Category Archives: Law and Politics

Law and Politics

#200: Confederates

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This is mark Joseph “young” blog entry #200, on the subject of Confederates.

General Robert E. Lee–perhaps the most recognized name on the Confederate side of the American Civil War–never owned a slave.  He did marry into the Custis family, descendents of Martha Washington and heirs of the estates of George Washington, some of which had slaves, but he was not an owner.

I mention this because there is a great deal of misunderstanding about the Civil War and about the Confederacy in particular.  To hear the scuttlebutt, all Confederates were bigoted racists and all northerners enlightened equalitarians.  Neither of those claims is true, nor is it true that the war was about slavery–slavery was a bit more than incidental, but ultimately a side issue.  Yet today people are fighting over flags and statues that were part of that history, trying to remove them and in the process erase an important part of our history that is relevant today to matters that have nothing to do with race or bigotry.

Between the ratification of the United States Constitution and the initiation of the Civil War there was a lingering unanswered question concerning the exact nature of this “more perfect union” the document was intended to create.  To citizens in every State, the State was a State–New Jersey had the same status as Denmark, Pennsylvania as France–and these individual independent countries had joined a treaty organization, something like NATO or the United Nations or the European Economic Community.  We came to each other’s aid for the common defense, agreed not to place tarriffs against imports and exports between each other, and met together to create laws on which we generally agreed that would bind all of us and were necessary to promote trade and interaction between us.

Yet lingering in the background of all this was what we might call the Federalist question.  Federalists like James Madison saw the central government as having ultimate authority over the state governments, that whatever was stated as Federal law was binding on all the member states.  Democrats like Thomas Jefferson saw the individual states as the ultimate authorities, lending their authority to the Federal government for the better functioning of the whole.  The Constitution did not decide that issue; had it done so, it would not have been ratified.

Abraham Lincoln, a Republican, believed in the Federalist vision of a united nation, a single country governed from a central authority.  He also happened to believe that slavery was wrong, but it was an incidental which he strongly downplayed during the campaign, promising that he would seek no law regarding slavery during his first term of office.  The majorities in northern states wanted the country more united.  The north was becoming highly industrial, building transportation networks, turning into a tightly knit unit in which business was done between Boston and Chicago more easily than ever before, and a unified legal system was to the benefit of such a system.  The south was still an agrarian society, separated by muddy roads and driven economically by the field production of cotton and other cash crops.  To northerners, Massachusetts was becoming a piece in a larger puzzle of tight-knit countries more and more connected to each other.  To southerners, Alabama was an independent country that signed a mutual defense and trade treaty with a bunch of other distant countries.

The fear southerners had of Lincoln was not really that he would end slavery–he had little chance and no intention of doing that any time soon.  It was that he would move the union more toward the central government model preferred by the north and strip the powers of the individual member countries in the process.  We see the same kinds of conflicts in Europe as they begin to adopt unified currency and banking regulations.  So when this icon of unification was elected, states that wanted to maintain autonomy seceded, and the remaining states decided that was not something they could do under the terms of the treaty, leading to a war to decide whether the Federal Government or the State Government had ultimate authority.

Of course, the elephant in the room was the one difference that had been a conflict between north and south for generations, that the southern economy was built on a slavery model and many northerners found this immoral–not that they believed blacks were any more human than the southerners believed, but that they were more on the order of animal rights activists trying to protect an exploited creature.  Because of the ongoing balance of slave and free states in the Senate, there was no real chance of meaningful legislation on that subject–but a tightening of the concept of Federalism would mean that unified laws would gradually come into being, and that was a threat.

So the question over which we fought the Civil War for five long bloody years was whether a member State of these United States had the authority to ignore Federal Law if it wished to enforce its own policies instead.  Then it was an entirely theoretical matter, as there were no Federal laws to enforce against the rebelling states, but the answer to the question turned out to be no, once you are a member of this union you are bound by Federal law, which trumps State law when they conflict.

So what the Confederates were defending, although they could not have known it, was the right of California to ignore Federal Immigration Law; and the right of Colorado to ignore Federal Drug Law.  The answer we were given then is no, Federal Law is enforceable within the member States, and the States cannot contradict it with their own laws.

So it seems to me that at least some people who are calling for the removal of Confederate markers and Confederate history actually favor that for which those Confederate soldiers fought and died–the right of states to pass laws and enforce policies contrary to those of the Federal government.

It had nothing, really, to do with slavery or bigotry.  It had to do with questions we are still facing today.  Instead of tearing down reminders of history for wrong reasons and ignorance of their significance, let’s try to gain from them the lessons of the past for the future.

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Bible and Theology, Books by the Author, Elections, Games, Law and Politics, Logic and Reasoning, Music, Temporal Anomalies/Time Travel, Time Travel Movies

#197: Launching the mark Joseph “young” Forums

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This is mark Joseph “young” blog entry #197, on the subject of Launching the mark Joseph “young” Forums.

Once upon a time, what now seems a long, long time ago in a galaxy far, far away, there were forums at Gaming Outpost.

Well, there were forums almost everywhere, but the ones at Gaming Outpost were significant, big deal forums in the gaming world for a while, and then not so much but still important to me and to many of those who read my work and played Multiverser.  They were probably then the most reliable way to reach me, and there were plenty of discussions, not to mention quite a few games played, on those forums.

Then they crashed, and all of that was lost.

I can’t promise that this won’t happen to these new forums, but we’re going to make an effort, with the help of our Patreon and PayPal.me supporters, to keep them up and running, and to pay attention to what is posted here.

I arranged the forums in alphabetical order; I was going to arrange them in reverse alphabetical order, because I have always hated being the last in line for everything, but as I installed them the software put the next one on top, and although I could see how to resequence them, I realized that that would put Bible and Theology on the bottom, and while I’m not a stickler for silly formalities I could see that some people would object to that, more so than anyone would object to any other forum being at the bottom.  It is probably appropriate that it is on top.  The forum categories correspond roughly to the web log main topics, with a few tweaks and additions.

I long wished for a place to discuss time travel and time travel movies, and that’s there now.  I don’t expect most of the discussions will wind up here, but perhaps at least some will, and that will make it worthwhile.  I’ve also made a home for discussions of the Christian Gamers Guild Faith and Gaming series, and for the upcoming (this December) Faith in Play and RPG-ology series there.  There are music and ministry sections, space for logic problems discussions, law and politics pages, space for games, and a place to discuss my books, if anyone is interested in any of those topics.

I have also added a Multiverser game play forum.  I have in the past been overwhelmed by the number of players who wanted to play, even with my rule that I would only post one time per day to any game thread and expected players to observe the same courtesy (except for obvious correction posts).  Please do not presume that because you want to play Multiverser you can just start a thread and I’ll pick up your game.  I will give first priority to people who have played the game with me before, whether live or online, picking up where we were; I will also open the door on an individual basis to people who have wanted to play for a long time but for various reasons have not been able to do so (such as Andrew in South Africa).  Beyond that, well, talk to me and I’ll see what kind of time I have–after all, I have no idea how many of my previous players will return, or how much work it’s going to be to get back up to speed on their long-interrupted games.

My thanks to Kyler and Nikolaj, who have already helped me track down some of the bugs and fix them.  I’m told that if you are not registered, the link on the top left corner of the page will work, but the one on the top right corner will not–unfortunately, I can neither see either link while logged into the site, nor find how to fix a lot of those problems.  But I am working on it, and there is a forum specifically for contacting me about problems, and a link to my Facebook page if you can’t even get as far as that.

