Friday, December 31, 2010

Monday, December 20, 2010

The Repeal Amendment

From the New York Times:
The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.

Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.

The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.

Any proposal to amend the Constitution should be treated to harsh criticism as a matter of course. Amendments seek to change the fundamental "rules of the game" and as such it is a no bad thing if they are put through the crucible. This is particularly true of proposals arising in "the heat of the moment." There is little doubt the widespread unhappiness over the recent health care law was the precipitating event for the appeal of this particular proposal, and there is also little doubt that emotional reactions are often a poor replacement for thought.

That being said, however, it does not follow that should we reject or prejudge any proposal merely because of its timing.

So what are we to make of the proposed change? Obviously, the amendment seeks a way in which the states could undo the work of Congress, albeit only if 34 states were in agreement on the matter. Constitutionally speaking, what purpose could such a change serve? Well, it could be argued the Federal government of today is too far removed and insulated from the check on its power the individual states were supposed to provide. Part of the reason for this, of course, is the result of the aftermath of the Civil War and the death of "state's rights" and "nullification." But some of it can also be traced to the institution of the direct election of U.S. Senators which cut off a once important avenue of national influence for state legislatures, and the passage of the 16th amendment which greatly expanded the scope of Federal power at the expense of the power of the states.

There is considerable merit to such a view. Despite the talk of "devolving power to the states" which has been a constant in Republican circles since the Reagan era, what has actually taken place has been very limited and more of an exercise in the Federal government voluntarily restraining itself rather than a restoration of power to the states. As such, there is the danger the Federal government, left largely free to ignore the states, will structure legislation to enhance its own power at the expense of popular sovereignty.

Such an argument would rest upon accepting the idea that state legislatures, as presently constituted, are more representative than the U.S. Congress. There seems little doubt this is the case. From the standpoint of democratic theory, the fact U.S. Congressional districts have an average of almost 700,000 people in them while the median state legislative district has only 40,000 clearly points to state legislature being more representative. Furthermore, the dominance of the national political party system has resulted in member of Congress who are more wedded to the support (and money) of national interests then they were in the past. Granted, this drift has been a component of our politics for well over 100 years, but that fact does not require us to merely acquiesce to it in the future, or prohibit the people from setting limits on it for the future.

So there would seem to be some theoretical basis for the proposal of such an amendment. The question turns now to be one of how effective the proposal would be in counteracting the ills it sees. This is where critics can play a vital role, assuming they do their job well. From the Times article:
Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.

Given the amendment would require 34 states to all sign on to overturn a Federal law, the least amount of population covered by those 34 states would amount to about 100 million out of the 300 million. However, Federal laws can be passed by states congressional delegations which come from states which amount to as few as 54 million in population in the Senate and 118 million in the House. Really this isn't all that different.

Levinson continues:
“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”

This, mostly, isn't a critique on the merits of the content of the amendment, as much as a practical assessment of its chances for passage. However, much of that assessment is based upon two assumptions which seem dubious at best. The first is the assumption of "small state power" which I debunked above. The second assumption is that state legislatures would feel themselves to be "on the same page" with their congressional colleagues in Washington. It seems likely state legislators might be more interested in increasing their own power rather than protecting the power in Washington, particularly as they hold so little power vis-a-vis the Federal government already.

Levinson, however, does eventually hit upon a substantive objection:
Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.

This, it seems to me, might actually prove to be the case. If one were interested in doing a cost/benefit analysis on the matter we might find the proposition to be a losing one. It may prove to be so rare a circumstance it isn't worth the rigmarole. However, the Constitution already contains measures which happen rarely if ever. Impeachment and overrides of Presidential vetoes come immediately to mind, as well as the constitutional power given Congress to determine the line of Presidential succession should both the President and Vice President be unable to serve. The infrequency of the potential use of the provision alone isn't really enough to make the claim it is unnecessary. However, the prima facie case for needing the amendment, in a practical "we could actually work this way" sense, still hasn't been met in my mind.

That being said, they do have a theoretical argument and that is something.

Cross posted at Blue Crab Boulevard.

Sunday, December 19, 2010

We Are Doomed

I don't particularly care about the issue one way or another, but the amount of time, energy, and passion just spent on "Don't Ask Don't Tell" in a country with as many issues as this one has these days is staggering. It is as if the people who are supposed to be running the country are so overwhelmed by the daunting task in front of them that they will allow themselves to be distracted by something, anything else that comes down the pike.

It is symptomatic of an elite that has little interest in facing up to the real world, which is the same thing as being ruled by fantasists.


Saturday, December 18, 2010

PolitFact's Partisanship

I see a number of folks are now coming on board with the realization that the website known as PolitFact, an arm of the St. Petersburg Times, is in practice a deeply partisan operation. I first looked into PolitFact in October 2009, where I asked the question "Why should I trust PolitFact?"

Their answer? "Because we say so!"

We are an independent, nonpartisan news organization. We are not beholden to any government, political party or corporate interest. We are proud to be able to say that we are independent journalists.

I'm sorry but it is possible for people to be corrupted by their own personal ideological motives. In fact, self-interest is kinda the number one way in which truth gets perverted. Now we know from surveys of the profession that self-identifying left leaning journalists outnumber right leaning journalists by almost two to one and are way out of proportion when compared to the American population as a whole. This being true, why is it safe for me as a reader to just assume the bunch of journalists at PolitiFact are playing it straight? The fact is it isn't safe.

I then proceeded to show how PolitFact operates, with innuendo, distortions, and by largely deferring to those of the political left. In the cases I looked at, if the Obama administration said something was so it was not to be questioned. To question was to "lie" in their book.

