The Republican candidate for the House of Representatives in the 8th District of Illinois, David McSweeny, has voiced his support for a constitutional ban prohibiting abortion in all instances. I oppose such a measure for two reasons; one substantive, the other structural.
On substantive grounds I oppose any statutory prohibition of abortion that does not contain exceptions for instances of rape, incest, and desideratum to the survival of the mother. I have elaborated why previously and will not superfluously plagiarize myself here.
Structurally, I believe it infelicitous to write substantive, policy-specific language into the constitution because such language does not belong there. The province of a constitution is to devise the structure and nature of a government. That government, so constituted, is responsible for devising specific law. Should you write policy-specific language into the constitution you controvert its very function and obfuscate the distinction between a constitution and the government it inaugurates. A constitution creates a government, that government creates law.
Moreover, the framers deliberately mandated super-majorities to amend the constitution because they did not want it to devolve into an inconsistent, un-prestigious, elementary reflection of fashionable policy persuasions held at any one point in time. They understood that for the constitution to be a durable document immune from the erosions of time it had to be limited to simply devising a framework under whose auspices the actual substantive determinations could be made by the people and future generations.
For these reasons it would be inappropriate to write policy, any form of it, into the constitution.
Monday, June 26, 2006
Thursday, June 22, 2006
Enforcing Decency
Last week the president triumphantly signed into law the Broadcast Decency Enforcement Act, increasing fines on networks who broadcast indecent material. The whole affair strikes me as mere symbolism and, in fact, illuminates the value pandering and substanceless government action hold in politics today. For sure, entertainment is saturated with gratuitous sex and violence, but tighter FCC regulation and steeper fines are unequal to the task of curbing this. The thought that a three-hundred thousand dollar fine will curb, or even dent, the sex and violence culture preponderant in entertainment is absurd, as is the message this law proffers: it is incumbent and necessary for the federal government to stem salacious pop culture entertainment. There are avenues through which televised sex and violence can be ended, FCC action is not one of them. (Never mind the farcical pretense of the government regulating cultural mores of proprietary conduct and behavior. If the indecent material targeted by this regulatory regime was really so far outside of our common cultural conception of decency it would not be accepted and thus would not be so widely permeant, defeating the supposed need for government regulation in the first place.)
Just as darkened windows protect the innocent passerby from the lewd contents of a strip club or adult bookstore, the "Power" button on the standard t.v. remote protects the innocent television viewer from uninvited images of sex and violence. You do not need to rely upon punitive regulation from the federal government to protect you. If you do not want to watch pure raunchiness, or do not want your children to, then change the channel or turn the t.v. off altogether. My suggestion: ESPN is a Sistine Chapel-sized sanctuary from the archetypal prime-time lineup.
If simply utilizing the television viewer’s veto—the remote—on an individual basis is not enough, then those indignant at the entertainment industry’s product can handle matters the old-fashioned way: through mass consumer boycott. Entertainment is a business just like any other; if no one watches their product they will not offer it any more; lest profit turn to loss, black ink into red. The entertainment industry wants your money, and they will pander to you to a degree that would make Senator John Kerry blush in order to get it. Were there a broad revulsion towards televised sex and violence, such images would never reach your television screen.
Moreover, bad publicity is the bane of any profitable business. Monsoons of disgruntled letters to the editor, public rallies and demonstrations, even picketing corporate headquarters, will garner the industry’s attention if substantial enough. At the very least they will accomplish more than a fine from the boys at the FCC will.
Then again, mass, organized action is probably unnecessary. Ratings get the attention of the entertainment industry better than all else because they determine their revenues. The concerned and conscientious citizen may effect change, as I have argued here already, by simply turning the channel and watching something else, diminishing a particular program or network’s ratings. Lower ratings equal lower profits, and if no one is watching a particular program, or genre of programs, then networks will not show them. The individual viewer can enforce decency in broadcasting with his or her remote far more effectively than the FCC can with its regulations and fines.
If anything, such individual action is an important indication of our republic’s civic health. After all, one characteristic of a country more appalling than an entertainment industry replete with sex and violence is a citizenry dependent upon the government to do for them what they can and should do for themselves. It does not take the federal government to enforce decency, just a simple click of the remote.
Just as darkened windows protect the innocent passerby from the lewd contents of a strip club or adult bookstore, the "Power" button on the standard t.v. remote protects the innocent television viewer from uninvited images of sex and violence. You do not need to rely upon punitive regulation from the federal government to protect you. If you do not want to watch pure raunchiness, or do not want your children to, then change the channel or turn the t.v. off altogether. My suggestion: ESPN is a Sistine Chapel-sized sanctuary from the archetypal prime-time lineup.