I look forward to seeing you.

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Bible and Theology, Law and Politics

#196: A Church and State Playground

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This is mark Joseph “young” blog entry #196, on the subject of A Church and State Playground.

Back in the winter we noted, in web log post #158:  Show Me Religious Freedom, that the United States Supreme Court was going to decide a case concerning whether a church-affiliated school could be denied participation in a public welfare program simply because it was sponsored by a religious institution.  That decision has been reached, in Trinity Lutheran Church of Columbia, Inc. v. Carol S. Comer, Director, Missouri Department of Natural Resources, 582 U.S. ___ (2017), and the majority opinion is very like what we previously suggested, but there are three concurring opinions that quibble on the details and one dissent that is scathing, fairly well reasoned, and as long as the other four opinions combined.

Chief Justice Roberts delivered the opinion of the court, joined in full by Justices Kennedy, Alito, and Kagan; Justices Thomas and Gorsuch also joined the opinion, with the exclusion of “footnote 3”, and each of them filed a concurring opinion, and joined in supporting each other’s concurring opinion.  Justice Breyer filed an opinion concurring in the judgement.  It is Justice Sotamayer who wrote the lengthy dissent, in which Justice Ginsburg joined.

To recount briefly, Missouri runs a program which provides funding to resurface playgrounds with recycled tires.  There is a tax on new tire purchases which funds the collection and recycling of discarded tires, converting these into a “pour-in-place” durable soft surface which reduces injuries on playgrounds.  The application process for determining eligibility to receive such a “grant” examines many factors including the economic circumstances of the area, the public use of the playground, and more.  On a list of forty-four applicants, the school ranked fifth, but did not receive one of the fourteen grants because it was affiliated with a religious institution, and the department had a policy of refusing to provide money to any religiously-affiliated institution, consistent with the Missouri State Constitution Article I, Section 7, which we quoted in the previous article.  This led to a court battle over whether the State, by refusing to permit a religiously-affiliated school from participating in a program that provided aid for non-religious programs, had violated the Free Exercise Clause of the First Amendment, by making eligibility for a public assistance program dependent on renouncing a religious belief or association.

All five opinions discuss the balance between the Free Exercise Clause, that the government cannot interfere with someone’s beliefs, and the Establishment Clause, that the government cannot support one set of beliefs over another.  Neither clause is exactly absolute.  For example, it is agreed that the Establishment Clause does not mean that the publicly-funded fire department can’t put out a burning church or synagogue, or that the police won’t investigate a theft of church property.  The Free Exercise Clause has also been tested, and laws have been overturned which prevented ordained ministers from serving in elected public office, on the grounds that such laws forced a person to choose between his religious beliefs expressed in his vocation and his right as a citizen to run for office.

A lot of the discussion on both sides concerned the previous case Locke v. Davey, 540 U. S. 712 (2004).  In Locke, the State of Washington ran a post-secondary education scholarship program based on outstanding scholastic achievement, but with a specific clause stating that the scholarship money could not be used for ministerial training.  The student claimed that the program was a violation of the Free Exercise Clause, but the Court held that under the Establishent Clause the State could refuse to fund ministerial training, particularly given that the program did not exclude schools which offered such courses or the courses themselves, only a degree program of that nature.  They have always maintained that there was some space between the two clauses, in which States were not compelled by either to act in a particular way; the question was whether in this case the state was forced to act one way or the other, or was free to act as it chose.

The majority felt that this case was more like McDaniel v. Paty, 435 U. S. 618 (1978), in which ordained ministers were barred from seeking election to public office, and the Court held that this amounted to denying a citizen a fundamental right available to all citizens (running for public office) based solely on religious belief.  The playground was not part of a religious training program, but a part of ordinary educational aid made available broadly to the community, and the church had been excluded from the program solely because it was a church, having a religious purpose in its existence.  The denial of the right to participate in the program was a violation of the Free Exercise Clause, because it required the church to choose between abandoning its religious faith and participating in a common government welfare program designed for the protection of children.  A significant part of the decision can summarized in the Court’s words

…denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.”

Under such “strict scrutiny” the policy failed.

To some degree, the concurring opinions have to do with footnote 3, which reads

This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.

Justice Thomas expressed the view that Locke failed to apply strict scrutiny to the facts in that case, and ought to be overturned–but that that was not a question before the court at this time.  However, he thought footnote 3 too limiting, and deferred to Justice Gorsuch’ concurring opinion for that.

Justice Gorsuch says that the Court makes an indefensible distinction between religious status and religious use, and so distinguishes Locke from the present case.  He makes the point thus, comparing the two cases:

Is it a religious group that built the playground?  Or did a group build the playground so it might be used to advance a religious mission?….was it a student who wanted a vocational degree in religion?  or was it a religious student who wanted the necessary education for his chosen vocation?

The only justification for the decision in Locke, in Gorsuch’ view, is the “long tradition against the use of public funds for training of the clergy”.  As to footnote 3, he feared it would be misconstrued as saying that the principles on which this decision was based do not apply outside very narrow fact sets, which he thought was incorrect.

Justice Breyer put the emphasis on the fact that the program involved was intended “to secure or to improve the health and safety of children” and was in that sense not different from other public welfare programs such as police and fire protection.  He did not want to extend the decision too far, but thought in this case it was a clear violation of the Free Exercise Clause, and that for programs akin to this the fact that the applicant was a religious school should not exclude it.

Interestingly, none of these opinions declared that the Missouri Constitution’s Article I section 7 was unconstitutional; the majority opinion merely stated that as interpreted by the Missouri Supreme Court it ran afoul of the Free Exercise Clause, and so would have to be understood differently in the future.

Justice Sotamayer’s dissent is long, involved, and pointed.

Her most cogent point is that the church identifies the school as part of its ministry, intended to build the foundations of Christian faith in its students, whether children of church members or others from the community.  We have established that States can refuse to pay scholarships for ministerial training.  It is reasonable to conclude that the State can refuse to pay for Bibles, Korans, Torahs, as well as vestments, chalices, sacramental elements.  Arguably the doors, windows, roofs, and walls of church buildings are part of the ministry.  We would not use government money to pay for such acoutrements, because they are in a sense part of the ministry.

Yet it is clear that this is not so.

In the wake of Hurricane Sandy, it was established the Federal Flood Insurance and Disaster Relief could be used to rebuild damaged churches, as long as it was distributed even-handedly–that is, not favoring any particular religion.  So government money can be used for repairing physical plant of religious buildings.

Further, the National School Lunch Act provides discounted and free lunches to students in private and parochial schools without regard for the religious nature of the school, because lunch is neutral and it would be discriminatory against the religious choices of these families to exclude them from an otherwise neutral benefit because they are attending a religious private school.

So on the one hand we ask ourselves whether the playground is part of the ministry of the church, and in a sense it is, but in the same sense that the lunchroom is part of the ministry of the church.  Indeed, from the perspective of the Christian faith, every congregant is an extension of the ministry of the church, and yet we know that people cannot be excluded from government assistance programs simply because they are members of a faith which regards all of its members as ministers.  The government cannot avoid giving money to church ministries, as the church understands them, because whenever money is given to people who belong to the church, it is aiding the ministry of the church.

