"It gets late early around here." - Yogi Berra
February 27, 2012
POLITICS: What's At Stake in Michigan
Here's why tomorrow's Michigan primary is so important: it's about establishment confidence in Mitt Romney and the last outside chance of getting another entrant in the race.
There are, as I've noted previously, a number of different types of "establishment" vs "grassroots" divides in the GOP, but you don't have to have any particular definition of 'establishment' to recognize that Romney's candidacy leans heavily on the support he draws from traditional 'establishment' or 'insider' sources: money from big-dollar fundraisers, endorsements from big-name elected officials, and covering fire from right-leaning journalists at major mainstream publications and conservative journals. Romney has depended, time and again, on his ability to get out of trouble by having the resources to go more negative than whatever opponent he's targeting: more money to dump on negative ads and a bigger chorus of voices amplifying those attacks.
Aside from Mormon support - which is somewhat sui generis to Romney - some of Romney's structural support comes from people who know him personally or identify with him as a fellow wealthy businessman; some comes from people who fear running a bold-colors conservative; and some comes from those who, whether or not they'd support a conservative in theory, fear Rick Santorum and Newt Gingrich as electoral liabilities, Santorum for his overly outspoken social conservatism, Newt for his long train of baggage. (It's obviously Santorum who represents the more serious threat to Romney at present.) It's the latter two groups whose loyalty Romney must retain.
But there have been significant signs that if Romney loses his home state, where he grew up and where his father was Governor, that support may at last start to crack. Elected officials not in the Santorum or Newt camps were increasingly vocal criticizing Romney after his tripleheader loss to Santorum earlier this month. There are reports that Romney's fundraising may be ready to tap out, which would require him to increasingly self-finance. His polling among independents is poor, calling into question the whole "electability" rationale of his campaign. The clincher came ten days ago when ABC quoted an unnamed Republican Senator saying that if Romney loses Michigan, a new candidate is needed to avoid running Santorum:
"If Romney cannot win Michigan, we need a new candidate," said the senator, who has not endorsed anyone and requested anonymity.
(There was similar talk when Romney seemed in danger of losing Florida to Newt Gingrich) Talk of this nature has quieted a bit as Romney's polling improved in Michigan, but it could revive in a big way if he loses there, while continuing to trail badly in Ohio and Pennsylvania.
Such a response is, in my view, the last remaining plausible path to nominating someone other than the 4 candidates presently in the race.
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There's been a ton of talk about a race that is contested all the way to the convention, perhaps resulting in some sort of brokered deal to get a new candidate. Sean Trende (see here, here and here) has your must-read summaries of what makes such a convention possible, why it's still unlikely and what the risks would be.
Color me skeptical, for reasons that overlap to a good extent with Trende's. First, any sort of brokering will be done by and through the party machinery - the very folks who are already behind Romney, and would be the last ones to abandon him to a deal with Santorum or Newt. Second, while Santorum and Newt may have plenty of experience counting noses in Congress, a scramble for uncommitted delegates is likely to come down to the kind of horse-trading where money is the decisive advantage - and again, that means Romney (alternatively, power would rest with current officeholders, few of whom have backed Santorum or Newt). Third, any establishment figure who is open to a draft and would be a semi-credible candidate is likely someone who is already publicly behind Romney (eg, Chris Christie) or at least privately more favorable to him than to Santorum or Newt. Fourth, a candidate chosen so late in the game is bound to be unprepared, undervetted, not blessed by any choice of the voters, and in need of a ton of fence-mending with people who spent the whole spring and summer behind another candidate. I can't see it happen.
For similar reasons, I don't expect anybody else to get into the race now. The people who bowed out did so for various of their own reasons, and are unlikely to want to reconsider if it still means jumping in against Romney's well-oiled attack machine. It's not possible for a late entrant to get on enough ballots to get past 50% of the delegates, so we go back to the list above of reasons why Romney would win at a contested convention. There's no time to build a new organization and new fundraising base in time to get in the race, unless the new entrant inherited one already in existence. And the not-Romney voting bloc, large as it is, would need to be convinced that a late entrant isn't yet another ruse to allow Mitt to win on a divide-and-conquer strategy.
But there remains one and only one way, however unlikely, that this whole dynamic could change: if Romney drops out. Which he's naturally not inclined to do, after running almost continuously for six years. But would his view change if a significant bloc of his support came to him and said it was time to back a new entrant - if his supporters concluded either that Romney couldn't stop Santorum or would be too damaged goods to mount a serious challenge to Obama? I think it might, just as the view of someone like Christie might change if he was released from his endorsement of Romney and begged to enter to stop Santorum (who Christie clearly views as a disaster for the party). Even without the ability to win 50% of the delegates, a credible new entrant who started reeling off wins in the remaining contested states would be able to build an argument that the grassroots and the establishment have finally found a candidate they can agree on, creating a much stronger position to squeeze Santorum and Newt to get on board.
