Friday, August 20, 2004

Gay Marriage Fight Heating Up

Another skirmish in the gay marriage wars just concluded, this time with Gay Marriage Opponents coming out on top.

A US Bankruptcy Court just upheld the constitutionality of the Defense of Marriage Act (DOMA) in In Re Kandu and Kandu. The specific facts of this case seem heartwrenching (both spouses in the lesbian marriage came down with cancer at the same time). Of course, the federal courts cannot allow such matters to influence their decision. However, I still think that time will bear out that DOMA is unconstitutional (to be fair, a US Bankruptcy Court ruling has very little precedential value, so this issue is still wide open).

As state courts continue to hand victories to gay marriage proponents, conservative defenders of traditional marriage have been reeling. The California Supreme Court ruling annulling the gay marriage licenses issued in San Francisco was hailed as a giant victory, when in reality it was a minor issue that was tangential, at best, to whether gay marriage is constitutional or not. This, on the other hand, is a bonafide conservative win.

Meanwhile, the SCOTUS Blog (link via How Appealing wonders if federal challenges to same-sex marriage prohibitions have already been decided. It cites an obscure case (Baker v. Nelson), dealing with a Minnesota challenge to same-sex marriage prohibition. The court's ruling was one line: "The appeal is dismissed for want of a substantial federal question." Gay marriage opponents are arguing that that ruling denies that gay marriage is required under the constitution. But that got me to thinking: Where's the federal jurisdiction for defining marriage anyway?

Justice Paul Snyder (the author of the Kandu decision) answers that question in that opinion thus:
The 10th amendment is not implicated because the definition of marriage in DOMA is not binding on the states and, therefore, there is no federal infringement on state sovereignty. States retain the power to decide for themselves the proper definition for the term marriage.

On the one hand, that seems to me to be an awfully narrow interpretation of what is uncontestably a state matter. Since the federal government defers to the states in every other aspect of marital law, from at what age one can marry to giving out the licenses themselves, singling out gay couples for special federal scrutiny seems to run awful of the court's ruling in Romer v. Evans. On the other hand, why can't the federal government create a seperate class of to hand out its own benefits?

Of course, none of this answers the very valid 14th amendment based objections to DOMA. But its food for thought none the less.

Thursday, August 19, 2004

Educated Guess

Josh Benson notes an interesting proposal by the Kerry campaign on Education Reform.

Enter John Kerry. He's got two basic pitches on education. In the first, he blasts Bush for short-changing NCLB. This sounds nice, but politically, it's less than inspiring. Here's yet another Bush plan that Kerry voted for but now claims he was fooled on. Gullibility is not presidential.

Kerry's second pitch is the real winner. His education plan makes use of federal incentives to succeed precisely where NCLB failed. Like a good liberal, Kerry dishes the carrot. But as Jonathan Schorr's excellent article from the August Washington Monthly documents, Kerry's proposal is also "quietly radical."

The plan focuses almost single-mindedly (and wisely) on recruiting good teachers with a whole new pot of federal money. The catch is, most of the cash can only be used for standardized, merit-based salary increases, and only in concert with a streamlined process for firing bad teachers.

Linking teacher pay to performance has angered the teachers' unions. But that's the genius of Kerry's plan (politically and policy-wise). Unlike NCLB, where unions, districts, and state lawmakers can find common ground opposing heavy-handed federal mandates and threats, Kerry's plan simply dangles a pot of money for any school district that's willing to devise a new system. If the teachers unions don't want performance measures, they're left in the tough position of having to "explain to their members why they're walking away from potentially federally funded salary increases."

This seems like a really good idea. I think it has intuitive appeal, it shows that Kerry is willing to not kowtow to powerful special interest groups (while still benefiting a core constituency, I think this proposals is ultimately good for teachers), and it shifts debate onto democratic home territory.

I sent an email off to a former high school teacher of mine asking for her opinion on the proposal (since I'm sure there are a million nuances that I simply don't understand). When she writes back, I'll be sure to give her take on the subject.

Wednesday, August 18, 2004

Iraqi Nuances

I meant to post this yesterday, but I got sidetracked and forgot. But Daniel Drezner reminded me about it this morning, so here it is for y'all.

Fareed Zakaria (hardly a leftist apologist) writes an article in yesterday's Washington Post entitled "Why Kerry is Right on Iraq."

The more intelligent question is (given what we knew at the time): Was toppling Hussein's regime a worthwhile objective? Bush's answer is yes; Howard Dean's is no. Kerry's answer is that it was a worthwhile objective but was disastrously executed. For this "nuance" Kerry has been attacked from both the right and the left. But it happens to be the most defensible position on the subject.

Mr. Zakaria FINALLY makes cogent what I and Sen. Kerry have been struggling to articulate for some time: That Iraq was a worthy endeavor, which makes President Bush's abject failure in its execution all the more contemptable. Zakaria continues:
Bush's position is that if Kerry agrees with him that Hussein was a problem, then Kerry agrees with his Iraq policy. Doing something about Iraq meant doing what Bush did. But is that true? Did the United States have to go to war before the weapons inspectors had finished their job? Did it have to junk the U.N. process? Did it have to invade with insufficient troops to provide order and stability in Iraq? Did it have to occupy a foreign country with no cover of legitimacy from the world community? Did it have to ignore the State Department's postwar planning? Did it have to pack the Iraqi Governing Council with unpopular exiles, disband the army and engage in radical de-Baathification? Did it have to spend a fraction of the money allocated for Iraqi reconstruction -- and have that be mired in charges of corruption and favoritism? Was all this an inevitable consequence of dealing with the problem of Saddam Hussein?

