Category Archives: Law and Politics

Elections, Law and Politics

#251: Voter Unregistration Law

4 Comments

This is mark Joseph “young” blog entry #251, on the subject of Voter Unregistration Law.

As I was reading the majority opinion of Husted, Ohio Secretary of State v. A. Philip Randolph Institute et al., 584 U. S. ____ (2018), I wondered how anything so obvious could possibly have been a controversial five-to-four decision along ideological lines.

Then I read the dissent, and realized that this was not a simple case, and it is not a mystery why it kept flip-flopping its way up the ladder to the Supreme Court.  Ultimately, though, it comes down to whether when we read the statute we read it as and or or.

Here’s the background.  Prior to 1993–which for some of you seems like ancient history, but is really not that long ago–state governments had a lot of ways of removing voters from the registration lists so that they couldn’t vote.  One of the most egregious was that if you missed an election one year the system concluded that you had either moved or died, and removed your name from the lists with the result that if you arrived the next year you would discover that you weren’t registered and couldn’t vote.  To remedy this, the Clinton administration passed the National Voter Registration Act (NVRA), which both required states to maintain current voter registration lists (which included removing ineligible voters) and limited how they could remove persons from the list.  It was tweaked a bit in 2002 when Bush (the second Bush) signed the Help America Vote Act (HAVA), which attempted to clarify some of the statements in the previous law.  Ohio has a system which it maintains is consistent with the requirements of those laws, by which it removes persons from the voter lists based on a multi-step process.  The majority agrees; the dissent disagrees.

It will help significantly to look at the statutes themselves, large portions of which Justice Breyer appends to his dissenting opinion.

The focus of discussion begins with §8(b) of the NVRA

Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—

(2)

shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.

The HAVA modifies that to say solely by reason of the person’s failure to vote, probably because of confusion with §8(d).  That section lays out a somewhat complicated process for verifying that a voter has moved out of the voting district in which he is registered.  The simple way is for the registrant to confirm in writing that he has moved.  The law recognizes that a lot of people won’t do that, and so provides an alternate method involving sending (by forwardable mail) a postpaid return card which permits the recipient to respond confirming that he still lives at the stated address or that he does not.  If the card is returned, the registrar of voters accepts the statement as true and the matter is resolved.  If the card is not returned and the voter does not vote in the next two federal elections he may be removed from the list.  (Federal elections occur every other year because terms for The House of Representatives are two-year terms.)

At issue is under what circumstances such a card can be sent.  §8(c) specifies that if the state obtains change of address information from the Post Office, it must verify that information by following the procedure just outlined.  However, §6(d) specifies that the same confirmation process should be used if voter registration materials are sent to a registrant by non-forwardable mail and are returned as undeliverable.  It thus appears that there is more than one way by which the registrar of voters might have reason to believe that a voter has left the voting district, triggering the §8(d) process.

Here is where it gets tricky.

Ohio’s system works like this.  If a registered voter fails to vote for two consecutive years, or to engage in any other voter-related activity such as signing petitions, a forwardable post-paid return card is sent to that voter’s registered address.  If the card is returned, that’s the end of the matter.  If the the card is not returned, Ohio gives four additional years (covering at least two Federal elections at least one of which is a Senate race and one a Presidential race) to vote or engage in other voter activity, after which the non-voting voter is removed from the voter registration list.

The majority says that this is a reasonable method, perfectly in keeping with §8(d).  The failure to vote alerts the registrar of voters that this person might not live here anymore, and because the person fails to respond to the return card confirming their presence and at least two additional Federal elections pass in which they do not vote, they can be removed.  The majority takes the language in §8(b)(2) to put an end to the practice of removing voters solely for failure to vote by requiring the confirmation process of §8(d).  They note that some states send such cards regularly or randomly to confirm addresses, and Ohio’s system complies with their understanding of the §8(d) process.

The dissent says that such cards are for confirmation of information gained by some other means, such as from the Post Office (§8(c)) or through a different mailing verification process (§6(d)).  They assert that the point of §8(b)(2), that no one should be removed soley for failure to vote, means that failure to vote cannot be the trigger to send the returnable card.  They claim that the §8(d) confirmation process must be triggered by something other than failure to vote.

Perhaps the strongest point in favor of the dissent’s position is that one of the stated purposes of these two laws is to increase voter registration and prevent eligible voters from being removed from the list inappropriately.  The fact that someone doesn’t vote for a couple years does not mean they are no longer in residence in the district, and the fact that they fail to return a postpaid card confirming that they are present is not a particularly telling confirmation of anything.  As the dissent argues, the majority of people probably won’t bother returning such a card.

The majority points to the statute on that, noting that both the Federal legislature and the State of Ohio believed that the non-return of such a card would be an adequate indicator that the person has moved.  The argument is that a person who does not vote and does not return the card is not being removed “solely” for failing to vote, but for failing to vote over the course of six years and failing to return a confirmation card.  The question is whether the state can send the confirmation card based on two years of failure to vote, or whether that constitutes removing them “solely” for failing to vote.

In favor of the majority, though, if §8(b)(2) means what the dissent claims it means, it is poorly worded.  The majority reading is not at all awkward or implausible, and the Ohio system appears to fit the §8(d) requirements with room to spare.  Despite the ranting of the minority, the majority opinion does seem the more natural reading of the text.

The upshot is that the Ohio system stands, and many other states with similar systems will not be challenged.  Removal from the voter rolls solely for failure to vote is not permitted, but it can be the trigger that leads to an inquiry by mail as to whether the voter still lives in the district.

Law and Politics

#247: The Homosexual Wedding Cake Case

Leave a comment

This is mark Joseph “young” blog entry #247, on the subject of The Homosexual Wedding Cake Case.

The case, as decided by the United States Supreme Court, is MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL., 584 U. S. ____ (2018), and it is one which I, at least, have eagerly anticipated.  It is the case in which the baker was convicted of violating the civil rights of a gay couple by refusing to design a wedding cake for them, on the grounds that it was an artistic expression which violated his rights of freedom of speech and religion.  It had been expected to help find the point at which religious objections to homosexuality would or would not stand against legal rights of homosexuals, although it does not seem to have done so.