And on the other hand, we ask ourselves to what degree the support of the playground is supporting the religious mission of the church.  In many states it is a requirement that schools include a physical education program, and although Trinity’s school is essentially preschool the playground may be necessary to their certification–that is, if all schools must have some kind of playground for physical activity, then the playground is clearly meeting a secular, a non-religious, requirement.  Stating that it is a part of the ministry of the church certainly calls the matter into question, but seen in perspective, the answer should be obvious, that state money given to religious institutions for secular purposes such as meals and playgrounds are not a violation of the Establishment Clause, and might well be required, as the majority observes, under the Free Exercise clause.

None of this touches the deeper problem, that the language in the Missouri State Constitution is Blaine Amendment language, which as we observed was inserted for essentially religious (anti-Catholic) purposes.  However, since no party addressed this, that issue remains for the future.

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Law and Politics

#194: Slanting in Favor of Free Speech

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This is mark Joseph “young” blog entry #194, on the subject of Slanting in Favor of Free Speech.

In January we looked at a trademark case that had much to do with freedom of speech and offensive language, in web log post #156:  A New Slant on Offensive Trademarks, in which Simon Shiao Tam named his all-Asian rock band “The Slants”, saying he wanted to use the normally derogatory word to reclaim some pride for his people.  The Patent and Trademark office, relying on the same law against offensive trademarks under which the Redskins sports franchise was stripped of its protection, refused the application, and it was ultimately appealed to the United States Supreme Court.  The Court has delivered its opinion in Matal v. Tam, 582 U.S. ___ (2017), and it has implications for freedom of expression.

The Slants performing April 16th at The Flying Dog Brewery, hosted by the 1st Amendment Society

On a related subject, freedom of speech was also behind Packingham v. North Carolina, 582 U.S. ___ (2017), which struck down a North Carolina law barring anyone on the state’s sex offenders list from accessing Internet social networking sites.  We’ll look at that after Tam.

There was really nothing at all surprising about the Tam opinion, unless it is that once again eight members of the court were in agreement.  Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas and Breyer.  Justice Kennedy wrote a concurring opinion, joined by Justices Ginsberg, Sotomayer, and Kagan, and Justice Thomas also wrote a concurring opinion.  All of them agreed on the essentials:  the so-called “disparagement clause” in U.S. trademark law which permits the denial of trademarks for anything that might be offensive to specific groups or persons is an unconstitutional infringement on free speech.

As Justice Alito puts it (slip opinion at 22), “Giving offense is a viewpoint,” then (slip opinion at 22-23) quoting from Street v. New York, 394 U.S. 576, 592 (1969), “…the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”  Justice Holmes and Ray Bradbury would be pleased.

It’s good news, too, for the Redskins football franchise:  this was the rule that got them stripped of trademark protection, and so their ongoing legal battle is probably about to be rapidly resolved.  I don’t know if we’ll see a run on offensive trademarks in the near future–after all, as some in this discussion have observed, offending potential customers is not a good way to sell them your product.  On the other hand, the way is open for people to denigrate a lot of groups.  (The decision does not impact the prohibition against using the name of a living person without that person’s permission.)

So, how does the Packingham case fit?

In 2002 petitioner Packingham, then twenty-one years old, had sex with a thirteen-year-old girl, and pleaded guilty to “taking indecent liberties with a child”, a crime that qualifies under North Carolina law as “an offense against a minor” requiring registration as a sex offender.  The status can last three decades or longer.

In 2008, the state passed a law making it a felony for anyone registered as a sex offender in the state “to access a commercial social networking Web site where the sex offender knows that the site permits children to become members or to create or maintain personal Web pages.”

It strikes me that this is a second punishment.  That is, at the time Packingham was convicted and sentenced, and required to register, there was no law regarding the use of the Internet.  Six years later this restriction was added to his sentence, without so much as a hearing to determine whether it was necessary.  That, though, was not the issue before the court, although Justice Kennedy recognizes the problem in passing.  It is also not stated that Packingham was informed of the new restriction, but that was not before the court either.

In 2010, eight years after his conviction, Packingham expressed his thanks to Jesus for an event in his life, the dismissal of traffic ticket without a hearing, posting this excitement on Facebook.  A Durham police officer managed to connect the Facebook post to the dismissed ticket, and obtaining a search warrant established that Packingham had violated the law.  He was convicted, despite making a motion that the law was a violation of his First Amendment right to free speech.  There was no allegation that his Internet communications were in any way suspect or criminal other than that this law forbad him from making them at all.

The conviction flip-flopped its way through the state courts, overturned by the Court of Appeals of North Carolina, reinstated by the North Carolina Supreme Court, not without dissent.  The United States Supreme Court reversed the conviction and struck down the law.

Again we have an effectively unanimous judgement:  Justice Kennedy wrote the opinion of the court, joined by Justices Ginsberg, Breyer, Sotamayor, and Kagan, while Justice Alito wrote a concurring opinion joined by Chief Justice Roberts and Justice Thomas.  Justice Gorsuch did not participate in the decision, not having been present for oral arguments.

Justice Kennedy’s core point was that the Internet generally, and social media sites in particular, had become the new medium for many kinds of protected speech–obtaining news, expressing political opinions, communicating with others.  It had in essence become the public parks and town squares of old, the place where people gather to interact.  To refuse someone access to the Web would be to curtail their ability to communicate in the modern age.  That is clearly a limitation on freedom of speech, and as such must face scrutiny–the level of scrutiny in which there must be a demonstrable compelling government interest addressed in the least invasive way possible.  The protection of children from sexual predators is so strong a government interest that it might be possible to restrict the freedoms of potential recidivists, but the North Carolina law goes too far.

The concurring opinion agrees that the North Carolina law goes too far, but objects to the court’s identification of social networking sites as having the importance suggested.  Rather, Alito would suggest that it might be possible to prevent sex offenders from accessing many sites where predators might easily prey on children, but the definition of such sites would have to be refined–tellingly, Alito notes that Amazon, The Washington Post, and WebMD all qualify as “social networking sites” under the definition in the statute, and that perhaps the majority of web sites now do, as they provide ways for visitors to communicate with each other through comments on articles, and frequently to create a member profile.  (The other two requirements in the statute are that they provide some sort of revenue stream to their owners and do not exist primarily to facilitate sales between users (e.g., E-Bay, Craig’s List).)

In any case, it appears that the Supreme Court has decided that your Facebook, Twitter, and LinkedIn accounts (they are specifically mentioned) are important protected media for the exercise of your free speech.  That means something.

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Law and Politics

#190: Praise for a Ginsberg Equal Protection Opinion

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This is mark Joseph “young” blog entry #190, on the subject of Praise for a Ginsberg Equal Protection Opinion.

To read the conservative press, you would think that Justice Ruth Bader Ginsberg, in writing the majority opinion in Sessions v. Morales-Santana 582 U.S. ____ (2017), had turned her back on women’s rights and struck a blow for men.  Yet even from that reporting I could see that Ginsberg was simply staying true to her principles of equal protection (we had discussed her commitment to this previously in web log post #63:  Equal Protection When Boy Meets Girl).  Still, from the sound of it, I thought she ought to be commended for this consistency even when it seemed to go against her more feminist views.

However, unwilling to write about a court opinion I had not read, I took the time to find it and read it (link above to the official PDF), and found that it was a considerably less impressive story even than I had supposed.

I should perhaps have been tipped off by the fact that the decision was effectively unanimous–seven of nine Justices joining in the majority opinion, Justice Thomas writing a concurring opinion in which he agreed with the result but thought the equal protection language went further than necessary to reach it, and the new Justice Gorsuch not having heard oral arguments not participating in the decision.  The court did not consider it controversial.  They did, however, overturn part of the decision of the Second Circuit Federal Court of Appeals, so apparently there was a difficult issue in the matter.

