Can you think of an action a state could take today along those lines that would bind the federal gov’t?
Felony convictions. Let us suppose Freddy the Fraudster is convicted of Fraud by the state of Florida.
Freddie is now disenfranchised according to Florida state law as a result of the felony conviction. The Federal government cannot step in and say, "Well, Florida, you can deny this person the right to vote for Governor, but you have to let him at least vote for President, his Senator, and his Representative in Congress." The Constitution leaves the regulation of elections (including eligibility to vote) to the states; changing that rule requires an amendment to the Constitution, as has happened more frequently than with any other issue in Constitutional history; if the Feds want Freddie to vote, that takes another Constitutional amendment restricting Florida's plenary power to withdraw his franchise.
Freddie's felony conviction also means with nearly 100% certainty that he gets hit with a criminal restitution order by operation of state law in addition to other punishments. That state law restitution order is binding on the Feds -- if Freddie gets a tax refund, for instance, Florida can garnish it. If Freddie files bankruptcy, he can't discharge the state law restitution order. (Admittedly, this last order could be changed by Congressional action.) So Florida has just interfered with the bankruptcy process, and the dispursal of federal tax money. The feds don't get to say boo about any of it.
But it kind of can. Take a more prosaic example even than polygamy -- take a traditional, monogamous, opposite-sex marriage. If you're married for purposes of Indiana law, then you're married for purposes of Federal law, too.
I'm uncomfortable with Utah having been told to give up honoring legal polygamy as a condition of admission to the Union as a state, at least if that particular legend is based in overt reality.
Bruce (and Pierre), I fully realize that I'm overgeneralizing a bit here. As I wrote above, my post was motivated by outrage at learning that people had died over what, to me, seems such a silly cause as the inadvertent destruction of copies of the Koran. It's not like these were the only copies of the Koran in all of Afghanistan. Sometimes, the most fluid prose and the best arguments come out of giving vent to those sorts of emotions and this post was certainly born of that: "A pox on all your houses!"
It's likely the case that if we took an opinion sample of Afghan citizens, we'd get a whole spectrum of thoughts about the United States' continued involvement there. Maybe even a majority of Afghans want us to stay. In which case, they need to get their minorities in check and calm the damn riots down. I don't see a lot of effort, or at least efficacy, on the part of the Karzai government to do this, which leads back to something TVD said -- we have been given lesson after forceful lesson for the past ten years that Afghanistan is ungovernable.
After ten years of trying and making absolutely no progress at it, it's clear that we aren't going to change that. If there is ever to be an effective government and a return to peace and the prosperity (yes, prosperity) Afghanistan once enjoyed, it's going to have to come from the Afghan people on their own.
As I indicated below, I think the repeal is not so easy; once something is made law, it acquires a certain political inertia that would not be present if Congress had simply remained silent. But to be sure, DOMA is legislation and not a judicial doctrine nor part of the Constitution (although there are those who would see it made so). So repeal is a possibility.
The question is really whether DOMA implicates a fundamental right, and if so, why Congress believes it can implicate that right in the first place. If that is correct, then it must do so to advance a compelling (or at least a legitimate) governmental interest. That's why Congressional intent is important to the analysis.
It occurs to me that I haven't directly answered your federalism question. The answer is unclear. The Full Faith and Credit Clause is the controlling part of the Constitution here, and there are two reasonable interpretations of it and precious little jurisprudence to help us out.
One interpretation is that the FFCC was intended to govern legal relations among the several states, to provide that one cannot dodge enforcement of a contract by moving to a different state that has different laws. So, let's say I go to Nevada, where casino gambling is legal, and run up a marker at Caesar's Palace for $10,000. Then I come back home to California, where casino gambling is not legal (except for where it is). Under this vision of the FFCC, Caesar's can in fact enforce its debt against me in California despite the act underlying the debt not being legal here. I tend to believe this version of the FFCC, myself, because I find it offensive that one should be able to incur a debt in one state and dodge enforcement in another.
This version of events does have the result of compelling states to honor one anothers' legal determinations. Thus, if Mrs. Likko and I are married for purposes of Nevada law, we are married for purposes of California law, too. As to vertical rather than horizontal relations, this version of the FFCC provides that the Federal government is bound by determinations of state law in the applicable state. Thus, if Mrs. Likko and I are married for purposes of California law, we are married for purposes of Federal law, too.