Things haven't changed in a year. Concerning PolitFact's look at Obamacare Karl at Patterico's place finds:

Then there are those “independent health care experts” PolitiFact consulted. One of them is ”Princeton University professor Uwe Reinhardt, an expert in health care economics.” PolitiFact leaves out his $2,300 donation to Barack Obama. Here’s a bit more of the wit and wisdom of Uwe, to give you a flavor of how impartial he is on the subject of government-run healthcare.

Next up is Jonathan Oberlander, “a professor of health policy at the University of North Carolina-Chapel Hill.” Oberlander is in fact a political scientist who has written a great deal on the politics of the health care issue — which makes him about as much of an expert as I am. (At least Uwe Reinhardt has a Ph.D in economics.) Oberlander’s opinion that a single-payer government financing of health care is not “socialized medicine” tells you what his politics are.

PolitiFact also quotes Maggie Mahar, author of Money-Driven Medicine: The Real Reason Health Care Costs So Much. Well-known among those who follow the issue as a market-hating health care expert, I am not exactly shocked that she told PolitiFact what PolitiFact so obviously wanted to hear. PolitiFact neglects to mention that Maggie Mahar is a fellow at The Century Foundation, a progressive think tank. (They also fail to mention that Mahar’s educational background is in English literature.)

In contrast, PolitiFact dismisses the Heritage Foundation and the Cato Institute as conservative groups repeating a “lie” [Aside: Cato is libertarian, but we must all look alike to PolitiFact]. Thus, PolitiFact chose not to seek the advice of any experts affiliated with those groups, like Cato’s Michael Cannon, who argues that ObamaCare is a government takeover of the health care system.

This certainly seems to work hand-in-hand with my assessment of PolitFact as being vulnerable to same variety of ideological group think commonly seen in journalists as a whole.

Wednesday, December 15, 2010

Urban Heat Islands For Beginners

There are a couple interesting posts floating around out there looking at the Urban Heat Island effect, and its potential impact upon the climate debate.

I realize there are time when science produces results that seem counter-intuitive. However, there are other times when claims are not simple counter-intuitive but are instead foolish. The blinkered response by the "global warming" crowd regarding UHI certainly seems to fall into the latter category.

Dumb On Oh So Many Levels

The Board of Regents for the University of Wisconsin System must not be very bright people. From FIRE:

The University of Wisconsin System Board of Regents recently filed a petition asking the Supreme Court to review a Seventh Circuit decision that invalidated the University of Wisconsin's policies governing funding for student organizations. The Seventh Circuit held that Wisconsin's policy of denying student activity fee funding to student organizations who wish to use the money for worship, proselytizing, or religious instruction violated the First Amendment. The University of Wisconsin now seeks to undo prior Supreme Court precedent holding that the denial of funding to religious organizations unconstitutionally penalizes groups for their particular viewpoint, and that funding religious groups does not violate the Establishment Clause.

Indeed, if you bother to read the Seventh Circuit's opinion, it becomes clear this is a well travelled area of law with clearly holding, and recently affirmed, precedents readily apparent. Well, readily apparent to everyone but the tin eared members of the Wisconsin Board of Regents.

This is a particularly stupid course of action for two reasons: 1) In an era of tight financial constraints at the state level, the idea of spending even an additional dime on a quixotic effort to remove First Amendment rights for Catholics and other religious groups, is suspect at best. At worst it shows an "out to lunch"-ness that speaks of the worst kind of ideological fervor imaginable. 2) Given the political environment in Wisconsin presently, where a new hard line Republican governor will be able to work with a new Republican held state legislature on whatever they want to do, this action of the Regents is asinine. Republicans already view academia as suspect, so the Regents decide to act in as spendthrift a manner as possible, and as hostile to religion as possible.

So, the Regents are wrong on the legal merits, and have shown all the political instincts of Herbert Hoover looking at the Great Depression.

Bang up job guys.

Monday, December 13, 2010

Stupid And Tyrannical

Ah...the left...smell the evil stupidity:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face.

Got that? Buying health insurance is economic activity so the Feds have the power to make you do so.

But, buying oranges or porn is also economic activity. If Congress felt like making Americans purchase oranges or porn they would have the power?

I'm sorry, but you have to be almost brain dead to find that an argument to be squared with even the most basic notion of individual freedom. Or you have to be a Stalinist. (Six one half dozen the other I know.)

Sunday, December 12, 2010

The View Out My Back Door

We got about 19 inches of snow yesterday, leaving this three and a half foot drift of snow blocking our backdoor.

Luckily, we can still escape out the front.

Wednesday, December 08, 2010

Our Moral Superiors

What would we do without betters like Aaron Sorkin? On Sarah Palin hunting:

I'm able to make a distinction between you and me without feeling the least bit hypocritical. I don't watch snuff films and you make them. You weren't killing that animal for food or shelter or even fashion, you were killing it for fun. You enjoy killing animals. I can make the distinction between the two of us but I've tried and tried and for the life of me, I can't make a distinction between what you get paid to do and what Michael Vick went to prison for doing. I'm able to make the distinction with no pangs of hypocrisy even though I get happy every time one of you faux-macho shitheads accidentally shoots another one of you in the face.

So, the death of this 7 year old makes Sorkin happy.

I, for one, will dance about singling hallelujah when Sorkin shakes off his mortal coil. After all the world will have become all that more humane.

Saturday, December 04, 2010

Friday, December 03, 2010