(I've used Christie as the most obvious candidate, but he's not the only possible one among figures who can more plausibly bridge the gap between the various factions of the party but who chose not to run)
Is this a likely outcome? Probably not, even if Romney loses Michigan (it might have been more likely if he'd been blown out there, but that won't happen). But it's at least still a plausible path, and in my view the last plausible path to any outcome other than Romney or Santorum (or, far less likely, Newt) winning this thing the traditional way.
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February 25, 2012
HISTORY: Presidents By Birth Month
For your Presidents' Week (or whatever they call it these days) enjoyment, the birth month of all the presidents, plus presidential candidates:
This is...not evenly distributed in terms of quality.
January: Nixon, FDR. McKinley, Fillmore
February: Reagan, Lincoln, W.H. Harrison, Washington
One of these things is not like the others. Then again, at least Harrison did no damage in office.
March: Cleveland, Tyler, Jackson, Madison
(Mitt Romney was born in March)
April: Grant, Buchanan, Monroe, Jefferson
May: JFK, Truman
(Rick Santorum was born in May)
June: George H.W. Bush
(Newt Gingrich was born in June)
July: George W. Bush, Ford, Coolidge, J.Q. Adams
August: Obama, Clinton, LBJ, Hoover, B. Harrison
Poor Benjamin Harrison, in this company.
There wasn't room for another one.
October: Carter, Ike, TR, Arthur, Hayes, Adams
Character of this list changes a lot if you ignore History's Greatest Monster.
November: Harding, Garfield, Pierce, Taylor, Polk
Pierce is the only one who was alive five years after being elected. Polk rather stands out in this crowd.
December: Wilson, A.Johnson, Van Buren
February 23, 2012
POLITICS: The Right Answer on Birth Control
At the CNN GOP debate last night in Arizona, the candidates were asked this question:
Since birth control is the latest hot topic, which candidate believes in birth control, and if not, why?
The question was roundly booed by the audience. Republicans hated this line of questioning when it was aired in a debate a few weeks back by former Democratic White House Communications Director George Stephanopoulos, at a time when it seemed to have nothing at all to do with the issues in the campaign. Since then, President Obama has forced the issue into the public debate with the HHS mandate that all employers, even those with religious objections, include contraceptive coverage in employer-provided health care plans, so the subject can't be avoided entirely. And in fact, for various good reasons, Republicans will probably be talking a good deal about the assault on religious liberty in general and the Catholic Church in particular in the months to come. But there's a simpler way of framing the right answer to this in a debate.
Newt Gingrich came pretty close to the right answer to this question, before the other candidates rambled off in various wrong directions, although Rick Santorum came back to something like the right note right at the end of his. First, here was Newt's answer, which may prove the final installment of the "Newt crushes the debate moderators" series we've been seeing for the past seven months:
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I want to make two -- I want to make two quick point, John.
Moe Lane deals with the BAIPA issue. Newt is, for various legitimate reasons, almost certainly not going to be the nominee (in 2012, or ever), but he's put on a clinic this campaign season on some of the crucial things Republicans have to do in debates, speeches and interviews, and one of those is his willingness to put out in the open the extent to which lines of questioning to Republicans and Democrats are asymmetrical and unstated assumptions are shared between the Democrats and the media. Newt's approach should be studied by every future GOP campaign.
After Newt, Romney gave a halfway decent answer about religious conscience (albeit one that, characteristically, elided areas of agreement between his own record and Obama's on this issue). Then Santorum took the bait and started into a digression on the importance of the family, which is a winning issue for him in general but not in the context of this particular question. Finally, Santorum brought the point back close to where the answer should have started:
And you know what? Here's the difference.
As it happens, Santorum is also not the ideal messenger on this point, because he pretty quickly segued into explaining how that is what he did with funding for abstinence education - try to counter a bad liberal program by adding a good conservative program on top of it. I'm sympathetic to the impulse that led Bush-era Republicans to pursue this course, but its time has passed. Newt, by contrast, tried to put things in the proper context and remind people why that time has passed:
I want to go a step further, because this makes a point that Ron Paul has been making for a generation and that people need to take very seriously.
As he so often does, Newt captured the actual rationale of why a lot of people in the party - voters and elected officials alike - are more skeptical today of the kinds of things that litter the records of even people like Newt and Santorum who have solid conservative instincts and principles. It's among the causes of radicalization on spending and regulation I detailed in my original essay on the Establishment on the Right.