Another interpretation of the FFCC is that it authorizes Congress to create rules to handle interstate transactions precisely because different states may have different laws. In other words, Congress has the power, if it chooses to exercise it, to create a rule establishing which legal decisions do transcend state law. In the meantime, Congress can decide for itself which state-level legal determinations are binding on the Federal government. For instance, under the Protecting Tenants At Foreclosure Act of 2009, as amended, Congress has limited the ability of property owners in certain situations to evict their tenants, even if the new owner of a property purchased out of foreclosure had no idea he was buying rental property. The state-law determination of a bona fide tenancy controls the exercise of a state law right, because Congress got involved in that transaction to address what it identified as a Federal concern.
That's the interpretation that's been offered in some quarters to justify DOMA: Congress can say, hey, some states honor SSM and others don't; not only can we decide for ourselves if the Feds will honor SSM but if it's a good idea, we can make a rule that says whether or not one state's legal determination of marriage is binding on another. This was, precisely, one of the purposes of DOMA offered in the Golinski case and rejected by Judge White -- the objective of uniformity in the law. This is also the place where I think the defenders of DOMA will have the strongest grounds upon which to base their imminent appeal to the Ninth Circuit.
My rejoinder back is, why is that an appropriate lens through which to view legislation, but an appropriate lens through which to view the Constitution? As I wrote above, if you want to be a textualist and just look at the words of the law, I'd welcome that approach. I think that approach makes a lot of sense. The only thing we can be certain that a majority of Congress agreed on were the actual words of the law.
In this case, we can simply ignore the first ten pages or so of Judge White's opinion as it would be superfluous to an analysis of the text. The question then becomes whether the text, on its own, satisfies the appropriate level of scrutiny (and determining which of the several levels of scrutiny available is the appropriate one). You've suggested above a possible rational basis for the law which Judge White did not offer; I think that reason merits at least closer examination, although the lack of a sunset provision indicates to me that something more than prudence was the objective.
Now, I tend to agree with you that we can't and needn't bother getting into the heads of every member of Congress who voted for DOMA. But given that many of those same members took the time to explain themselves, we also can't and needn't deafen ourselves to what they said. Just as we can and properly do look to writings like the Federalist Papers in determining the original intent of the Framers of the Constitution, but are not bound by those writings, so too can and should we look to the non-mandatory statements made by legislators on the floor of Congress explaining why they voted for or against a law when we are asked to interpret it.
I put in a few grammatical edits from the original as I went back over it with a mind towards clarity of expression, rather than one burning with white hot rage at my countrymen being killed in this manner and for this purpose.
If someone wants to call me an enemy of America or the men and women of our military and its supporting forces for writing this, I will stand stationary and absorb all the slings and arrows thus launched. I'd rather have them home to look at me with spite than see even one more of them come home in a coffin because of the incoherent rantings of a seventh-century pederast-turned-warlord and the primitive bronze-age culture it has frozen like amber on that benighted part of the world.
And I'll also endure all the fatwas called down upon me for my sneering evaluation of the contents of said book, no matter how beautiful it may sound when sung aloud in the original Arabic. Triumph of the Will and Birth of A Nation were technical and innovative marvels of moviemaking, but that doesn't mean I approve of their contents, either.
I think it's fair to question whether review of Congressional intent is an appropriate tool to use when invalidating what is ostensibly the expressed will of the majority, and if so, what kind of deference is afforded that record.
Congress could have considered Plato in passing DOMA, it's true, but as a matter of fact, it seems fairly clear that any consideration of what Plato had to say about issues of morality and community and good government was, at best, indirect. If it is never appropriate to consider direct evidence of Congressional intent in attempting to determine the purpose of a law, then it is at least equally inappropriate to consider things Congress <i>might have</i> intended.
As a judge, you could be an ultra-strict textualist about it and just look at the text of DOMA. That would let you bypass all of the discussion of the floor debate because all that matters is the text of the law. That would redact out the portion of Judge White's opinion which you damn as anti-morality.
But even so, you'd still have to get to at least rational basis scrutiny -- and Judge White found all four proffered objectives, and three more objectives he thought up on his own, wanting under even that standard. If you want to critique him on that basis, the approach would be to look at at least one of those seven critiques and show where he got it wrong. (The weakest point seems to be "uniformity of marital recognition across state lines," IMO -- although I think that ultimately fails too.)
Why, no, not at all. Not unless you are a subscriber to the jurisprudential philosophy of natural law and within that philosophy you adhere to the idea that natural law and morality are necessarily congruent.
