Heterodox Academy

I am now a member of Heterodox Academy. This is their apostles’ creed.

I believe that university life requires that people with diverse viewpoints and perspectives encounter each other in an environment where they feel free to speak up and challenge each other. I am concerned that many academic fields and universities currently lack sufficient viewpoint diversity—particularly political diversity. I will support viewpoint diversity in my academic field, my university, my department, and my classroom.

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Jason Brennan’s Against Democracy

Months after misplacing it, I have finally found and finished reading Jason Brennan’s Against Democracy. I want to record a few notes on his argument for Epistocracy.

First, a fundamental foundation of his argument is that people deserve competent government. He agrees that democracy is generally more competent than authoritarian systems (or at least less incompetent) particularly in securing all important civil liberties. But democracy is a tool, a means to an end rather than an end in itself. Given the empirically demonstrated systemic knowledge biases of the public, perhaps there is a better means.

Second, he’s not engaging in ideal theory. After critiquing democratic theorists who ignore the real-world problems of democracy in favor of theoretical visions that depend on an electorate quite unlike what we have or can expect to have, he openly admits that epistocracy will also be imperfect.

Because of cultural and others differences, democratic institutions work better in [some countries] than in [others]. I’d expect something similar would hold true of epistocracy. Both systems will suffer abuse, scandal, and government failure.

Third, epistocracy is not a form of technocracy. He discusses several alternatives, all of which are notable for being reasonably democratic–the masses still participate in the choosing of those who govern us. In fact the extant institutions of governance and terms of office can remain exactly the same–it’s only the choosing process that changes, by restricting voting to those that demonstrate competence.

How to demonstrate that? He doesn’t insist on a method, but recognizes we could choose among multiple forms of testing, from demonstration of basic economic and political knowledge to a simple test of how informed prospective voters are about candidates, party, and issues, to passing an SAT style test, to simply identifying enough countries on a world map. It’s not that he thinks these are all equally good methods–it’s that he’s not building an ideal type system that has to have his specifically favored design.

What about demographic issues–would epistocracy produce de facto discrimination in potential to qualify as a voter? Brennan politely chooses not to note what a terrible condemnation of our public education system this fear is (and likely to be held by the same people who cling tenaciously to that system against proposed alternatives). He just notes that we can choose to create means for giving all citizens a reasonable opportunity to qualify. As one example he suggests a cash reward for everyone who qualifies, giving them incentive to learn. I would add that social service organizations like those that run GED and ESL classes could build the knowledge into their curriculum, or we could fund such classes publicly. How we do it is a choice of tool–find a tool or set of tools that work. He’s not suggesting qualifications so high that average adults are incapable of meeting them without effort. (We could, of course, choose such high qualifications, but I’d suggest the higher they are the less likely the prospect of getting public approval to implement them.)

Another alternative form continues universal suffrage (and Brennan actually appears to support broader suffrage than we currently have, favoring felons’ voting rights and suggesting giving voting rights to 16 year olds), but with an epistocratic council that has a veto over laws and perhaps even electoral outcomes (although I think he doesn’t address how much more politically charged the latter would be). The council would have no positive power to ceate laws or rules or place someone in office, merely a veto. How big a council? Whatever we choose. I’m sure he has some preference, but again he’s not insisting there is one and only one way to design this.

“There are many ways to fill in the details, some of which will be more defensible than others. The system might have just one council, for instance, or it might have multiple councils at different levels of government. The system might have a large council or it could be small, but have its members randomly drawn from all citizens who meet the competency requirement.”

And as yet another possible epistocratic structure he suggests we could give one vote to everyone at age 16, an additional vote (or votes) when they complete high school, more when they complete college, and still more if they complete a graduate degree (surely more for a PhD than an MA, Jason!). I specifically mention this because there are innumerable people with advanced degrees whose political views differ radically from Brennan’s. One can become a historian, or sociologist, or biologist, or even a philosopher like Brennan, without gaining the basic economic and political science knowledge he’d clearly prefer they have. But he’s not insisting on a system that excludes people who ideologically disagree with him.

