 2012 By 3 Comments

Typically, I write off most of what Joe Biden says to gaffs. Even in jest, though, the truth is often found.  Like when he said he supported gay marriage while the President’s views were still “evolving,” whatever that means.

Actually–wait. I’ll tell you what “evolving” means: it means that the President, as of this morning, supports gay marriage. Three days after the Vice President’s gaff, and a day after a very flustered White House Press Secretary fought to keep the news media at bay, a quickly arranged interview with ABC revealed that the President’s views on marriage are no longer “evolving.” He supports gay marriage.

“I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that ‘don’t ask, don’t tell’ is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married,” Obama told Roberts in an interview to appear on ABC’s “Good Morning America” Thursday.

Never mind that it flies in the face of laws and state constitutional amendments in over thirty states, including, also as of this morning, North Carolina.  I write that policy change off to more than just the Veep’s gaff–it’s the result of a previously calculated development of a wedge issue. If the president can’t win on the economy–and he can’t–he’s going to go after something else.

Can we get a quote from you on that historic vote, Mr. President? No? Well, how about from the Obama campaign?

President Barack Obama’s campaign says he’s “disappointed” with North Carolina’s constitutional amendment banning gay marriage.

Obama campaign spokesman Cameron French said in a Tuesday statement that the ban on same-sex unions is “divisive and discriminatory.”

That’s what happens when the Vice President makes a gaff (was it a gaff?). An entire administration shifts its political strategy to compensate.

Result? A wedge issue for the general election rightly belongs in the states, not the federal government. No matter how you feel about gay marriage–and even if your views are “evolving–it’s an issue that is reserved to the states to decide. By introducing it at the federal level we face the likelihood that issues more relevant to the Presidential race will be pushed aside.

Issues like the economy. Or the absence, for three years running now, of a federal budget.

Be smart. Leave gay marriage to the states. Deal with the things that matter on the federal level, starting with entitlement reform, deficit reduction, national security, and government spending. The family, and family law, is an issue that is better left reserved to the states.

[Washington Post] [ABC] [CNN] [Huffington Post]

 

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To Dave Montero: When did “one” become “some” Republicans?

May 2, 2012 By Leave a Comment

Controversy sells papers. If you can’t catch people by the headline, you won’t get them to read your story.

But what happens when journalist have to stir the pot a little themselves to keep the controversy going? Today’s story by Dave Montero may be just that–something to keep a story going another cycle or two. In “2nd District turmoil has some GOP looking at Democrat,” Montero manages to turn one  Republican into “some” Republicans.

On April 21, 2012, Republican delegates at the Utah Republican State Convention chose Chris Stewart as their nominee after Milt Hanks, also a candidate for the nomination, railed from the pulpit against several other candidates for conspiring against Stewart. As Dan Pope might say (or, actually, did say):

“It was a tornado that hit without any warning,” Pope said. “Doppler radar didn’t see it coming and it was gone in six minutes, doing damage to about 35 percent of the property.”

Seriously. You can’t make quotes like that up. Unless you’re Dan Pope. Also, he’s right. Hanks’ 11th hour rant was a bombshell that had the effect of helping Stewart avoid a primary.

In the aftermath, many GOP candidates and activists alike have been understandably angry, but is the premise of the article correct? Are “some” Republicans looking to support a Democrat over Stewart?

It is, as a former journalist friend of mine says, the “oldest trick in the book.”  The trick goes like this: the reporter–Montero in this case–finds one person who says what they want.  Then he runs over to the Democrat, the Jay Seegmiller  who, of course, says “Yeah, there are tons of Republicans who are joining us now.”

Actually, what the Seegmiller campaign said was

“Some of them are so mad they would support just about anybody other than Chris Stewart,” Seegmiller said. “But most that have called have asked ‘What are your positions on this and that?’ And after we talk a little bit, they say ‘you sound like you’re moderate enough that I’d be comfortable enough supporting you.’”

And just like that, Seegmiller earned some free media to tell the state how moderate he is. Just don’t ask Jay why he still has, with all of this new found support, less than $7,000 in the bank.

A simple read of the Salt Lake Tribune story shows only one citation of the supposed “some” that Montero claims are looking to vote Democrat instead of Republican this fall. After one quote from that one person, Montero says that ”the fallout has left some Republicans looking to discover who Stewart’s Democratic opponent is.” And then he never cites any of those Republicans.

Why would Montero set up a faulty premise? Was he having a hard time getting Republicans to return his calls? Did the editor like the article written this way? Did Montero, or the editor, or both, need to run to a kid’s ball game (as my reformed reporter friend suggests)? Who knows. But it sets up a faulty premise to the story and plays slight of hand to the reader.