The idea of a law being procedurally valid but fundamentally immoral is not an intellectual problem at all for a legal positivist or a legal realist. This does not mean that the positivist or the realist discards moral judgment of the law; for the positivist it is rather a recognition that he who has the guns, makes the rules and for the realist, the rules are what he who has the guns actually does, and everything else is a prediction.
IIRC, marriage rates have declined across Europe, in rates that demonstrate no recongizable pattern between nations that allow SSM, that have civil unions or analogues thereof, and those that have no substantial legal institutions for same-sex couples. Declining marriage rates seem more likely to be casued by the overall secularization of European society and the structure of social welfare benefits provided by these various nations in a way that inadvertently discourages marriages.
IIRC, marriage rates are declining in the USA too, in states that have SSM, states that have civil unions, and in states that have nothing. Again, with no particular correlation to the presence or absence of these institutions. Meanwhile, the USA's closest cultural analogue, Canada, has not seen any deviation from its pre-existing trends in marriage rates since it adopted SSM nationally seven years ago. Nor has Canadian culture and civilization altered in any appreciable way since then.
As James points out, these trends against marriage predate even the creation of civil unions, a phenomenon that largely started in the 1990's.
Magocracy seems like it would be an inevitability and all manner of fantasy-setting states would trend towards it.
In order for magic to be cool for storytelling purposes, it generally must be powerful. Particularly if you've got wizards slinging fireballs and summoning demons, the magic-users would make for powerful (and probably very mobile) players in a set-piece infantry-and-cavalry battle. The army with wizards is going to have a big advantage over an army without them.
In most fantasy fiction I've read, magic has been an unusual sort of skill. Most people either don't or can't do magic. It seems only natural that wizards and sorcerers would percolate up to elite levels of society. Magic is also something that, depending on the rules of how magic works in the fantasy world, can effectively arm a criminal standing against the state's monopoly of force.
All this points to the successful military elites incorporating magic into their military and thus political power structures, at the risk of rendering themselves vulnerable to co-option and takeover by their wizards. At some point, some wizards (either good or evil, depending on the needs of the plot) will make a bid to personally hold political power, and boom, you've got yourself sorcerers ruling over non-sorcerers.
Maybe if the society had developed very strong norms for the rule of law, and some careful thought had been given to legal regulation of using and learning magic, you could have a situation where sorcerers would, over time, willingly subordinate themselves to mundane temporal authorities. But even then, laws and the identities of the shot-callers are inherently malleable and a clever magician would have inherent advantages at bending circumstances to her favor.
Presumably, since your check would be written to "National Political Candidacy Bank," you'd be on your honor to indicate to whom you had directed the payments to go. "National Political Candidacy Bank" would probably have to have a rule rejecting any checks with memo lines so that your cancelled check couldn't indicate "Re-Elect Robert Ramirez!" on its face.
The other issue would be the Rubber Chicken Fundraiser. Robert Ramirez hosts a $1,000-a-plate dinner, and to get your ticket to the dinner, you have to direct $1,000 to the NPCB. In exchange, you get face time at the dinner with Officeholder Ramirez, who knows by virtue of seeing you there that you at least claimed to pay $1,000 to his campaign. Does the Re-Elect Robert Ramirez committee get some way to ensure that you've steered that $1,000 to Ramirez and not to some other candidate?
Yeah, I think that's a viable argument. I'm not persuaded -- I see an implication in the free exercise of religion here, but then again, I thought Smith was wrongly decided and I guess I haven't dropped that torch yet.
My big problem with the Smith case has always been how to define a "law of general applicability." Any law is generally applicable. It's illegal for me to use peyote for recreation; it's illegal for a Native American to use it for religious communion. The case that would be really questionable after Smith is Church of Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520. The Santeria church prevailed in that case because it had facts showing that the city specifically enacted a law against animal cruelty to shut it down. But under the reasoning in Smith, the city could say, "Hey, the Catholics can't do an animal sacrifice, either." Now, we'll likely never reach that point thanks to the RFRA -- but if Congress ever repealed the RFRA, I think the Santerians would be S.O.L. because Smith says that a "law of general applicability" like criminalizing cruelty to animals does not ever even implicate the Free Exercise clause; it's just not a concern at all.