In the end, epistocracy looks far less radical than I think people assume it’s going to be. It’s basic form, whichever we choose, is fairly democratic in nature, but with additional checks on the worst tendencies of the public. What really distinguishes it from democracy is that it doesn’t pretend voting power is fully equally distributed. It’s not anyway in the U.S., of course, although epistocracy would take this a step farther. But to the extent it disenfranchises people, it only disenfranchises those who least understand what they are doing with their vote.

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The Coming Presidential Tyranny: Maybe Trump, Maybe Later, but Coming Ever Closer

This screed is a response to a friend’s Facebook post. He linked to the article The Republic Conquered: On America Entering the Post-Democratic Era, with a warning to conservatives to set down their coffee while reading it “unless you enjoy irrigating your sinuses,” and a friend of his replied, “OMG, more proof that liberalism is a mental disorder.”

But there is more to this than liberalism vs. conservatism. Indeed Trump, a populist bridge between liberal and conservative concerns, is the perfect avatar of the real problem, which is the people, as embodied in the president, against the constitutional order. And so, my response.

[The post-democratic era] probably won’t happen, but Trump is more likely than any president we’ve ever had to make it happen, because nothing matters more to him than satisfying his ego. The man is a slave to himself on a level we have not seen since Nixon, and Nixon had the counterbalancing quality of understanding world affairs better than most and a drive to reduce the threat of nuclear annihilation. Trump knows less of foreign affairs than any post-WWII candidate  (and given we’ve elected several governors to the job, that’s saying a lot), and is more interested in dominance than peace.

If Nixon made a dramatic  (albeit, ironically, unnecessary) attempt to subvert democracy, we can hardly expect Trump to be much better.

And the stage has been set by previous presidents for efforts to rule unilaterally, without consent or reference to Congress. Whoever among all the candidates became our next president was going to have those tools at their disposal, but Trump more than the others expects to get his way — it’s part of his extreme narcissism. All presidents see themselves as the embodiment of the will of the people , and who dares stand against the will of the sovereign people? That’s enough to go to any person’s head, so how must it affect the extreme narcissist?

And the political climate is right for such an effort, a climate of which you and Bob are both part. “Liberalism is a mental disorder,” is a perfect example of how both sides demonize each other. It’s on par with claims that all conservatives are racists, or bitter people clinging to guns and religion, or deplorable.

When politics is beyond mere disagreement, at the point where disagreers are seen as mentally deranged, barely more than animals, we begin to gravitate toward populist candidates. Not just Trump, but Sanders as well on the other side. And populists don’t believe in constitutional constraints; they believe only in the will of the people, embodied, of course, in themselves. And no political niceties can get in the way. Think of Huey Long, in Louisiana.

What most people are missing is that this is not about liberal vs. conservative. Both sides are following this pat. Trump is indeed the ideal embodiment of this tendency, because he’s neither liberal nor conservative. He has been both a Republican and Democrat, as well as an independent. This is about the populist fantasy of a political savior, a man into whom we pour all our political hopes and dreams, creating expectations that could only begin to be met through the smashing of all checks and balances.

I have been warning for years now that the presidency has set us on a path toward tyranny, raking steps forward toward that end with each succeeding presidency, as each one’s innovation in power becomes normalized by their successors. Eight years ago I warned liberals that Obama would disappoint them in their hopes of rolling back the power gains of the Bush presidency. Their only comfort to themselves has been “Bush did it first.” Likewise, conservatives who have complained about Obama’s unilateral governance will comfort themselves in the Trump administrator by saying, “Obama did it first.”