Controversy sells, and to date, Utah’s news media has been all over the 2nd District kerfluffle. I count over ten stories since April 21 that are either about the controversy or make a substantial mention of it. But selling controversy is not the same thing as creating or amplification of  it.

There’s no doubt that there’s real news in here somewhere, but unfortunately, the Salt Lake Tribune is playing a piece of trickery with readers in not holding the story until they could show that “some” really is more than just “one.”

[Salt Lake Tribune]

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Obamacare before the Supreme Court: “The Emperor Has No Clothes!”

March 29, 2012 By 2 Comments

Courtroom illustration shows Deputy Solicitor General Edwin Kneedler speaking to Justice Antonin Scalia and Chief Justice John Roberts of the U.S. Supreme Court in Washington

In a case of “the Emperor has no clothes,” the justices played the part of the skeptic to the Obama Administration’s protestations of Obamacare’s constitutionality.  With the oral arguments on constitutionality of the Affordable Care Act over, let’s take a look back at the reactions to the arguments:

First, the crux of the argument? That the government cannot regulate “inactivity,” an angle that has been pushed by Georgetown professor Randy Barnett:

On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.

Apparently, the Supreme Court is buying the argument, much to the Obama Administration’s dismay.

In “Obama’s Supreme Court Disaster,” Adam Serwer says that the government’s lawyer Donald Verilli should be glad that the Supreme Court doesn’t allow cameras in the court room; his performance was that bad.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.

Investors Business Daily feels bad for Verilli, but doesn’t blame him. The Affordable Care Act just isn’t constitutional, the editorials says.

We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law’s constitutionality.

Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.

Some think that the disasterous arguments have put the Obama Administration on the defensive over the heart of Obamacare, the individual mandate on Americans to buy healthcare insurance.

That’s a purely political argument to a constitutional question. [White House Press deputy press secretary] Earnest  offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.

A week ago, ACA supporters were looking forward to a triumph. Now, they’re counting their losses. What happened?

Perhaps the most telling moment was during a question from Justice Kennedy. Ilya Shapiro describes it:

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Just like that, the headlines started changing.

The law isn’t dead, yet though, say supporters.

As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.

On the other hand, Dr. Milton Wolf in the Washington Times is more than sanguine about the demise of Obamacare. He’s predicting complete overturn, and, if not, the downfall of America.

The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.

Obamacare’s costs are exploding in the land where budgets already have burst. The $900 billion bargain-basement 10-year cost estimate that Mr. Obama promised for his overhaul recently ballooned to $1.8 trillion. Of course, these are still just estimates, and considering that the government underestimatedMedicare’s cost by a factor of 10, who really knows how massive the final price tag will be?

Welcome to the United States of Greece, where our $15.6 trillion national debt has surpassed the size of our total economy.

Which begs the question: if not Obamacare, what? Healthcare reform is clearly necessary. In the Chicago Tribune,

“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.

One way or another.

That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.

On that point, James Pethokoukis asks “What will Republicans do if the Supreme Court kills healthcare” reform and suggests that perhaps combining Rep. Paul Ryan’s plan (block grants to states for Medicare0 with future president Mitt Romney’s plan (known as the “Hubbard Plan“) might be workable.

The Hubbard Plan has five elements: 1) allow all Americans to deduct from income taxes all their healthcare expenditures—premiums, employee contributions, out-of-pocket costs, etc.; 2) deregulate insurance markets to foster nationwide, portable health insurance; c) making health information more available; d) control anti-competitive behavior such as hospital mergers; e) malpractice reform.

In the meantime, stay tuned. The law hasn’t been overturned, yet, and still may stand. While you’re waiting, jog on over to the Sweaty Federalist for his snark on some of the arguments being made to uphold the law.

[AEI] [Glenn Hubbard] [Mother Jones] [Washington Times] [Investors Business Daily] [National Journal] [The Nation] [Chicago Tribune] [New York Times]

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The Constitutionality of the Individual Mandate: The Very One-Sided Fordham Debate. [video]

February 10, 2012 By 5 Comments

There are few things in politics or the law quite so enjoyable as watching one use words to bludgeon and destroy a weak or faulty idea.

Recently (as in, on Monday of this week) the University of Utah‘s SJ Quinney College of Law hosted the Fordham Debate. The topic for the two Ivy League educated scholars who would take up opposing sides?

Be it resolved that the individual mandate provision of the Patient Protection and Affordable Care Act is constitutional under the commerce clause of the U.S. Constitution.

Yeah. Pretty much the lodestone for the entire political right’s anger at the elected left and why Obama, for all his panache, brilliance, and Vulcan-like demeanor, has lost the blessing of nearly  a majority of Americans.

