Catholic Support for Parents Over Youth Safety

(By Andrew MacKie-Mason)

Michael Scaperlanda at Mirror of Justice (a Catholic legal blog) wrote a post entitled April Fools Day in June or Where Have All the Grown-ups Gone. The full text of the post is:

Several news sources are reporting that a Massachusetts school board has adopted a policy allowing students at all grade levels to obtain condoms from the school nurse and all without parental notification. Either someone is having a lot of fun pulling our legs or we are much farther down the rabbit hole than I imagined.

My initial response? Good. My second response? Why would parental notification even be considered? Condoms are not a restricted substance. Anyone can buy them at a store.

We're not "down the rabbit hole," unless Michael Scaperlanda is referring to the rabbit hole of recognizing that children are individuals and not just the property of their parents and subject to the full control of their parents.

Perhaps that is a rabbit hole for Scaperlanda. A certain brand of Catholics seems to protect individual rights from conception to birth, completely forget about them from birth until the age of eighteen, and then suddenly start defending individual rights again. But that approach should seem extremely suspect to anyone who retains the ability to critically reason and not just accept a certain interpretation of the word of God.

Texas GOP Extremism

(By Andrew MacKie-Mason)

I got an email from the Human Rights Campaign asserting some pretty ridiculous stuff about the language in the Texas GOP's platform. With what they were saying, the Texas GOP was becoming a pretty extremist group. I didn't really believe it, so I went to check out the actual language of the platform, available here (on the HRC website: if you find an original and it differs, let me know.)

It was as bad as they were saying. Here are some choice excerpts, starting with the normally bad stuff and continuing to the more extreme.

"Ten Commandments – We oppose any governmental action to restrict, prohibit, or remove public display of the Decalogue or other religious symbols."

"American English – We support adoption of American English as the official language of Texas and of the United States."

"Legal Immigration – One nation, one flag, one language, one loyalty;

America is a country of immigrants, we should insist that any immigrant who comes here in good faith becomes an American and assimilates himself/herself to the United States. He/she shall be treated on an exact equality with everyone else. This is predicated upon the fact that the person is in every facet an American, and nothing but an American. There can be no divided allegiance. Anyone who says he is an American, but something else also, isn’t American at all. We have room but for one flag, the American Flag. We have room for but one language here and that is the English language. We have room for but one sole loyalty and that is loyalty to the American people."

"Parental Rights and Responsibilities – We believe that parental rights and responsibilities are inherent and protected by the United States Constitution. Local, state, or federal laws, regulations, or policies shall not be enacted that limit parental rights in the rearing of both biological and adopted children."

"Flag Desecration – Any form of desecration of the American Flag is an act of disregard for our nation and its people and penalties should be established for such."

"Judeo-Christian Nation – As America is a nation under God founded on Judeo-Christian principles, we affirm the constitutional right of all individuals to worship in the religion of their choice." (This one's just strange...)

"Classroom Discipline –We recommend that local school boards and classroom teachers be given more authority to deal with disciplinary problems. We urge the Legislature, Governor, Commissioner of Education and State Board of Education to remind administrators and school boards that corporal punishment is effective and legal in Texas."

"Child Abuse – We recognize the family as a sovereign authority over which the state has no right to intervene, unless a parent or legal guardian has committed criminal abuse. Child abusers should be severely prosecuted. However, we oppose actions of social agencies to classify traditional methods of discipline as child abuse." (Translation: corporal punishment.)

"Pornography – We urge our governmental bodies to enforce laws regarding all forms of pornography. We urge more stringent legislation to prohibit all pornography including virtual pornography and operation of sexually–oriented businesses. We oppose the sale of “Not Rated” (NR) movies and video games to minors."

"Parental Consent – We call on the Legislature to require parental consent for any form of medical care to minors."

"We call on the President and Congress to take immediate action to defend the sanctity of marriage. We are resolute that Congress exercise authority under the United States Constitution, and pass legislation withholding jurisdiction from the Federal Courts in cases involving family law, especially any changes in the definition of marriage."

"We further call on Congress to pass and the state legislatures to ratify a marriage amendment declaring that marriage in the United States shall consist of and be recognized only as the union of a natural man and a natural woman. Neither the United States nor any state shall recognize or grant to any unmarried person the legal rights or status of a spouse. We oppose the recognition of and granting of benefits to people who represent themselves as domestic partners without being legally married."

"Marriage Licenses – We support legislation that would make it a felony to issue a marriage license to a same-sex couple and for any civil official to perform a marriage ceremony for such."

"Homosexuality – We believe that the practice of homosexuality tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans. Homosexuality must not be presented as an acceptable “alternative” lifestyle in our public education and policy, nor should “family” be redefined to include homosexual “couples.” We are opposed to any granting of special legal entitlements, refuse to recognize, or grant special privileges including, but not limited to: marriage between persons of the same sex (regardless of state of origin), custody of children by homosexuals, homosexual partner insurance or retirement benefits. We oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values."

"Sex Education – We recognize parental responsibility and authority regarding sex education. We support policies that mandate parental notification and consent before any sex education program is presented to their child. Parents must be given an opportunity to review the material prior to giving their consent. We oppose any sex education other than abstinence until heterosexual marriage."

"Texas Sodomy Statutes – We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy."

"Birthright Citizenship – We call on the Legislative, Executive and Judicial branches of these United States to clarify Section 1 of the 14th amendment to limit citizenship by birth to those born to a citizen of the United States: with no exceptions." (This would deny citizenship to the children of illegal immigrants, and would be a violation of the Constitution.)

Some of this rises to normal conservative levels, but other bits of it are extremist, not mainstream. Criminalizing homosexual acts? Denying custody of children to homosexuals? Deny citizenship to innocent children just because their parents broke the law?

Quite an interesting glimpse into the Texan Republican Party.

Utah Announces Execution on Twitter

(By Andrew MacKie-Mason)

Josh Blackman passed along the word that Utah's Attorney General Mark Shurtleff announced the state's most recent execution (by firing squad) using his Twitter account.

(Times in Mountain Time, Utah's local time zone).

First tweet, at 2:18 pm on June 17th:

A solemn day. Barring a stay by Sup Ct, & with my final nod, Utah will use most extreme power & execute a killer. Mourn his victims. Justice

Of course, most "solemn days" demand announcement on Twitter. And we should mourn the victims of a murderer, but not the victims of a murderous state?

Second tweet, 1:02 am on June 18th:

I just gave the go ahead to Corrections Director to proceed with Gardner's execution. May God grant him the mercy he denied his victims.

And may God grant you the mercy you denied to the man you just executed.

Third tweet, 1:15 am on June 18th:

We will be streaming live my press conference as soon as I'm told Gardner is dead. Watch it at www.attorneygeneral.Utah.gov/live.html

No time like an execution to hold a press conference and advertise that on Twitter.

The BBC picked up his tweets, and at 5:38 am on June 18th reported (in part):

Instead, Mr Shurtleff used Twitter to announce that most important of all things: the death of a human being, convicted murderer Ronnie Lee Gardner.

Fourth tweet, 3:23 pm on June 18th:

I believe in an informed public. As elected official I use social media to communicate directly with people. BBC story http://bit.ly/axNGqn

It seems that the good General Shurtleff was taking some heat at this point, because at 7:21 pm on June 18th he posted the fifth tweet:

WARNING! This page informs on real world of crime and punishment. "If u can't stand the TWEET, get out of the TWITCHEN" Harry Truman #utpol

Further outrage, it seems, prompted Shurtleff's final tweet on the subject at 4:30 pm on June 19th:

Astonishing that no retweet whiner express outrage that Gardner shot 2 men in the face, & a cop; nor one word of empathy for their families.