It is also of some interest to us because although couched as an immigration case it ultimately proves to be a citizenship case, and we have addressed the statutes and cases involved in whether or not someone is a natural born citizen in connection with The Birther Issue when it was raised concerning President Obama, and more recently in web log post #41:  Ted Cruz and the Birther Issue.  The terms under which someone is, or is not, born an American citizen are sometimes confusing.  That was what was at issue here.

Morales-Santana was arrested in New York on a number of relatively minor charges, and the Immigration and Naturalization Service decided to deport him to the Dominican Republic, claiming that he was not a United States citizen.  That was where the story started to get interesting.  It seems that the Respondent’s father, José Morales, was an American citizen, having been born in Puerto Rico, and having lived there for almost nineteen years.  Twenty days before his nineteenth birthday he moved to the Dominican Republic to accept a job offer, and soon moved in with a native Dominican woman.  She gave birth to the Respondent, and the father immediately acknowledged paternity and shortly thereafter married the woman, making the child a member of his household.  Everyone assumed the child was an American citizen like his father.

However, the statute defining whether an unwed U.S. citizen father confers citizenship on his out-of-wedlock child specified, among other things, that the father had to have lived in the United States or its Territories or Possessions (Puerto Rico qualifies) for at least five years after reaching the age of fourteen.  José Morales, having left Puerto Rico less than a month before his nineteenth birthday, fell short of that requirement by twenty days.  Therefore he himself was a citizen, but his child, born abroad out of wedlock to a non-citizen mother, was not.

Morales-Santana, however, recognized a flaw in the law.  Had the situation been reversed–had his mother been an American citizen who bore a child out of wedlock with a non-citizen father–the statute only required that such a mother have been in residence for one year following her fourteenth birthday.  That meant, Morales-Santana argued, that women were being given a right that was being denied to men, in violation of the Equal Protection rights as understood by the United States Supreme Court.

The Second Circuit Court agreed, and decided that the citizenship conferred on children of unwed mothers ought equally to be conferred on those of unwed fathers, and stated that Morales-Santana could not be deported because he was, in fact, a United States citizen.

The government appealed, resulting in this decision.

What Ginsberg tells us is that the anomaly in the statute is the exception for unwed mothers.  The five year rule applies in all other related cases–not only unwed fathers, but married couples in which either spouse is an American citizen and the other is not.  If the Court were to rule that the unwed mother status applied equally to unwed fathers, it would have to rule that the same status applied in all these cases–but the legislature clearly intended that the five year rule would be the norm, and the one year rule a special exception for pregnant unmarried girls.  They would essentially be discarding the entire statute in favor of the exception.  Instead, they ruled that the one year exception was unconstitutional–a ruling whose only effect on the Respondent was that he could not claim citizenship through his father based on the inequity of a rule covering mothers but not fathers.

So Ginsberg certainly did strip some women of a statutory right, but she deserves to be credited for doing so consistently with her express view of equal protection.  Asserting that men and women should be treated the same does mean that sometimes women will be treated worse than they otherwise might have been.  This is one of those cases; it otherwise is not that important.

As a footnote, the court notes at one point that the statute asserts that a child born out of wedlock whose father acknowledges him and takes responsibility for his care will be regarded a citizen from the moment of his birth.  That is relevant to our discussion of what it means to be a natural-born citizen.

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Law and Politics, Logic and Reasoning

#182: Emotionalism and Science

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This is mark Joseph “young” blog entry #182, on the subject of Emotionalism and Science.

This recounts a true story told me decades ago which it occurs to me has relevance to our present situation.

img0182Baby

It occurs to me that at least one of my readers might remember Mr. Ernest “Ernie” Larrat, whose lifetime of involvement with the Boy Scouts of America has impacted many lives of which mine is perhaps a drop in the bucket.  You will be pleased to hear that I saw him last year, at my mother’s ninetieth birthday party, and he looked well, not much different than I remembered from the two hundred mile canoe trip for which he and I were leaders forty years previously (although I doubt either of us could make that Bicentenial Delaware River trek today), and was still involved in the Ramapo Council.  He also had a day job, somewhere in the chemical industry, from which he recounted this story.

It takes place in the late nineteen-sixties.  An issue had been raised concerning children’s pajamas.  Someone had realized that clothing made of natural fibers such as cotton and wool burned, and so did clothing made of modern synthetics such as polyester.  Infants and toddlers dressed in such clothing who were caught in house fires were frequently burned alive when their clothing caught fire, and sometimes fires started when such clothing came in contact with high heat sources such as candle flames.  Somehow the concern reached the ears of our elected officials, and they held a Congressional hearing on the matter.

The first presenters at this hearing were connected to Ralph Nader’s group of consumer advocates.  I do not intend to denigrate them; they have done much good over the decades.  They presented the problem, with graphic images and details of children burned alive by pajamas catching fire.  It was a horrid thought, a very moving and emotionally gripping presentation.  By the time the presentation was completed, our lawmakers were ready to take action–so ready, in fact, that they ended the hearings immediately and drafted and passed legislation requiring that all child and infant sleepwear be treated with flame-retardant chemicals so as not to ignite when exposed to flame.

They never heard any presentations from the chemical industry or the garment manufacturers.  After all, what could they possibly have to say, other than suggesting that the costs of such treatment would reduce their profits?  It was clear that something had to be done, and Congress was going to do it.

What the chemical industry was prepared to explain, had anyone cared to listen, was that there was only one known chemical that could be used to make such cloth permanently flame retardant.  It was known as Tris(2,3-dibromopropyl) phosphate, or just Tris for short.  (There is another chemical, Tris(2-chloroethyl) phosphate, more recently used as a flame retardant, more commonly known as TCEP.)  It had not been used in children’s garments, though, because of other properties.  It was known that when exposed to elevated temperatures not high enough to cause ignition of common fabrics, Tris would begin to break down and release a noxious gas rapidly and painfully fatal if inhaled.  I don’t know, but I suspect that this is at least part of why it was flame retardant:  as it heated, it robbed the fire of oxygen, preventing ignition.

However, its use was at the time the only way to comply with the law, so the chemical industry began providing large quantities of Tris to be used by the garment industry in the manufacture of children’s clothing.  Now fewer children were burned alive, because many more were killed by the gas released by treated clothing heated by the fire long before the clothing itself would have ignited without such treatment.

Over a very brief period of years, it was also determined that the chemical was a carcinogen when absorbed through the skin.  In 1977 the Consumer Product Safety Commission banned its use in children’s clothing, and clothes went back to being untreated cloth for lack of an alternative.

The lesson to be learned is that it is important in addressing a problem to research the potential consequences of any proposed solution.  Congressmen who voted in favor of flame-retardant treatment of children’s clothing knew they were addressing a serious problem.  They did not know that they were creating a more serious problem.  Within the narrow confines of the problem, indeed mandating flame-retardant chemicals in children’s clothing seems the ideal solution–but it is magical thinking, it is believing that direct solutions to problems do not have effects that might cause other problems.

And that is what is happening in the climate change hysteria today.