And we all love debates, right?

In favor of the resolution (that the individual mandate is constitutional) was David Orentlicher, a JD/MD with two of his degrees from Harvard.  He is the Samuel R. Rosen Professor of Law, Co-director of the William S. and Christine S. Hall Center for Law and Health at Indiana University Robert H. McKinney School of Law – Indianapolis.

Opposing the resolution was Jonathan Adler, a Yale (and George Mason)  man, an attorney, professor, and director of the Center for Business Law and Regulations at Case Western Reserve University School of Law (as well as a regular contributor to the Volokh Conspiracy, which says a lot in itself).
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Seriously. Did Orentlicher even have a chance? Was he paid to put forth weak arguments and avoid more than a passing reference to any law (statute, common, or constitutional)?

English: Barack Obama signing the Patient Prot...

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Having earned my JD from SJ Quinney and listened to my share of left leaning professors pontificate, I was more than a bit surprised that a more able defender of Obama’s biggest legislative accomplishment. In the end, though, his argument boiled down to something like this: the healthcare plan won’t work without the individual mandate, so therefore it’s legal. 

Never-mind precedent or the constitution…

Take an hour, and watch the debate. I think  you’ll enjoy, and learn from, the arguments both for and against the individual mandate part of the Affordable Care Act (may it die a quiet death before the Supreme Court this year).

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Pew Polls Mormons About Being Mormon.

January 12, 2012 By Leave a Comment

With the contest for the GOP Presidential nomination leaving the more tolerant American northeast (New Hampshire) and heading back into evangelical territory with the South Carolina Primary, Mitt Romney’s Church of Jesus Christ of Latter-day Saint  faith (aka “Mormonism” or the “Mormons“) is back in the news.  The Pew Research Center, in anticipation, has released a new poll on Mormons.

…or rather, a poll of Mormons themselves.  Essentially, it’s an outside look at how Mormons see themselves.

I know. Interesting, right? Who doesn’t love a good case of ompholaskepsis? I mean, besides the Kardashian sisters and the Jersey Shore crew? (Yes, I did just manage to get a ten-dollar word in the same line as a reference to the Kardashians and Snooki. There must be some kind of blogger bingo reward for that).

Tell us more about that poll…

According to Washington Post, it is “[t]he first major independent poll of U.S. Mormons” and it “describes a conservative, devout community highly concerned about being accepted even as it embraces beliefs about gender roles, premarital sex and religious commitment that are well outside the mainstream.”  Auspicious, eh? There’s a reason Mormons often find comfort in the biblical description of God’s people as “peculiar” relative to those around them.

“This sample looks like very busy, hyperactive Mormons,” said Marie Cornwall, a Mormon sociologist at Brigham Young University, to the Washington Post. “Who are these people? Many of us are really surprised at how religious this group is.”

Specifically,

  • “Seventy-four percent of Mormons say they lean Republican, compared with 45 percent of Americans overall.” (Shocker…)
  • As it regards the presidential contest, “Romney has overwhelming support among Mormons: 86 percent view him favorably. Even Mormon Democrats view him as favorably as do Republicans overall.” That doesn’t apply to just Romney. Less ardent in his LDS faith, but a Mormon none-the-less, Jon Huntsman gets favorable views from half of Mormons. Not surprisingly, President Obama only gets a nod from 25%, which matches up well with previous bullet point.
  • Seventy-nine percent said sex between unmarried adults is wrong, compared with 35 percent of the general population. Others have pointed to this high level of pre-marriage chastity as a reason for Mormons’ lower than average levels of divorce. Which leads to the next observation:
  • “Two-thirds of Mormons are married compared to just over half of all Americans, and eighty-one percent of all members say being a good parent is one of the most important life goals. Only half of Americans in general say the same. Almost three-quarters of Mormons put the same high priority on marriage, compared to one-third of the general public.”
  • How do Mormons feel about perceptions of their faith? 97% see themselves as Christian, but “the fact that many Americans — one-third, polls show — don’t see them as Christians is one of their primary concerns.” Ironically, “white evangelicals, with whom Mormons share many attributes, are the group least likely to see Mormons as Christians.”  Could that be a result of competitive envy?

Looking at the specific findings, LDS Church spokesman Michael Otterson notes that Mormon’s embrace a distinctiveness, as in “peculiarity,” that they cherish and that is not unlike the “committed evangelicals or [...] our Catholic brothers and sisters who show special devotion to their own understanding of the Christian faith.”

Wait! There’s more!