Of course, Gardner's crimes have little to do with whether or not he should be killed by the state. But they have even less to do with whether it was appropriate for the Attorney General of Utah to celebrate the taking of a life on Twitter.

This shocking episode is a perfect example of why state-sanctioned executions are not just an injustice for those killed, their families, and the people who love them. A society that consciously and deliberately chooses to kill some of its own members, whomever they are, becomes calloused and unappreciative of the value of human life. Only in such a society could we praise "justice" on Twitter in the same 'breath' as we announce the ending of a human life. Only in such a society could we use Twitter for shameless self-promotion of a press conference celebrating the end of human life. And only in such a society would someone be surprised when others find this kind of behavior crass and unappealing.

While state executions are surely wrong for what they do to their victims and the ones they leave behind, these killings cause a wider, societal harm. They create a society unappreciative of the value of each individual human life and thus a society that will eventually fall into anarchy, since decency, the building block of cooperation, has disappeared.

Swift and Efficient Justice?

(By Andrew MacKie-Mason)

I've written a lot about the Sixth Amendment right to confront witnesses against you because I've done research work for Professor Friedman at the University of Michigan School of Law, and the Confrontation Clause is the centerpiece of his work, both as a scholar and an advocate. Like the other constitutional rights relevant to criminal prosecutions, the Confrontation Clause makes a statement about our values: we would rather make trials more fair, even if that means making the criminal justice system slower.

During oral arguments and in the opinions, though, some of the Justices expressed a desire to balance the Confrontation Clause's protections against the need for an efficient justice system. I was reminded of this recently by something Josh Blackman posted, in a list of questions he would ask Elena Kagan if he were on the Senate Judiciary Committee. He writes:

In Crawford v. Washington, the Supreme Court strengthened the Sixth Amendment right for a criminal defendant to confront his accuser. Last year in Melendez-Diaz, the Court held that a lab technician who prepares a report must testify in Court, as this ”testimonial” evidence must be subject to the demands of the Confrontation Clause. In dissent in Melendez-Diaz, Justice Kennedy wrote that forcing lab technicians to testify would put significant burdens on the criminal justice system. How would you balance the constitutional right to confronting your witness with the need for a swift and efficient criminal justice system.

What I am struck by, whether it's Blackman or the Justices, is the idea that there is a "need" for a "swift and efficient criminal justice system." There is not. There is a need for a fair and just system. The Constitution has already balanced fairness and justice against speed and efficiency, and the result is the Confrontation Clause and other constitutional protections.

There is a spectrum, from more protection for defendants to more speed and efficiency. Our constitutional system has found a place for us in the middle. We should no more move towards speed and efficiency by repeating the balancing test with the compromise as one starting point than we should more in the other direction by repeating the balancing test between the current law and more protection for defendants.

It says a lot about someone's character that they would ask how we should balance constitutional rights and criminal efficiency rather than how we should balance current prosecutorial power against more stringent and effective fairness and justice.

This "balancing" view is the product of a society so sick with the disease of law and order that it cannot even recognize its own biases anymore, and sees questions like this as perfectly natural.

Citizens and the Court

(By Andrew MacKie-Mason)

C-SPAN recently conducted a poll studying American's attitudes towards and knowledge of the judicial system. The results are here (H/T to Todd Zywicki) and I'll briefly summarize some of the most interesting (or disturbing) points.

• Only 33% of Americans can correctly name a Supreme Court decision.

Women (35%) do slightly better than men (31%) and 25-37 year olds (37%) are the best age group. Whites (36%) beat out blacks (21%) and Hispanics (22%). Republicans (37%) do better than Independents (32%) and Democrats (31%).

Of those who can name a decision, almost all of them (75%) first name Roe v. Wade. 9% think of Brown v. Board of Education.

• Americans are about evenly split on whether Supreme Court Justices should sit on the Court for life: 48% agree and 52% disagree. Those who disagree, though, are more likely to feel strongly about it.
• Elena Kagan is much less well known than Sonia Sotomayor. Last year, 43% of Americans could name Sotomayor as Obama's nominee to the Court. This year, only 19% could name Kagan!
• A third of Americans don't care whether or not Kagan is confirmed to the Court.
• Only 47% of Americans know how many women are on the Supreme Court. Somewhat surprisingly, perhaps, men (48%) knew this better than women (45%)!
• Women care much more than men about a Supreme Court Justice's gender, even though they know less about the genders of the current justices.

On a "very important" to "not at all important" scale with four different categories, men's breakdown was 6%-21%-37%-36% while women's was 12%-33%-31%-24%.

C-SPAN then dedicated a large chunk of questions to the cameras-in-the-courtrooms debate (which they, understandably, care about a lot) but which doesn't really interest me. You can read the full results, including points I omitted and a lot more break down by demographics, here.

Is Law Our Religion?

(By Andrew MacKie-Mason)

Michael Perry at Mirror of Justice posted this photo, with the caption "The Temple of Our National Religion?"

I would only agree that the courts and constitutional law have become our religion if we begin to respect law without also questioning it. If the Supreme Court is considered to have teaching authority (if Supreme Court rulings define what is constitutional without being subject to questioning or later reconsideration) like the Pope has when it comes to Catholicism, if inquiries into "does this violate the Constitution?" end with "the Supreme Court says...", if we start to look at the Supreme Court as infallible, THEN law will be our religion and the Court will be its temple.

But so long as we maintain rational skepticism, the Court remains a bastion of intellectualism, not religion.

McDonald v. Chicago: A Victory for Progressive Gun Control?

(By Andrew MacKie-Mason)

This morning, the Supreme Court announced its opinion in McDonald v. Chicago, the long awaited case asking whether the Second Amendment to the United States Constitution restricts state or municipal legislative action.

In other words: can the city of Chicago restrict the right of citizens to bear arms?

In light of last year's decision in District of Columbia v. Heller (holding that the Second Amendment guarantees the right to have a gun in the home for self defense when in a federal jurisdiction like D.C.) it seemed likely that the Supreme Court would rule that the same right applied against state action. And, in fact it did, 5-4. The Second Amendment now restricts the ability of states to ban the ownership of guns.

I was traveling today, so I unfortunately haven't had the chance yet to wade through the entire McDonald opinion. I have, though, been keeping up with the commentary at a few places (Josh Blackman's blog and the Volokh Conspiracy, mainly) and I've read the main parts of the official syllabus and skimmed the rest of it. So...I feel qualified to offer an initial impression, subject (of course) to revision later.

The split on the opinion today was not really 5-4. It was 4-1-4. Chief Justice Roberts and Justices Scalia, Alito and Kennedy would incorporate the Second Amendment against the states through the Due Process clause of the Fourteenth Amendment.

...nor shall any State deprive any person of life, liberty, or property, without due process of law...

Justice Thomas would incorporate the Second Amendment instead through the Privileges or Immunities Clause of the Fourteenth.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...

Justices Stevens, Breyer, Ginsburg and Sotomayor, on the other hand, would not incorporate the Second Amendment at all, and leave states entirely free to regulate guns as they saw fit.

