The NonSequitur

There is a old but reliable theme in political discussion: the gulf between the rights of individuals and the objectives of the state.  Liberal democracies are posited on the premise that the objectives of the state must be in the service of individuals and are constrained by their antecedent rights.  That's why constitutions bind modern democracies.  They are ground rules (among other things) for ensuring individual liberties are protected.

The equal protection clause of the 14th Amendment is an extension of the moral rule of equity; namely, that one must judge all morally similar cases similarly.  The motivating conditions for the 14th Amendment was racial discrimination.  And so, the race of an accuser or the accused is a morally insignificant fact. Consequently, accusations and and cases must be adjudged independently of the race of the people in question.  The basic thought is that we have a right for the rule of equity to govern our legal standing, too.  Laws must equally apply, and the protections from interference by the state must follow these rules.

The thought with equal protection, then, is that (regardless of the fact that the Amendment was occasioned by race) we should follow the rule of respecting individual rights.  Any government must meet a very high standard of scrutiny if it is to interfere with one group's rights, but not another's.  Prohibitions against gay marriage don't meet that standard. Neither did anti-miscegenation laws.  (Same 14th Amendment equal protection clause invoked in both rulings.) California's Proposition 8 is a case of a state interfering with individuals on the basis of a morally irrelevant difference. 

Now, Mark Trapp, at the American Spectator, says that the recent decision to overturn to Proposition 8 is a case of federal  judges "imposing their personal policy preferences, the will of the people notwithstanding."   This is a pretty serious charge, one implies that the decision (and perhaps all judical review) is undemocratic. But if the people willed to take all the rich people's money and cars, that'd be rightly stopped.  If the people voted to prevent all left-handed people from driving, then that'd be rightly stopped, too.  That might be "imposing" a policy preference, but it'd be one guaranteed by the 14th Amendment. 

Trapp seems to think that judicial overturning of a legislative decision is an Federal imposition on a state's sovereignty, and ultimately, individual sovereignty:

Rather than determine for themselves such fundamental issues as abortion and same-sex marriage, many seem resigned or even content to having such momentous public policy decisions made by judges — for whom they do not vote and against whom they have no recourse. 

My question is how can one be in this case a person committed to States' Rights and the organizing value of the Constitution's protection of individual rights on this issue?  If it turns out that California's Proposition 8 runs afoul of the 14th Amendment, then California does not have the right (regardless of the vote count, 52% to 98%) to discriminate. 

You know, one of the few things I find appealing about conservativism is the individualism at its core.  That seems right to me.  But how does States' Right fit in that equation?  Why does a Federal decision over a State's decision matter to someone who cares about individual rights?  If the state is in the wrong and has run afoul of equal protection, isn't it a good thing to have a Federal Government to protect those rights?  I mean, what kind of individualist rationalizes oppression by saying "it's morally irrelevant unequal treatment, but it's the way we do it here." ?  How is the fact that it is here a morally relevant category?

The payoff for informal logic is that I think that some tu quoque arguments can reveal cases of bias and double standards.  Trapp's argument is that protecting the individual liberties of homosexuals with the 14th Amendment contravenes the individual liberties of those in the majority who want to discriminate against homosexuals.  And that's undemocratic and unjust.  You see, Trapp loves liberty so much…

My colleagues have challenged me to look deeper into the abyss.  I did.  This is what I found (courtesy of Sadly, No!):

In February of 2010, ABC News published an article regarding the 2009 enacted right to carry law in National Parks. Perhaps unsurprisingly, the article struck a tone straight out of a Brady campaign spot. A mosaic of Chicken Little ’sky is falling’ was painted in broad strokes and platitudes. All in response to a common sense measured signed into law by president Obama allowing citizens to carry a concealed firearm in the nation’s National Parks.

It’s a song and dance that we on the right have grown to be accustomed with concerning second amendment rights and the press. Virulent anti-gun groups and mainstream press outlets essentially spout the same talking points. We expect this, we accept this.

But with the recent grizzly bear attack near Yellowstone National Park that killed one and left two injured, one may wonder if the typical progressive, anti-gun canard still holds water?

I for one appreciate his patience.  But in any case, one has to wonder how the extremely rare (but nontheless terrifying) prospect of bear attacks on national forest property undermines the "typical" progressive case against gun rights.  One wonders this, in the first place, because the attack in question occured in a place (Gallatin National Forest) where you can carry unconcealed firearms.  From the National Forest FAQ:

Can I carry a firearm on the national forest? back to top

Possession of firearms. The possession and unconcealed carry of a firearm on the national forest is not restricted by federal law or Forest Service regulations with the exception of “prohibited possessors,” such as convicted felons (see 18 USC 922g (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+18USC922) and ARS 13-3101 (http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/03101.htm&Title=13&DocType=ARS). State laws regarding the concealed carry of firearms and the carrying of weapons within or on a motor vehicle apply to all National Forest System lands.