English: Governor Mitt Romney of MA

The poll isn’t the only place where the Mormons are making headlines. Today has seen a small burst of LDS centered news.

[Pew Forum on Religion & Public Life] [Washington Post] [Old Testament] [Salt Lake Tribune] [Fox News] [LA Times] [Chicago Tribune]

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Every time Gingrich calls himself a conservative, an angel loses its wings.

December 22, 2011 By 2 Comments

Mu-ah, ha, ha! I will arrest the judges who do not please me!"

Ok, maybe not an angel. But I am sure that Ronald Reagan is rolling over in his grave.

This one’s for you, Marco.

Today’s witness to the lack of conservatism in Newt Gingrich is George Will who, frankly, says things better than I do, including when he calls Newt the “anti-conservative”:

When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, “People like me are what stand between us and Auschwitz” [Atlanta Journal-Constitution, Jan. 16, 1994]. What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.

Which is exactly why Newt wants to take a shotgun to the judiciary and start telling it what to do.

But enough from me. Let’s go back to George:

But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.
I don’t recall if I’ve ever seen more blatant and dangerous pandering than promising Iowa conservatives that he’ll tell judges what to do (like he did in a debate recently to applause when he mentioned the judges who had lost their seats after upholding a law allowing gay marriage in the Hawkeye State). The only thing that separates this country from others is adherence to the rule of law and division of power between the branches. Gingrich’s pandering attacks both.
Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned. Gingrich’s epiphany about judicial tyranny occurred in 2002, when a circuit court ruled unconstitutional the Pledge of Allegiance phrase declaring America a nation “under God.” Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead. The Supreme Court unanimously overturned the circuit court’s “under God” nonsense.

So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”

He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Two points to Will, zero to Gingrich.

But why is the Supreme Court, and the judiciary in general, not completely beholden to democracy? Why is it, in essence an anti-democratic aspect of our government?

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government.

Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of the McCain-Feingold campaign finance legislation and other restrictions on political speech.

Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. InKelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.

Gingrich radiates impatience with impediments to allowing majorities to sweep aside judicial determinations displeasing to those majorities. He does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.

As one friend said of Gingrich, if you think you know him now, just wait 10 minutes–you’ll find someone different, someone not limited by the bounds logic places on the rest of us.

BUT WAIT! There’s more George Will on Gingrich’s attack on the judiciary.

Although not a historian, Gingrich plays one on television, where he recently cited Franklin Roosevelt(and Jefferson, Jackson and Lincoln) as “just like” him in being “prepared to take on the judiciary.” Roosevelt, infuriated by Supreme Court decisions declaring various progressive policies incompatible with the Constitution’s architecture of limited government, tried to “pack” the court by enlarging it and attempted to purge from Congress some Democrats who opposed him. Voters, who generally respect the court much more than other government institutions, reelected those Democrats and so thoroughly rebuked FDR’s overreaching that Congress lacked a liberal legislating majority for a generation.To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and he would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents.

 Again, with the logic thing. We just aren’t as well read, intelligent, forward-thinking, or sophisticated as Newt Gingrich. Neither ‘frankly’ or ‘fundamentally’ speaking, at least.

Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.

Which is why, in my estimation, Gingrich would be a dangerous turn for our country, a leader more akin to Julius Caesar and the Emperors of ancient Rome than the Democratic-Republicans of Thomas Jefferson’s vintage.  Ilya Somin accurately notes that

[...] Gingrich conveniently ignores the fact that there are already many constraints on judicial power. Judges are nominated by presidents and confirmed by the Senate, which makes it difficult to push through nominees who deviate greatly from the political mainstream. Once appointed, they cannot easily enforce decisions in the face of strong opposition from public opinion and/or the other branches of government. Congress can impose additional restraints by deciding which courts have jurisdiction over what issues.

Historically, federal courts have erred at least as much by failing to strike down unconstitutional laws and policies as by overruling laws that they should have upheld. Many of the most notorious Supreme Court decisions — Plessy v. Ferguson, Korematsu, Buck v. Bell, Kelo v. City of New London (which, as Will notes, Gingrich has harshly criticized), fall into the former category.

Though he’s slightly less well known than George Will, Matthias is no less wise, in his succinct analysis:

The arrogance contained in the line "You haven't read what I've read" disqualifies the speaker from serious discussion.
December 22, 2011 9:46 AM via TweetDeckReplyRetweetFavorite
@politicalmath
PoliticalMath

Be wise, Iowa and New Hampshire: end this Georgian’s time on the national stage. Send him back to consulting Freddie and Fannie Mae for his million dollar plus fees. It’ll be better for all of us.

[Washington Post][h/t Volokh Conspiracy]

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Nationwide Poll: Most know that Mormons are Christians, but especially Republicans.