It's rare that I say this, but I think that Justice Thomas actually got this one right (though for the wrong reasons). The Privileges or Immunities Clause is a superior vehicle to incorporate the rights of national citizenship as rights of state citizenship. It's very language says that clearly: any privilege of national citizenship (like gun ownership under the Second Amendment) cannot be abridged by the several states. Justice Thomas' reliance on a purely historical analysis is flawed, of course, and an analysis based upon evolutionary public consensus would be much more theoretically and philosophically sound. However, Justice Thomas' conclusion, at least, is correct: gun ownership, if a privilege of national citizenship protected by the Constitution against the government, should be protected against the states by the Privileges or Immunities Clause.

The split on the Court over incorporation reflects what has come to be seen as the traditional liberal-conservative split. Roberts, Scalia, Alito, Kennedy and Thomas vs. Stevens, Breyer, Ginsburg and Sotomayor. Gun rights is an issue traditionally owned by the right wing. All in all, the omens are saying that progressives should be devastated by this decision. In my opinion, though, McDonald could pave the road for a truly progressive view of gun rights as we move forward with our nation's constitutional obligations.

Instead of being a symbol of conservative victory, McDonald can be recaptured by progressives for two reasons: the core principle protected by the decision, self-defense, is a necessary right in order to protect the weak and vulnerable against the strong, like many constitutionally protected rights; and McDonald will force legislators to find gun control solutions that actually work.

Self-Defense: A Progressive Value

Many progressive values are aimed at protecting the weak against the strong: free speech, press, religion, and association, Miranda, protection of the Confrontation Clause, economic justice, etc. Whether it's those lacking political clout, those without a way to confront the police or the court system, those lacking economic viability in the face of the wealthy, the primary beneficiaries of progressive programs are those who are less powerful in some way.

Progressives need only recognize that physical weakness, just like political, judicial, or economic weakness, is a wrong that needs righting in order to see self-defense as the protection of the core progressive value of equality.

While arms races are clearly not in the best interests of society, a limited allowance of equalizing weapons is necessary for, well, equality. And guns, in the modern framework, are those equalizers.

Smart Firearm Regulation

Progressives also need to recognize that the prohibition of vice is a failed proposition: it didn't work for alcohol, it didn't work for casinos, and it isn't working for narcotics. Similarly, prohibition of firearms is not the linchpin on which to construct a smart firearm regulatory system. Unenforceable prohibitions (as local gun bans have proved to be) foster violence and disrespect for the law, increasing the dangers (especially when guns are involved) rather than decreasing them.

So, just like progressives should be seeking a smarter solution to America's miserably failing drug policies, they should be looking for a smarter way to foster safe communities when it comes to firearms. McDonald may very well be the impetus that local and state legislatures need in order to start innovating when it comes to firearm regulation.

I've elaborated before on what I think a smart firearm regulatory model would be, and I won't do so more here. Please, though, let me know if I'm off the base with those previous suggestions or if there are other smart firearm regulations that should be considered.

If progressives allow the right to capture McDonald as a conservative victory for freedom, it could precipitate an unwise rush towards deregulation in the name of "the right to bear arms." Instead, progressives should look at McDonald through the lens of self-defense and smart regulation. This way, progressives can respect and defend core constitutional values while also helping to create safe communities less afraid of the spectre of gun violence.

Another Health Reform Lawsuit

(By Andrew MacKie-Mason)

I thought I was done with writing about health insurance reform, but apparently not. Per Howard Friedman at the Religion Clause, the American Center for Law and Justice recently filed a new lawsuit against the federal government alleging that the health insurance reform law is unconstitutional. The two main claims in the lawsuit are:

• The Act's individual mandate, along with the imposition of shared responsibility payments for failing to buy and maintain qualifying health insurance, exceeds the power of Congress under Article I of the Constitution of the United States and is, therefore, unconstitutional and cannot be enforced.
• The Act also violates the rights of Plaintiffs Seven-Sky, Mead, and Lee as set forth in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. sec 2000bb et seq.

I've addressed the fact that Congress has the authority to pass the law under Article I many times before (see, generally, the posts linked to from this page). The second claim, though (that the health insurance reform act violates people's religious freedom) is an interesting one, so let's examine it.

First, what does the RFRA provide? In short:

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

In other words, in order to win a suit under the RFRA, the plaintiffs must convince the court that a view they hold is a sincere religious belief and that the government action in question would substantially burden the plaintiff's exercise of that sincere religious belief.

So what religious belief does the ACLJ claim is infringed upon by the health insurance reform lawsuit? The following language is in the section for plaintiff Seven-Sky, but identical language is presented for plaintiffs Mead and Lee.

In addition, Seven-Sky has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a backup plan.

…

Because Seven-Sky believes in relying on God to preserve her health and provide for her physical, spiritual, and financial needs, and objects to participation in the health insurance system, the Act imposes direct and substantial religious and financial burdens upon Seven-Sky by requiring her to either 1) purchase and maintain "minimum essential coverage," without any consideration of her individual needs, Christian faith, and financial situation, or 2) pay the annual shared responsibility payment.

The supposed religious belief, then is that God will provide, and the alleged corollary to that belief is that measures such as insurance demonstrate a lack of faith in God. Even if the court finds that this is a sincerely held religious belief (something that must be determined at trial through testimony), the belief as asserted only prevents action made voluntarily by the plaintiffs, because it relies upon the intent of the plaintiff. How can the plaintiff be disregarding God with an involuntary action?

The law does not require the plaintiffs to want to purchase insurance. It does not even require them to ever intend to collect on that insurance. There is no way that the law could impose any burden, let alone a "substantial" burden, on the alleged religious belief identified in the complaint.

This is a good example of "kitchen sink litigation," where lawyers will throw in any claim they can, hoping that the jury or judge will buy at least one of them. It tends to be a failed strategy, because judges and juries will see through it: the weakness of the ludicrous claims outshines any strengths of their other claims.

I commend the law student intern at the ACLJ who came up with the idea of challenging the health insurance reform bill through the RFRA. Though doomed to failure and probably damaging to the overall case, it's an original idea.

Intimidation Litigation

(By Andrew MacKie-Mason)

A disturbing facet of the American legal system is what I'll term "intimidation litigation." This type of litigation is pursued by large companies that know they don't have a strong claim, in the hopes that weaker defendants will settle rather than pay exorbitant legal fees to fight the case in court. This is particularly disturbing when it comes to copyright law, where media companies can sue publishers of blogs (oh no!) for copyright violations that probably fall under fair use protections, but which aren't worth defending from the perspective of the blog author.

So what to do? The best solution I can come up with is for the targets of intimidation litigation to cut out the middle man: don't hire a lawyer, just represent yourself.

Of course, it'll require a discerning eye to cut through all the extra material the corporate lawyers will throw at you to waste your time. You'll have to get used to reading a lot of case law and trying to find what applies.

So is it worth it? The old mantra goes that only a fool represents himself. But in the case of intimidation litigation, is there a better option?

Homosexuality Grows More Accepted

(By Andrew MacKie-Mason)

It looks like the Thomas More Law Center and like minded organizations are losing the culture war. A hat tip to Michael Perry at Mirror of Justice for pointing out this fascinating and encouraging poll.

According to the Gallup results, moral acceptance of homosexual relations has been on a steady rise for the past decade. In late 2008, apparently, we as a society achieved a milestone in tolerance: finally, more people found homosexuality acceptable than unacceptable.