If not Trump, some future president will kill off American democracy, doing so as the Tribune of the People themselves. And while I would wager against that happening in the Trump administration, because our other institutions are not quite yet dead, the one who does will almost certainly be a man similar to Trump in his degree of narcissism, his need to get his own way, and his desire to not just win but to humiliate his enemies.

Posted in Executive Power, Politics in General | Tagged , , , , , , , | 8 Comments

Santa’s Return – A Christmas Story

W&D Logo

It began with Wolf and Dessauer. In the years before shopping malls and chain retail stores, Wolf and Dessauer was where Fort Wayne shopped. A purely local department store, it made its name as a place that was not just for shopping, but twas a social experience, with high levels of customer service, lounging rooms for tired shoppers, and access to telephones for people who who did not yet have one at home.

And Christmas was (so I hear; it was before my time) a magical time at W&D. They were famous for their magic windows, which some say were the equal of Macy’s.

Photo from facebook.com/WolfAndDessauerMagicWindowW&DWindow2

 

 

 

In 1937 W&D hung a 25 foot wreath containing a reported 40,000 lights from the side of the building. Then in 1940 they constructed a 51 yard long display of Santa and his reindeer . Made of wood and containing (depending on which of the many unverified sources one believes) between 24,000 and 40,000 lights. It took workers several weeks to hang it, using blocks and tackles to haul the pieces manually up the side of the building.

Source: https://s-media-cache-ak0.pinimg.com/236x/0e/5b/1c/0e5b1c76ad42338f0963dd03f87c7c73.jpg

The display was only up for two years before WWII intervened, with demands for reductions in energy usage and night-time blackout requirements. (Fort Wayne was, and is, an important industrial city, and apparently officials were worried the Germans might sneak across the Atlantic and 700 miles of U.S. territory without being detected to bomb armament factories.) Shut down for three years, the display returned in 1945, a joyous symbol of the end of war.

Santa and the wreath were displayed for 14 years, then put into storage when Wolf and Dessauer moved to a new building, and was not put up again the next Christmas.

http://contentdm.acpl.lib.in.us/cdm/ref/collection/coll6/id/2847In 1962 the old building was destroyed in one of the largest fires in Fort Wayne history. As firefighters struggled against large crowds and freezing weather that froze the spray from their firehoses, five buildings were damaged or destroyed, and at least one fireman lost his life.

In 1966 Wolf and Dessauer sold their business to City Stores, a Delaware-based retail store holding company, and in 1969 City Stores sold W&D to Indianapolis-based department store chain L.S. Ayres. (See the subsequent history of Ayres below.*) L.S. Ayres had a store at the newly opened Glenbrook mall, then on the edge of the city, and in the early 1970s closed the downtown store.

My mother says she used to take my siblings and me to W&D to see the magic windows and sit on Santa’s lap every year before the store closed. Unfortunately I have only the very faintest memories of that, wholly without detail, and perhaps they’re really only memories of being told that we did that. And while my oldest brother and sister might have seen the Santa display as infants, it was already several years gone before I was born. But for older people, the Wolf and Dessauer Santa and wreath were among their most nostalgic memories.

For 20 years, longer than the original Santa had flown across the W&D store, and only a few years less than the wreath had hung there, the displays were lost. Or perhaps their location was known all along, but nobody was interested in reviving them. Or more likely, perhaps, the owners of W&D decided not to redisplay them after the move, and then as the company was sold and re-sold and old-timers of the company left the knowledge of the displays’ location was not passed on, and the new owners, managers actually, no longer locals but corporate types in distant cities, knew nothing of them and might not have cared if they did. They were running regional and national firms, not a local one.