The media has called this a “narrow” decision, and many have asked how it can be “narrow” if it is a 7-2 vote.  The narrowness is entirely in what was decided.  Virtually nothing concerning the balance between religious freedom and homosexual rights is solved by this case, which in its majority opinion decided only that the Colorado Civil Rights Commission seriously violated the protected religious freedom of the baker, Jack Phillips, and so its ruling could not stand.  It observed that in Colorado in the year these events occurred such a refusal was reasonably understood to be legal, although it might not be so now (because Colorado had not legitimized homosexual marriage at that time and has since done so).  However, the case is a slap in the face of progressivist atheists who want to force the opinions of religious conservatives out of the political and commercial arenas.

Justice Kennedy delivered the opinion of the court, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch–six votes for the majority opinion.  Justice Thomas filed an opinion concurring in part and concurring in the judgment, which gives seven votes for overturning the Colorado decision, and Justice Ginsberg dissented, joined by Justice Sotomayer–but the splintering went beyond that, as Justice Kagan wrote a concurring opinion in which Justice Breyer joined, and Justice Gorsuch wrote a concurring opinion in which Justice Alito joined, so we have five written opinions on the matter, and a very small sliver of agreement on the issues.

Justice Kennedy begins by clarifying that in all matters in which religious liberty is at issue, the State is required to be a neutral arbiter showing a respectful attitude for the expressed religious beliefs of the parties involved.  It is certainly possible that a businessman might be compelled to provide services to which he objects, provided that the law is religiously neutral and does not directly attack his beliefs.  The problem in the Masterpiece case is that far from neutrality there was evident animosity toward religion.  In the first hearing, one of the commissioners said that Phillips can believe “what he wants to believe” but cannot act on those beliefs “if he decides to do business in the state.”  The same commissioner restated that view moments later, according to the record, saying “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.”  At the next hearing, a different commissioner was recorded saying

I would also like to reiterate what we said in the hearing or the last meeting.  Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be–I mean, we–we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to–to use their religion to hurt others.

Kennedy noted that this twice disparages the baker’s religious beliefs, first by calling them “despicable”, and again by claiming they are mere rhetoric having no substance or sincerity.  None of the other commissioners present objected to these statements, and they were never repudiated in the record that included appeals courts in Colorado and an appeal to the Supreme Court.

Yet if we think this is just rhetoric, that somehow the expression of such hostility toward the baker’s religious views did not indicate judicial bias against him, Kennedy goes beyond this to observe that the same commission during the same period of time considered three other cases in which bakers who declined to make cakes for specific groups were cleared of any wrongdoing based on their claim that it would have compelled them to make statements they regarded offensive.  In all three cases, the bakers had been asked to make cakes expressing anti-homosexual views, and refused to do so.  The commission in those cases concluded that the bakers could not be compelled to express opinions they considered offensive.  In this case, however, the commission claimed that the opinion expressed on the cake would be attributed to the purchasers of the cake, not the baker, and so his speech was not protected.  Further, in the other cases the commission said that the fact that these bakers were willing to sell other products to the customers absolved them of the charge of refusing to do business with those customers, but in this case they said that Phillips’ willingness to sell birthday cakes, cupcakes, cookies, even shower cakes, was irrelevant given his refusal to make a wedding cake for them.  The lower court, it was noted, dealt with this in a footnote, to the effect that the cakes requested in the other cases would have required expressing offensive statements, but the one in this case did not–which, as Kennedy notes, is passing judgment on the religious values of the baker by declaring that what he finds offensive is not offensive.

Thus the case that Phillips’ won is in essence that his religious views were mistreated by the judicial process, which should have accorded them greater respect–particularly as the commission for the protection of civil rights in this case is also charged with protecting the civil rights of religious groups.  The point is made that this case says nothing about how such cases might be decided in the future, but that the religious views and liberties of individuals involved must be respected and treated impartially by the government.

So, what about all those other opinions?

Justice Kagan makes the point that the decision is limited specifically because it is based on the express bias of the adjudicators.  She asserts that the commission could have treated the religion issue respectfully and impartially and still reached the same result, and that the other cases can be distinguished on the basis that the bakers would not have made cakes with those messages for any customer, but Masterpiece would have made wedding cakes for heterosexual customers.

It is a slim distinction, which Gorsuch rejects in his concurring opinion.  He first notes that when religious rights are threatened by legal action, strict scrutiny applies–the government has a heavy burden to prove complete neutrality in regard to religion in the case.  He is satisfied that the majority opinion reaches that result.  As to the cake, Gorsuch agrees with the baker in distinguishing a heterosexual wedding cake from a homosexual wedding cake, against Kagan’s view that a wedding cake is a wedding cake, and the distinction is prejudicial against the customer.  Yet Kagan asserts that requiring a baker to make an anti-homosexual cake with messages the baker finds offensive is something that baker would not do for anyone, and thus distinct–but in this case, she is making a distinction where in the other case she is generalizing.  That is, the baker is being asked to make a cake with a message written on it, and if the message is not an expression of the baker’s beliefs he cannot discriminate based on the message.  If a baker can say he will make a cake with the message, “Congratulations on your fiftieth wedding anniversary and enjoy your cruise” but he won’t make a cake with the message “Homosexual perverts will not possess God’s kingdom”, he is discriminating based on his own beliefs, making one message cake for one customer but not making another message cake for another customer.

Before Gorsuch explores this he notes that the commission changed its legal standards between the two kinds of cases.  In both cases, the persons most likely to purchase the type of cake in question were members of a protected class.  In the case in which the commission agreed with the bakers that the message was offensive, they said that there had to be a showing of actual animus toward the class for the charge to stand; in the case in which they disagreed with the baker’s views, they said that such animus could be presumed by the recognition of the effect on the protected class.