If simply utilizing the television viewer’s veto—the remote—on an individual basis is not enough, then those indignant at the entertainment industry’s product can handle matters the old-fashioned way: through mass consumer boycott. Entertainment is a business just like any other; if no one watches their product they will not offer it any more; lest profit turn to loss, black ink into red. The entertainment industry wants your money, and they will pander to you to a degree that would make Senator John Kerry blush in order to get it. Were there a broad revulsion towards televised sex and violence, such images would never reach your television screen.
Moreover, bad publicity is the bane of any profitable business. Monsoons of disgruntled letters to the editor, public rallies and demonstrations, even picketing corporate headquarters, will garner the industry’s attention if substantial enough. At the very least they will accomplish more than a fine from the boys at the FCC will.
Then again, mass, organized action is probably unnecessary. Ratings get the attention of the entertainment industry better than all else because they determine their revenues. The concerned and conscientious citizen may effect change, as I have argued here already, by simply turning the channel and watching something else, diminishing a particular program or network’s ratings. Lower ratings equal lower profits, and if no one is watching a particular program, or genre of programs, then networks will not show them. The individual viewer can enforce decency in broadcasting with his or her remote far more effectively than the FCC can with its regulations and fines.
If anything, such individual action is an important indication of our republic’s civic health. After all, one characteristic of a country more appalling than an entertainment industry replete with sex and violence is a citizenry dependent upon the government to do for them what they can and should do for themselves. It does not take the federal government to enforce decency, just a simple click of the remote.
Saturday, June 10, 2006
The '06 Mid-terms
Elections are not referendums: voters cannot simply vote yes or no on a candidate or a party. If elections were referendums the Democrats would have control of congress within their grasp. Republicans and their deficiencies would be solely scrutinized by voters without due regard towards the Democrats and theirs. A yes or no referendum on congressional Republicans, in the current environment, is an election Republicans lose.
Unfortunately for Democrats, elections are a choice between two alternatives. The greatest obstacle standing between Democrats and control of congress is that they are the alternative to the Republicans. As much as voters may be disenchanted with Republicans, they glance towards the other side of the aisle and see something equally odious. Yes Republicans spend too much, are too often too comfortable in their seat of power, have not accomplished the big items they promised, and lack focus and discipline. But the Democrats are mindlessly obstructionist, petty and churlish, and stand for and promise nothing but the failed liberal policies of the past.
Granted, Democrats are likely to gain a seat or two in both houses in November. As the party in the majority, voter disillusion will grate heavier upon Republicans than Democrats.
The Democrats transparent shortcomings likely preclude them from taking control of congress however. If anything, voters in the middle are likely to glance at both choices and stay home on election day. A low-turnout election equals a virtual perpetuation of the status quo, not a new Democratic majority.
The special election in California-50 this week corroborates this. The vast majority of those who turned out to vote were members of either the Republican or Democratic Party. Independents constituted a very minimal fraction of the vote and neither of the two candidates ended up receiving a majority.* The Republican candidate, Bill Bilbray, was able to achieve a minimal victory in a reliably Republican district. He received less of the vote share than President Bush won in that district in ‘04 but still received enough of the vote to win.
This is a pattern we could see throughout the country in November. Dissatisfaction with Republicans might earn the Democrats a few more points than they normally would receive, but minimal independent turnout will prevent these nominal gains from ever becoming substantial enough to take control of the House or Senate, or both. To garner a wave large enough to depose the Republican majority, Democrats would need their own base and independents to turn out against the Republicans Party.
An energized Democratic base with a heavy turnout is unlikely to suffice. As disheartened as Republicans may be with their own party, visions of Denny Hastert turning over the gavel to Nancy Pelosi January 3, 2007 are likely to nullify the vote-depressing effect this sentiment entails.
I am just as disappointed in congressional Republicans as the next voter. If the choice were between the current crop of Republicans in congress and a party who would spend responsibly, stay the course in Iraq, reform entitlements, and pass comprehensive immigration reform, I would chose the latter. But that is not the choice. That a Democratic congress is the only alternative to the current Republican one serves as the largest motivation insuring my enthusiastic support for Republicans this year. I suspect most of my fellow Republicans feel the same.