Speaking of lessons that Republicans can draw from Newt, I would highly recommend this one: you have to campaign on three levels, Principle, Policy and Results. That is, first you explain your ideas and principles and how they differ from your opponent; then, you explain how your policies would differ; and only then do you bring home (by some combination of data and anecdote) how the record of your policies is good and the record of the other guy's is bad. Romney, in particular, tends to skip ahead to the third step a lot (blasting Obama's jobs record) or at least skip one of the first two steps, either failing to communicate conservative principles or stating them in general terms without bothering to detail how his own proposals would put those principles in practice in ways that differ from Obama. This is one reason why Romney tends to get in trouble discussing things like the stimulus, the auto bailouts and the unemployment rate when he is confronted with the contrary arguments about Obama's results; he hasn't tied his arguments into a coherent critique but is just assuming the voters already agree with his assessment that the stuff Obama has done isn't working. As a result, Romney's not very effective in persuading people who may be on the fence.
So, how should a Republican presidential candidate have answered that question? Like this:
If you're asking me what I personally believe about birth control, that's a private issue and it's none of anybody's business. People have different moral views about birth control, and they can make their own individual choices in private. It's a free country.
Even people who don't agree with social conservatives on moral issues and aren't especially interested in religious liberty can understand the appeal of freedom and the downsides of having the federal government insert itself into these issues. If Republicans can't carry a simple message like that, we shouldn't be in this business.
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February 22, 2012
POLITICS/RELIGION: David Waldman of Daily Kos: Know-Nothing Bigot
It's time for Democratic politicians like Elizabeth Warren who are courting Catholic voters, or who - like Senator Bob Casey - profess the Catholic faith themselves, to distance themselves from Daily Kos over the anti-Catholic Know-Nothing bigotry of Contributing Editor David Waldman.
Waldman, @KagroX on Twitter, is one of the leading figures at Daily Kos, the largest left-wing blog; a former Hotline staffer, he's a contributing editor and front-page writer, runs the affiliated site Congress Matters, and his tweets are frequently quoted and retweeted by Markos Moulitsas. In an angry, profanity-laden tirade last night on Twitter over a flap between a local Virginia church and the Girl Scouts, Waldman unloaded his hatred of the Church, grasping for every anti-Catholic trope he could reach (examples: "Catholic Church: the ones we don't rape, we'll alienate by calling them communist b****es" or "Catholics are the next Shakers. No one under 35 will ever stay in this church") and complaining that there are too many Catholics on the Supreme Court ("Oh that's right. Six Catholics. Fantastic.") Waldman's vicious rant would have been right at home with the anti-popery screeds of the Klan in its heyday, the Know-Nothings of the 1840s or the "Rum, Romanism and Rebellion" trope that cost James G. Blaine the 1884 presidential election.
Waldman's full outburst, in reverse chronological order, is below the fold; warning, it includes language I do not ordinarily use on this website):
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This Klan manifesto from 1923 - see Points 6-8 - seems positively restrained by comparison:
Politics ain't beanbag, and Twitter is often not a place for the most thought-out opinions. But by any stretch, this is far over the line to simple hatemongering. It may not surprise us, but it should still offend us. And it should offend and embarrass Democratic officials that this is a loud voice in their coalition.
It may seem unfair to ask public officials to anticipate that stoking the fires of anti-Catholicism will be seized upon by extremists like Waldman, but they can certainly denounce it - unless it's precisely what they aim to accomplish. There is a long and dolorous history of anti-Catholicism in this country. The Know-Nothings' anti-Catholicism and hatred of new Catholic immigrants were intertwined. Then House Speaker Blaine sponsored the anti-Catholic 1875 Blaine Amendment to the Constitution (defeated in the Senate but enacted in many states and still used as a sword by the public school teachers' unions to this day) and lost the 1884 presidential election when he stood by as one of his surrogates branded the Democrats as the party of "Rum, Romanism, and Rebellion". The Klan was the leading voice against the Church in the 1920s, and as late as 1960, John F. Kennedy was forced to defend his faith against conspiratorial charges of papal control of the federal government. Catholicism has been the faith of many waves of immigrants to this country and strivers for upward social mobility - Irish and Italians and Poles, Filipinos and Hatians, Mexicans, Puerto Ricans and Cubans. There have always been those who find our faith threatening and seek to control it.