Justice Thomas agrees with the court in its assessment of the religious prejudice, but he asserts that the baker’s freedom of speech is also impinged in this case.  He notes that the Colorado Court of Appeals agreed that Phillips’ work was expressive, crafting individual wedding cakes for customers, meeting with the couple and working to express them in the artistic project that is their cake.  He demonstrates that a wedding cake itself is a communication that a marriage is occurring.  Ultimately, he holds that freedom of speech must allow persons to refuse to create anything that expresses endorsement of a view with which they disagree, even if it is a culturally favored view.

Justice Ginsburg disagrees.  She says that notwithstanding Phillips’ claims, most observers would not recognize a wedding cake as expressing a message, and certainly not a message from the baker.  She says that the evidence of bias is insufficient and there is no significant hostility toward religion here.  She then makes the same argument made by Kagan, that a wedding cake is a wedding cake, which as has been shown is flawed.

In conclusion, the case does rule that religious opinion, including specifically Christian opinion that homosexual marriage is immoral, is protected and should be treated with respect.  It does not rule that Christian bakers can en masse refuse to make cakes for homosexual weddings, but that if they do so any legal action taken against them must be adjudicated impartially and with respect for the religious views of the bakers.  Depending on the circumstances, the baker might still be compelled to make such a cake or punished for refusing to do so.

The conflict continues.

Law and Politics

#241: Deportation of "Dangerous" Felons

Leave a comment

This is mark Joseph “young” blog entry #241, on the subject of Deportation of “Dangerous” Felons.

The United States Supreme Court decided a case entited Sessions v. Dimaya (84 U. S. ____ (2018)) which has created a bit of a stir.  The basics of the case are that the defendant/respondent Dimaya (pictured) is a long-time legal resident alien twice convicted of burglary under California law, and Immigration and Naturalization Services decided to deport him under a law that permits the deportation of any non-citizen who commits an “aggravated felony”, as defined by 18 U. S. C. §16, which includes the wording “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The majority opinion, written by Justice Kagan, held that that provision was “void for vagueness”, relying on a previous case which considered similar language in another statute.

What has the legal news world buzzing is that Justice Gorsuch concurred with most of that opinion, and with the judgment, although he also wrote a separate concurring opinion explaining his position.  Chief Justice Roberts and Justice Thomas both wrote dissenting opinions, and the court split five-four, Gorsuch viewed as the swing vote in a ruling that otherwise had the liberal members of the court in the majority.

There is much about the case that is interesting, and some that is at least confusing, as it raises many varied legal issues and viewpoints.

The argument of the majority seems to be that there is no way to tell whether burglary is an aggravated felony.  The majority says that the statute would require the court to consider not the elements of the crime itself, nor the specifics of the facts of the case, but the “ordinary case”, and then demonstrates how foolish it is to attempt to identify the “ordinary case” of a wide range of serious felonies.  For example, is the ordinary case of kidnapping an armed ruffian grabbing a victim off the street at gunpoint and forcing him into a van to hold for ransom, or a non-custodial parent quietly picking up a child from school?  It becomes impossible to tell, they maintain, whether any given crime, in the “ordinary case”, is necessarily likely to be violent.

Already I am confused.

When I was prepping for the bar exam a quarter century back, I had to learn a list of what was I think ten “dangerous felonies”.  I remember the list, which included both actual and attempted versions of each crime, as including murder (intentional homicide), robbery (theft by force or threat of force), assault (threat of force), arson, rape, and riot–six out of ten, not too bad, and was burglary one of the ones I missed?  A quick internet search finds a felony murder list (well described at that link) to include kidnapping, rape, arson, robbery, and, yes, burglary.  It sounds to me like the Common Law recognizes burglary as a potentially dangerous felony.

Of course, therein lies part of the rub.  Burglary has a Common Law definition, but also a myriad of statutory definitions.  The Court seemed to think that the California statute under which Dimaya was convicted was broad enough to cover dishonest door-to-door salesmen, and that the question of whether such crimes were typically violent was extraordinarily difficult.

What, though, is burglary?  It’s complicated, because it’s what we call a double-intent crime.

If you were working on, say, a rooftop billboard, and you fell and crashed through a skylight into someone’s apartment, you would not be guilty of anything save perhaps some negligence.  You never intended to enter the apartment, and assuming you don’t then form the intent to stay there or commit a crime while on the premises, it’s just unfortunate.

If a storm is coming and you break into an abandoned warehouse for shelter, you’re guilty of breaking and entering and trespass, but as long as that’s all you do you’re not guilty of burglary.

Burglary, legally, means unlawful entry with the intent to commit a felony.  It is that second intention that makes it a serious crime.  Usually the felony is theft, and in the Dimaya case that was the felony involved.  Burglary is considered a violent felony in part because many of the crimes with which it is associated (to commit murder, rape, arson, et cetera) are violent, and in part because it is considered a risk that someone unlawfully entering a residence might encounter the resident leading to a violent confrontation.

However, noting that in the present case the issue involves a conviction for burglary as defined by a statute with a very broad sweep, the majority decided that it would be impossible for a judge to determine reliably what the “ordinary case” would be, and how great the potential risk of violence would be, and then that the standard itself is an ill-defined threshold, and thus identifying whether a particular case meets that requirement is an entirely subjective matter.  That, they assert, creates a Fifth Amendment Due Process issue.  Due Process of Law includes that citizens be on notice of exactly what is and is not illegal, and not be subject to the caprice of police, prosecutors, juries, and judges to decide what is and is not a violation.  Dimaya could not have known that his actions would count as violent felonies rising to the level required by the deportation statute, and thus he was not afforded the protection of due process.  Gorsuch agreed.

Roberts disagreed.  He argued that the text was not vague, and that any judge ought to be able to determine the degree of risk of violence in the ordinary case of a specified crime.  It’s not clear that he overcame the examples offered by the majority.