Whatever the real story, in the spring of 1979 the displays were serendipitously discovered in a warehouse. That Christmas, two restored reindeer were displayed on the side of a downtown parking garage. In 1980, the whole display was lit for the first time since 1959, and has been displayed every year since. 2015 makes the 36th year of continuous display in its second incarnation, twice as long as its original display, and closing in on as many years as it was first displayed and then lost combined.

http://indianalandmarks.typepad.com/.a/6a0162fd1648a8970d019b02d430a5970d-500wi

 

http://infortwayne.com/wp-content/uploads/2014/11/Night-of-Lights-Preview-Cover.jpg

Today the historic Embassy Theater–a grand movie palace from the 1920s, now operated by a non-profit foundation–creates magic windows. Probably never again can we recapture the experience of a Wolf and Dessauer Christmas, but it’s still a wondrous experience to take my kids to see them. It’s a part of Fort Wayne that is special–beautiful, dazzling, historical, and evocative of the connections between past and present, all the more precious because they were once lost.
bulb

And today many of us have a bit of this history decorating our own homes at Christmas. In the mid 2,000s the tens of thousands of 11 watt bulbs were replaced with LEDs to save in energy costs (although three times the cost of the older bulbs, the LEDs were expected to pay for themselves in just two years). The old bulbs were given to charities to sell as Christmas ornaments. My Christmas gift from my mom that year was one of the old bulbs. It has hung on my Christmas tree every year since, and while my kids do the majority of the tree decorating (one of our annual gifts to them is an ornament each, and it’s great to watch them remember and reconnect with them each year), the bulb is one of the few ornaments I personally hang.

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*Ayres was purchased by Associated Dry Goods of New York City in 1972, which then merged Ayres with the Cincinnati-based Pogues, keeping the Ayres name. In 1986 the May Department Store Company acquired Associated Dry Goods, and in 1987 Associated Dry Goods was renamed L.S. Ayres and Company. Ayres was then merged with St. Louis-based Famous-Barr (also owned by May) in 1991. In 2005, Federated Department Stores, which had previously purchased Macy’s, purchased the May company and merged Ayres into its Macy’s division, apparently ending the Ayres retail name.

Posted in Uncategorized

Even Absentee Votes Are Counted

There’d a weird rumor going around, particularly among conservatives it appears, that absentee ballots are not counted unless a race is close enough for them to make a difference. I find it odd that conservatives of all people seem so blase about the idea that some voters aren’t getting counted.

It appears to me that the rumor is being spread by Trump supporters who use it to explain that Trump actually won the popular vote, because, they say, absentee voters are more conservative. Therefore, if all those ballots were counted they would show Trump getting more popular votes than Clinton.

The American Thinker blog’s Steve Feinstein seems to be the go-to source on this. First argued that Clinton might “win the number of votes counted, but not the votes cast.”

States don’t count their absentee ballots unless the number of outstanding absentee ballots is larger than the state margin of difference. If there is a margin of 1,000 votes counted and there are 1,300 absentee ballots outstanding, then the state tabulates those. If the number of outstanding absentee ballots wouldn’t influence the election results, then the absentee ballots aren’t counted.

Noticeably, he doesn’t provide any source for his claim. But in contemporary American political discourse, apparently even “Thinkers” don’t need to provide evidence for their claims.

But in a subsequent post he backed down a little.

Perhaps it would have been more accurate in my blog post “Hillary wins the popular vote – not” to characterize the inconsistencies in the handling of absentee ballots as a town-by-town situation rather than a blanket statewide scenario. There are not, to my knowledge, any formal statutes that forbid the counting of absentee ballots until or unless the in-person state ballots have been counted first.

No laws forbidding the counting of absentee ballots. Well, that’s some comfort, but are there laws requiring their counting? He doesn’t say, and by way of evidence he gives us unnamed county officials admitting to slacking off in the vote-counting business.

However, in conversations with town officials, I have learned that it is not unusual for some officials, faced with late-night eleventh-hour time horizons and an overwhelmingly one-sided vote tally up and down the ballot, to adopt a somewhat laissez-faire attitude and call it a wrap when uncounted or unreceived absentee ballots are not of sufficient number to influence the outcome. To think that every town official adheres to an unfailingly airtight approach – even when the outcome anywhere on the ballot in that district is well beyond even the slightest question – is to have an unrealistic faith in a theoretical process that is naive to a frighteningly mind-numbing degree.