December 22, 2011 By 2 Comments

Most people consider Mormons–members of the Church of Jesus Christ of Latter-day Saints– Christians, says a new nationwide poll by the Salt Lake Tribune. That’s interesting, and it’s also probably good news to Mitt Romney, whose biggest liability is not the health care reforms he signed as Governor of Massachusetts, but his religion.

What’s more interesting, at least to me, is who questions Mormons’ Christianity. It’s not those “crazy” conservatives; rather, it may be Democrats and Independents.

Check out the screen shot of the Salt Lake Tribune’s poll below:

At #1, the red circle, you see the percentage in the poll that consider Mormons to be Christians (which, by the way, they are). It’s just over half at 52%.

However, when that percentage is broken down into smaller segments, controlling for political affiliation, it becomes clear that the lack of acceptance is stronger on the political left.

Go to #2, the blue circles. Whereas almost 63% of Republicans believe Mormons are Christians, that percentage drops 14% among Democrats. It drops even further to 44% with independents, or people claiming no political affiliation.

What’s the upshot? The difference may not matter. Democrats and Independents don’t care about religion or belief in God as much as Republicans do.

“Clearly, religion is much more important to Republicans,” said Brad Coker, of Washington, D.C.-based Mason-Dixon Polling & Research, which conducted the Dec. 12-16 survey for The Tribune.

Further,

The partisan split is likely attributed to the larger number of secular Democrats, said Michael Cromartie, vice president of the Ethics and Public Policy Center, which studies public policy through a Christian viewpoint. He said while most Democrats are people of faith, the party “just has a lot more nonbelievers in it.”

English: Governor Mitt Romney of MA

Image via Wikipedia

So, controlling for “more nonbelievers” to the left of Republicans, and considering that any Republican candidate whose faith might be questioned (i.e. Jon Huntsman and Mitt Romney) is facing a Republican primary, we really need only look at Republicans’ perceptions of candidates. And, according to what we see here, Republicans care about a candidate’s faith, belief in God, and Christianity.

Especially the evangelicals. Says the article

White evangelicals often are seen as one conservative group most likely to criticize the LDS faith, but the poll found that 50 percent see Mormons as Christians, though 29 percent said they were not, the largest among any of the groups polled by The Tribune.

Are evangelicals shifting? Are southern preachers like Robert Jeffress losing their bigoted war against the LDS faith?

These are signs indicating that such may be the case. I’m still waiting to see. Until the Republican Presidential race shifts from New Hampshire to South Carolina and Florida, I’ll hold my judgement on whether the nation is ready to accept as one of their own a member of the LDS faith.

[Salt Lake Tribune]

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I agree with Bagley: Indefinite Detention of Americans is Wrong.

December 21, 2011 By 6 Comments

I’m with Pat Bagley on this one: by signing the National Defense Authorization Act, the President is threatening our liberty and treading on the Constitution.

The appropriate balance between security and freedom in a  liberal republican democracy (and I mean liberal in the classic sense, not in the modern political connotation)  has always tenuous and difficult for lawmakers, and modern technology and globalization have made it even more difficult. Our laws promise access to “due process” and the courts, but at a time when enemies do not wear uniforms, follow a chain of command, can use our own technology and resources to surveil and attack, our multicultural population to hide, and our large and porous borders to infiltrate, the difficulty of providing security has increased dramatically.

Fighting the Nazis and the Japanese in World War II was bloody, but the enemy was clear. Knowing who the enemy is in the twenty-first century is a much more difficult task, especially when the enemy often lives and works among us, looks like us, and acts like us.

That doesn’t mean we quit adhering to the Constitution and the Bill of Rights.

Nevertheless, security should never replace the freedom or the protections of the Bill of Rights without the right of “due process” and appeal to the courts. Our government is designed to split and limit the concentration of power in the hands of one authority–be it the President or the Congress. Tyranny and dictatorship by one man or a legislative body is still tyranny and dictatorship, and our form of government is designed specifically to prevent either the legislature or the President, or even both acting together, to maintain any kind of tyranny over the people. Specifically, the courts were given as a check on the power of the Congress and the President, and appeal to those courts is open to all, at least in theory, to limit the reach of the executive and the legislature.

In recent years, however, many have argued that these limitations have been eroded.  The right of individuals to appeal to courts for relief, and release, through due process, has been modified as legislators and Presidents grasp about to look “strong” on national security. Yes, it’s true that security is among the first and foremost responsibilities of a a government. From Federalist #23, we hear Hamilton argue that, among the most important reasons for union of the states under the constitution was “[t]he common defence [sic] of the members[.]”  But when common defense become common restraint on liberty, the balancing act has perhaps moved too far in the wrong direction. Government is intended to be limited in its ability to provide security, intentionally balanced against the equal importance that our governing philosophy places on liberty, freedom and rights.