And the Catholic Church has been in the Democrats' crosshairs in this election season, moreso than in any election since at least 1960. It's not hard to see why. The four remaining GOP presidential candidates include Rick Santorum, an outspokenly traditional Catholic who has faced questioning on such uncontroversial Catholic beliefs as the existence of Satan, and Newt Gingrich, a late-in-life Catholic convert. Catholics are prominent and rising in GOP ranks, including John Boehner, Chris Christie, Bobby Jindal, Marco Rubio, Paul Ryan, Jeb Bush (a convert), Bob McDonnell, Pat Toomey, Rudy Giuliani, Kelly Ayotte, Susan Collins, John Hoeven, Sam Brownback, Tom Corbett, Susanna Martinez, and Luis Fortuno. The six Catholics on the Supreme Court include all five Republican appointees: Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito. (The sixth is the first Hispanic Justice, Sonia Sotomayor).
The Obama Administration has played wedge-issue politics against the Church for reasons of both policy and politics, most recently with the rule, enacted by the Department of Health and Human Services, requiring Catholic institutions to provide health care plans including coverage of contraception, in violation of the Church's own position - a rule condemned by all 180 Catholic Bishops and scores of Catholic institutions, but which Democrats gleefully predict will be an electoral asset against the GOP precisely because defending the Church's religious freedom is a point of principle on which neither the GOP nor the Church can bend. In Washington State, Democrats are pressing even further, to require all health plans to cover abortions. These moves are all about taking away the Church's freedom, in its capacity as an employer, to follow its own conscience, and thus eliminating one of the last major institutions in this country not beholden to government. And the DSCC is using the confrontation in fundraising emails:
Will no one rid the Obama Administration of these meddlesome priests? The harder the Administration pushes the Church for political and financial gain and to achieve government dominance over social issues, the more the excitable followers of the Administration work themselves into lathers of Catholic-bashing. This is as good a time as any for Democrats to admit that this tactic has gone too far. (It's a recurring issue - Evangelical Christians and Mormons have come in for the same treatment before and will again).
Catholics are a majority in Rhode Island and Pennsylvania and over 40% of the population of in Massachusetts; Catholics are the largest religious denomination in 33 states, and in particular the predominant faith of Latinos in this country. We deserve to know that our elected leaders, regardless of party, will not encourage Waldman's sort of bigotry. Catholic politicians like Bob Casey, Joe Biden, Patty Murray, Jack Reed, Nancy Pelosi and Dick Durbin - or politicians like Elizabeth Warren who are seeking the votes of Catholic voters - should think long and hard about associating themselves with Daily Kos as long as Waldman is part of it. But moreso, they have an obligation not to encourage the extremist bigots in their midsts.
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February 21, 2012
HISTORY: Great Moments In Senate Rhetoric
With the Washington Post debating the most underrated presidents, I'd put my vote for James K. Polk. Polk's tactics remain controversial and he had no stomach for resolving the festering issue of slavery and its expansion, even as he forced the issue forward by massively expanding the country. Even for all that, though, Polk's long-term impact on the nation in just a single term in office was massive and indisputably positive, scoring most of what is now Oregon and Washington from Great Britian without a fight (but not without some nervous moments) and adding Texas, California, New Mexico, Nevada, Utah, most of Arizona and much of Colorado from a dysfunctional Mexico that could never have developed them. Polk, not Teddy Roosevelt, should be on Mount Rushmore.
Anyway, we think political rhetoric is harsh today, but this was a favorite example of mine from Robert Merry's book on Polk. Senator Edward Hannegan of Indiana - a member of Polk's own party - in a dialogue on the Senate floor, predicted that history would judge Polk (who had run on a promise to win the Oregon Territory, whose boosters used the slogan "54'40" or fight!") harshly for settling for the Oregon territory only up to the 49th parallel:
So long as one human eye remains to linger on the page of history, the story of his abasement will be read, sending him and his name together to an infamy so profound, a damnation so deep, that the hand of resurrection will never be able to drag him forth. He who is the traitor to his country can never have forgiveness of God.
Polk, of course, did settle, more or less, for the 49th parallel. Footnote: after Hannegan was not renominated for another Senate term, Polk, on his way out of office, appointed Hannegan the US Ambassador to Prussia.
February 16, 2012
BASEBALL: RIP Gary Carter
Age 57. The brain tumors got the third strike past him that Calvin Schiraldi never could. A good man and a great ballplayer, gone too soon.
Gary Carter carried the heaviest catching workload of anybody whose prime spans eight or more years - a staggering 144 games caught per 162 team games (and this for a team, in Montreal, that often stacked up doubleheaders in August due to April snow-outs). If you watched Carter at the tail end of those years and the seasons that followed, you saw what a brutal toll the workload took on his body, as every aspect of his game unraveled. Carter is the classic guy whose numbers make more sense when you extract his prime from the wreckage that followed. Besides being a devastating power hitter, Carter was a very tough guy to run on until his last year in Montreal, and in an age when base thieving was running rampant in the National League. In New York he also mentored a talented young pitching staff, or rather shared that role with Keith Hernandez.