Far be it from me to be naive about local officials, but it still doesn’t answer the question of whether they are supposed to count those votes; that is, whether they have an official duty to count them.

So let’s find some slightly more authoritative source than a blog that doesn’t identify its sources. Secretaries of State are in charge of elections in their states, so what they say might have some weight.

Absentee Ballot Counts
There are widespread rumors circulating on the Internet claiming that absentee votes are not counted, or they are not counted unless election results are close. All valid votes that are legally cast in each election are counted, including absentee ballots. It can take a little longer to incorporate absentee voting tallies into final election results, but all votes are counted – regardless of whether the number of outstanding ballots can impact the results of an election or not.

Do some local officials slack off? Perhaps. But it’s clear they’re not supposed to. And as we’re seeing right now, that supposed “late night 11th hour time horizon” is bunk. States are still counting electoral ballots, because they don’t face a deadline of getting them done on election night. As the Secretaries of State go on to say,

  • In most states, absentee ballot counting begins on Election Day. Forty states and the District of Columbia follow this practice. Thirteen states of these states and the District of Columbia specify that the polls must be closed on Election Day before absentee vote counting can get underway: Alaska, Alabama, District of Columbia, Illinois, Maine, Massachusetts, Minnesota, Mississippi, New Hampshire, New Mexico, Pennsylvania, South Dakota, Tennessee and Washington.
  • Nine states allow absentee vote counting to begin prior to Election Day: Arizona, California, Colorado, Florida, Iowa, Nebraska, North Dakota, Oregon and Utah.
  • Maryland allows absentee vote counting to begin after Election Day.

[See also a state-by-state breakdown.

So a good number of states are going to be counting electoral votes after the polls close, but what is their actual deadline? In time to get a state’s vote officially certified so its electors can be made official. The National Archives and Records Administration keeps the official certifications of votes. States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors. …

December 19, 2016

The Electors meet in their state and vote for President and Vice President on separate ballots.

December 19 – 6 days = December 13. If no controversy ensues — and remember, The American Thinker’s Feinstein is specifically talking about states where the vote is not close, so no controversy is likely — the states have until then to count the absentee ballot. That “late-night eleventh-hour time horizon” occurs over a month after the election.

But, someone might argue, I haven’t proved that a complete count of ballots is actually required. There is no “national Election Code that governs the tabulation and publication of all election results.” Like most aspects of elections this is handled at the state level, a reflection of American federalism, so we have to look at it state by state. As far as I can tell from a brief search, some states don’t explicitly say that all votes must be counted, but their ballot-counting laws are written in a way that assumes votes will be counted.

For example, Florida law requires that “If any vote-by-mail ballot is physically damaged so that it cannot properly be counted by the automatic tabulating equipment, a true duplicate copy shall be made of the damaged ballot in the presence of witnesses and substituted for the damaged ballot.” Note the “any” — to know if any vote-by-mail ballot is damaged, you have to open it. The law doesn’t say “if any vote-by-mail ballot that is opened is damaged.” The legal assumption in this law is that the ballot will be counted.

California requires that the counting of absentee-ballots be open to the public, and that a member of both the Democratic and Republican county committees be present, as well as representatives from the parties of any other person on the ballot. I find it difficult to imagine that in such a situation no one would object to leaving some citizens’ votes uncounted.

Texas is more explicit.

After the polls close or the last voter has voted, whichever is later, the counting of ballots shall be conducted continuously until all the ballots are counted.

To summarize, there is no reason to believe that there is a general practice of not counting all votes because doing so is unnecessary and election officials face time constraints.

Posted in The Democratic Process | Tagged , , , , , , , , ,

Liberals, Trump, and the Anti-hero

Liberals are wondering how anyone could have voted for Trump. No single answer explains it all, but here’s what I think is part of it.