The trend continued this year, with a drop in the "unacceptable" percentage (43%) and an increase in those who find it "acceptable" (52%). Most of the recent trend has been driven by, surprisingly enough, men. In the past four years, the tolerance of women has hovered around 50%. Among men, though, it's climbed 14 percentage points in the past four years. And, for the first time in the past decade, more men (53%) find homosexuality acceptable than women (51%).

Interestingly enough, a lot of the increase also seems to have been driven by Catholics, who've increased in tolerance of homosexuality from 46% to 62% in the past four years. Protestants are still hanging at a dismal 42%, though as a group they're still beating Republicans (35%) and conservatives (33%).

The most tolerant groups (among those tested in the poll) are those without religion (85%), religious non-Christians (84%) and liberals (78%).

Of course, Americans have continued their illogical attachment to the idea of marriage as a heterosexual institution, even when they accept homosexual relations. The split between finding relations acceptable vs. non-acceptable (52%-43%) is basically flipped when it comes to approving or disapproving of homosexual marriage (44%-53%). Still, acceptance of homosexual marriage is also on the rise. It's promising.

I might not be able to lose faith in Americans yet.

Confessions of a Tea Partier

(By Andrew MacKie-Mason)

A while ago, Michael Perry put up a very entertaining piece under the title "What is the Tea Party anyway?" I'm late pointing you to this, but better late than never, right? I'll give you a teaser paragraph, then you should go read the entire thing.

What I hear the Tea Party baby boomers and their upper-income allies saying is this:

“I’ve got mine. My government-provided health care is the most generous available. I can fall and bruise my foot and get taken to the hospital in an ambulance for days of “observation,” and pay almost nothing. I can make innumerable visits to the doctor for every health worry…and they are abundant in my over-fed, under-exercised generation. Instead of telling me to shape up, cut the fat and salt from my diet and walk for an hour a day, the doctor will give me prescriptions for drugs for my blood pressure and cholesterol and the indigestion that attends overeating, all paid for by the government. I may live forever (granted, without large chunks of my mind); but my doctor and hospital and the hugely profitable pharmaceutical industry have every financial incentive to keep my body alive.

Read on...

Law and Morality

(By Andrew MacKie-Mason)

Michael Perry, a writer I've enjoyed reading immensely at Mirror of Justice, posted a very thought-provoking question last Sunday. He asks whether it might sometimes be legitimate for a judge to rule based upon their deep seated moral convictions and lie to the public, claiming that the ruling was the product of the law rather than their own beliefs.

Again, according to your own criteria of legitimacy—your hopefully thoughtful, admirable criteria of legitimacy—might it be legitimate, in either or both cases, for you to pretend that according to what you judge to be the better interpretation of the Amendment, the policy at issue is unconstitutional?

This, I think drives at the heart of an idea I've been throwing around in my head for the past few weeks: that we should not expect a system of laws to align completely with a system of morality, because morality is fundamentally incompatible with law. Let me explain.

The discussion of morality assumes, almost by definition, the existence of an infallible intelligence, competent to decide whether an action is moral or immoral. The philosopher places him or herself in that role, not because they actually believe they are infallible (we hope!) but because it is necessary in order to decide moral questions. Morality, at least the way most people define it, cannot be determined through debate or vote. Those things can help the philosopher refine their beliefs, of course, and can help in the search for moral truth, but they cannot be the basis of morality.

Religions that have claimed to speak moral truth (prescriptive religions, if you will) have recognized this. They elevate one voice above all others, be it God, Allah or Jehova. The quest of the believer, then, becomes a search for the voice of truth, not a debate with God in search of morality.

Perhaps the best example of this is in Catholicism. For Roman Catholics, the Pope is the infallible voice of God on Earth. However the relationship between Pope and God functions, believers cannot debate with the Pope in search of truth. The system of moral truth depends on there being one voice above all others.

Unless one believes in the infallibility of a certain individual on moral issues, however, the methods of seeking moral truths do not work as a way of constructing a system of law. Law, in the way we understand it, is the product of deliberation and agreement, not the pronouncement of a single, authoritative voice. And I'm not just talking about modern systems of law. Even the authoritarianism, monarchism and theism that has defined many historical governments has been based, to at least some degree, upon the consent, agreement and consideration of many voices. If there has been a society actually based around a true moral code, I'm unaware of it. If we try to disguise a code of laws as a moral system, we are merely hiding the true nature of that legal code.

How does this relate to Perry's original question? He is, in effect, asking whether it would be legitimate for judges to act as moral arbiters rather than legal actors. That role for judges, though, is inconsistent with the fundamentals of the legal system. It is, really, impossible to remove judges from the legal framework. If we pretend that they are operating based on moral principles rather than legal ones, we are merely disguising the truth. Even if the judge's motivations are moral, their actions are still a part of the deliberative, cooperative law-making process. Judges, at least in any society that looks like America, cannot be moral arbiters because they lack the supreme authority and unified voice necessary to create a moral system.

If we are to consider Perry's question at all, it must be understood within the legal framework. The question then becomes whether we want, as a facet of our law, to allow the personal choices of judges to play a role in law making, and to what degree those preferences should impact society. If we understand it as a struggle between morality and law we miss the real question, since moral truth is incompatible with real human society. Instead, we should consider the role that we want the individual choice of judges to play in determining the law. We should not seek, as Perry seems to want to, a legal system based upon "morality" rather than law, because such a legal system is a contradiction.

Is Helen Thomas an Anti-Semite?

(By Andrew MacKie-Mason)

In the latest installment of American political drama inspired by the Israeli-Palestinian conflict, Hearst Newspaper columnist Helen Thomas resigned after being criticized for comments on what she termed the Israeli occupation of the Middle East.

I've avoided opining on this before now because I wasn't sure what to think. But something I heard on the radio yesterday helped me make up my mind.

Scanning channels, I ran across WMUZ 103.5 FM "The Light", a Detroit Christian radio station. Luckily enough, I caught the Bob Dutko show, an opinion talk show that mixes Scripture with bashing liberals (at least based on my short sample of its content.) The topic of the day was, of course, Helen Thomas.

Mr. Dutko was outraged that Keith Olbermann put Rabbi David Nessenoff on his "Worst Three" list (Rabbi Nessenoff is the man who recorded Helen Thomas's comments and posted them for the world to see). Dutko also criticized Rosie O'Donnell for pointing out that Helen Thomas' statements were not hate speech. Why is Dutko so angry? Because, he tells us, Helen Thomas' statements were "antisemitic."

This might be a good point to lay out exactly what Helen Thomas said. I assume that the person asking the questions is Rabbi Nessenoff based on how this has been described, but that is only an assumption. A transcript follows the video.

Questioner: Any comments on Israel? We're asking everyone today--

Thomas: Tell them to get the hell out of Palestine.

Q: Woah..

Thomas: (laughing)

Q (amused): Any better comments?

Thomas: Remember, these people are occupied, and it's their land. It's not Germany, it's not Poland.

Q: So where should they go, what should they do?

Thomas: They--go home.

Q: Where's their home?

Thomas: Poland--

Q: So the--

Thomas: Germany--

Q: So the Jews should go back to Poland and Germany?

Thomas: And American and everywhere else. Why push people out of there who are--lived there for centuries. (indistinguishable word).

Q: Now, are you familiar with the history of that region and what that--

Thomas: Very much, I'm of Arab background.

Q: I see. Do you speak Arabic?

Thomas: Huh?

Q: Do you speak Arabic?