No one doubts that there are environmental problems that must continue to be addressed.  No one wants to undo the progress that has been made since the nineteen sixties.  Those of us who have lived so long can attest that conditions are better now than then, and that much more is being done to protect the environment now than then.  However, environmental extremists are drawing pictures of burned babies to provoke an emotional reaction and induce us to take extreme measures to protect the environment before this happens–and in this case, they are theoretical pictures, descriptions of what might happen if current trends go unchecked.  We have no burned babies, no real cases of environmental disaster causing or caused by climate change.  We have educated guesses–educated guesses on which many scientists disagreed until they were pressured by threats of funding cuts or ostracization or banishment from publication venues, to bring them into the fold.  We are supposed to react to these images by taking immediate action to protect the metaphoric babies, passing the legislation that metaphorically protects them by treating their clothing with a carcinogenic poisonous chemical that prevents ignition.

We should not move so quickly on this.  We should attend to the fact that every action has consequences, and extreme and hasty actions usually have severe consequences.  There are many problems that have nothing to do with the environment, and indeed even our supposed efforts to repair the environment may have unanticipated environmental consequences.

This has all been said before.  It was not so long ago that I wrote #175:  Climage Change Skepticism, and only about a year ago that I wrote #80:  Environmental Blackmail.  Before that, though, I gave you #10:  The Unimportance of Facts, suggesting that to many in the political world the truth does not matter, only the victory.  Let’s try to get back to learning the truth, instead of trying to use scare tactics to get our preferred outcomes.

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Bible and Theology, Law and Politics

#179: Right to Choose

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This is mark Joseph “young” blog entry #179, on the subject of Right to Choose.

It made the news this past week, that a teenager in Arizona (her name is Deja Foxx, and her stated age is 16) challenged Republican Senator Jeff Flake with the statement, condensed in headlines as “Why is it your right to take away my right to choose?”

Senator Flake, Photo by Gage Skidmore
Senator Flake, Photo by Gage Skidmore

Let’s be fair to Miss Foxx.  What she actually said, according to transcripts of the town hall meeting, is

So, I’m wondering, as a Planned Parenthood patient and someone who relies on Title X, who you are clearly not, why it’s your right to take away my right to choose Planned Parenthood and to choose no-co-pay birth control, to access that.

That’s a little different, and a considerably more defensible question.  I also want to examine the more fundamental question, though, the one presented in the headlines, because that question comes up quite a bit, particularly in arguments about abortion:  why does anyone have the right to take away anyone else’s right to choose?

The first thing to say is that law is fundamentally about taking away the right to choose–or more precisely, about creating negative consequences for choosing conduct we as a society want to prevent or discourage.  You do not have the right to choose to help yourself to retail products off the shelves of a store without paying for them.  As much as you might wish to do so, you don’t have the right to kill your annoying little brother.  You don’t have the right to operate a motor vehicle on public roads while under the influence of an intoxicating substance.  You can, if you wish, choose to do any of these things; if you are caught, you will face penalties for doing them.  Whether or not you have the right to do things, in our society, is defined by the laws on which we, through our legislatures, executives, and judiciaries, agree.

So the people of Arizona who elected Senator Flake to office gave him the right to take away some of our rights, to curtail our freedoms, to put limits on what we can and cannot do.

Yet that is not quite what Foxx means.  She had prefaced her question with a tirade about how she, as an underprivileged homeless black girl trying to finish high school, was dependent on Title X (read “ten”) funding for Planned Parenthood, recently cut by a new law barring funding for any family planning center that also provides abortions.  She was fundamentally asking what right America has to refuse to pay for that; she would not have put it in those terms, but that’s the essence of the question.

There are a lot of questions we could ask in response to this.  What right does she have to expect that we are going to fund her promiscuous life choices?  When I was sixteen I did not need any funding for birth control.  I knew, and everyone I knew knew, that if you had sex you risked having children, and there were a lot of consequences to that.  There were ways to reduce the risk, but it could not be entirely eliminated.  Most of us made the intelligent choice:  we did not have sex.  If you want the privilege of making stupid choices, you should expect to bear the costs of that yourself.  If you stupidly steal from grocery stores, expect to go to jail.  If you stupidly drive while intoxicated, expect to lose your driving privileges.  If you stupidly engage in sex, expect to face the risk of pregnancy (which is clearly a risk for boys possibly even more so than for girls).

Of course, hidden in both sides of that is the fact that the new law has not terminated funding for low-cost no-co-pay birth control.  It has cut funding to organizations that fund or perform abortions.  There are other programs that provide birth control and birth control advice that do not promote abortion in the process.  Further, Planned Parenthood could continue receiving as much money as it has been receiving simply by terminating all programs related to terminating pregnancies–and in the process would have more money for the other birth control programs because none of its funds (which as we previously noted are a fungible resource) are going to those cancelled programs.  The government is not providing less money for birth control services and advice; they are only refusing to provide that money to or through those who would advise you to kill your unborn baby, and who would help pay for that.

So if the question is who has the right to decide that American taxpayer money will not be given to organizations that kill unborn babies, the answer is that American taxpayers have that right.  In fact, American taxpayers technically have the right, if we so chose, to refuse to provide any kind of support for teenager promiscuity.  It is American generosity that provides those things; Foxx has no superior right to expect them from us, whatever she thinks about supposed entitlement arising from her lack of privilege.

There is, though, the other level of all of this, the level hinted by the headline, the question Foxx was not asking but which Planned Parenthood undoubtedly wants us to hear in her question:  what right do people like Senator Flake, people like me, people like roughly half the American population plus anyone else who agrees with them, have to tell a pregnant woman that she cannot abort the preborn child she carries?  What right does anyone else in the world have to tell that woman that she does not have the right to choose whether to give birth to that child or not?

And let me agree that for millions of women, their choice of what they do with their own lives, their own bodies, is not my business.  Should they want facelifts or breast implants, stomach banding or tattoos or piercings, however they wish to improve or mutilate their own bodies, my approval or disapproval is immaterial.

However, your own body is where that right ends.  If you want to kill that annoying little brother, I think he has a right to object to that–and I think the rest of us have a responsibility to protect his right.  Indeed, if you want to kill your own annoying preschool child, that child has a right to choose to live, and we have a responsibility to intervene on behalf of that child.  Further, if that child happens still to be inside you, it has the right to choose to be alive, and we the corresponding responsibility to speak on its behalf to protect that right.  We certainly have the right to refuse to help you do it.

So ultimately the question

who gave you the right to take away my right to choose?

is one that every unborn child can ask of its mother, and of Planned Parenthood and anyone else who becomes involved in deciding that the child does not have the right to live.

Jefferson wrote that we were endowed with inalienable rights–rights that no government could take from us without just cause and due process–and the first of these is life.  They, those unborn children, have the right to choose life.  Who are you, to take that right away from them?

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Law and Politics

#176: Not Paying for Health Care

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This is mark Joseph “young” blog entry #176, on the subject of Not Paying for Health Care.

img0176Bill

I am not certain whom to blame for this; I don’t know whether it was a passing comment in conversation or a post in an online discussion or an article, but someone presented to me the suggestion that no one should ever be denied health care because he or she could not afford it.  I also have the feeling that the word “entitled” was used, as in “everyone is entitled to receive needed medical care”.

It is a noble idea, but problematic.

I don’t know what you do for a living.  Maybe you don’t.  Maybe you sit home and collect government checks–and I mean no disrespect for that, as I know people who receive social security because they are too old to maintain a regular job, or disability because they are too infirm sometimes to get out of bed, and I think it a wonderful thing that we provide money to support these people.  If we are supporting you because you are unable to support yourself, if you are a “burden on the taxpayers”–well, we the taxpayers have decided that it is worth a bit of our money to care for you.  But odds are good that most of you “have jobs”, do something that brings in the money some of which goes through the government to those who do not work.  We think that the elderly and the infirm are entitled to our support, and we use that word–entitled–athough usually as a noun, entitlements.