Liberals, not alone, love their comic book anti-heroes, the guy who rejects the establishment and its rules and swaggers across the stage smashing and breaking things in the name of what he thinks is right. For the fans of the anti-hero, the rules must be set aside when they get in the way.

Liberals love those characters as much as anyone else.

And so they praised Obama when he acted unilaterally in the face of a recalcitrant Congress exercising its check and balance. They even treated the Congressional majority’s exercise of its constitutional authority as illegitimate.

You don’t think Obama is an anti-hero? Of course he is. He has his dark side, bombing relentlessly in multiple countries in pursuit of goals, with no clearly defined strategic objectives. But he’s good at heart, seeking what is right and good. And when the rules get in the way, he ignores them.

But you’re not the only ones who like anti-heroes.

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Could a Unicameral Congress Better Rein in Presidential Power?

Kevin Flohe asks, “Do you think a unicameral legislature would be more or less effective at reining in executive power?”

Sorry, Kevin, but it’s a long answer. That’s why I moved it to the blog.

TL/DR version: At the margin, but the size of the effect would depend on the structure of that legislature.

I haven’t thought about that particular question before, but I’ve thought a lot about the growth in presidential power and Congress’s inability to rein it in. My answer is, at the margin, yes, but how effective would depend on the structure of that unicameral legislature.

The Framers envisioned Congress as one institution set up against another institution, the two of which could check each other effectively. What they did not seem to realize is that Congress is not one institution, not in any functionally coherent sense. Even more, it’s not simply two institutions, as we might think because it is bicameral.

In 1885, when Congress generally dominated the president, Woodrow Wilson wrote his doctoral thesis on how Congress did not provide good leadership because each member being responsible to a regionally limited set of voters, it could not focus on the national interest, only on a competing set of regional interests.

So what has changed to make presidents more powerful? Not the structure of Congress, but the system of selecting presidential nominees. Congress could dominate presidents back then because party leaders selected presidential nominees. Today the general public selects them, so party leaders, including Congressmembers, have lost that power over presidential hopefuls.

Not having that power over presidents, Congress would need to be more functionally coherent as one institution of government set against another in order to exercise effective constraints. But Congress has not become more coherent — regional interests still prevail over institutional interests.

Bicamerality is at best neutral in regards to the regional interests, but may make them marginally worse. The House is worst here, because House members are more likely to have a homogenous constituency they dare not buck.

Another important factor the Framers didn’t predict was the effect of party interest, which often works against controlling presidents, to the extent party members don’t want to harm their own party. This interacts with bicamerality, because while in any case one chamber may be desirous of checking the president and the other not, when there is divided party control of Congress bringing both chambers to bear against the president is even harder.

So now we can see what eliminating one chamber would do. It would eliminate the difficulty of needing to get two separate bodies to come to agreement on reining in a president, and how to do so. I suspect that’s what Kevin might have been thinking of. But it depends on party control. When the president’s party controls the single house of Congress, it would probably have no effect. But when the opposition party controls, the problem of the other chamber being controlled by the President’s party eager to protect their own is eliminated. So at the margin, situationally, this would likely help Congress rein in presidential power, at least more so than at present.

But just eliminating one chamber would not wholly relieve us of the regional interests that keep legislators from focusing on the national or their own institution’s interests, as envisioned by the Framers. Eliminating the House in favor of the Senate would have more effect than vice versa, but that is the less likely choice of chamber to keep if we shifted to unicameralism. So the size of the effect of unicameralism is dependent also on which chamber we keep, assuming we don’t change the remaining one.

If we change that one remaining chamber so that legislators are elected nationally — using a list proportional system, legislators would be less regionally beholden, and likely to be more able to focus on institutional interests and the national interest.

In summary, yes, a unicameral legislature ought to make reining in the president easier, at least at the margin, but the size of the effect depends on how much the legislators are distracted from collective interests by regional interests.