As I noted in that column, over the decade of his prime from 1977-86, Carter caught 38.5% of base thieves, while facing an enormous volume of opposing stolen base attempts. And while carrying that heavy defensive load, Carter averaged .274/.347/.474 with 26 HR and 92 RBI. I'd rank Carter behind Josh Gibson, Johnny Bench, Yogi Berra, and Mickey Cochrane, and maybe Mike Piazza given how much better a hitter Piazza was than Carter or any other catcher. But you'd have a hard time finding anybody else with a good case to rank above Carter (I'd put him ahead of Campanella, Dickey, Fisk, Pudge Rodriguez, Simmons and Posada), which in my book makes him the 5th best catcher in MLB history (given that Gibson never played in the majors).
Carter was baseball's Tim Tebow before there was a Tim Tebow - a cheery Christian off the field, tough as nails on it. Carter was the ultimate guy who never backed down, never gave up, never begged out. I loved, loved John Stearns as a kid; Carter had Stearns' toughness with more talent. He battled Stearns to a draw in home plate fight around 1978 or so. In the famous 1986 Mets-Reds brawl, after Ray Knight clocked Eric Davis, Carter took Davis out of the fight by tackling him with his mask under Davis' ribs, knocking the wind out of him.
Carter, of course, arrived with a bang in New York. His first game as a Met, April 9, 1985, he caught the whole game and hit a game-winning walkoff homer in the 10th inning against the Cardinals. His second game, two days later, he caught all 11 innings of a 2-1 win against the Cards. His third game, the next day, he homered in a 1-0 win. He caught the next day (another win), then homered and drove in two runs while catching a 4-0 win the following day. And yet Carter would get better: the last 62 games that year, while catching a young staff including the incomparable season by Dwight Gooden, Carter hit .300/.367/.599 with 21 HR and 59 RBI, while striking out just 18 times (this included his 5 homers in two days rampage in San Diego in September. This after a 1984 season when Carter became one of just four catchers (the others being Bench, Campanella and Darren Daulton) to lead the league in RBI.
By 1988, Carter was a shell of his former self, with his months-long home run drought stuck at 299 career homers a sad joke. But he still had one last great moment left, when he doubled in the winning runs in a 3-run rally in the ninth inning of Game One of the LCS, the Mets rallying to win after Daryl Strawberry snapped Orel Hershiser's scoreless streak earlier that inning.
Rest in Peace, Kid. Thanks for the memories.
SECOND UPDATE: An emotional Keith Hernandez breaks down on air. Keith's a cool customer by nature, but this is what we're all feeling.
How tough was Carter? People forget exactly how many doubleheaders the Expos played in those days because of early season snow. From 1977-83, Gary Carter caught both ends of a doubleheader 40 times in 7 years (I counted games in the game log where he entered the game as a catcher and caught a few innings). In 1978, Carter caught both ends of ten doubleheaders. Ten. In September 1979, Carter caught both ends of a doubleheader 6 times in 13 days. In September 1981, Carter caught both ends of doubleheaders on consecutive days.
Carter drove in 101 runs in 1980 batting behind tablesetters who hit .257/.337/.363 and .224/.307/.293. In 1984, he led the league in RBI hitting behind a guy with a .301 OBP, on a team whose leadoff hitter was 43 years old, slow, and hit .259/.334/.295.
February 15, 2012
LAW/POLITICS: Indecent Proposition
The Ninth Circuit's 2-1 decision last week in Perry v. Brown upheld the decision of Judge Vaughan Walker holding that the people of the State of California violated the Equal Protection Clause of the 14th Amendment by passing - in a statewide referendum in 2008 - Proposition 8. Prop 8 amended the California Constitution to define marriage as between one man and one woman, restoring the rule previously set forth in California statutory law until overturned by the California Supreme Court earlier in 2008. Prop 8 garnered over 7 million votes, two million more than John McCain in liberal California - it was the supported by 52.3% of the same electorate that broke 61-37 for Barack Obama, including 58% of black voters and 59% of Latino voters.
Despite some game efforts to meddle with the burden of proof based on the sequence of events, the core of the decision - written by veteran arch-liberal Judge Stephen Reinhardt - was the same as that of the district court: the assertion that there is no possible rational basis for distinguishing between traditional, opposite-sex marriage and same-sex marriage. More specifically, in the California context, the court found that the federal constitution gives federal judges the right to dictate the language itself, holding that California's voters were not even permitted to reserve the term marriage to opposite-sex marriage while providing effectively all the practical state-law benefits of marriage to same-sex couples through "domestic partnership."