That can't be right. If a law imposes a signifciant burden on a legitimate religious practice, we've got a Constitutional problem. If Catholics couldn't dispense communion wafers because a food inspector had not issued a restaurant license to the church, or the deacons hadn't been certified by the Alcoholic Beveral Control Board to card people before giving them a sip of the Blood of Christ, that would be a problem. Catholics are reasonably politically popular (these days, although that hasn't always been the case) so these scenarios seem laughably unlikely. But in the world of Constitutional law, we often deal with unlikely hypotheticals -- like the Obama Administration commanding a doctor at Georgetown Medical to dispense an abortifacient. So in a non-RFRA world, would you apply the rule of Smith to say that yes, the Health Board could theoretically shut down the ceremony of the Eucharist?
Alternatively, arguing on behalf of the government, could you shoehorn it in with the taxation power, as you suggest? "Do this, or you get taxed, $2,000 per employee." After all, once we're talking about tax dollars, we're beyond the realm of religious objections because it's the government's money that's being spent, not yours, and literally no one in the country has standing to object on religous grounds to how tax money is being spent, at least once it reaches the Executive Branch. This, I think, could be a very strong argument indeed. As I'll point out in a long-planned installment of the Great Cases that I'm now beginning to put together, taxation is in quite a lot of ways the most pervasive and unchecked power in the Constitution over individual behavior.
But again, if we hypothesize a tax targetted at certain kinds of people (say, employers who refuse to provide contraception coverage) and then make that tax punitively high (say, $75,000 per employee) then are we really in a world of tax policy incentivizing certain kinds of behavior, or have we now crossed some sort of threshold into, say, involuntary servitude, or takings? I don't know when that line gets crossed, but I believe that there must be such a line.
I am not aware of any action taken by this Administration to compel a religious entity to perform a service -- whether that be a same-sex wedding or an abortion or the dispensation of abortifacients -- against its will. I am aware of at least one state court that found a violation of state law in the denial of facilities rental when a church allowed one of its pieces of real property to be classified as a public accomodation so some lawyers made some money and a gay couple got to make a point and some politicians got a talking point. (The church later re-applied for a different kind of permit to re-classify the facility as private, and it can legally exclude gays now, just as Jesus intended, so the universe, or at least that portion of it that's in New Jersey, is in cosmic harmony once again.) But that was a state court, not a Federal official.
Experience demonstrates that comedy can be funny, or preachy, but only very rarely both. I suspect art is the same way: it can be powerful and moving art, or it can convey a political message, but only rarely can it do both. So it's not the fault of conservative artists, or liberal artists, that they so rarely achieve both good art and a good message in the same work -- it's inherently a very tall order to achieve both.
Perhaps as the passage of time removes the political context of a work of art its technical mastery and artistic elements can become more prominent. We can look at paintings from the Renaissance and not see the politics of the day, since those politics matter to us almost not at all, even if contemporaries would have dismissed the painting as propaganda.
And now I've actually gone so far as to offer my own post on the contraception coverage issue, one which I now consider to suffer from a theoretical flaw.
On “The 14th Amendment vs. Plato”
Felony convictions. Let us suppose Freddy the Fraudster is convicted of Fraud by the state of Florida.
Freddie is now disenfranchised according to Florida state law as a result of the felony conviction. The Federal government cannot step in and say, "Well, Florida, you can deny this person the right to vote for Governor, but you have to let him at least vote for President, his Senator, and his Representative in Congress." The Constitution leaves the regulation of elections (including eligibility to vote) to the states; changing that rule requires an amendment to the Constitution, as has happened more frequently than with any other issue in Constitutional history; if the Feds want Freddie to vote, that takes another Constitutional amendment restricting Florida's plenary power to withdraw his franchise.
Freddie's felony conviction also means with nearly 100% certainty that he gets hit with a criminal restitution order by operation of state law in addition to other punishments. That state law restitution order is binding on the Feds -- if Freddie gets a tax refund, for instance, Florida can garnish it. If Freddie files bankruptcy, he can't discharge the state law restitution order. (Admittedly, this last order could be changed by Congressional action.) So Florida has just interfered with the bankruptcy process, and the dispursal of federal tax money. The feds don't get to say boo about any of it.
"
But it kind of can. Take a more prosaic example even than polygamy -- take a traditional, monogamous, opposite-sex marriage. If you're married for purposes of Indiana law, then you're married for purposes of Federal law, too.
I'm uncomfortable with Utah having been told to give up honoring legal polygamy as a condition of admission to the Union as a state, at least if that particular legend is based in overt reality.