Thomas: No, (indistinguishable word)

Q: Ah, (indistinguishable word) (foreign language)

Thomas (gesturing): Very little.

Q: (foreign language)

Thomas: We were too busy Americanizing our parents.

Q: Oh my goodness.

Thomas: (laughing)

Q: Learn a little Arabic, learn a little Hebrew.

(thank yous and good byes)

What did Helen Thomas say, and was it antisemitic? Let's break it down.

Q: Any comments on Israel? We're asking everyone today--

Thomas: Tell them to get the hell out of Palestine.

At this point, the exchange is purely political. The questioner has asked Thomas for her comment on a political state (Israel) and Thomas has responded in kind, by giving her opinion of what Israel should do.

Thomas: Remember, these people are occupied, and it's their land. It's not Germany, it's not Poland.

Q: So where should they go, what should they do?

Thomas: They--go home.

Still, Thomas is offering a criticism of Israel as a political state and occupier of land she believes legitimately belongs to a different group. If one views Israel as an occupying force in Palestine (which is not an unusual opinion, though not one I necessarily agree with) telling the people of Israel to "go home" is not an unreasonable response.

Q: Where's their home?

Thomas: Poland--

Q: So the--

Thomas: Germany--

Q: So the Jews should go back to Poland and Germany?

Thomas: And America and everywhere else. Why push people out of there who are--lived there for centuries

This part of the exchange is the most easily misconstrued. I encourage you to watch the actual video for yourself a few times, paying careful attention to this segment, but I'll do my best to explain it in words.

Thomas said that the people of Israel need to go home: in other words, go back to where they were before they (in her view) occupied Palestinian lands. The questioner asks her "where's their home?"

Thomas then begins what would, presumably, be a list of places that the Jews of Israel came from. She says "Poland" and then the questioner starts to interrupt her, but she adds "Germany." This time, the questioner is successful in interrupting, and asks "So the Jews should go back to Poland and Germany?" to which Helen Thomas responds "and America and everywhere else."

In other words, Helen Thomas wants things to return to the state they were in before the creation of the state of Israel. When asked where the people of Israel came from, the first two places (though, if she hadn't been interrupted, perhaps not the only two) were Poland and Germany. And the United States was the third.

Honestly, how can this be construed as antisemitic? Throughout the exchange, Helen Thomas expresses a very strong political view against a political entity: the state of Israel, and what she perceives as its occupation of Palestinian lands. The only mention of religion or cultural identity comes from the questioner: it is he who wants to make this about Jews rather than about Israel.

And it is, clearly, absurd to argue that criticism of Israel and its tactics is antisemitism. Israel is a Jewish state, but it is not "the" Jewish state, in the sense that not all of Jewish identity is bound up in the state of Israel. Clearly, there are many Jews who disagree with the actions and even the existence of Israel.

All that remains, then, is whether Thomas' instructions to Jews to "go back to Poland and Germany" is antisemitic. Right?

Well, really, she didn't actually say that. Whoever it was that was questioning her did. But she didn't. She told Jews to "go home", and the first two examples she came up with for "home" (before she was interrupted) were Poland and Germany. Is any suggestion that a Jew go live in Germany antisemitic? I don't think it's possible to argue that Thomas was approving of the Holocaust. She wasn't telling Jews to go back to the Germany or Poland of 1942, or even the Germany or Poland of 1948. She was telling them to go home, and that two places they could go are the Germany and Poland of 2010.

Is Helen Thomas an antisemite? No. An anti-Zionist, yes. She is opposed to the state of Israel and fiercely defensive of what she sees as the rightful independence of the Palestinian people. But there is nothing, at least nothing in the video, to suggest that she harbors hatred or bigotry towards the Jewish people.

Disagree with me? Please tell me so. Keep the comments on topic, please.

And You Thought Algebra Was Useless...

(By Andrew MacKie-Mason)

On his blog, Josh Blackman criticizes Justice Breyer's use of algebra in the Supreme Court's opinion in Barber v. Thomas. Blackman says: "As I’ve said before, I became a lawyer because I hate math." As someone who likes both math and law, I love that Justice Breyer incorporated some algebra into a sentencing calculation opinion.

But...learn to do so more elegantly, please. (Although, for the record, the algebra looks more elegant in the PDF of the opinion than it does on Josh Blackman's blog.)

See, math is useful in the real world!

Brian Rooney and the Thomas More Law Center—2010 Congressional Race, Michigan 7th

(By Andrew MacKie-Mason)

Remember, you can see further coverage of the 2010 elections on this compilation page.

One of the candidates running for the House of Representatives out of Michigan's 7th Congressional District (encompassing areas west of Ann Arbor) is Brian Rooney, an ex-Marine and constitutional lawyer.

Per the Republican Michigander (and confirmed), it turns out that Rooney's constitutional law practice has lately been at the Thomas More Law Center, a conservative Christian legal interest group centered in Ann Arbor.

What is the Thomas More Law Center? From their website:

Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square. We achieve this goal principally through litigation, seeking out significant cases, consistent with our mission, where our expertise can be of service to others. We also defend and promote faith and family through media and educational efforts...

Our ministry was inspired by the recognition that the issues of the cultural war being waged across America, issues such as abortion, pornography, school prayer, and the removal of the Ten Commandments from municipal and school buildings, are not being decided by elected legislatures, but by the courts.

And, if you remember, the Thomas More Law Center's lawsuit against the health insurance reform bill was based on constitutional law only in the most expansive meaning of "constitutional."

I've said before that it's completely inappropriate to conflate an attorney's views with the arguments that attorney makes on behalf of his or her clients. It is though, to a certain extent, appropriate to judge attorneys based on the institutions they choose to work for. While Brian Rooney cannot be held responsible for the lawsuits filed by the Thomas More Law Center, he can be judged for choosing to work for such an organization. So, if you feel the same aversion to the TMLC that I do, I advise you to steer clear of Brian Rooney in his bid for Congress.

Glee and Copyright

(By Andrew MacKie-Mason)

On Tuesday, Christina Mulligan posted an interesting guest blog post on Balkinization, titled Copyright: The Elephant in the Middle of the Glee Club. In it, Mulligan (an information lawyer and visiting fellow at Yale Law School) opines that the students represented in Glee (if real) would be risking hundreds of thousands of dollars in copyright liability for the songs they perform. Just to be clear, Mulligan is operating within the world of the show, not discussing FOX's liability (because, we assume, FOX licensed all of the songs on the up and up.)

Mulligan identifies two types of copyright infringements in the Glee world: the reproduction of a music video, and mash ups performed by the glee club. I haven't seen the episode referenced in the former (I've tried, unsuccessfully, to avoid watching Glee), so I can only really comment on the latter: the combination of multiple songs by the Glee students into one performance number.

Mulligan says:

Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two.

First of all, this is a slight mischaracterization of licensing procedures. I'll take Mulligan at her word that there is no compulsory license available for mash ups (I don't know, and bow to her expertise.) But that does not mean, as Mulligan seems to say, that the license would be impossible to obtain. Compulsory licenses are ones that must be granted, so long as the licensee pays a royalty. However, even if there is no compulsory license available, the glee club would be free to obtain other licenses, with the permission of the labels that own the songs. It would be more difficult than operating with compulsory licenses, but not impossible.