Discharge of firearms. National Forest regulations prohibit the discharge of a firearm within 150 yards of a residence, building, campsite, developed recreation site, or any other occupied area; across a road or any body of water adjacent to a road; into or within a cave; or in any negligent manner that could endanger life or property (see 36 CFR 261.10d) (http://edocket.access.gpo.gov/cfr_2007/julqtr/pdf/36cfr261.10.pdf). The Tonto National Forest also has areas that are closed to recreational shooting year-round due to proximity to local communities (see Forest Closure Orders). During periods of high fire danger, additional restrictions on the use of firearms may be imposed. None of the temporary or year-round restrictions prohibit the use of a firearm in the lawful taking of game.

So a very rare bear attack on an unnarmed person (who could legally have been armed) somehow undermines the "typical" progressive anti-gun canard (not sure what that is).  Anyway.  It gets more entertaining:

Moments like this are teachable. Liberals love to go down the subjunctive mood route and justify positions within theoretical conditions. But those theoretical positions always fit the progressive mold and worldview. And as any student of history and logic knows there are always two sides to the hypothetical reasoning coin.

Therefore, I can add that if even one of the victims of Yellowstone/Soda Creek Campground grizzly attack had a concealed permit, and had been armed, the outcome early Wednesday morning may have been quite different.

And the anti-second amendment crowd will never admit that.

A teachable moment indeed, but I don't know what I am supposed to have learned.  Few could dispute that the second amendment (like the first, second, third, etc.) admits of some obvious restrictions as to nature and place (among other things).  Everyone knows what those are.  So it's not opposition to the 2nd amendment that's at issue.  It's opposition to the carrying of concealed firearms in certain situations.  But we've already established that this isn't one of them, so the hypothetical doesn't work in the first place.

Besides, how does having a concealed weapon help you in the bear attack scenario? 

Too much of our critical political discourse depends on one single virtue: consistency.  This is why Pat Buchanan, a man who writes articles (I am not exaggerating) in praise of Hitler–is a kind of pundit saint.  Since consistency matters, and consistency depends on memory–or rather, detecting someone's inconsistency depends on remembering what she's said in the past, let's have some fun with our favorite son on an economist, Robert Samuelson.  Samuelson, is like the captain bringdown of the Post editorial page.  He's got a droopy mustache, a dour expression, and he poo-poos just about everyone who tries to do something about something–environmentalists are dumb and self-indulgent for buying Priuses!. 

For a while–for those who remember–Samuelson been poo-pooing Obama's "self-indulgence" on health insurance reform.  A more competent rhetorical analyst, by the way, might have fun with the way he always goes ad hominem on Obama–treating his own impoverished and uncharitable image of Obama rather than Obama's stated positions (he even admitted once that this was his own problem).  But it's worthwhile to poke fun at Samuelson's priorities.  Way back before we spent 700 plus billion dollars in Iraq, chasing what turned out to be an easily uncovered deception, here is what Samuelon wrote:

A possible war with Iraq raises many unknowns, but "can we afford it?" is not one of them. People inevitably ask that question, forgetting that the United States has become so wealthy it can wage war almost with pocket change. A war with Iraq would probably cost less than 1 percent of national income (gross domestic product). Americans have grown accustomed to fighting with little economic upset and sacrifice.

Pocket change.  In reflecting on this piece (called "A War We Can Afford") Samuelson wrote:

Yes, that column made big mistakes. The war has cost far more than I (or almost anyone) anticipated. Still, I defend the column's central thesis, which remains relevant today: Budget costs should not shape our Iraq policy. Frankly, I don't know what we should do now. But in considering the various proposals — President Bush's "surge," fewer troops or redeployment of those already there — the costs should be a footnote. We ought to focus mostly on what's best for America's security.

When it comes things that are actually real, on the other hand, Samuelson is skeptical:

When historians recount the momentous events of recent weeks, they will note a curious coincidence. On March 15, Moody's Investors Service — the bond rating agency — published a paper warning that the exploding U.S. government debt could cause a downgrade of Treasury bonds. Just six days later, the House of Representatives passed President Obama's health-care legislation costing $900 billion or so over a decade and worsening an already-bleak budget outlook.