We also think such people are entitled to free and discounted medical care, which we also pay to provide.  Our idea of what people need, and therefore that to which they should be entitled, keeps growing.  People need, and are therefore at least in some places entitled to, cellular phones, Internet access, college education, transportation, and the list is growing.

I like the idea of entitlements; I’d like to be entitled.  People need clothes.  It would be nice if I could walk into a clothing outlet and help myself to jeans, shoes, shirts, socks and underwear, maybe a nice suit for special appearances.  I’m not permitted to wander naked, and wouldn’t particularly want to do so anyway, so that makes clothes a need.  No need to pay; I’m entitled.  If you work in garment retail, don’t look at me–I get my clothes free.

I also need to eat; what if I can’t cook?  Let me walk into a restaurant and order from the menu, have someone bring me food.  I am entitled.  If you’re the waitress, don’t expect a tip–I am entitled.

There isn’t a public bus within five miles of my home, and frankly almost everywhere I need to go, other than the hospital, is over there on the bus routes.  Transportation is a need around here, and one for which the government provides for the elderly poor.  Perhaps I should be entitled to a free ride whenever I want to go anywhere–call someone on my free phone and have them transport me to the store or the doctor or the movies, wherever I need to go, and then take me home again.  The driver should provide this, because I’m entitled.  Or perhaps I should just walk into a showroom and pick out my free car, and take it to the gas station for free gasoline.

You get the idea.  It would be nice if everything in the world were free, but then, who would pay for it?  Medical care is not free in the sense that it has no cost.  Even apart from whether drug companies are overcharging for medicines or whether hospitals, doctors, nurses, and other medical professionals are making too much money, medical care costs money.  The drugs are made from materials through chemical processes that are not always simple, and in facilities that are designed to prevent contamination as much as possible–costs, even without the people.  Patients are treated not only with medications, but with often very expensive diagnostic and treatment equipment (Computer Axial Tomography and Magnetic Resonant Imaging are very expensive, and are fairly standard in emergency room diagnostics).  Again, facilities can be expensive as well.  Much of the equipment is computerized.  The machine which automatically takes your blood pressure costs more than a typical laptop computer, but in the long run saves money over having a person come into your room every fifteen minutes to do the job; the machine that measures the medicine as it goes into your arm is another small computer.  Even the furniture is sophisticated–a hospital bed is capable of doing many things the typical patient is not aware that it does, and costs considerably more than most of the admittedly usually more comfortable beds patients have at home.

So maybe we’re overpaying the people–but what do we require of them?

If your doctor has been working for two decades, it is likely that his student loan debt still exceeds the amount you owed fresh out of college.  Further, medical professionals–not just doctors–are required to take continuing education classes, to keep up with current knowledge in the field.  Usually they have to pay for these classes.  They also have to be recertified regularly in a host of areas, depending on their particular fields, from starting IVs to running a “code” (“Advanced Cardiac Life Support”), requiring classes and tests to ensure they know current best practice.  Even so, medical knowledge is advancing so fast that it is said you are more likely to get the best care from a newly licensed graduate than from a seasoned professional with a decade or more of experience.  Your doctor spends a substantial amount of his “free time” on continuing education for which he pays.

Because we allow patients to sue doctors, doctors also pay for malpractice insurance.  It is likely that your obstetrician/gynecologist pays more for his malpractice insurance every year than the market value of his home.  There is no easy fix for this–but that’s probably another article.

The point is, everything we give away “free” to anyone costs someone something–you can take money out of the equation entirely, if you like, but it still comes to the three basics of economics, land, capital, and labor, and that has to come from somewhere.  We can give more of our money to the government and have the government provide more things “free”.  Indeed, we can give all our money to the government and have the government provide everything “free”.

There is a name for a system in which everything is free.  It’s called socialism.  In its purest form, everyone of us works as hard as we can at whatever we can do, and every one of us is free to help ourselves to as much of everything as we can reasonably use.  The pure form doesn’t work for the fairly obvious reason:  if you were told that you can have as much as you think you need in exchange for working as hard as you think you can, just how hard would you work and how much would you need?  Thus we have the practical form, in which someone is given the responsibility of overseeing how much you work and how much you take, in which you work as hard as your overseer thinks you can and take as much as your overseer thinks you need.  When that’s a private sector system we call it slavery; when it’s run by the government we call it communism.  Either way, if you want the government to provide everything free, you have to expect to pay for it somehow.

Of course, the people who say that medical care should be free don’t mean it should be free for everyone.  They mean it should be free for those who can’t afford it.  But then, who can afford medical care for calamitous conditions or events?  Who gets to decide what you can or cannot afford?  Does the fact that you own your house mean you can afford medical care up to the equity you have in your house, since of course you could sell the house and move your family to the street to cover the bill?  If you own a small business, does that disqualify you from free medical care, even if it’s running in the red?  Who gets free medical care?  Who is entitled to it?  Who has to scrape up the money for the bills or suffer for it?

Free medical care for everyone is a wonderful idea.  It is also an expensive one, one that will cost every one of us a fair amount of money and may change the quality of our medical care going forward.  If we want to go that direction, let’s at least consider ways to do so with the least amount of upheaval.

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Law and Politics

#175: Climate Change Skepticism

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This is mark Joseph “young” blog entry #175, on the subject of Climate Change Skepticism.

It has happened to me again:  I posted a link to an article, and quickly got embroiled in an ar–er, a discussion which was going to require more of a response than could easily be managed in a Facebook thread.  So here I am attempting to answer here comments made there, and it will be necessary to get you up to speed in case you missed all of that.

img0175Globe

First, I should refer to the articles in question–but as I have since realized that The Boston Globe, original publisher of these articles, permits a limited number of free article views and then charges a weekly subscription fee, and I referenced two, I should summarize the sense of the articles along with the links.  I made that point that these were published in The Boston Globe, a paper never known to be particularly conservative.

The first article is Why are climate change models so flawed?  Because climate science is so incomplete.  It was produced by staff columnist Jeff Jacoby (March 14th, 2017), and was defending a comment made by the new Environmental Protection Agency Director Scott Pruitt.  When asked (on CNBC) whether he believed it had been proven that CO2 was the primary control knob for climate, Pruitt replied that “measuring with precision human activity on the climate is something very challenging to do, and there’s tremendous disagreement about the degree of impact. So no–I would not agree that it’s a primary contributor to the global warming that we see. But we don’t know that yet. We need to continue the debate and continue the review and the analysis.”

This stirred a huge reaction as liberal environmental activists called Pruitt a “denier”, but Jacoby says Pruitt gave the correct answer to the question that was asked.  Jacoby then notes that the factors impacting climate run into the hundreds, few if any of which are well understood by present science.  He concludes “That is why calls to radically reduce carbon emissions are so irresponsible–and why dire warnings of what will happen if we don’t are little better than reckless fearmongering.”

I presented much the same conclusion sometime last year in web log post #80:  Environmental Blackmail, which you can read for free, although (quick commercial break) your contributions through Patreon or PayPal.me are greatly appreciated.

The second article was a letter from a reader, Patrick Moore (March 27th, 2017), extolling the good sense of the first article, 10,000 years ago?  That was climate change.  Today?  Not so much.  Identifying himself as “a lifelong ecologist and environmentalist” he says “much of the environmental movement [has been] hijacked for the purpose of alarming us about the future of the climate” and “no weather event or change in climate during the past century is anywhere near out of the ordinary with the climate of the past 10,000 years”.  Certainly it is possible that someone might want to label the writer a “denier” with no interest in the environment, but he has been identified as a former president of Greenpeace Canada, so I at least would be hesitant to challenge his credibility on the subject.