Thomas also dissented, but at a much deeper level.  He first asserts that “vagueness” doctrine is not consistent with the original meaning of Due Process, but does not pursue that far enough to overcome Gorsuch’ explanation as to why it is.  Thomas then states that the “ordinary case” analysis was something the Court itself invented and read into the previous statute, and that since it makes this statute unconstitutional to so read it but it is not actually in the statute, it is the Court’s fault and the Court should read it otherwise.  He says that the wording of the statute requires a specific circumstance analysis, that is, whether the person was convicted of a crime which under the facts of the case had a high risk of violence.

This is interesting, because as we noted the California burglary statue covers a lot of non-violent crimes and a lot of potentially violent ones.  Arguably residential burglary with the intent to commit theft stands a fairly high risk of a violent encounter with a resident homeowner–but Dimaya specifically targeted vacant residences, significantly reducing the probability of violence, and there was no indication that violence was ever even close to being used.  Thus the facts in the Dimaya case suggest that his particular burglaries were never more potentially violent than simple trespass, unless you count violence to property.  You can only call them dangerous felonies if you base it on some notion of the “ordinary case” that asserts these are more violent on average than his were.  That’s the analysis Thomas would reject.  However, he then wants to uphold the deportation, saying that the statute was not vague because at the time courts were unanimous in the opinion that burglary was a violent felony (which does not take into account the fact that Dimaya’s were not, which was the analysis Thomas was saying we should use).  So it does not appear that Thomas manages to give solid support to the outcome he wants.

However, the genuinely interesting contribution in this case is that of Gorsuch.  After arguing that Due Process requires fair notice, and thus that laws must be clear in their intent, and so agreeing with the majority that this law is not, he delves into a much deeper issue.  He asserts that the Separation of Powers doctrine requires that crimes must be defined by the legislature, the body of persons elected by and accountable to the people most directly, and not by the judiciary.  The legislature is not allowed to ignore this responsibility by telling judges or juries to decide whether any particular action is a crime; it must give specific parameters for what does and does not constitute one.

What is most interesting about this position is that were it consistently applied, it would undermine nearly all of our administrative law, from the IRS to the EPA to the FCC, because it nearly always involves Congress effectively stating broad parameters of an objective and executive branch agencies writing the actual regulations to be enforced.  By Gorsuch’ view, this would be unconstitutional, as such regulations were not written by the legislature but by the executive.  Such delegation of authority is not authorized by the Constitution, and thus would not be enforceable.

There is a serious question concerning whether it would even be possible for a modern state to function entirely by legislation without administrative agencies empowered to create and enforce regulations.  On the other hand, Gorsuch has a strong point, and just because an existing system is efficient and effective doesn’t mean we should overlook the fact that it might be unconstitutional.  Gorsuch may be laying the groundwork for an assault on that system–and libertarians and conservatives who favor smaller government will probably applaud those efforts.  It will be an interesting battle as it unfolds in the years ahead.

Meanwhile, Dimaya gets to stay in the country, because it can’t be determined whether burglary under the California statute ordinarily involves a high risk of violence or not.

Law and Politics

#231: Benefits of Free-Range Parenting

Leave a comment

This is mark Joseph “young” blog entry #231, on the subject of Benefits of Free-Range Parenting.

I was completely stunned by an article reporting that Utah had passed a law protecting what is apparently called free-range parenting.  I posted it to my Facebook page and got some feedback which jarred a memory and got me thinking.  So here are some of those thoughts.

To clarify, “free-range parenting” means that children are not constantly monitored, but are given freedom to move about alone.  To view it from the negative, what the Utah law does is state that it is not criminal child neglect or abuse to permit a child to ride a bicycle to school, walk to a park unattended, or wait in a car while a parent runs into the store for a few things.  As one of my sons observed, his childhood would have been rather different had it been necessary for one of us to be watching him and his four brothers constantly.  I don’t think my mother could have raised the four of us and maintained the house if she had been required to be able to see us at all times–and I’m sure we never would have been able to play outside with other neighborhood kids, never mind play in the woods.

One of those commenting suggested that this requirement of constant monitoring (which, he asserted, is very real) causes children to stay home using their electronic devices to communicate instead of meeting in the real world, and is helping raise a generation of people who cannot make decisions for themselves.  That was the comment that jarred my memory, recalling for me another article on a very loosely related subject, about a study of primates.

I think the subjects were chimpanzees; they might have been a breed of monkeys.  What researchers observed about their charges is that there were two types of mothers.  One type paid very little attention to her children except when it was time to feed them, checking on them rather irregularly, just satisfying herself that they were somewhere nearby and not in danger.  The other type was constantly keeping the children near, in sight, within arm’s reach, becoming concerned as soon as the child vanished for a moment.

Following from this, they noted that as the children grew, those who were given freedom of movement became bold and assertive, willing to try new things and explore new places, while those who had been raised by protective mothers became cautious and restrained, risk-averse.  They became fearful, and in their turn became highly protective parents.

My first thought was that we want adults who are willing to explore, not afraid of the unknown.  Then I remembered another unrelated but useful bit of information.  It seems that the sensitivity of our gustatory sense (taste) does not follow a bell curve, as we might expect.  That is, most people do not have median powers of tasting with some better and some worse.  Rather, we have more of a horseshoe, that there is a group of people with highly superior gustation and a significantly larger group with very poor gustation, and almost no one in the middle.  The source from which I learned this stated that this was good from an evolutionary perspective, because in an environment in which most things are edible a species that is highly social and communicative needs only a few members who can identify food that is bad, and the rest of us can simply eat what they approve.

How is that relevant?

Another of the commenters noted that he would not want his children wandering free in the neighborhood in which he was raised, at least as it is today.  It is certainly the case that some of us live in rather dangerous places, while others live in relatively safe places.  Granted that no place is completely safe and no place completely unsafe, the survival of the species is enhanced by having some members willing to take risks and explore while others are more cautious and protective.  I know people who were kids on the streets of New York City and survived, who never really gave a thought to the notion that this was a dangerous place to live.  Not every kid makes it to adulthood no matter where he lives.  That some parents raise frightened cautious adults and some raise bold experimental ones is in that sense good for humanity.  I might prefer to see more bold experimental people, but we need the cautious ones, too.