A laundry list of problems in the EXECUTION of our Iraq mission doesn't have to implicitly condemn the need for the action itself. Thanks to Mr. Zakaria for clearing that up.

Of course, the REAL news is that it has lowered Prof. Drezner's probability of voting for President Bush to .4 . I (assume that's 40% chance?). Whatever it is, good news for liberals!

Tuesday, August 17, 2004

Colorado Crisis

UPDATE: 8/18 @ 2:50 PM

USA Today reports that a proposal to allocate electoral votes in proportion to the percentage of the popular vote won by each candidate has made the ballot in Colorado. points out this could cause another world class headache for the Supreme Court, since proposal supporters want it applied to this year's race and it would likely shift the states electoral tally from 9 for Bush and 0 for Kerry to 5 for Bush and 4 for Kerry (Colorado is considered a longshot possibilty for the Democrat, but its close enough that Kerry could probably garner enough of the vote to pick up 4 electoral votes). In a close race, that could be the difference and give the election to Kerry. But obviously, such a result would immediately be challenged by Republican leaders.

Since I got this link from one of the sites, this is a good time to promote two websites that are invaluable to anyone following the political campaign. and both take the latest state polls to show what the electoral vote would be if the election was held today. While obviously polling is an inexact science, and the public mood is always in flux, these still do a great job keeping me informed.

For the record, as of 12:30 AM on Wednesday, Electoral-Vote had Kerry up 327 to 211, while Tripias had it 316 to 222 in favor of Kerry. Missouri was the only differing point between the two sites.

NEW: Volokh Conspiracy also comments on this, as well as giving a link to a more in depth analysis by Ohio State Law Professor Peter Shane.

Monday, August 16, 2004

More Misc Cards

UPDATE: 8/17 @ 4:30 PM
Just some more miscellanous cards I've stumbled upon, various topics. I don't know how much will be useful for the current topic.

Justice Hugo Black, Majority Opinion, Younger v. Harris (1971, 401 US 37), on the meaning of Federalism
"The concept [of federalism] does not mean blind deference to 'States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States."

A solid, balanced definition of Federalism, I think.

N. Stephen Kinsella, "New Rationalist Directions In Libertarian Rights Theory," Journal of Libertarian Studies Vol. 12 No. 2 Fall 1996.Gives a good summary of Hans Herman Hoppe's argumentation ethics, as well as some other libertarian rights justifications.
"[A]rgumentation, as a form of action, implies the use of the scarce resources of one’s body. One must have control over, or own, this scarce resource in order to engage in meaningful discourse. This is because argumentation is a conflict-free way of interacting, by its very nature, since it is an attempt to find what the truth is, to establish truth, to persuade or be persuaded by the force of words alone. If one is threatened into accepting the statements or truth claims
of another, this does not tend to get at the truth, which is undeniably a goal of argumentation or discourse. Thus, anyone engaging in argumentation implicitly presupposes the right of self-ownership of other participants in the argument, for otherwise the other would not be able to consider freely and accept or reject the proposed argument. Only as long as there is at least an implicit recognition of each individual’s property right in his or her own body can true argumentation take place. When this right is not recognized, the activity is no longer argumentation, but threat, mere naked aggression, or plain physical fighting. Thus, anyone who denies that rights exist contradicts himself since, by his very engaging in the cooperative and conflict-free activity of argumentation, he necessarily recognizes the right of his listener to be free to listen, think, and decide."

This always seemed to me to be a ripe foundation for a kritik. Since your opponent is engaging in a discursive activity, he is effectively locked into accepting libertarian norms to avoid a performative contradiction. Kinsella states:
If participants in argumentation necessarily accept particular truths, including norms, in order to engage in argumentation, they could never challenge these norms in an argument without thereby engaging in a performative contradiction. This would establish these norms as literally incontestable truths."

Foreign Policy May/June 2004 "Ranking the Rich 2004," (no author given) is a study showing how generous/effective the rich are in terms of giving financial aid and assistance to the poor. There's lots of neat stuff in here, but this really jumped out at me
"Citizens in rich countries often think of environmental protection in terms of preserving the world for their children and grandchildren—people who do not participate in today's environmental degradation but who will suffer its consequences. Yet today's global poor are already harmed by irresponsible environmental policies. Rich countries are the primary users of scarce global resources, but poor countries are the most likely to be hurt by ecological deterioration and the least capable of adapting. These countries typically have weak infrastructures and social services, making them particularly vulnerable to the floods, droughts, and spread of infectious diseases that global climate change could bring."

Nice impacts, potential for a mindset challenge (only viewing environmental problems "to save the children"), fairness issues brought up.

And finally, something that may actually be of use to those researching the privacy topic Justice Anthony Kennedy, Majority Opinion, Lawrence and Garner v. Texas (2003)
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

And also quoted within the opinion
In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail.

This might be a stronger pro-privacy card
Edward Bloustein, "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser," 39 NYU Law Review 962, 973-974 (1964)
"[A] measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversations may be overheard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant."

Another patchwork of random quotable material, courtesy of the friendly Debate Link staff!