On “Bitter Hospitality”
Bruce (and Pierre), I fully realize that I'm overgeneralizing a bit here. As I wrote above, my post was motivated by outrage at learning that people had died over what, to me, seems such a silly cause as the inadvertent destruction of copies of the Koran. It's not like these were the only copies of the Koran in all of Afghanistan. Sometimes, the most fluid prose and the best arguments come out of giving vent to those sorts of emotions and this post was certainly born of that: "A pox on all your houses!"
It's likely the case that if we took an opinion sample of Afghan citizens, we'd get a whole spectrum of thoughts about the United States' continued involvement there. Maybe even a majority of Afghans want us to stay. In which case, they need to get their minorities in check and calm the damn riots down. I don't see a lot of effort, or at least efficacy, on the part of the Karzai government to do this, which leads back to something TVD said -- we have been given lesson after forceful lesson for the past ten years that Afghanistan is ungovernable.
After ten years of trying and making absolutely no progress at it, it's clear that we aren't going to change that. If there is ever to be an effective government and a return to peace and the prosperity (yes, prosperity) Afghanistan once enjoyed, it's going to have to come from the Afghan people on their own.
It's time for us to call it a decade.
On “The 14th Amendment vs. Plato”
As I indicated below, I think the repeal is not so easy; once something is made law, it acquires a certain political inertia that would not be present if Congress had simply remained silent. But to be sure, DOMA is legislation and not a judicial doctrine nor part of the Constitution (although there are those who would see it made so). So repeal is a possibility.
The question is really whether DOMA implicates a fundamental right, and if so, why Congress believes it can implicate that right in the first place. If that is correct, then it must do so to advance a compelling (or at least a legitimate) governmental interest. That's why Congressional intent is important to the analysis.
"
It occurs to me that I haven't directly answered your federalism question. The answer is unclear. The Full Faith and Credit Clause is the controlling part of the Constitution here, and there are two reasonable interpretations of it and precious little jurisprudence to help us out.
One interpretation is that the FFCC was intended to govern legal relations among the several states, to provide that one cannot dodge enforcement of a contract by moving to a different state that has different laws. So, let's say I go to Nevada, where casino gambling is legal, and run up a marker at Caesar's Palace for $10,000. Then I come back home to California, where casino gambling is not legal (except for where it is). Under this vision of the FFCC, Caesar's can in fact enforce its debt against me in California despite the act underlying the debt not being legal here. I tend to believe this version of the FFCC, myself, because I find it offensive that one should be able to incur a debt in one state and dodge enforcement in another.
This version of events does have the result of compelling states to honor one anothers' legal determinations. Thus, if Mrs. Likko and I are married for purposes of Nevada law, we are married for purposes of California law, too. As to vertical rather than horizontal relations, this version of the FFCC provides that the Federal government is bound by determinations of state law in the applicable state. Thus, if Mrs. Likko and I are married for purposes of California law, we are married for purposes of Federal law, too.
Another interpretation of the FFCC is that it authorizes Congress to create rules to handle interstate transactions precisely because different states may have different laws. In other words, Congress has the power, if it chooses to exercise it, to create a rule establishing which legal decisions do transcend state law. In the meantime, Congress can decide for itself which state-level legal determinations are binding on the Federal government. For instance, under the Protecting Tenants At Foreclosure Act of 2009, as amended, Congress has limited the ability of property owners in certain situations to evict their tenants, even if the new owner of a property purchased out of foreclosure had no idea he was buying rental property. The state-law determination of a bona fide tenancy controls the exercise of a state law right, because Congress got involved in that transaction to address what it identified as a Federal concern.
That's the interpretation that's been offered in some quarters to justify DOMA: Congress can say, hey, some states honor SSM and others don't; not only can we decide for ourselves if the Feds will honor SSM but if it's a good idea, we can make a rule that says whether or not one state's legal determination of marriage is binding on another. This was, precisely, one of the purposes of DOMA offered in the Golinski case and rejected by Judge White -- the objective of uniformity in the law. This is also the place where I think the defenders of DOMA will have the strongest grounds upon which to base their imminent appeal to the Ninth Circuit.
"
My rejoinder back is, why is that an appropriate lens through which to view legislation, but an appropriate lens through which to view the Constitution? As I wrote above, if you want to be a textualist and just look at the words of the law, I'd welcome that approach. I think that approach makes a lot of sense. The only thing we can be certain that a majority of Congress agreed on were the actual words of the law.
In this case, we can simply ignore the first ten pages or so of Judge White's opinion as it would be superfluous to an analysis of the text. The question then becomes whether the text, on its own, satisfies the appropriate level of scrutiny (and determining which of the several levels of scrutiny available is the appropriate one). You've suggested above a possible rational basis for the law which Judge White did not offer; I think that reason merits at least closer examination, although the lack of a sunset provision indicates to me that something more than prudence was the objective.