Most of my point was made in my previously mentioned article.  I favor sound environmental policy; I distrust climate change extremism for a host of reasons.  When it comes to trusting current scientific opinion, it should be noted that over the past century what was current scientific opinion said that smoking was good for your health, margarine was better for your heart than butter–well, the fact that current opinion happens to wear the label “scientific” does not alter the fact that it is still current opinion.  It was not that long ago that current scientific opinion included that the production of greenhouse gasses was necessary to prevent the recurrence of an ice age.  We do not know to what degree humans are impacting climate change; we know that climate change happens naturally (Greenland actually was a more comfortable place than Iceland when Vikings first discovered and named it, but has since become considerably colder), but not to what degree we matter to it.  Climate change alarmists are using scare tactics to gain support for their environmental program, and in the process lining their own pockets.  The facts are not so clear as they would like them to be.

So that brings you up to speed, and now I have comments I need to address from three persons.

Nikolaj found the article “mostly…reasonable”, but asked

Why would it be irresponsible to keep in account that it might be true?  Wouldn’t it be less responsible to blatantly ignore the fact that we might be ruining our climate because it’s hard to prove it?

I might be missing the point, but wouldn’t it be like looking at w[h]ether or not to provoke a nation that might have a nuke, or might not, and choosing to provoke, because, hey, they might not have one?

Well, let’s start with the second part.

Any nation might have a nuke.  Indeed, any faction, any terrorist organization, any militant group might have a nuke.  True Lies is certainly not the only movie in which a core part of the plot is that some unknown splinter group obtained a couple of nuclear weapons.  We think it unlikely that anyone who is not a nation has such a device, but we have several instances in which graduate physics students have drawn up plans for functional explosive devices, and no one controls all of the high-grade fissionable material in the world.

So when you say that a nation “might have a nuke”, you obviously mean more than that there is a theoretical possibility (at least, I hope you do).  You mean that a sane assessment of the situation has yielded a probability that reaches some threshold considered significant.  What that threshold is might depend on whom you ask.  Certainly most people would be cautious if the probability was eighty percent or better; some people would be cautious if the probability reached twenty percent, and some would consider a probability of two percent significant enough that caution is required.

Yet what do we mean by “choosing to provoke” versus exercising caution?  World War II was not so long ago, and what was significant in the preface to World War II was that World War I was still fresh in the minds of everyone in leadership.  Hitler took the view that if he demanded that territory claimed by other sovereign nations should be ceded to Germany because it was once German territory, and threatened to start a war over it if it were not done, his demands would be met; Chamberlain took the view that as long as England’s immediate interests were not threatened Germany could have anything it wanted to avoid a war.  What if we had a similar situation in the modern world–if perhaps North Korea said that it had an arsenal of nuclear weapons and an intercontinental delivery system of some sort, and it wanted immediate ownership of South Korea, then further demanded Japan, Taiwan, and other western Pacific nations?  The question is, how high a probability would we require before we took those threats seriously and considered acquiescing to those demands?  If we thought it ninety percent likely that North Korea could and would carry through on those threats, that would be a very different situation than if the analysis said two percent.

The problem with the climate change issue lies in this analysis.  Climate change extremists argue that there is near a one hundred percent chance that our current production of greenhouse gasses will result in an ecological disaster in a very short time.  It is so far from clear that this is an accurate (or even unbiased) assessment of the danger.  If the probability really is high, then it calls for more drastic measures; if it is not so high, we should approach it more moderately–and remember, about a quarter of a century ago (probably within the lifetimes of everyone participating in this discussion) there was a serious scientific concern that human production of greenhouse gasses was needed to prevent drastic climate change.  The issue is not that clear.

So to return to the first part of the quote, no one is suggesting that we “blatantly ignore the fact that we might be ruining our climate”.  The extremists want you to think that there are only two possible paths–drastic measures or business as usual.  Those are not the only options.

The situation is also impacted by the fact that nothing in the world happens in a vacuum.  That is, there are environmental problems, and they need to be addressed.  There are also economic problems that need to be addressed, and social problems, infrastructure problems, political problems–problems of all kinds.  So what constitutes a reasonable response to the environmental problem?  Should we divert all monies currently going to social service programs such as Welfare, Social Security, Medicare/Medicaid, Food Stamps, Housing Assistance, and put this into programs to reduce carbon emissions?  (After all, saving the lives of the poor today is meaningless if their grandchildren will all die in our ecological catastrophe.)  Should we shut down all transportation systems that use any form of energy that relies on any kind of combustion–cars, planes, trains, trucks, buses?  Remember, hydroelectric is a very small percentage of our electric grid, and we have stifled the development of nuclear power, so even our electricity is dependent on burning something.

The issue is determining how serious the threat to the environment is, and what steps would actually be effective in reducing it without doing more damage to other problems.  The answer is not to forget about every other problem the world faces and focus every resource on doing something we are not even completely certain will help.  It is to work out the severity of the problem and the best approach to solutions.

Hopefully that covers most of what I needed to say, and my responses to my other two participants will be shorter.  Harry said

Even if everything…turned out to be false[–]why does that make sustainable energy and cleaning up the planet somehow a *bad thing*?  Why does it make pumping coal dust into the atmosphere and bringing back acid rain somehow something we should be *trying to do* by doing away with the regulations that got rid of that stuff in the first place?

Again we have the suggestion that the extremes are the only options.  I am entirely in favor of developing sustainable energy and maintaining reasonable controls on air pollution.  I am not in favor of taking drastic steps that will crush the economy in the name of doing something whose benefit to the environment is inconclusive.  Zero emissions does not happen even with zero production–we cannot even cook our food without producing some greenhouse gasses, and there are a number of fundamental natural processes (forest fires, volcanic activity) which we cannot control.  The issue is what is an acceptable level at a reasonable cost.  As a sub-point of that, if the economy is crashing, do we loosen environmental regulations temporarily to stimulate recovery?  That’s a more difficult question than I can readily answer, but the answer lies in exactly the kind of analysis we are discussing for the reverse:  will the benefit to the economic problem be worth the cost in environmental problems?

I don’t favor drastic steps in either direction.  For one thing, drastic changes usually have drastic unanticipated side effects, and if we can move slowly in our efforts to find the right policy, we are more likely to reach a working program that preserves the environment without destroying the economy.

Bryan wrote

even those whose income is dependent upon fossil fuels will admit that it’s a finite resource.  Eventually it runs out, and if we don’t have robust alternatives in place by the time it does, we’re going to be in trouble.

Yes, and no one that I know is saying we should not be working on them.

When I was in college I went to hear an advertised debate about nuclear power.  The debaters were to be one of our biology professors and one of our physics professors.  The biology professor’s starting position was that nuclear energy was extremely dangerous, bad for the environment, and that we should be changing to solar power as rapidly as we can, not investing in dangerous nuclear power plants.  The physics professor said that that was a wonderful notion, but he had gotten his doctorate in solid state electronics and knew that the technology was just not there–there would not be significant solar electricity for years, probably decades, and particularly not in the relatively dark latitudes of New England (where Gordon College is located).  Meanwhile, the alternatives were all dangerous.  He had nightmares about the way liquid natural gas was transported and delivered.  Nuclear power had problems, but it had benefits–some of them environmental.