Examples where government is overreaching its constitutionally limited grasp?

Commonly cited is the PATRIOT Act, but recent weeks have seen the National Defense Authorization Act for Fiscal Year 2012 (or “NDAA.” The bill is passed every year. This one just happens to have some more controversial provisions included) passed by both houses of Congress and sent on to the President for signature. The NDAA codifies provisions from the Authorization for Use of Military Force Against Terrorists (AUMF) passed in the wake of 9/11 and has raised concerns about the expansion of military powers beyond the theaters of war.

Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”

Because when the theater of war is on American soil, who can say where the enemy will be found? Or who it will be?

And there’s the rub. Critics have raised concerns that the authorization will allow the military to act against American citizens, without appeal to the courts.

Someone the government says is “a member of, or part of, al-Qaida or an associated force” can be held in military custody “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Those hostilities are currently scheduled to end the Wednesday after never. The move would shut down criminal trials for terror suspects.

But far more dramatically, the detention mandate to use indefinite military detention in terrorism cases isn’t limited to foreigners. It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.”

But those people are bad people, right? They’re terrorists, right?

Right…until they’re not. Until they’re your neighbors, family, friends, or you. Until they aren’t just people far away, but are Americans. Argues Spencer Ackerman at Wired:

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end.

War: what is it good for?

Sen. Rand Paul opposes the NDAA because it would limit Americans' rights of due process.

That this is a bad idea isn’t some radical notion, either, but agreed upon by Democratic and Republican politicians alike. Both  Sen. Al Franken (D-Minn.) and Sen. Rand Paul (R-Ky.) have denounced the law and its effect on our country’s ideals. (Watch Sen. Paul’s comments on YouTube here.)

If the NDAA were all, we might have less to worry about. We can rely on good smart leaders to be careful, right? Plus, it’s a bill, the President can still veto, and the law can still (eventually) be found unconstitutional.

Newt Gingrich, candidate for the Republican nomination for President, wants to arrest judges who make rulings he does not like and force them to testify before Congress.

But what if our elected leaders aren’t so trustworthy? Or what if they are just human? Recently, we’ve seen a growing list of leaders who question or violate the internal safeguards of the constitution against the overreach of government in the national security arena.

  • On September 30, 2011, President Obama ordered the killing–by way of cruise missile–of Anwar al-Awlaki, an American born Muslim (from New Mexico) who had become a leading preacher for an Al Qaeda affiliate in Yemen.
  • Newt Gingrich, a leading candidate for the Republican Presidential nomination, argued that judges should be brought before Congress by US Marshals  to justify their decisions. Not only does that allow the Congress to intimidate courts with decisions it does not like, but it puts the rule of law in an inferior place to the rule of men.

That’s just crazy talk. We believe in the rule of law, not men.  When the President or Congress can enforce their will on the point of a gun without any restraint, when the military has unchecked authority to arrest and detain Americans and the people have no recourse to the courts, we are looking at a precarious and dangerous change in the balance between liberty and security.

And that doesn’t even start on SOPA and the limit it will be to the ability of private citizens to find and share information in a day when the US governments intelligence community employs a veritable private army in surveillance of most of the planet.

Security and freedom are both important responsibilities of the government, but overreach in the first can limit and endanger the second. Take a moment and reach out to your elected representatives and let them know your concerns. At the end of the day, an elected representative’s greatest motivation is reelection. Apply that pressure, and push the pendulum back towards balance.

[Bill Text][Salt Lake Tribune][Consource][Wired][Washington Post][Washington Post's "Top Secret America" report][Raw Story][Washington Monthly][Justia]

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Facebook lied & stole your data…making billions of dollars.

November 30, 2011 By 1 Comment

Who wants to use a service that lies, cheats, and steals from them?

I mean, a service other than Facebook, right?

Because that’s what Facebook has been doing for years. Lure you in, get your data, pictures, friends, and then, they change the rules. It’s scary, it’s creepy, it’s dishonest, and it’s made Zuckerberg one of the richest twenty-somethings in America. I’ve said so before. More than once.

It turns out the FTC agrees, and Zuckerberg has settled in our favor. Now, instead of an “opt out” privacy system, Facebook will now be an “opt in.” If you want to open your settings up, you need to open them up yourself. No more “private until we make a few changes and make sure the whole world see your vacation photos” shenanagry, as Gizmodo puts it.