The problem is that our society has been moving toward a place where the government itself is becoming too protective, and so raising frightened cautious citizens.  We attempt to coerce parents into being overly protective of their children, on the threat of sending them into foster care (which no one believes is safe).  As I mentioned in my original comments, the worst thing you can do to a family in New Jersey is make allegations to what is perhaps not inappropriately called Die Fuss, that is, DYFS, the Division of Youth and Family Services.  The intrusive investigations that follow from such allegations are always tinged with the threat that children might vanish into “the system” forever, giving them to paid child care workers in order to protect them from loving but not always fully capable parents.  As another commenter observed, parenting is mostly a guessing game in any generation.  We believe that our parents did some things right and some things wrong, and we attempt to do better, but also have to face public and official opinion concerning appropriate versus inappropriate childraising practices.

Utah has taken a positive step in the right direction here.  Let’s make it clear that parents who give their children more independence at a younger age are not being neglectful or abusive, but are helping them grow into responsible and courageous adults.  To do otherwise might be to deprive the next generation of the kind of people willing and able to lead us into the future.

Law and Politics, Logic and Reasoning

#230: No Womb No Say?

Leave a comment

This is mark Joseph “young” blog entry #230, on the subject of No Womb No Say?.

I read an excellent article by the President of Care Net, Roland C. Warren (pictured), addressing the question of how men who oppose abortion should respond to women who say that because they are incapable of becoming pregant they have no right to an opinion on the subject.  Warren provides an excellent response, including first that those who use this argument want to include the opinions of men who agree with them but exclude opinions of men who oppose them (and in so doing agree with other women), and second that there are many issues on which people who are not directly affected still deserve to express opinions because we are indirectly affected.  However, I felt that there was a very strong argument that he missed.

Let me be clear that, as I have previously expressed, men are not on equal footing with women once there is an unintended pregnancy; women have all the advantages.  I note that I have never met a woman who was sent to jail for failing to pay child support for an unwanted pregnancy, but have known several men for whom it has happened and others who lost drivers licenses and went into hiding because they were unemployed and that’s a sure ticket to jail.  Even if abortion were off the table, women would still have more options than men under current law.

Certainly men could say that.  Yet I think there is a much more potent argument.  I would ask whether men are permitted to have an opinion about vaginal rape.

I certainly think that vaginal rape is wrong, and I think it ought to be a crime.  That’s not because of some sort of medieval ownership of women notion; it’s because, as I said in the other article, “anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.”  The fact that I do not have a vagina should not mean I’m not permitted to have an opinion on the subject.

I recognize therein that the fact that my position against vaginal rape is my opinion means that others might have a contrary opinion.  We have previously noted that the Marquis de Sade believed that rape was a correct and morally praiseworthy act, because nature made men stronger than women and it is therefore right that men exercise that strength against women.  He managed to persuade some women to believe that as well, apparently.  That there exists a minority who honestly believes rape is good does not mean that the majority of us cannot express our opinion against it and based on that opinion enact and enforce laws against it.  Perpetrators of rape might think we ought not be entitled to our opinion, but victims and potential victims are likely to appreciate our support.

Part of that lies in the fact that the opinion that vaginal rape is wrong and therefore ought to be criminal is an opinion that defends a usually weaker victim against the assaults of a usually stronger attacker.  We generally applaud those who come to the defense of the weak, even if they only do so by words and the support of public policies and laws.

Yet when it comes to the question of abortion, those of us who would defend the weaker party against the attacks of the stronger are told it is not our business.  If the accidental but capable mother decides she wishes to kill the completely defenseless unborn child, the opinion of someone else supporting that defenseless child should not be considered relevant.

Yet if the powerful and cunning rapist decides he wishes to ravage the weaker almost defenseless woman, suddenly an opinion in defense of the woman matters.

Go figure.

Elections, Law and Politics

#229: A Challenge to Winner-Take-All in the Electoral College

2 Comments

This is mark Joseph “young” blog entry #229, on the subject of A Challenge to Winner-Take-All in the Electoral College.

We have frequently discussed the Electoral College, the system by which States send Electors to select a President of the United States.  Much of that explanation appears in the page Coalition Government, compiled of several previous related articles.  That discussion included the suggestion that the “winner-take-all” system for choosing Electors, adopted by forty-eight States and the District of Columbia, should be replaced, on a State-by-State basis, with a proportional system–and why such a change was unlikely to be made by any of them.  (We more recently noted an opposite movement, an attempt to replace the State vote with a national vote that effectively eliminates the significance of any state, in web log post #203:  Electoral College End Run, an idea having a much better chance of passing but which is probably unconstitutional.)

Now an organization called Equal Citizens has decided that there might be another way to eliminate the winner-take-all system and replace it with proportional representation:  have the winner-take-all system declared unconstitutional.  To this end, they have filed lawsuits against the practice in California, Massachusetts, Texas, and South Carolina.

That might seem like overkill.  After all, wouldn’t one successful lawsuit fix the problem?  However, it probably wouldn’t.

Suppose they filed in Texas and won in Texas.  There are four Federal District Courts in Texas, any one of which would do, and victory would mean it was illegal to assign all thirty-eight of that State’s electors to the candidate winning the majority vote–in Texas.  At that point they have to hope that the State appeals the decision to the Fifth Circuit Federal Court of Appeals, and that they win there.  If they do, it will be illegal not only in Texas but also in Louisiana and Mississippi.  However, it will still be legal in the rest of the country.

In order for it to become unconstitutional nationwide, the Supreme Court of the United States would have to decide the case.  That means getting the Court to hear the case, and as we know the Court is rarely forced to hear any case and might prefer to stay out of this one.  The best shot at getting Certiorari at the Supreme Court for a case like this is to get decisions in more than one Circuit which hold opposing positions.  That is, they need one court to say it is constitutional and another to say it’s unconstitutional, so that the Supreme Court will see that it is necessary for it to resolve the matter for everyone.  That means in filing four lawsuits they are hoping to win at least one and lose at least one, at the appellate level.