There are arguments for and against same-sex marriage as a policy matter, but the argument for declaring that the Constitution mandates that only one set of those arguments be considered "rational" is itself irrational and intellectually indefensible. This is so not only because it begs the question by redefining the language and because it ignores basic biological reality, but most of all because the argument for striking down Proposition 8 treats history, culture, tradition and social convention inconsistently. It should not be taken seriously as constitutional law.
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The Ninth Circuit panel majority reassures the reader that the distinction between opposite-sex and same-sex marriage "is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly." Yet, like Judge Walker, the majority determined that no person of good will could have any rational reason for voting for Proposition 8. I detailed at greater length the flaws in Judge Walker's original decision back in 2010; let's hit the high points of why the case against Prop 8 is so intellectually shoddy.
Tradition for Me, Not For Thee
The core problem with the Ninth Circuit panel's analysis, as with that of Judge Walker, is its inconsistent treatment of the role of tradition and culture. When it comes to finding that same-sex couples have been injured by being deprived of the use of the term "marriage," the court waxes eloquent on the cultural status of the institution:
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships.
[W]e emphasize the extraordinary significance of the official designation of 'marriage.' That designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults...The word 'marriage' is singular in connoting "a harmony in living," "a bilateral loyalty," and "a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
We need consider only the many ways in which we encounter the word 'marriage' in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are "single" or "married." Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "Will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution ... but who wants to live in an institution?" would lack its punch if the word 'marriage' were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that’s marr'd," Lincoln's "Marriage is neither heaven nor hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different. The name "marriage' signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.
The incidents of marriage, standing alone, do not...convey the same governmental and societal recognition as does the designation of 'marriage' itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of 'marriage' is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.
All of this is unobjectionable - it accords with the view that the term "marriage" has value that comes from a longstanding social and cultural tradition, stretching back in fact much further even than Shakespeare. As Justice Holmes famously said, "The life of the law has not been logic; it has been experience." Human experience gives meaning to words, or else we could not have a language that is commonly understood. The full quotation from the Supreme Court's unanimous opinion in Griswold - including the portion not quoted by the Perry panel majority - makes precisely this point in finding that rights arising from marriage are derived from the institution's age and traditional role and importance in society, and not from mere judicial syllogism:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
But that whole history - and each and every cultural references cited by Judge Reinhardt - is a history of opposite-sex marriage. The long, hard work of establishing the meaning and value of marriage - earning that social and cultural "respect and dignity" that raises marriage to the level of a commitment "intimate to the degree of being sacred" in the eyes of society, from literature to film to church to law - has been done by uncounted millions of opposite-sex married couples over thousands and thousands of years. What the Perry plaintiffs want is to free ride on that effort, to be granted the social respect earned by a distinct relationship - and have the government enforce that by redefining the very language. The issue is not at all one of "live and let live," but a demand for "state legitimization and societal recognition" enforced by the courts. Yet somehow, in ruling on that issue, the Perry panel majority puts the weight of such considerations on only one side of the scale.
Tradition, history, culture, social recognition: these things were good enough, not only for Justice Douglas in 1965, but for the Ninth Circuit panel majority itself in its own discussion of the reasons why the term "marriage" matters and has value - yet they suddenly become a thing that could have been given no rational weight when determining whether the state may continue to use the same word to mean the same thing it has meant throughout history. This cannot possibly be defended as law or logic.
If the term "marriage" is a thing of sufficient social and cultural value to give rise to a constitutional injury, then the source of that social and cultural value must be considered a rational basis for continuing to use the word to have the same meaning. It is no equal protection of the laws to say that the Perry plaintiffs may legitimately consider social and cultural status important, yet 7 million California voters may not.
The Birds and the Bees
Declaring opposite-sex and same-sex marriage to be identical also ignores the basic fundamental biological distinction between the sexes: it takes a man and a woman to make a baby. There is - as I have explained at much greater length here and here - an entirely rational basis for distinguishing as a class between opposite-sex and same-sex couples by virtue of the relationship between opposite-sex relations and the bearing and begetting of children. The Ninth Circuit majority waves this consideration away on the grounds that Prop 8 did not directly affect the right or ability of either type of couple to have or raise children. And admittedly, California law's expansive domestic partnership and palimony laws have long failed to give much in the way of privileged legal status to traditional marriage. But again, the Perry panel majority fails to consider the common-sense point that maintaining some of the social and cultural respect unique to marriage (the very thing the panel majority just got done trumpeting in significance) is the very least thing the state can do to preserve the status of an institution that is so vital to raising the next generation.