The biggest change is that Facebook must give, consumers “clear and prominent notice and obtaining consumers’ express consent before their information is shared beyond the privacy settings they have established.”

Sounds a bit more reasonable. Just like your medical records, you must give consent before Facebook shares your stuff. I’ve heard the previous system employed by Facebook described as giving control and ownership of your content–photos, posts, and updates–to Facebook, effectively making it theirs. This seems to pass some of that ownership back to you, the original owner and creator.

This sounds like a no-brainer, what Facebook would want to do since it’s what Facebook’s users want it to do. It’s certainly something that Google+ has integrated in its social network, to much acclaim. Now, with the FTC’ forcing it, Facebook is finally making the change.

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If you’re just jumping into this, you might be wondering: what exactly has Facebook done that is wrong?

It all goes back to 2009 and some changes that Facebook made to users privace. According to the FTC:

  • In December 2009, Facebook changed its website so certain information that users may have designated as private – such as their Friends List – was made public. They didn’t warn users that this change was coming, or get their approval in advance.
  • Facebook represented that third-party apps that users’ installed would have access only to user information that they needed to operate. In fact, the apps could access nearly all of users’ personal data – data the apps didn’t need.
  • Facebook told users they could restrict sharing of data to limited audiences – for example with “Friends Only.” In fact, selecting “Friends Only” did not prevent their information from being shared with third-party applications their friends used.
  • Facebook had a “Verified Apps” program & claimed it certified the security of participating apps. It didn’t.
  • Facebook promised users that it would not share their personal information with advertisers. It did.
  • Facebook claimed that when users deactivated or deleted their accounts, their photos and videos would be inaccessible. But Facebook allowed access to the content, even after users had deactivated or deleted their accounts.
  • Facebook claimed that it complied with the U.S.- EU Safe Harbor Framework that governs data transfer between the U.S. and the European Union. It didn’t.

[Emphasis mine] Here’s the FTC’s full statement on the settlement.

Are you following all that? To sum up: Facebook has lied, cheated, and stolen your pictures, friend lists, data, biographical information, and so on, all in the interest of increasing their bottom line and all at your expense.

Maybe it’s time for an Occupy Facebook movement. Or just an Abandon Facebook movement.

In the meantime, as the protestors get their tents ready, I can’t help but wonder if perhaps this isn’t at least one place that government regulation might be useful. [gasp]

Sure, we could wait for the market to correct itself, but let’s be honest–Facebook has the upper hand against its users, and it is abusing users trust in a way that most don’t even know its happening. But for the Federal Trade Commission, I doubt there would have been any shift back toward privacy.

What does Mark Zuckerberg have to say for himself? In a statement, he admits (or, rather, claims) that he designed Facebook to give users control over their public presence on the web:

When I built the first version of Facebook, almost nobody I knew wanted a public page on the internet. That seemed scary. But as long as they could make their page private, they felt safe sharing with their friends online. Control was key. With Facebook, for the first time, people had the tools they needed to do this. That’s how Facebook became the world’s biggest community online.  We made it easy for people to feel comfortable sharing things about their real lives.

And then, once he had lulled everyone into a false sense of security, gained access to one of the most valuable treasure troves of personal information in the world, and made a fortune equivilent to a small African nation…

That said, I’m the first to admit that we’ve made a bunch of mistakes.

Yeah. But what he lists as a mistake doesn’t bear a lot of resemblence to what the FTC said the mistake was. “Oops,” says Zuckerberg. “We stole your information, made money using it, and lied about it? Oops. My bad.”

Česky: Logo Facebooku English: Facebook logo E...

Image via Wikipedia

If not for the FTC, I’m dubious that he would not have continued to spin the profit mill. Yes, he’ll be “working with the Commission [to] implement” the settlement foisted upon Facebook, but only because he has to.

Finally, I also want to reaffirm the commitment I made when I first launched Facebook. We will serve you as best we can and work every day to provide you with the best tools for you to share with each other and the world. We will continue to improve the service, build new ways for you to share and offer new ways to protect you and your information better than any other company in the world.

Next up for Zuckerberg? The IPO. What’s $17.5 billion dollars when your company is about expected to be worth $100 billion?

More importantly, what’s a slap on the wrist by the FTC (no fine, just a privacy audit for the next twenty years) when you’ve got that kind of money in the pipeline?

[GIZMODO] [FTC] [FACEBOOK]

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Corporations are people, too

November 21, 2011 By 1 Comment

[This guest post is by Benjamin Lusty, an attorney and an occasional contributor to Publius Online. The opinions are his own.]