In theory, they could win an effective victory if they won all four suits, as States might see that as an indication that other circuits would agree and avoid a lawsuit by complying with the change.  However, compliance would only be mandated in those circuits where the decisions were made, and additional lawsuits might be needed to change some recalcitrant States.

So how can a practice that is so nearly universal (only Maine and Nebraska do not follow it, and they both use district voting, that is, the state is divided into sections each of which picks a representative elector) be unconstitutional?

The argument is based on the XIVth Amendment, and specifically the Equal Protection Clause, which states that every citizen of legal age is to be treated equally by the States in all matters of law and politics.  That means, according to the Amendment, one person, one vote.  The claim is made that in a winner-take-all system, if fifty thousand voters pick one candidate but fifty thousand one voters pick the other, fifty thousand voters are disenfranchised when the entire electoral vote goes to the other candidate.  In order for their votes to be protected, the electoral vote should be divided based on the proportion of voters supporting each candidate–in this case, equally, or slightly in favor of the majority candidate.

So is it a good argument?

Maybe.

The XIVth amendment is one of the Reconstruction amendments following the Civil War.  The “Original Intent” of its reference to one person, one vote was to prevent discrimination against black men specifically; it was amending the section of the Constitution that counted slaves as partial persons by giving the emancipated slaves voting power equal to their white counterparts.  In that sense, it has nothing to do with the method of selecting Electors for the College.  However, as often happens, what the Framers of the Amendment wrote has been applied beyond what they intended.  This clause is the basis for all those lawsuits over reapportionment:  the claim that one party has by drawing the district lines given itself an unfair advantage by disenfranchising voters in certain geographic areas.  The connection is obvious:  if white government officials can set up districts such that blacks are always in the minority in every district (that is, by identifying black neighborhoods and apportioning them into several predominantly white surrounding neighborhoods) they can smother the voice of black voters.  Thus “gerrymandering” to oppress racial voting blocks is a violation of the Equal Protection Clause.

Yet the Equal Protection Clause would itself be inequitable if it only protected blacks or other racial minorities.  If it is a constitutional violation to stifle the representation of any one voter, it is equally a violation to stifle the representation of any other voter.  Arguably winner-take-all voting does exactly that, and on that basis could be ruled unconstitutional.

On the other hand, as we have noted in previous articles, the Framers of the Constitution did not intend for Presidents to be chosen by democratic process.  Quite the contrary, they expected that the Electoral College would always be hopelessly deadlocked and so serve effectively as a nominating committee offering a slate of candidates from which the legislature would select the one they believed would best serve them.  As we noted in #172:  Why Not Democracy?, that has happened exactly once.  However, the process was intended to empower the States as States, not so much the individual voters save as they are citizens of their respective States.  If we look at the Original Intent of the Constitution, it is evident that Electors are to be chosen by the States, by methods determined individually by each State.

Of course, the XIVth Amendment changed that at least in part.  The question is, in doing so did it mean that a State’s Electors had to be representative of all the voters proportionately, or is it sufficient for a State’s Electors to represent the majority of the State’s voters?  Are Presidents to be selected by the people, or by the States?

If winner-take-all Elector voting is deemed unconstitutional on that basis, it probably means that district apportionment is similarly unconstitutional, and electoral votes would have to be assigned based entirely on the proportion of the total vote in the state.  Israel uses such a system to elect its Parliament, and it is not an unworkable system.  If implemented, it would move us slightly closer to a President elected by the majority.

It is certainly worth considering.

As a footnote, in researching this article I stumbled upon this interesting toy which permits the user to experiment with various methods of choosing Electors and see their impact on the most recent two Presidential elections.  What intrigued me was that of eight possible methods (including the current one), Trump won the Electoral College in all but that one specifically rigged to give the Democrats the most electoral votes (that is, by using winner-take-all in states they nominally won and proportional in states they nominally lost).  That caused me to wonder how that could be if, as is often claimed, Clinton took the majority of the popular vote.  The answer seems to be in part that despite the fact that Trump took more votes in California than in any other state but two, Clinton took enough votes in that state to tip the balance of the popular vote, but not of the Electoral vote, because California is underrepresented in the Electoral College (because it is underrepresented in the House of Representatives).  That in turn reminded me that in the aforementioned web log post I commented that we did not want California to be the big bully that dictates the law to the rest of us.  The other part of the answer is simply that Trump took more states, and because of the “plus two” Electors each state gets, the geography worked for him:  the fact that Presidents are on some level chosen by the States, not the people, meant that having more states choose Trump gives him more Electors.

Law and Politics

#225: Give Me Your Poor

Leave a comment

This is mark Joseph “young” blog entry #225, on the subject of Give Me Your Poor.

I recently saw a political joke in which someone was editing the famous plaque inside the Statue of Liberty in New York harbor (technically in New Jersey, but appearing as part of the New York City skyline).  It makes a point about immigration policy, and was a clever idea when I first saw it–about half a century ago.

Statue of Liberty seen from the Circle Line ferry, Manhattan, New York

The plaque sports a poem, by Emma Lazarus, entitled The New Colossus, contrasting Miss Liberty against the famed Colossus of Rhodes and giving the statue, originally intended as a monument to democratic republicanism, its first connection to immigration.  The poem has two stanzas, but most of the second is familiar:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

The obvious point of the joke is that we have hardened ourselves against immigrants, people seeking a better life in what was not so long ago still called “The Land of Opportunity”.  We were once an altruistic country with arms open to all, but now we want to keep out the refuse, the refugees, the unskilled labor seeking to escape a bitter life to a better one.