If the current quality of the choices voters face remains the same, most independents in the middle are likely to just stay home election day, leaving rank-and-file Democrats disgusted by Republican rule to square off against rank-and-file Republicans terrified at the thought of Democratic rule in a battle of which party can turn out more of their faithful. Such an environment may be conducive to Democratic gains, but not control of congress.
* Although added together the total vote share from Mr. Bilbray and a conservative independent in the race, William Griffith, who ran on a tighter border security platform, constituted a majority of the vote at 53%.
Unfortunately for Democrats, elections are a choice between two alternatives. The greatest obstacle standing between Democrats and control of congress is that they are the alternative to the Republicans. As much as voters may be disenchanted with Republicans, they glance towards the other side of the aisle and see something equally odious. Yes Republicans spend too much, are too often too comfortable in their seat of power, have not accomplished the big items they promised, and lack focus and discipline. But the Democrats are mindlessly obstructionist, petty and churlish, and stand for and promise nothing but the failed liberal policies of the past.
Granted, Democrats are likely to gain a seat or two in both houses in November. As the party in the majority, voter disillusion will grate heavier upon Republicans than Democrats.
The Democrats transparent shortcomings likely preclude them from taking control of congress however. If anything, voters in the middle are likely to glance at both choices and stay home on election day. A low-turnout election equals a virtual perpetuation of the status quo, not a new Democratic majority.
The special election in California-50 this week corroborates this. The vast majority of those who turned out to vote were members of either the Republican or Democratic Party. Independents constituted a very minimal fraction of the vote and neither of the two candidates ended up receiving a majority.* The Republican candidate, Bill Bilbray, was able to achieve a minimal victory in a reliably Republican district. He received less of the vote share than President Bush won in that district in ‘04 but still received enough of the vote to win.
This is a pattern we could see throughout the country in November. Dissatisfaction with Republicans might earn the Democrats a few more points than they normally would receive, but minimal independent turnout will prevent these nominal gains from ever becoming substantial enough to take control of the House or Senate, or both. To garner a wave large enough to depose the Republican majority, Democrats would need their own base and independents to turn out against the Republicans Party.
An energized Democratic base with a heavy turnout is unlikely to suffice. As disheartened as Republicans may be with their own party, visions of Denny Hastert turning over the gavel to Nancy Pelosi January 3, 2007 are likely to nullify the vote-depressing effect this sentiment entails.
I am just as disappointed in congressional Republicans as the next voter. If the choice were between the current crop of Republicans in congress and a party who would spend responsibly, stay the course in Iraq, reform entitlements, and pass comprehensive immigration reform, I would chose the latter. But that is not the choice. That a Democratic congress is the only alternative to the current Republican one serves as the largest motivation insuring my enthusiastic support for Republicans this year. I suspect most of my fellow Republicans feel the same.
If the current quality of the choices voters face remains the same, most independents in the middle are likely to just stay home election day, leaving rank-and-file Democrats disgusted by Republican rule to square off against rank-and-file Republicans terrified at the thought of Democratic rule in a battle of which party can turn out more of their faithful. Such an environment may be conducive to Democratic gains, but not control of congress.
* Although added together the total vote share from Mr. Bilbray and a conservative independent in the race, William Griffith, who ran on a tighter border security platform, constituted a majority of the vote at 53%.
Wednesday, June 07, 2006
Zedner & Legislative Intent
In his opinion for the Court in Zedner v. U.S. Justice Samuel Alito explored the legislative history of the Speedy Trial Act of 1974, along with the text of the Act, in coming to the conclusion that said Act did not permit a criminal defendant to waive his right to a speedy trial in federal criminal proceedings. Justice Antonin Scalia joined the opinion of the Court but in a separate concurrence chastised Justice Alito’s exploration of legislative history.1 " I believe that the only language that constitutes ‘a Law’ within the meaning of the Bicameralism and Presentment Clause of Article I, Section 7, and hence the only language deserving our attention, is the text of the enacted statute."
I agree with Justice Scalia. Trying to determine the intent a legislature had when passing a law is the equivalent of a dog trying to catch his own tail. There are as many possible intentions behind a law as there are legislators voting to pass it. Some intentions may be noble, some may be nefarious. Some legislators may have read and understood it one way, others may have read and understood it another. The intent of the legislature cannot be discovered because one, discernible intention does not exist.
As Justice Scalia has pointed out, even if legislative intent could be reasonably ascertained, "it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.....It is the law that governs, not the intent of the lawgiver."2
Constructing law via the unidentifiable legislative intent behind a given law is starkly antithetical to the notion of a country governed by the rule of law. We are a country governed by laws, not the undiscoverable intentions of our lawmakers. The Supreme Court, and every other court in America, should avoid venturing into legislative intent exploration.