900 billion?  That figure is almost exactly what we've spent in seven years of war.  Weird.  But this time cost is all that matters. 

True story.  A few years back one of my students had confused some minor matter about a text of Plato.  When I pointed that out, another student commented: "He has a right to be wrong."  That odd justification comes out in a George Will op-ed where he, unlike his usual, argues for new rights not enumerated in the constitution.  Now of course he probably thinks he can get there with a series of individually valid inferences.  Fine, but you have to understand that any other time one maintains a right not specifically enumerated in the Constitution, Will will shout "judicial activism" or some other synonym.  Don't get me wrong, I believe in the concept of inferential rights, I just think it's funny that Will doesn't, until he does.

This is not to say, however, that Will does not have a point.  He may, but I think, as is perhaps no surprise, that his argument for it sucks.  He maintains as a kind of premise one that liberals want to coerce others to believe like they do–this is their MO, which is a word the very pretentious Will would likely spell out: Modus operandi.  It's a little ironic, since the specific topic in question concerns the desire of some (not the liberals) to limit the rights of others to engage in private, self-regarding behavior.  Some people, not happy with the structure of our democracy (where fundamental rights get interpreted out of the Constitution sometimes), gather signatures to put such matters on the ballot.  This raises an important question: are signatures on referendums like voting and therefore private? 

I think it's fair to say that such a question admits of no easy answer.  But just because it doesn't admit of an easy answer, does not mean any answer, such as the following one offered by Will, will suffice:

The Supreme Court has held that disclosure requirements serve three government interests: They provide information about the flow of political money, they deter corruption and avoid the appearance thereof by revealing large contributions, and they facilitate enforcement of contribution limits. These pertain only to financial information in candidate elections. These cannot justify compelled disclosures regarding referendums because referendums raise no issues of officials' future performance in office — being corruptly responsive to financial contributors. The only relevant information about referendums is in the text of the propositions.

In 1973, Washington's secretary of state ruled that signing an initiative or referendum petition is "a form of voting" and that violating voters' privacy could have adverse "political ramifications" for those signing. In 2009, some advocates of disclosure plan to put signers' names on the Internet in order to force "uncomfortable" conversations.

In the interest of fairness, something I'm always interested in by the way, the above two paragraphs make some attempt at arguing for the position that referendum signatures ought to be private.  I think their attempt fails: The first is irrelevant to the particular issue and the second cites the irrelevant precedent of the secretary of state.  A referendum petition by any standard is not a vote: you sign your name and put your address on it for the purposes of public inspection of its authenticity.  You do not sign your vote. 

In any case, the following arguments for the above proposition really blow:

Larry Stickney, a social conservative and president of the Washington Values Alliance, says that disclosure of the identities of petitioners will enable "ideological background checks" that will have a chilling effect on political participation. He frequently encounters people who flinch from involvement with the referendum when they learn that disclosure of their involvement is possible. He has received abusive e-mails and late-night telephone calls and has seen a stranger on his front lawn taking pictures of his house.

The Wall Street Journal's John Fund reports that some Californians who gave financial support to last year's successful campaign for Proposition 8 — it declared marriage to be only between a man and a woman — subsequently suffered significant harm. For example, the director of the Los Angeles Film Festival, who contributed $1,500, was forced to resign. So was the manager of a fashionable Los Angeles restaurant who contributed just $100.

The first paragraph offers evidence that vociferous advocates may suffer the paranoia that comes along with taking an unpopular position on a matter of public interest.  It does not establish that a private citizen whose only action was signing a petition may suffer these things.  The second paragraph shows that people who have given financial support, something about which disclosure has been determined to be legitimate (and admitted to by Will himself only a three paragraphs before) have suffered harm.  I don't think one can be fired for one's political affiliations–there are laws against that I believe.

Charles Bouley, a gay columnist, has honorably protested such bullying. He says that people "have the right to be wrong," and reminds gay activists: "Even Barack Obama said marriage was between a man and a woman at a time when we needed his voice on our side on equality. He let us down, too, remember, and many of you still gave him a job."

Indeed, people do have a right to be wrong, and others have a duty to point that out.

David Broder argues today that while he supports accountability for illegal acts and serious breaches of trust, he does not support investigating illegal acts and serious breaches of trust.  I have trouble putting these two claims together:

First, we should investigate and hold accountable the guilty:

My friend and fellow columnist Eugene Robinson has written a characteristically passionate and well-reasoned piece commending Attorney General Eric Holder's decision to name a special counsel to examine possible law-breaking by interrogators of terrorist subjects during the last administration.