O.K., in the United States nuclear power lost that debate, probably because of the accident at Three Mile Island.  It was not helped by Chernobyl.  France used nuclear generated electricity for a significant part of its power (about 40% of its total energy, over 75% of its electrical production, in 2004), apparently safely.  We’re also talking about the state of solar technology in 1975; those needed decades have now passed.  Solar energy is now emerging as a viable energy source–but it is not going to replace fossil fuels overnight.

There is an economic tipping point.  I think we have not quite reached it.  A tipping point is a simple concept.  Usually old technologies become less practical over time; always new technologies improve and so become more economical over time.  Capitalists, whether industrialists or homeowners, want to use whatever is the cheapest option.  There are two obstacles.  One is fluctuation–neither the increase in cost of the old nor the decrease in cost of the new is going to be consistent (the price of natural gas fell drastically over the past decade)–the other is the changeover cost (I might know that gas heat is less expensive than oil, but have to factor in the cost of replacing the furnace and laying the pipe).  However, once the price of the new is sufficiently below that of the old to cover the transition costs, people change.

When people are not changing, it demonstrates that they are not persuaded that the new is the better option.  The change is starting, and the tipping point is approaching–and government programs to make solar available more cheaply are helping, but also demonstrating that there is still an economic barrier.  That is, if solar power actually were economically better than other options, we would not need artificial (government) inducements to switch.

By all means, let’s find better ways to create electrical power.  However, let’s not crush the economy trying to do it.  Let’s make environmental concerns one of our issues, but not our only issue.

I’m puzzled as to why “conservatives” are opposed to “conservation.”

They’re not.  They’re opposed to making it more important than everything else.  Nor are conservatives necessarily all climate change “deniers”–only skeptics, people who believe that the jury is still out, that we do not know what the climate is actually doing nor why it is doing it.  Maybe the world is warming, returning to the climate which prevailed two thousand years ago before it entered an abnormally cold stretch.  Maybe we are contributing to that, and maybe we aren’t.  Let us not “go off half-cocked”, creating a lot of other problems in other areas trying to create solutions for a situation we are not completely certain is a problem, and not completely certain we can change.

Thanks to everyone for your thoughts and contributions to the process.  This is how we learn.

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Elections, Law and Politics

#172: Why Not Democracy?

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This is mark Joseph “young” blog entry #172, on the subject of Why Not Democracy?.

As I was writing the previous web log entry, #171:  The President (of the Seventh Day Baptist Convention), I was reminded that we, in the United States of America, do not live in a democracy.  We live in a representative republic.

That fact was brought home to a lot of people in the recent Presidential election, some of whom are still reeling from it.  I have heard many complaints, mostly from young people, that our elected President did not win the majority of the voters, and therefore does not represent the majority of the people.  (It is at least worth mentioning that the actual vote totals will never be certain:  the vote count was never completed in quite a few voting districts because the total would not have changed the Electoral College outcome in those states.)  We should, they insist, change to a more democratic system, in which every vote counts the same.

We could do that.  Things are a bit more like that in other countries, particularly Israel where everyone votes for whatever parliamentary representatives they want and the entire country is treated as a single district.  Even England’s system is more democratic than ours.  However, note that in these countries the voters do not vote for their chief executive–they vote for their legislative representatives, and these in turn choose the chief executive.  Sure, British Prime Minister Theresa May campaigns for the position, but she does so by touring the country telling voters to support their local Conservative Party candidates for Members of Parliament, who in turn vote her into the Downing Street office.  It is still not strictly democratic, although by taking the vote for head of government away from the people and giving it to their elected representatives it actually becomes a bit closer to it.  However, it still can produce the outcome that the party in power, and thus the chief executive, did not actually have the majority of the votes.  It is a flaw of representative government, but representative government is the only way to avoid having every citizen in the country vote on every law.

The electoral map of the 1824 Presidential election, in which Andrew Jackson took the clear plurality of both the popular and the electoral vote but not the majority of either, throwing the decision to the House of Representatives, who selected John Quincy Adams to serve.
The electoral map of the 1824 Presidential election, in which Andrew Jackson took the clear plurality of both the popular and the electoral vote but not the majority of either, throwing the decision to the House of Representatives, who selected John Quincy Adams to serve.

There are, of course, other ways to achieve a more democratic election of the President of the United States.  People have been complaining about it since at least the 1824 election, when the failure of Andrew Jackson to gain fifty percent in the Electoral College resulted in John Quincy Adams, with less than a third of the vote, being selected for the office by the House of Representatives (the only time in history where no candidate obtained fifty percent of the Electoral College vote).  Some years ago when we were examining the Electoral College in detail in connection with Coalition Government, we noted one suggestion, that each state allocate its electoral votes based on the percentage of voters supporting each candidate–and why that would never be enacted.  More recently, someone proposed that states begin changing their system for apportioning electoral votes such that the votes within the state were irrelevant, that each state would give all its electoral votes to whomever won the popular vote nationally.  That would achieve the desired “democratic” outcome.  It would prevent situations like that of the recent election.  The question is, do we want that?

The first point that should be recognized here is that the majority always wants the democratic system.  That’s because in a democratic system, the majority can always impose its will on the minority.

Of course, that often happens anyway–but many great strides forward in these United States have happened precisely because minorities were empowered.  Certainly it is sometimes the case that majorities become entrenched, resisting necessary change until overwhelmed as public opinion shifts, but it has also been the case that minorities have used the system to gain a voice within the process.  There is something called the tyranny of the majority, when minority voices and positions are overwhelmed and trampled by majority opinions.  Our system was designed in part to prevent that.  There is also a tyranny of the minority, when a small group prevents the majority from doing what it deems right through legal intervention, and our system is supposed to prevent that, as well.  Our system produces gradual change by trying to keep everyone somewhat satisfied.  Younger people are less patient, wanting rapid change.  Older people have usually learned that not all change is for the better, but all change has unintended consequences.  Our country advances a bit, then eases back, then advances again, feeling the path carefully.

Meeting of the Electoral College in Ohio, 2012.
Meeting of the Electoral College in Ohio, 2012.

Many other countries have suffered from what we might call “rapid cycling”.  Because they are so controlled by the majority, and because the majority is mostly in the middle shifting a bit to one side and then to the other but the politicians tend to be at the extremes, it is common for one party to be voted into office, make major changes to everything, upset the bulk of their constituents who only wanted things to change a little and don’t like the unanticipated parts, and so be voted out of office and replaced by an opposing party which proceeds to repeal everything the first party did and pass its own extremist programs, leading to its failure at the polls and the return of the original party, or often yet another party, whose agenda then dominates.  Remember, as we have often mentioned in connection with coalition government, we are not in our chosen parties because everyone in those parties agrees with us on every point; we are there because we have agreed to support each other on those points each of us think important.  That means some of the things you want your party to do other members of your party strongly oppose–the Progressive wing of the Democratic Party wants open borders, but the Labor wing definitely does not; the universal healthcare driven through by the Democratic Progressives has gone very badly for labor unions, whose members lost much of their superior healthcare benefits under the program.  Majority opinion is more fickle than a twelve-year-old girl’s crushes.  Democracy leads to such rapid changes.  People think they want one thing, but when they start to see where that leads, they change their minds and want something else.

Our system does not always give us stability.  In recent years the fracturing of political opinion has led to some very unstable situations.  However, rapid change is always unstable, and we have seen much rapid change over those years.  The system is working to slow the change, to keep things at a pace people can accept.

A more democratic system would not be a better one.

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