1. That Justices Scalia and Alito disagree over the value of legislative intent places one more nail in the coffin of the notion held by many liberals during Justice Alito’s confirmation process that he is a Scalia clone ("Scalito"). The Washington Post editorializes on this very point.
The Post’s description and criticism of Justice Scalia’s repugnance towards legislative history is another matter. If adhering to the actual text of a statute is "rigid" then a toast to judicial rigidity, it is an assurance that we are all governed by laws, not men.
2. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press. (p. 17.)
I agree with Justice Scalia. Trying to determine the intent a legislature had when passing a law is the equivalent of a dog trying to catch his own tail. There are as many possible intentions behind a law as there are legislators voting to pass it. Some intentions may be noble, some may be nefarious. Some legislators may have read and understood it one way, others may have read and understood it another. The intent of the legislature cannot be discovered because one, discernible intention does not exist.
As Justice Scalia has pointed out, even if legislative intent could be reasonably ascertained, "it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.....It is the law that governs, not the intent of the lawgiver."2
Constructing law via the unidentifiable legislative intent behind a given law is starkly antithetical to the notion of a country governed by the rule of law. We are a country governed by laws, not the undiscoverable intentions of our lawmakers. The Supreme Court, and every other court in America, should avoid venturing into legislative intent exploration.
1. That Justices Scalia and Alito disagree over the value of legislative intent places one more nail in the coffin of the notion held by many liberals during Justice Alito’s confirmation process that he is a Scalia clone ("Scalito"). The Washington Post editorializes on this very point.
The Post’s description and criticism of Justice Scalia’s repugnance towards legislative history is another matter. If adhering to the actual text of a statute is "rigid" then a toast to judicial rigidity, it is an assurance that we are all governed by laws, not men.
2. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press. (p. 17.)
Sunday, June 04, 2006
A Federalist Marriage Amendment
On Tuesday, June 6 the Senate will vote on a constitutional amendment defining marriage as between one man and one woman. I agree with the propriety of an amendment to the constitution regarding marriage. I disagree with and oppose the specific amendment before the Senate, and urge its rejection. Instead, I propose an amendment based upon principles of federalism.
Our founders created a federalist system because they recognized that allowing the heterogeneous states to retain much of their sovereignty was the only practical mechanism through which a union of those states could be preserved. As David Gelernter points out, federalism designs "a vast garment for America that hugs where it should hug and stretches where it should stretch......federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself."
As we have seen with abortion and Roe v. Wade, creating a rigid nationalized standard incubates a bitter sense of polarization within the country. By taking the issue of abortion out of the province of the individual states the ability for them to have their differences but live within one union harmoniously was obliterated.
Prior to Roe the good people of Vermont could broadly allow abortion within their state while the good people of South Dakota could mostly restrict it. After Roe no such system has existed. Every vacancy on the Supreme Court has turned into a fractious battle between pro-life and pro-choice activists. No longer allowed to simply disagree and pass divergent laws which reflected their own values within their respective states, Americans must now fight with one another to have their own view accepted as the national standard.
To preclude this from happening with marriage I support a federalist constitutional amendment containing two provisions. The first would state that gay marriage can only be legalized by a vote of the state legislature or by popular referendum within every individual state, not by a ruling from that state’s supreme court. The second provision, to make the first provision valid, would carry an exception to the Full Faith and Credit Clause of the constitution.
Article IV, Section 1 dictates that "[f]ull faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." If states are to be allowed to decide whether or not their own state will recognize homosexual marriage then an exception to this clause must be passed in any amendment granting them that authority. Without said exception the amendment’s effect would be meaningless. A homosexual couple could get married in a state recognizing gay marriage and then move to a state that does not recognize gay marriage and the latter state would be constitutionally obligated to recognize that marriage; effectively nullifying their power to decide whether or not they will legally recognize gay marriage.
Allowing the states to define marriage via their own individual terms will prevent the distasteful acrimony and national polarization that has accompanied the issue of abortion since Roe. Instead of having to accept one national standard that may or may not reflect the mood of the state, the good people of South Dakota will not be forced to accept the views and values judgments of the good people of Rhode Island, and vice-versa. They, and the other forty-eight states, will be allowed to create their own definition. A federalist marriage amendment will allow all of us to live together peacefully by allowing us to have our differences.