I am not going to argue that we were not once more altruistic and have become less so.  However, our open arms to immigrants in the past were perhaps not so altruistic an attitude as we in hindsight perceive it.  We were a burgeoning economic power with seemingly unlimited land and capital, resources untapped and seemingly inexhaustible.  In such a setting, labor is in demand, and bringing unskilled workers willing to fill bottom-tier jobs was good for business.  It was also good for workers, because those who worked hard and learned skills could move up the ladder into the new openings constantly appearing in the expanding business and industry climate, as long as there were new unskilled workers to fill the bottom rungs.  In Europe, where every square foot of ground belonged to someone, there was no room for advancement, and if you could get an entry level job you hoped only that you could keep it.  Immigration was good for the American economy; our altruism was to some degree an illusion, like the love of the girl who is willing to marry the nerd who incidentally can make her happy with his fortune.

The situation has changed.  It has not changed abruptly; the fact that the same joke about government rewriting the invitation to prefer skilled and educated workers was around fifty years ago shows that there has long been a faction that would slow immigration and keep bottom-tier jobs available for unemployed Americans.  What land remains unused is not so useful; resources are dwindling, and environmental concerns are making it more difficult to access them.  We have been shifting to a service economy–a giant Ponzi scheme in which we pass money around without ever producing anything from our efforts.  The immigrants who open a restaurant or operate a convenience store or gas station are now competing with low-level workers who have few openings on the rungs above, and the ladder itself is sinking as a college degree, once a guarantee of a good paying job with good benefits in a management or administrative position with room for advancement, is now what a high school diploma used to be, an edge in obtaining the bottom rung office, secretarial, warehouse, or factory jobs.

This sounds like a good argument for tighter immigration policy.  I am not going to make that argument.  Rather, I would suggest that we who perceive our nation as good, altruistic, live up to the image we have of our ancestors.  It was easy to be altruistic when the benefit obtained outweighed the cost; some would say that’s not altruism at all, but simple selfish capitalism.  The question is, can we be altruistic when we have to pay the price?  Can we open our arms to people in need, and say “I have food and shelter, and am willing to share it with those who have less”?  Are we willing and able to do this on a national scale?

I would like to think that we are those people, the people willing to surrender some of our wealth to help the poor.  I would not promote full-bore generosity, completely open borders, partly because I am aware of two details about human nature–the one, that people will take advantage of kindness, and the other that people who feel they have given too much will react and retaliate.  The average American thinks himself generous and kind, but has never been tested in that.  The question is how much of our comfort we are willing to surrender to alleviate the suffering of others, and on the grand scale how much of our dwindling economic strength are we willing to share with people who come from poorer places.

I do not ask that we open our doors to everyone; I do ask that we extend the grace for which we have been known in the past, to the extent that we are able to do so.

Bible and Theology, Law and Politics

#224: Religious Politics

Leave a comment

This is mark Joseph “young” blog entry #224, on the subject of Religious Politics.

There’s something of a flap at the moment in the world where religion and politics intersect.  It seems that Jerry Falwell, Jr. (pictured), has made the comment that Jesus and the New Testament church never tried to tell the government how to run the world, they just focused on saving souls.  The inference drawn (I will not claim to know his intent) is that people should keep their religion out of their politics.  It’s a bit ironic, really, since Falwell’s father was co-founder, with Cal Thomas, of the organization calling itself The Moral Majority (which some argued was not actually either, but that’s not the point here), which particularly in the 1970s attempted with some success to exert influence to bring the political sphere in line with what it perceived as Christian ideals.

Certainly there is an important principle in American government that religious institutions should be isolated from government, unregulated and unimpeded by each other, uninvolved in each other.  However, the notion that religion should not influence government suffers from two major misunderstandings.

(Official White House Photo by Shealah Craighead)

The first is simple, but apparently not obvious:  politics and religion are, at the core, the same thing.  They are both about how you believe the world actually is, and what the best way to live within it would be.  They are both fundamentally non-rational, that is, what we might call super-rational, structures of beliefs based on what have been called “pillars” of “moral intuition”.  We hold political positions because we believe that certain principles are “right”, whether caring for the needs of the downtrodden and persecuted, defending the freedoms of individuals, or arranging for an equitable outcome in the economic world.  Jonathan Haidt does an excellent job of explaining these moral concepts in his book The Righteous Mind: Why Good People are Divided by Politics and Religion (which I review and discuss here).  Both are protected by the First Amendment to the United States Constitution, as part of really one fundamental right:  the right to believe what you do, express and promote those beliefs, and associate with others to discuss them.  You can’t separate politics from religion because politics is religion.

Atheists reject that notion, so we should probably consider it further.  If you were an Odinite who believed that Father Odin created the Aryan people to dominate the world before entering the afterlife and using their practiced combat prowess to defend Gladsheim against the giants at Ragnarok, you would promote the position that the government should create opportunities for young men to learn to fight and conquer other countries.  If you are a Hindu believing in the transmigration of souls, you are going to work to defend not only the lives of people everywhere but a peaceful coexistence with animal life from cattle to cockroaches.  These are not at that point irrational actions or decisions; they are perfectly rational choices based on an embraced understanding of the fundamental nature of the world.  Atheists believe there is no god, but in the main they believe that there are binding moral principles, that some things are right and others wrong, and that government ought to promote right conduct and discourage wrong conduct.  That is not different from religious belief.  It is still about how we understand the world and what we think should happen in it.

So if politics and religion are really fundamentally two different words for what people believe about reality, it becomes inherently impossible for a person to separate the two.  If you think separating politics from religion is simple, you fail to understand what they are.

The other flaw in the reasoning that Christianity should not try to manipulate government because it did not attempt to do so in the first century is that this is not the first century and we are not living in the Roman Empire.  Most of us are living in republics of one sort or another, nations in which democratic principles choose the goverment and determine the laws.

In Rome, Caesar was the government.  In America, we are.

Sure, I’m not Donald Trump or Barrack Obama; I’m not the Speaker of the House or the Senate President or the Chief Justice of the Supreme Court.  I’m not even the mayor of my small town (and having known the son of the mayor of a small town, it is not a job I want).  However, whether or not I voted for them, whether or not I voted at all, those people hold those offices because we chose them, and that means I by my contribution for or against am partly responsible for that choice.  I am the government; you are the government.  We have the responsibility to govern ourselves, and to govern each other.