However, I don't think that the glee club would need any license at all, under fair use principles. Under 17 U.S.C. § 107 (H/T Wikipedia):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

To determine if glee club mashups constitute fair use of copyrighted material, then we must consider the four factors listed in the statute:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The glee club does not make a profit off of their performances (to my knowledge, at least). Most of the mashups, in fact, are performed during rehearsals. Even the competitions are conducted for educational purposes. The use then, is clearly for "nonprofit educational purposes."

• the nature of the copyrighted work;

This element of fair use law is designed mainly to distinguish between the copyright of non-fictional material and fictional material, with more creative work deserving more protection. Only the mode of expression of non-fiction is deserving of copyright, not the facts. Therefore, it is easier to gain a fair use exemption for non-fiction work than for fiction work.

This element seems to counsel against glee club use being fair use, but the effect is minimal.

• the amount and substantiality of the portion used in relation to the copyrighted work as a whole

While the mash ups generally consist of a significant portion of the source songs, this does not necessarily mean that they don't constitute fair use. From Kelly v. Arriba, a Ninth Circuit case, "If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her." Here, the amount of copying is as much as is necessary for the intended use, so the factor does not weigh for or against the glee clubbers.

• the effect of the use upon the potential market for or value of the copyrighted work.

Glee club performances pretty clearly do not infringe upon the market of the songs that are performed. There are two markets for music: live performance and recorded copies. Glee performances clearly do not affect the market for recorded music (as they only perform live) and it would be hard to see an argument that high school, amateur performances of a song seriously affect the market for actual live performances by professional artists.

Given the consideration of these factors, it's highly likely that a court would find glee club performance of these songs acceptable under fair use. While it might be wise for the glee club to obtain explicit permission for the competition use (and indeed, many competitions would probably require it) the use in rehearsals and preparation is almost certainly safe.

Towards the end of her article, Mulligan asks (rhetorically):

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?

It seems that, considering fair use law, the better you are, the more likely you are to be violating copyright law. If you're the Numa Numa man, you're probably alright. Just don't try to make money off of your creations, and don't get so good at it that you rival the real artists and threaten their markets.

Note: As always, this shouldn't be considered actual legal advice. Because I'm not a lawyer. If you're in trouble over copyright violation, talk to a real lawyer. They're worth it.

Cooperation and Brotherhood

(By Andrew MacKie-Mason)

Fr. Araujo from Mirror of Justice posted a quote that I think sums up my feelings about the cooperative nature of humanity and terms it in a way that is freedom affirming. Here it is, from Heinrich Rommen's The Natural Law:

When little or no respect any longer exists for any authority; when marriage generally ceases to be differentiated from concubinage and promiscuity; when the honor of one’s fellow citizen is no longer respected and oaths no longer have force, then the possibility of social living, of order in human affairs, vanishes together.

2010 MI Gubernatorial Race, Virg Bernero: Initial Profile

(By Andrew MacKie-Mason)

The 2010 elections are approaching pretty quickly, and one of the positions that's going to be voted on is the Michigan governorship. This is the second in a series of posts on the various candidates intended to start a useful conversation and encourage well informed voting. If you know more about the candidates, please let me know in the comments. I'm learning about them as I write.

Remember, you can see further coverage of the 2010 elections on this compilation page.

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Virg Bernero is one of two contenders for the Democratic nomination for the governorship of Michigan. He is a graduate of Adrian College, and has been a legislative analyst, county commissioner, development officer, executive director (MACED), and a legislative aide. He served for two years in the Michigan House of Representatives, four years in the Michigan Senate, and has now been mayor of Lansing for over four years.

Bernero seems to have been a strong supporter of state services for the mentally ill and a proponent of employee privacy against intrusions by employers.

As mayor of Lansing, Bernero lobbied the national Congress in support of the auto bailouts and worked to get companies to invest in the Lansing area.

Policy Proposals (as drawn from campaign website):

• State Bank

The idea is to encourage business creation in Michigan. Bernero would like to create a state bank which would provide loans to help start-up businesses.

• Green Energy

Bernero wants to put Michigan's manufacturing power to use making wind turbines, solar panels, and parts for hybrid and electric cars. His environmental policy seems centered around job creation.

Other Issues

• Marriage Rights

Bernero's website claims a dedication to diversity and the rights of the LGBT community, but his website does not include a statement supporting the right of all people to marry whomever they choose.

• Immigration

Bernero claims to support enforcing current national laws, but not laws like the one passed recently in Arizona. While immigration isn't really an issue in Michigan, the "enforce current laws" philosophy is not the right way to go. Current immigration law is far too restrictive and punitive.

I wonder if we'll hear Bernero's stance on using the gubernatorial pardon to prevent Michigan residents from being deported for minor crimes?

• Education

Bernero claims to support education, and puts forward his wife, a longtime public school educator, as proof of his dedication to schools. He also has the unanimous endorsement of the Michigan Education Association (teacher union)'s Recommending Committee.

I wonder, though, if Bernero doesn't have too close ties to the teacher's unions. A good portion of Michigan's educational problems can be laid at the feet of educational unions. The teaching industry shouldn't even really be unionized, as unions were designed to handle industrial jobs performed by unskilled laborers, not professionals.

---

Has anyone else heard much about Virg Bernero? Thoughts?

Michigan: Don't Seduce an Unmarried Woman

(By Andrew MacKie-Mason)

Hat tip to Eugene Volokh for identifying a rather disturbing piece of Michigan's penal code that's apparently still alive and kicking.

Section 750.532:

Punishment—Any man who shall seduce and debauch any unmarried woman shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than 2,500 dollars; but no prosecution shall be commenced under this section after 1 year from the time of committing the offense.

The bad part is not that this piece of law still exists. Every law code has relics that just never go away because there's no reason to take the effort to repeal them. No, what's wrong here is that this piece of law is still used. According to Professor Volokh:

Reader Jeff Semenak, who lives in Lansing, reports that the Lansing State Journal courthouse notes occasionally mention that someone has been convicted of “seducing an unmarried woman.” I checked and indeed found over 30 such notes from 2002 to 2008.

The law is apparently used by prosecutors as a tool to plea bargain rapists down. Prosecutors can convince alleged rapists to plead guilty to seducing an unmarried woman in exchange for not being prosecuted for rape. It seems like a reasonable use, but it's really not.

The law is invalid with respect to both the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution and Article I, § 2 of the Michigan Constitution. Prosecutors should not be able to use an unconstitutional law to convince defendants to plead guilty who might otherwise be found innocent at trial.

The Equal Protection clause of the Fourteenth Amendment and Article I, § 2 of the Michigan Constitution both guarantee equal protection under the law. Since MCL § 750.532 applies only to acts by men against women, it affects the genders differently, thus not affording equal protection.

The law also fails under the Due Process clause of the Fourteenth Amendment, because of the sexual privacy right acknowledged in Lawrence v. Texas. Under Lawrence, states may not legislate private sexual behavior between two consenting adults.

This law should be repealed. With elections coming up this November, it's as good a time as any to get in touch with your state representative and Senator and urge them to repeal it before elections roll around.

House Representatives can be found here.

Senatorial districts can be looked up on this map.

Scott Greenfield Day?

(By Andrew MacKie-Mason)

Yesterday, reading some of my favorite blogs (Not Guilty by Mirriam Seddiq and Defending People by Mark Bennett), I learned that June 7th is now, apparently, "Scott Greenfield Day". With a little bit of Google Magic, I found a similar reference on Koehler Law by Jamison Koehler, which I haven't read yet but like the look of.