Posted in Executive Power | Tagged , , | 4 Comments

Gary Johnson’s Narrow Path to a Likely Loss in the House

The #neverhillary/#nevertrump crowd is looking closely at Gary Johnson’s prospects for breaking through as a third party president. Everyone agrees they are slim, but many think it’s not impossible. My conclusion is that it’s not that implausible for Johnson to deny either Clinton or Trump an electoral majority and throw the election into the House, but once in the House his odds are vanishingly remote.

This is a first-pass analysis, so I may have missed some important points, and I’m open to constructive criticism. I also haven’t yet reviewed and revised, because it’s already taken more time than I can afford to spare to write it. If parts are not clearly written, please let me know, but please don’t bother to point out minor errors.

Initial Assumptions
If we begin by assuming each party wins the states they’ve won at least three of the past four years, we get Clinton:251, Trump:212 with 75 votes outstanding in the so-called swing states. That’s a huge Hillary advantage. Just winning Florida, which over the past four elections has gone for each party two times, would put her over the top. So would winning both Virginia and Ohio. This initial electoral map looks like this: Continue reading

Posted in Politics in General | Tagged , , , , , , , | 4 Comments

How Scalia Answered My Question

Antonin Scalia once answered my question and drew a laugh from the audience. But that’s ok. The laughter was directed at someone else, and Justice Scalia was wrong.

Some years back, in need of money, I sacrificed part of my summer to teach AP American Government in the Junior State of America summer program in Washington, D.C. One of the highlights of the program was lectures by various government officials, and on one of those days we trekked down to the Supreme Court to listen to Justice Scalia.

At some point in his talk Scalia mentioned that everyone should read the Federalist Papers, because that’s how we know how to interpret the Constitution. Having talked about the federalists and anti-federalists in my class, I leaned over to one of my students and and whispered, “Ask him if we should read the Anti-federalist Papers.”

My student raised his hand, Scalia called on him, he asked the question, and Scalia responded, “The anti-federalists? They lost!” And everyone laughed at my poor student.

But Scalia was wrong, and wrong in a disturbing way for a man who claimed to be an originalist. The anti-federalists, it is true, did not stop the Constitution from being ratified, but they did help shape public understanding of the Constitution, and most importantly, they were the driving force behind the adoption of the Bill of Rights. A bill of rights was the price to pay for getting the Constitution ratified, and the federalists paid it. Herbert Storing, the great constitutional historian and editor of The Complete Anti-Federalist, said that the anti-federalists were equally deserving of being called Founders of the Republic.

The Federalist Papers, as critical as they are, were written to explain, defend, and promote a Constitution that lacked the current Bill of Rights. In fact in Federalist 84 Alexander Hamilton argues against a bill of rights.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta… It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

The Federalist Papers, then, are no real guide to interpreting the Bill of Rights, because they refer only to a Constitution that lacks one. It is the anti-federalists who make clear to us the purpose and meaning of the Bill of Rights.

There is one bit of guidance, though, in Hamilton’s argument, when he says that bills of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He sees this as a danger, and the clear implication is that properly understood, we should not see the Bill of Rights as an exclusive list of rights; that the absence of a mention in that list does not mean the absence of a right. Madison and the First Congress tried to mitigate this danger with the 9th Amendment, but Scalia famously disliked that Amendment, claiming it was outside the purview of the courts.

Scalia not only misunderstood the role of the anti-federalists, and not only misunderstood the limitations of the Federalist Papers, but given the one a clear statement in those Federalist Papers–which he claimed were how we understand the Constitution–about bills of rights, he ignored it.