We don’t agree how to do that.  That’s par for the course–when did you ever agree with anyone about everything?  But we discuss our options, give our preferences, and in doing so we bring our values–our politically and religiously based values–into the decision-making process.

My political science professors at Evangelical Christian Gordon College years ago made the point that it did not matter whether or not a candidate for office was a Christian, in the sense of claiming a Christian faith or being a member of a recognized Christian church.  What mattered was whether a candidate stood for political principles consistent with the Christian faith and a Christian view of how to govern.  The person himself could be Jewish, or Muslim, or Hindu, or even Atheist.  He could have a deplorable private life, and be selfish and cruel in his personal relationships.  What matters ultimately is that what drives his choices in governing is principles supporting a more Christian world, and whether he is politically effective, capable of leading.

I’m not in the least bit interested in discussing whether our current leaders are such people.  We could spend years just trying to come to some kind of agreement concerning what Christian principles of government are, and how to balance things like equity and kindness and freedom.  I am only saying that religious people are inherently going to bring their religiously-based views about reality, their political views, into these discussions, and that’s part of the democratic political process.  You can’t keep religion out of politics without keeping values out of politics, and once you remove values from politics you have nothing left.

Law and Politics

#222: The Range War Explodes: Interstate Water Rights

Leave a comment

This is mark Joseph “young” blog entry #222, on the subject of The Range War Explodes:  Interstate Water Rights.

Your ranch is upstream, and they dammed up the water.
Thirsty cows scream for my uncle to slaughter
The sheep
While your daddy’s asleep,
And I do the same for his daughter.

The Range War, by Todd Rundgren

In my hopefully forthcoming book Why I Believe I used the example of the range war, probably recalled from this old Todd Rundgren Romeo and Juliet song, in asking whether or not it was “theft” for the owner of an upstream ranch to dam the water supplies to provide for his own livestock and family, if it reduces the amount of water that would otherwise naturally flow downstream onto his neighbor’s ranch to water his livestock.  It is a difficult and intriguing question:  can I steal something from you that you never had, simply by preventing it from reaching you?  If I prevent the water from flowing downstream, can you accuse me of theft?

It appears that the United States Supreme Court is going to answer that question:  Florida is suing Georgia for using too much fresh water from the rivers that supply its northern areas, and the court has granted certiorari.

Georgia has a pretty solid case.  After all, if a storm is coming and I get to the grocery store before you and buy the last of the milk, eggs, and bread (what is now being called a “French Toast Emergency”), did I thereby rob you of those supplies?  If you took me to court over that, you would probably be laughed out of the room.  It’s Georgia’s water; what they don’t use becomes Florida’s water; what they use to support their growing cities and their booming agriculture, they use.  It doesn’t seem that Florida can really claim that it’s their water before it reaches them, and if it never reaches them, it never becomes theirs.

On the other hand, it’s not like Florida can get to the water first by leaving earlier.  Florida is in a very real sense dependent on Georgia allowing the water to cross the border.  Further, these are serious environmental concerns, removing water from wilderness areas dependent on those rivers.

Since this is a dispute between two States, the Supreme Court has original jurisdiction–the case does not come to them on appeal from a lower court, and there are no prior decisions for them to consider.  An appointed Special Master has recommended that they side with Georgia, but at oral argument the justices reportedly seemed to be seeking a way to support Florida, Justice Ginsburg suggesting that a cap on Georgia’s water use might be necessary to protect its downstream neighbor.

Stay tuned for the resolution to this modern version of an old problem.

Bible and Theology, Law and Politics, Logic and Reasoning

#221: Silence on the Lesbian Front

Leave a comment

This is mark Joseph “young” blog entry #221, on the subject of Silence on the Lesbian Front.

Sometimes what the Supreme Court does not say is as significant at what it does say.  There is much speculation as to why they declined to hear a suit against a Mississippi law protecting a first amendment right not to support same sex weddings and similar matters.  The lower court ruling at this point is that the plaintiffs do not have standing, that is, none of them can demonstrate that the law has caused any of them actual harm, but the question behind that is why the court didn’t want to grab the case and decide the issue.

One possibility is that no one knows how it would fall, and no one wants to risk setting a precedent against their own view.  The conservatives would undoubtedly support the law, which makes it unlawful to bring any criminal or civil penalties against someone who for religious reasons refuses to provide services in support of acts they consider immoral, and particularly homosexual weddings.  The passage of the law invalidated local laws in Jackson and other metropolitan areas of the state that had protected the supposed rights of the homosexual couples.  Meanwhile, the liberal wing wants to normalize homosexual conduct, and have the law regard treatment of homosexuals as equivalent to treatment of blacks and women.  So we have an almost even split among the justices–but that there are an odd number of justices.

The swing vote is almost certainly Chief Justice Roberts.  He has been strong on first amendment rights, but has also sided in favor of homosexual rights.  If either side were sure of his vote, they would probably have accepted the case as a way of establishing a precedent favoring that position.  It thus may be that his position is uncertain, and neither side wants to take the risk.

On the other hand, the court has agreed to hear the cake case, in which a baker claims that a state law requiring him to make wedding cakes for homosexual weddings is an infringement on his religious liberty and freedom of speech.  The speech issue seems to be the one that is carrying the most weight with the justices, but it may be that the rejection of the Mississippi case is hinting out an outcome here.  If in the cake case it were decided that a state law could compel service providers to treat homosexual weddings the same as heterosexual weddings, it would still be an open question as to whether a state law can prevent any such compulsion, and the Mississippi case would matter.  However, if the Court were to decide that the baker cannot be compelled to create a cake for a homosexual wedding, that inherently supports the Mississippi law, saying that no one can be so compelled.

So the fact that the Court did not accept the Mississippi case could mean that they are leaning toward judgement in favor of the baker in the cake case, or it could mean that the position of the court is too uncertain for them to take case on the same issue so soon.  What it does not mean is that the Court has the votes to overturn the Mississippi law and wants to do so.