Its relationship to having children is the aspect of marriage in which the state has the most obvious interest, and which justifies any state involvement at all. The state has a compelling - to the point of being existential - interest in encouraging the birth of children. This is especially true in a world of declining birth rates and an entitlement state whose demographic premises are rapidly eroding (and no American state is in as dire fiscal straits as California). Statistically speaking, opposite-sex couples produce nearly all the world's children. Same-sex couples, even with the aid of modern technology, are highly unlikely to reproduce at even a replacement level. Disparities between the likelihood of the two groups to produce children are backed up by current Census data. Encouraging opposite-sex marriage in ways and to an extent different from same-sex couplings is an entirely rational way of pursuing this goal, and this is so even without conducting a more intrusive examination of whether particular couples of one type or another are willing or able to have children (or even know if they are, at the time they marry).
The state also has a compelling interest in encouraging opposite-sex couples to marry, precisely because unmarried opposite-sex couples may have children, and because of the superiority of raising children in a married rather than unmarried home (a point backed not only by common experience but by virtually all social science research ever) The state has no nearly similar interest in encouraging same-sex couples to do so - the number of gay single parents is vanishingly small and (not to state the obvious) includes essentially no unplanned pregnancies.
Perhaps one may argue that the state can, or should, offer more than (literally) a single word of encouragement for traditional marriage. But nothing in constitutional law requires that the state do every possible thing to achieve a goal in order to show that it has acted for a rational purpose.
Reading Is Fundamental
The plaintiffs in Perry have also argued that they were deprived of the "fundamental right to marry." The court, wisely in my view, steered clear of this argument, which is a dishonest bait-and-switch for much the same reason.
The Constitution mentions no right to marry. The Supreme Court has recognized this right as being "fundamental" for essentially the reasons identified in Griswold - because it is a social institution older than the Bill of Rights itself, and which the Founding Fathers would not have thought to protect in the Bill of Rights solely because they did not anticipate the federal government tampering with it. That is, in fact, why we have a Ninth Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"): to protect against novel intrusions on rights long recognized and respected at common law. Rewriting the definition of "marry" to mean something significantly different from the word's common law meaning would call into question the entire rationale for recognizing the right as fundamentally beyond the reach of the law in the first place. Constitutional law would get a lot more interesting if the ordinary meaning of words can be changed to place desired outcomes beyond the reach of the democratic process.
Here, Sir, The People Rule
We have written constitutions, enforceable by judges, for a reason. The Founding Fathers believed in natural law and natural rights - that is, in the notion that we are endowed by our Creator with certain rights that are inalienable, immune from the proper reach of the law. But they did not write the Constitution to give the judiciary a broad-ranging charter to determine what rights were God-given; they wrote down specific powers granted to particular organs of government and specific rights reserved to the people, and - by Article V - empowered We the People to change the Constitution by supermajority if the People felt that it required revision with the times (something the People have done 27 times so far).
Judicial review to strike down democratic enactments on the grounds that the People have placed certain things beyond the reach of legislation - such as the freedom of speech, free exercise of religion and prohibition on slavery - is essential and legitimate. It is the way in which the rule of popular sovereignty is enforced and enhanced, not degraded.
But when judges seek to decide what is "rational" or "fundamental" without any guidance from the text of the Constitution or the history of its enactment (two things conspicuous by their absence in Perry, as it would be laughable to suggest that the 14th Amendment addresses the definition of marriage or was understood at the time to do so), they are engaging in that open-ended exercise of what amounts to determining the will of God rather than of the People, and doing so without any particular reason to believe that they are more competent to the task than the electorate. The fact that rights are declared to be fundamental or decisions to be irrational on the basis of an avowedly secular set of principles does not make such a system of government meaningfully different in practice from theocracy or any other form of oligarchy, in which some questions are simply off-limits to the consent of the governed, to be interpreted only by a self-selecting elite. In a democracy, there are no such things as questions too important for the voters, only questions about what the voters have placed within and without the current sphere of their authority.
Absent text and history to guide them, what makes two judges (or one, or five) a better determinant of what is rational, or fundamental, than seven million Californians, drawn from all races, religions and walks of life? And why can't those seven million Californians draw on things like experience, tradition, culture, and plain old common sense in making their decisions?
As I've written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason - they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.
But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters' views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.
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February 9, 2012
BLOG: Links 2/9/12
I should do roundups like this more often of the stuff I do on Twitter.