There have been a number of articles written about Scalia’s interpretive incoherence. I generally agree with them all. Scalia’s textualist originalism was a pose, a persona, employed primarily as a marketing tool for the Scalia brand rather than as a serious tool for constrained legal analysis. Anyone who doubts this need look no further than Gonzales v. Raich, where Scalia ignored his own prior originalist arguments about the limits of the interstate commerce clause so he could uphold federal regulation of marijuana grown for personal consumption. But brand identity is often far more powerful than the underlying reality, in large part because it is more comforting and less challenging. I don’t expect conservatives to admit to, or even privately recognize, that Scalia is largely a myth, because conservatives are no more likely than anyone else to relish the discomfort of seeing past their favorite brand images.

Posted in Laws | Tagged , , , , | 3 Comments

Sodomy and Strategy

Social media is agog with the claim that Michigan lawmakers are considering a bill to ban anal and oral sex, aka sodomy. Here I explain two things. 1. Why the claim is false, and Michigan lawmakers are doing no such thing because sodomy is already banned in Michigan but not really. 2. Why Michigan lawmakers aren’t removing the ban. Remember, I’m a professional political scientist; do not try this at home.

1. Michigan Is Not Trying to Ban Sodomy; It’s Already Banned (but not enforceable)
This headline from rawstory is typical of what’s been going around social media today.

rawstory
And it’s not just them. In addition to a number of ignorant bloggers, lots of “news” sources are reporting this false claim.
sodomypages

But, no, the sponsor of this bill, Rick Jones, is not trying to ban sodomy–he’s trying to keep people convicted of animal cruelty from adopting animals. The text of the bill is here.

In part of the bill Jones was defining to whom the law applied, and that part of the bill contained the language about “abominable and detestable crime against nature either with mankind
or with any animal.” But that language already exists in the law–it’s not new language. Here is a screen capture of the relevant part of the bill.

sodomybilltext
What you see here is the current language of the law marked up for the bill. The bolded text is proposed new language, the strikeout text is proposed deletions, and the text that’s neither bold nor struck out? That’s what the law already is.

So this bill would not criminalize sodomy. Jones was not making any proposals about sodomy at all. And while it would be good to eliminate that language, the truth is that it’s dead language anyway; it’s not enforceable. The Supreme Court ruled laws banning sodomy unconstitutional in Lawrence v. Texas back in 2003.

So all you Michigan sodomites can just relax; the cops won’t be breaking down your doors when you commit this abominable and detestable crime against nature.

And all those “news” sources that are reporting this falsely should be condemned for dishonesty and/or laziness in the strongest terms. We may need journalism, but that doesn’t stop 98% of journalists from being the worst kind of hacks.

2. So Why Not Get Rid of that Language? Because of Strategy
First of all, because Jones is focusing on something entirely different, and everyone’s just mad that he’s not focusing on their pet issue, which they wouldn’t even be aware was an issue if he wasn’t focusing on that other thing. Right? So give him a break.

More importantly, he’s trying to be a smart strategic lawmaker. In his own words,

“The minute I cross that line and I start talking about the other stuff, I won’t even get another hearing. It’ll be done.”

Let’s break down the sausage works of legislation here.
1. Jones needs a majority of lawmakers to vote in favor of his bill.

2. Some lawmakers will vote against the bill, because any bill that is not a purely symbolic statement of American greatness and the importance of mothers will have somebody voting against it.

3. So Jones doesn’t want to encourage extra votes against his bill by tacking on an issue that’s irrelevant to his main issue.

4. Some small number of legislators would vote against a bill deleting unconstitutional language from the law just because they’re uptight moralists who oppose sodomy (and probably rum, but not the lash) and want to keep it illegal even if the law can’t be enforced.

5. Some larger number of legislators don’t care much one way or the other but don’t want the folks back home–and a future campaign opponent–accusing them of favoring sodomy, so they might vote against changing that language because it just isn’t worth the trouble.

6. Add the lawmakers in items 2, 4 and 5 together, and maybe there’s a majority against a bill that deletes the sodomy language. Leave the unenforceable sodomy language, and you only have to worry about the lawmakers in group 2.

It’s that simple.

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