Our founders created a federalist system because they recognized that allowing the heterogeneous states to retain much of their sovereignty was the only practical mechanism through which a union of those states could be preserved. As David Gelernter points out, federalism designs "a vast garment for America that hugs where it should hug and stretches where it should stretch......federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself."
As we have seen with abortion and Roe v. Wade, creating a rigid nationalized standard incubates a bitter sense of polarization within the country. By taking the issue of abortion out of the province of the individual states the ability for them to have their differences but live within one union harmoniously was obliterated.
Prior to Roe the good people of Vermont could broadly allow abortion within their state while the good people of South Dakota could mostly restrict it. After Roe no such system has existed. Every vacancy on the Supreme Court has turned into a fractious battle between pro-life and pro-choice activists. No longer allowed to simply disagree and pass divergent laws which reflected their own values within their respective states, Americans must now fight with one another to have their own view accepted as the national standard.
To preclude this from happening with marriage I support a federalist constitutional amendment containing two provisions. The first would state that gay marriage can only be legalized by a vote of the state legislature or by popular referendum within every individual state, not by a ruling from that state’s supreme court. The second provision, to make the first provision valid, would carry an exception to the Full Faith and Credit Clause of the constitution.
Article IV, Section 1 dictates that "[f]ull faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." If states are to be allowed to decide whether or not their own state will recognize homosexual marriage then an exception to this clause must be passed in any amendment granting them that authority. Without said exception the amendment’s effect would be meaningless. A homosexual couple could get married in a state recognizing gay marriage and then move to a state that does not recognize gay marriage and the latter state would be constitutionally obligated to recognize that marriage; effectively nullifying their power to decide whether or not they will legally recognize gay marriage.
Allowing the states to define marriage via their own individual terms will prevent the distasteful acrimony and national polarization that has accompanied the issue of abortion since Roe. Instead of having to accept one national standard that may or may not reflect the mood of the state, the good people of South Dakota will not be forced to accept the views and values judgments of the good people of Rhode Island, and vice-versa. They, and the other forty-eight states, will be allowed to create their own definition. A federalist marriage amendment will allow all of us to live together peacefully by allowing us to have our differences.
Thursday, June 01, 2006
The Jefferson Raids & Their Constitutionality
The constitutional disputation which has arisen between congress and the Bush Administration over Justice Department raids of Rep. William Jefferson’s congressional office is as absurd as the new constitutional rights the U.S. Supreme Court is so characteristically fond of making from time to time. Congress has argued that the raid violated the Speech and Debate Clause of the constitution. The clause’s text and the facts behind the raid do no support this assertion.
Article I, Sec. 6 of the constitution holds that members of congress "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."
Rep. Jefferson was not arrested. He was not prevented from going to or returning from the House. He was not questioned or challenged on any speech he made in the House. His office was raided, as was his home, on the authority of a valid and legitimate search warrant signed by a judge after Rep. Jefferson failed to comply with a Justice Department subpoena.
The immunities of the Speech and Debate Clause do not apply to the facts of the raid, or a raid of a congressional office in general. Nothing in the clause’s text explicitly or implicitly renders an office of a member of the legislative branch immune from a search by the executive branch. Said search was executed legally via a legal search warrant. As Tony Blankley accurately points out, congress’ argument would create "the right of a crooked congressman to be secure in his person, papers and effects even from reasonable searches supported by a warrant issued on probable cause."
The raid may have violated traditional deference between the separate branches of the federal government, but it did not violate the constitution. To argue otherwise is a feeble attempt to give the Speech and Debate Clause a meaning its text simply does not bear.
Article I, Sec. 6 of the constitution holds that members of congress "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."
Rep. Jefferson was not arrested. He was not prevented from going to or returning from the House. He was not questioned or challenged on any speech he made in the House. His office was raided, as was his home, on the authority of a valid and legitimate search warrant signed by a judge after Rep. Jefferson failed to comply with a Justice Department subpoena.
The immunities of the Speech and Debate Clause do not apply to the facts of the raid, or a raid of a congressional office in general. Nothing in the clause’s text explicitly or implicitly renders an office of a member of the legislative branch immune from a search by the executive branch. Said search was executed legally via a legal search warrant. As Tony Blankley accurately points out, congress’ argument would create "the right of a crooked congressman to be secure in his person, papers and effects even from reasonable searches supported by a warrant issued on probable cause."
The raid may have violated traditional deference between the separate branches of the federal government, but it did not violate the constitution. To argue otherwise is a feeble attempt to give the Speech and Debate Clause a meaning its text simply does not bear.
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