But I think he is wrong.

First, let me stipulate that I agree on the importance of accountability for illegal acts and for serious breaches of trust by government officials — even at the highest levels. I had no problem with the impeachment proceedings against Richard Nixon, and I called for Bill Clinton to resign when he lied to his Cabinet colleagues and to the country during the Monica Lewinsky scandal.

I'm all for that as well.  Now the second claim:

Cheney is not wrong when he asserts that it is a dangerous precedent when a change in power in Washington leads a successor government not just to change the policies of its predecessors but to invoke the criminal justice system against them. 

Illegal acts.  The policies of the previous administration may have involved–may have involved–illegal acts.  Their being policies of an administration does not remove them from the realm of legal and illegal.  At least I hope it does not.  Broder continues.

I think it is that kind of prospect that led President Obama to state that he was opposed to invoking the criminal justice system, even as he gave Holder the authority to decide the question for himself. Obama's argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds — and that should be sufficient. 

Accountability for illegal acts.  Now for some self-congratulation:

When President Ford pardoned Nixon in 1974, I wrote one of the few columns endorsing his decision, which was made on the basis that it was more important for America to focus on the task of changing the way it would be governed and addressing the current problems. It took a full generation for the decision to be recognized by the John F. Kennedy Library Foundation and others as the act of courage that it had been. 

It's hard for me to understand the logic of this argument.  If Broder took the position that Clinton should have been impeached for lying in a civil deposition (lying to the country and his cabinet colleagues was not the crime in question, I think) about the character of an adult consensual relationship with a former employee, then how does it not follow that much more serious crimes (such as torture, murder, conspiracy, etc.) deserve at least to be investigated by the criminal justice system? 

I think right now we have a system that rations health care.  It denies it to  the 47 or so million people who don't have insurance; it restricts health care to the people who don't have enough insurance; it denies it those people who get sick or have a preexisting condition; and it limits it those people who can't afford the limits and co-pays.  The real worry, however, for Michael Gerson, is whether (1) somehow people can afford abortions–a  procedure which is legal; (2) whether there will be rationing.  To be fair, he admits–sort of–that there is rationing.  Rationing done by insurance companies. 

The same is likely to be true of end-of-life issues. Talk of "death panels" is the parody of the debate — hyperbolic and self-defeating. But a discussion about the prospect of rationing in a public health system is not only permissible but unavoidable. Every nation that has promised comprehensive, low-cost health coverage for all citizens has faced a similar dilemma. Eventually it is not enough to increase public spending or to reduce waste. More direct forms of cost control become an overwhelming priority. And because health expenditures are weighted toward the end of life, the rationing of health care often concerns older people most directly.

Keith Hennessey, former director of the National Economic Council, puts the dilemma simply: "Resources are constrained, and so someone has to make the cost-benefit decision, either by creating a rule or making decisions on a case-by-case basis. Many of those decisions are now made by insurers and employers. The House and Senate bills would move some of those decisions into the government. Changing the locus of the decision does not relax the resource constraint. It just changes who has power and control."

So he admits it.  It would be nice at this point to talk about the effectiveness or the fairness of the current program of rationing.  But no.  

Because no one likes to ration directly, nations such as Britain and Germany employ "comparative effectiveness research" to lend an air of science to the process of cost constraint. Are "quality-adjusted life years" worth the public expense of a new drug or technology?

This type of question is unavoidable when resources are scarce and planners take charge. They seek to rationalize the inefficient medical decisions of families, doctors and insurance companies. But the very process of imposing a rational structure gives government extraordinary power. And the approach taken by planners is, by necessity, utilitarian — considering the greatest good for the greatest number. Decisions cannot be made on a human scale.

On the rough ethical edges of life and death, American health care has adopted messy, inefficient, decentralized compromises that a nationalized system is likely to overturn. Particularly if that system is imposed on a "go-it-alone" Democratic strategy, the divisiveness is only beginning.

The weird thing about this argument is that the insurance company is now the victim–not the perpetrator–of rationing.  On the current system, they're the ones who decide who gets covered and who doesn't.  The basis of their choice is a very simple and efficient one: (1) who is not sick; (2) who can pay.  The very idea of alternative system, one which bases decisions on care on some kind of principle (and no for Pete's sake it doesn't have to be by necessity "utilitarian") to Gerson raises the specter of Soylent Green.  It's people folks, it's PEOPLE.