So, who is Scott Greenfield? According to his resumé, he's a TV and litigation lawyer and a graduate of New York Law School. He's the subject of this previous post of mine. And he is, apparently, the author of the #6 law blog on the web.

Given my previous negative experiences with Greenfield, I was curious as to why he gained his own internet holiday. Luckily, Mark Bennett provided the link to the post on Greenfield's blog that started the whole thing.

It's an interesting delve into self-indulgence (navel-grazing, in Greenfield's words). Apparently, at the root of this all is the fact that Greenfield is feeling under-appreciated. "Simple Justice may matter enough to read, but there's little concern out there for the writer. I'm more the hired (yet unpaid) help, as far as others are concerned."

This kind of emotional outpouring can be very powerful to one's friends, I assume. It did, after all, prompt many criminal law bloggers to circle the wagon around Greenfield and declare their support for him and his blog. But, really, it's somewhat pathetic. Greenfield is someone who writes a blog even though he dislikes internet conversations, who doesn't feel like actually researching the people he criticizes, and who doesn't have the time to actually discuss his criticism with his targets...and yet he begs the internet for support when he doesn't feel loved enough.

Yes, a reaction to something like this will probably always depend on how you view that personal initially. I've had a negative experience with Greenfield before, so it strikes me as tacky and annoying to see his sob story. I'm sure those who like Greenfield or who view his approval as important in making a dent in the blogging world see things differently.

I don't want this to become my personal rant against a man who I've had disagreements with before. The point is that those, like Greenfield, who are comfortable throwing the darts need to be comfortable getting hit, too. Perhaps Greenfield deserves to be honored: I don't generally read his blog, so I don't really know. But asking for recognition and support...

If Greenfield sees this and bothers to read more than a few paragraphs in, I'm sure he'll sardonically mock me with more style than I can manage to respond in. But I'm alright with that. I write to get my thoughts down, and if I ever start seeking validation of what I do, it'll be time to shut down this blog.

For those of you reading this through the RSS feed, Google Buzz or Facebook, remember that the original is always available at my blog.

"Gang Symbols"

(By Andrew MacKie-Mason)

Howard Friedman runs Religion Clause, a valuable source for legal news related to the practice of religion. According to him:

The American Center for Law & Justice (press release) is threatening to file a lawsuit against Schenectady, New York school officials on behalf of a middle school student who was sent home for wearing a Rosary outside of his shirt. The plastic Rosary is made of light purple beads and a white Crucifix. The school's dress code defines items made of beads as gang-related symbols. According to a Demand Letter (full text) sent to the Oneida Middle School principal and other District officials, Raymond Hosier wears the Rosary in memory of his deceased brother and deceased uncle. The ACLJ letter argues that the school's dress code is unconstitutionally vague and, as applied, infringes Hosier's free speech rights.

Yes, you heard that right. The student's rosary is a gang symbol. Because it has beads. He's a member of the Catholic gang.

This is a perfect example of why school dress codes are almost always a horrible idea. Almost every dress code is justified by the gang argument, because school administrators don't want to admit the truth: they're just trying to make it so kids dress exactly the way the adults want to. After all, the best way to maintain control is to maintain absolute and complete control.

Because of "gangs," rosaries are banned. College hats are banned. What's next? No more jeans? After all, jeans are a sign of rebellious youth....

More on the Libertarian Fallacy

(By Andrew MacKie-Mason)

In my previous post about the libertarian fallacy, I talked about how libertarians often claim that an increase in government involvement or power will necessarily lead to a decrease in individual liberty. I didn't really think that it was worth a long discussion, but it prompted one on this blog's Buzz feed. That discussion included a claim that no intelligent libertarians actually subscribe to the idea that government involvement necessarily decreases the liberty of the individual.

I thought I was right, that I had heard that argument frequently from libertarians, but perhaps not. So, I opened up Ron Paul's The Revolution: A Manifesto. Yes, I have a copy.

On page 109, at the beginning of a chapter entitled "Civil Liberties and Personal Freedom," Paul writes:

Freedom means not only that our economic activity ought to be free and voluntary, but that government should stay out of our personal affairs as well.

Here, we see a form of the exact fallacy that I was criticizing earlier. What Paul is saying is that a free society is one without government involvement in "personal affairs." Or, in other words, if the government becomes involved in personal affairs, we are less free.

To fully understand the statement, we have to understand what Paul means by "personal affairs." Of course, one could define personal affairs as things in which the government shouldn't be involved, but that would create a circular and pointless statement. The better understanding of "personal affairs," I believe, is decisions which directly impact only the person making the decision. This understanding is supported by the examples which Paul lays out later in the chapter, including the criminalization of drugs and warrantless wiretapping.

However, it's clear that governmental action in the realm of "personal affairs" does not always detract from freedom. In fact, it can add to it. The first example that comes to mind is casino self-exclusion, a topic studied and discussed by Professor Jim Leitzel whom I met when I visited the University of Chicago.

Self-exclusion programs are often created by law, and state authority is used to compel the casinos to enforce the programs. Problem gamblers who wish to get help can add themselves to the excluded lists.

Here, clearly, freedom means that government should get involved in our personal affairs. The governmental involvement enables people to make a choice that they previously could not make. They are, in other words, more free.

Paul's blinders are an example of what I think is a common fallacy of libertarian thought. I wish I could find my copy of The Conscience of a Libertarian, because (if I remember correctly) it has many more examples of this. But no matter how many examples I come up with, it will (of course) be only anecdotal rather than empirical evidence. For that reason, I'd be happy enough if we can agree that it's a fallacy and call it out when it occurs, without needing to endlessly argue about how common it is.

Is Anti-Zionism Anti-Semitism?

(By Andrew MacKie-Mason)

At the Volokh Conspiracy, David Bernstein claims that anti-Zionism (opposing the state of Israel) is just a modern repackaging of the historical antisemitism that gave us "blood libels [and] the Deicide charge."

(Note: Bernstein is responding to the same article that I criticized in the post right before this one.)

How does Bernstein justify claiming that opposition to a modern state at the political level is related to claiming that Jews kill children or are responsible for the death of a deity?

It turns out that Western leftists (more accurate in this context than “liberals”) despise Israel because they think the Jews have stubbornly chosen to maintain a particularistic, Judeo-centric ideology–in this case Zionism–despite being offered a more rational, enlightened, universalistic, and pacifistic ideology by more enlightened folk. In other words, it’s a secular version of the primary theological rationale for Christian anti-Semitism for the last millenium–that Jews stubbornly clung to Judaism and Jewish particularity when offered more rational, enlightened, universalistic, and (in theory) pacifistic Christianity. If so, no wonder even the most absurd anti-Zionist charges have resonance among European leftists and their American compatriots; it’s not like blood libels, the Deicide charge, and the like made much sense, either.

This logical leap is...remarkable. Here's how it goes:

• Liberals oppose Israel because Israel sticks to the nation-state model which many liberals think is outdated. This is, after all, basically the default reason for opposing a state: opposing the philosophy that that state is founded on. It lacks the intense paternalistic motivations that Bernstein tries to ascribe to it.
• Antisemites hated Jews because they weren't Christian.
• Since both liberals and antisemites opposed something related to judaism because they thought they had a better philosophy, liberals and antisemites are practically the same thing.

Does David Bernstein, a law professor at George Mason, actually think this argument works? I hope not. It's more likely that he's willing to make it because he thinks it will be effective to secure his political ends, even though it's not intellectually honest.