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Among the flotsam and jetsam of misguided political ideas and non sequiturs that washed ashore on the nation’s consciousness after the wreck of Occupy Wall Street is the previously obscure movement to end corporate personhood, a legal doctrine that affords corporations certain rights such as the ability to own property, make contracts, and file lawsuits.  Although OWS was a swirl of inarticulate rage (and recognizing the unfairness of expecting a disparate movement to crystallize all of its demands into a neat two page executive summary), it is clear that everybody who occupied anything this autumn hates corporations.  Their catchiest slogan read something like this:  “I’ll believe corporations are persons when Texas executes one.”  Another more strident slogan declared that “corporations aren’t people and Money isn’t speech.”

Doubtless, the root of anti-corporate sentiment is the apprehension that corporations wield outsized power.  Particularly galling to the Moveon.org set was the Supreme Court’s decision in Citizens United v. FEC, a case that held that it was unconstitutional for Congress to restrict corporations (and labor unions) from advocating for or  against a particular candidate so long as that advocacy is not coordinated with any individual campaign.  This feeds the narrative that for-profit corporations brandish their supposedly vast and limitless resources to subvert the free operation of our otherwise happy and just republic.

Regardless of the merits of their arguments, however, OWS succeeded in kindling a debate on the nature of corporations, the basis of their existence, and their role in society.  Disquiet with corporate power, or for that matter, corporate personhood, is not new.  Nor is the doctrine of corporate personhood novel—to the contrary, it is quite old.  But now a constitutional amendment to revoke corporate personhood has emerged, the goal of which is to prevent corporations from engaging in political speech or donating money to political organizations.  Admittedly, the chance that this proposed amendment would actually run the constitutional gauntlet of ratification is nil.  But the ideas espoused in the proposal are serious enough to merit a serious response.

The justification for limiting corporate personhood largely rests upon two uncontroversial observations:  1) our Constitution and society exist to protect the rights of actual living human beings; and 2) because corporations are artificial legal creations, they should be subject to law and regulation in the public interest.  These do not, however, by themselves support the conclusion that corporate personhood, or even the corporate form of organization, damage society.  But even assuming that corporations flagrantly and routinely abuse their personhood status (which I do not assume), simple calls for revocation of personhood ignore the constitutional cost inherent in diminishing expressive rights.

To begin with, despite leftish revulsion, corporations really are people too.  Corporations are nothing more than voluntarily created groups of human beings consisting of shareholders and employees; quite simply, they are people, organized.  Revoking or limiting corporate personhood, although it has a populist “us versus them” appeal, would grievously wound existing constitutional rights to speech and freedom of assembly for no real purpose.

Consider the case against corporate speech.  All sorts of hyperventilated criticisms are charged against the supposed power of corporations to manipulate the legislative process.  Keep in mind, however, that the terrible corporate activity that the left wants to squelch is talking (always fear one who claims the solution to a problem is to stop somebody else from talking).  If one believes, however, that these nefarious enterprises can bend the will of the government through talking to legislators, the problem is not corporate speech but elected officials who do not represent their constituents’ interests.  In that case, the solution is not jeopardizing constitutional rights but holding free elections.  If, however, the left worries that corporations can change voting patterns through speech (or persuasion), their argument is essentially that the people are not smart enough to determine their own interests.

But if the state abridged a corporation’s ability to speak, whose rights would really be affected?  If, for example, we banned Apple from communicating to Congress about technology policy, we would essentially prevent its shareholders from acting collectively.  This in turn would mean that we would have to abridge the right of each shareholder to participate in collective speech on political issues.  Individual shareholders, however, are real people with names, and constitutional rights.  Does the mere fact that they assembled themselves together through a corporation mean they lose their First Amendment rights?  If you say yes, then should we also prevent labor unions from talking to the government as well?

And that question exposes the flaw that arises from diminishing corporate personhood.  It cuts directly against the grain of the right of assembly.  The First Amendment has no exception clause for corporations, or even for people assembling to grasp at filthy lucre.  If a group of unshaven grad students has the right to encamp and demand legalization of marijuana, why should a group of investors not have the right to form a corporation and argue for changes to consumer electronics sales policy?

Ultimately, because constitutional rights are categorical, it is impossible to diminish the rights of the corporation without diminishing the rights of the people within the corporation.  In any event, not all corporations are massive global gladiators.  Further, nobody is arguing against sensible rules preventing public corruption.  But speech is not bribery, and persuasion is not crime.  It is democracy.

And for the record, Texas puts corporations to death every day, without trial and for trivial matters.  The Texas Code specifically enables the Texas Secretary of State to dissolve a corporation for something as simple as failing to file an annual form report.  Texas corporations thus live under an ever-present threat of an administrative death penalty.

 

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