-Jose Reyes' hair sells for $10,200 in charity auction. The hair will play SS for the Mets.
-The one thing that's really booming in this economy - despite the best efforts of liberal activists and the Obama Administration to the contrary - is domestic oil and gas production. Frack, baby, frack!
-Yeah, sure, and being against Nazis is just what Elie Wiesel does to feel young & virile again. It is true that older people overestimate recurrence of the troubles of their youth. Ascribing this to "testosterone" is juvenile.
-Yet another "better Romney argument than Romney is making" column, this one with good ideas from Jim Pethokoukis. Call it a Prospectus for America.
-Then: "core symbol of right-wing radicalism" Now: Democratic mainstream. We always knew a lot of the anti-war stuff was just partisanship. Of course, unlike Greenwald, I regard this as a good thing for the country.
-Elvis Andrus focused on getting better. This seems like a unique goal to have.
-I'd forgotten that, for idiosyncratic reasons, Reagan actually won the popular vote in the GOP primaries in 1968.
Posted by Baseball Crank at 10:05 AM | Baseball 2012-14 | Blog 2006-14 | Politics 2008 | Politics 2012 | War 2007-14 | Comments (4) | TrackBack (0)
POLITICS: What A Difference Nine Days Makes
Here's what Rick Santorum's campaign looked like on January 30, the night of the Florida primary:
Prompting headlines like "This Is What It Looks Like When A Campaign Dies." Here's what it looked like on February 8, after his wins in the Missouri primary and the Minnesota and Colorado caucuses:
Things change in a hurry, this campaign season.
February 7, 2012
HISTORY: Cleveland on Marriage
A little history lesson, which of course you can interpret any way you like, but I think at least it's a reminder that social-issue controversy - and strong rhetoric about the importance of marriage - is not a totally new thing in national politics. Here's a passage from Grover Cleveland's first State of the Union message, in 1885, at the height of the federal government's effort to stamp out polygamy (some seven years after the US Supreme Court in Reynolds v US held that it was constitutional to ban polygamy). Mind you, this is a Democratic president who had just been elected in a campaign that featured extensive criticism of the unmarried Cleveland for fathering a child out of wedlock. It's also an interesting reminder that the Mormon church was compelled, rather literally at gunpoint by the federal government, to abandon its original definition of marriage.
The last line gives you a sense of exactly how hard-line Cleveland was on this issue.
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In the Territory of Utah the law of the United States passed for the Suppression of polygamy has been energetically and faithfully executed during the past year, with measurably good results. A number of convictions have been secured for unlawful cohabitation, and in some cases pleas of guilty have been entered and a slight punishment imposed, upon a promise by the accused that they would not again offend against the law, nor advise, counsel, aid, or abet in any way its violation by others.
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February 2, 2012
BLOG: SEO Ain't Beanbag
BASEBALL/POLITICS: Newtie V
While I write a lot about baseball and politics, I generally try to avoid mixing the two. But once this analogy occurred to me, having lived through both of their tenures as a Mets fan and Republican in the 1990s, it was irresistible:
Bobby Valentine is the Newt Gingrich of baseball managers.
Think about it. Both are essentially relics of the 1990s who have spent a good deal of the past decade as TV pundits, and have had to overcome the initial instinct to laugh at the sudden re-emergence of a once-controversial figure so long out of power. Both are restlessly intelligent, talkative to a fault, energetic to the point of being a whirlwind of activity, devious (in the "what will he think of next?" sense of being constantly alert for ways to exploit opportunities and gaps in the rules), prone to conflict with peers and occasional mutinies among their subordinates, and often overly impressed with their own intelligence. Both have that odd Kermit the Frog lump-in-the-throat tone to their voices, yet are nonetheless compelling speakers. Both had their first go-round ended by George W. Bush, more directly in the case of Bobby V (who Bush fired, rather than just stepping into a power vacuum he left behind). Both have been mostly successful throughout their careers, yet are back pursuing the largest prize that has evaded them. Both need to overcome the creeping suspicion that they're better suited to being scrappy insurgents than frontrunners.
The parallels are not perfect, of course. Valentine lacks Newt's command of history and his ugly marital record; Newt lacks Valentine's family connections (as Ralph Branca's son in law) or his status as a former phenom felled by misfortune (in 1970, Valentine hit .340/.389/.522 as a 20 year old shortstop in the Pacific Coast League, winning his second straight league MVP award - 39 doubles, 16 triples, 14 homers, 29 steals - but was just getting his sea legs as a 23 year old in the majors when he suffered a gruesome leg injury). But once you think about it, the similarities are obvious.
Time will tell which of them ends up with more to show for their return to the arena.