Shame on you, Professor.

Antinationalism and Welfare

(By Andrew MacKie-Mason)

At Commentary, Ted Bromund has an interesting piece about liberal critics of Israel. Bromund posits that liberals attack Israel because Israel represents the fiercely nationalistic model that liberals think is outdated in the model world. He then criticizes that attack on the nation-state, claiming that it is inconsistent with liberal views regarding welfare programs.

The problem is that the liberal vision itself has changed. Not all liberals reject the nation-state, but suspicion of the nation-state as the organizing unit for the world does stem predominantly from the left. In view of the importance that the left attaches to the state as the provider of welfare benefits, this is both ironic and contradictory.

Bromund, here, is way off. He is trying to make a cheap political point at the expense of intellectual integrity. There is nothing "ironic" or "contradictory" about both opposing the nation-state and believing in welfare support. Bromund's argument is wrong from many angles, but I'll try to identify a few:

First, Bromund, rather lazily, tries to smudge the distinction between the nation-state and the more general "state." A state is a collection of people into a political unit. A nation is a group of people held together by language, culture, and a "national identity." The nation-state model is the desire to align nations with states: to define states by national identity.

Bromund is right that Israel is a good example of the nation-state. It was designed for that specific purpose: to be a political entity representing the Jewish nation.

Bromund, though, incorrectly conflates the nation-state with the state. Many liberals think the nation-state is outdated, but that is not inconsistent with a positive view of states generally. One can think that the state is a good model for organizing cooperative behavior without thinking that the nation-state is the best type of state.

Secondly, Bromund is wrong in even trying to claim that liberal support of welfare programs implies a support for states (even states generally, not nation-states). The liberal support of welfare programs stems from a desire to establish cooperative methods for social support. Given the existence of states, liberals often seek to use the state as the most efficient means of organizing effective social cooperation. It is dishonest and illogical, however, to try to claim that that means that liberals support nation-states (or even states in general) for their own sake. It might be that many liberals think there is a better way to provide social services, but that state-sponsored programs are the best way currently available.

I hope this small excerpt of writing does not reflect the quality of his own work or of the work of Yale University graduates generally. But perhaps it does reflect the average quality of work at the Heritage Foundation.

Hat tip to David Bernstein at Volokh for the pointer to the Bromund article.

2010 MI Gubernatorial Race, Mike Cox: Wasteful, not Tough

(By Andrew MacKie-Mason)

The 2010 elections are approaching pretty quickly, and one of the positions that's going to be voted on is the Michigan governorship. This is the first in a planned series of posts on the various candidates intended to start a useful conversation and encourage well informed voting. If you know more about the candidates, please let me know in the comments. I'm learning about them as I write.

Remember, you can see further coverage of the 2010 elections on this compilation page.

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One of the candidates in the Republican primary is Mike Cox, the current Attorney General of Michigan. I don't know that much about him (I hope to learn more!) but what I do know is an advertisement I've now heard twice on the radio, run on his behalf.

The ad doesn't mention the 2010 race, which is probably a good thing. Its purpose is to build up name recognition and positive feelings about Cox, which he'll then cash in on when the election comes around.

The ad, run by (if I remember correctly) "Michigan Citizens for Fiscal Responsibility," praises Cox for being "tough." Tougher than all other Michigan leaders, of course. And one of the items listed to prove that Mike Cox is "tough" is the fact that he joined the lawsuit brought by various state Attorneys General against the federal government over the recent health care bill. Against the wishes of the other executive leaders of Michigan, Cox put Michigan's name on this lawsuit. And "Michigan Citizens for Fiscal Responsibility" tells us that this makes Cox "tough."

Of course, this lawsuit is completely doomed (see here, here, here, here and here). So is Mike Cox "tough" for bringing it anyways? At least he's fighting! He's taking on the government!

Except...it's not difficult to sue the federal government. Anyone who reads this blog is capable of suing the federal government, pro se. It's difficult to win like that, of course, because the federal government has quite a few good lawyers. But Cox and the other Attorneys General won't win. And if they're worth the paper that their bar card is printed on, they know they won't win. The only cost to them is money, and that's provided by the taxpayers of the great state of Michigan (and other states, of course).

So, is Mike Cox "tough" for using our money to take on the federal government in a case he knows he won't win? You decide for yourself, but I would call that wasteful.

Libertarians, Freedom and Government

(By Andrew MacKie-Mason)

This isn't really deserving of a long post, but I'll give it a quick blurb.

A common fallacy in modern libertarian thought is that they associate liberty with the absence of governmental action. Thus, libertarians have turned the reasonable desire to be free into the irrational desire to live in a world without governmental action.

I can't say that I agree with their premise, that freedom is the one and only important thing, but it's a reasonable belief. But their opposition of any and all governmental action does not follow logically from that premise.

Professor Robert George has an interesting and somewhat related criticism of Libertarianism here.

Correction: Texting While Driving

(By Andrew MacKie-Mason)

The Michigan texting while driving ban actually takes place July 1st, not June 1st. I apologize for the error.

Cap and Trade, Cap and Tax?

(By Andrew MacKie-Mason)

A common bit of conservative word-smithing has been to try to rename cap and trade (emissions trading) to "cap and tax." Because, of course, no one likes taxes!

An example of this can be found in a recent Wall Street Journal opinion article, entitled "A GOP Oil Trap." You can find the full text of the article by clicking here and selecting the first result.

In talking about how the GOP should continue to support offshore drilling despite the recent spill, Kim Strassel mentions emissions trading:

The real worry is that Republicans are making themselves vulnerable to Mr. Obama's last big agenda item: cap and tax. The president has never made secret his desire to replace cheap and sure fossil fuels with expensive and unreliable energy sources. Up to now the GOP has offered good opposition.

Cap and trade is not really a tax. And, in fact, it is a program that the intellectual descendants of Adam Smith should like. It applies free market principles and theories of ownership to solving the environmental crisis of our generation.

Emissions trading starts by recognizing a rather simple principle: emissions do not just affect the property of one person, they affect the entire world. If the emissions problem were localized, no governmental action would be necessary. However, emissions devalues property generally. Everyone bears the cost, but only the producer reaps the benefits. This is an example of the externality theory in economics, where someone's actions have an impact on other people that isn't accounted for by market forces.

In order to make the incentives relating to emissions match the general costs and benefits, we need some way for behavior that's generally harmful have a matching negative incentive to the person making the choice. Lawsuits act as a negative incentive against people who harm others directly and a reimbursement system for those harmed (through tort law). We need to create a system that does the same thing for generalized injury, the type of harm created by emissions.

The best way to pursue this is through government, the embodiment of the body politic. Where general harm exists, repayment can be made to government as an efficient way to reimburse all those affected.

This is where cap and trade comes in. In order to have the right to devalue everyone else's property, companies that seek to emit must pay. They pay for the right to emit a certain amount, either by buying credits from society or from another company that already has them. The price of those credits soon becomes a product of the free market. Unlike a strict mandate system, cap and trade encourages companies to reduce emissions by making them pay the costs that they would normally pass along to someone else by putting something into the air that everyone shares.

Where a tax is a general payment to society in order to act within the confines of that society, cap and trade employs a very direct payment for service model. In exchange for the right to affect something that the company doesn't own (the air), that company must pay.

Emissions trading is the right thing: morally, economically and environmentally. Trying to rename it "cap and tax" is pretty transparent political hackery.