Now, I tend to agree with you that we can't and needn't bother getting into the heads of every member of Congress who voted for DOMA. But given that many of those same members took the time to explain themselves, we also can't and needn't deafen ourselves to what they said. Just as we can and properly do look to writings like the Federalist Papers in determining the original intent of the Framers of the Constitution, but are not bound by those writings, so too can and should we look to the non-mandatory statements made by legislators on the floor of Congress explaining why they voted for or against a law when we are asked to interpret it.
On “Bitter Hospitality”
I put in a few grammatical edits from the original as I went back over it with a mind towards clarity of expression, rather than one burning with white hot rage at my countrymen being killed in this manner and for this purpose.
If someone wants to call me an enemy of America or the men and women of our military and its supporting forces for writing this, I will stand stationary and absorb all the slings and arrows thus launched. I'd rather have them home to look at me with spite than see even one more of them come home in a coffin because of the incoherent rantings of a seventh-century pederast-turned-warlord and the primitive bronze-age culture it has frozen like amber on that benighted part of the world.
And I'll also endure all the fatwas called down upon me for my sneering evaluation of the contents of said book, no matter how beautiful it may sound when sung aloud in the original Arabic. Triumph of the Will and Birth of A Nation were technical and innovative marvels of moviemaking, but that doesn't mean I approve of their contents, either.
On “Clarifications on a comment culture”
Nothing new about pseudonyms, either. Ask James "Publius" Madison.
On “The 14th Amendment vs. Plato”
I think it's fair to question whether review of Congressional intent is an appropriate tool to use when invalidating what is ostensibly the expressed will of the majority, and if so, what kind of deference is afforded that record.
"
Congress could have considered Plato in passing DOMA, it's true, but as a matter of fact, it seems fairly clear that any consideration of what Plato had to say about issues of morality and community and good government was, at best, indirect. If it is never appropriate to consider direct evidence of Congressional intent in attempting to determine the purpose of a law, then it is at least equally inappropriate to consider things Congress <i>might have</i> intended.
As a judge, you could be an ultra-strict textualist about it and just look at the text of DOMA. That would let you bypass all of the discussion of the floor debate because all that matters is the text of the law. That would redact out the portion of Judge White's opinion which you damn as anti-morality.
But even so, you'd still have to get to at least rational basis scrutiny -- and Judge White found all four proffered objectives, and three more objectives he thought up on his own, wanting under even that standard. If you want to critique him on that basis, the approach would be to look at at least one of those seven critiques and show where he got it wrong. (The weakest point seems to be "uniformity of marital recognition across state lines," IMO -- although I think that ultimately fails too.)
On “Radical Liberal Judicial Activist Usurps Democracy; Foundations Of Republic Itself Threatened”
Why, no, not at all. Not unless you are a subscriber to the jurisprudential philosophy of natural law and within that philosophy you adhere to the idea that natural law and morality are necessarily congruent.
The idea of a law being procedurally valid but fundamentally immoral is not an intellectual problem at all for a legal positivist or a legal realist. This does not mean that the positivist or the realist discards moral judgment of the law; for the positivist it is rather a recognition that he who has the guns, makes the rules and for the realist, the rules are what he who has the guns actually does, and everything else is a prediction.
If this sort of thing interests you, see here.
On “The Retroactive Table of Contents : February 17 – 24”
I just saw the RTOC* in my e-mail inbox, and I like it a lot.
* RTOC is only one letter different from RTOD, the architect of this project. Coincidence?
On “Radical Liberal Judicial Activist Usurps Democracy; Foundations Of Republic Itself Threatened”
IIRC, marriage rates have declined across Europe, in rates that demonstrate no recongizable pattern between nations that allow SSM, that have civil unions or analogues thereof, and those that have no substantial legal institutions for same-sex couples. Declining marriage rates seem more likely to be casued by the overall secularization of European society and the structure of social welfare benefits provided by these various nations in a way that inadvertently discourages marriages.
IIRC, marriage rates are declining in the USA too, in states that have SSM, states that have civil unions, and in states that have nothing. Again, with no particular correlation to the presence or absence of these institutions. Meanwhile, the USA's closest cultural analogue, Canada, has not seen any deviation from its pre-existing trends in marriage rates since it adopted SSM nationally seven years ago. Nor has Canadian culture and civilization altered in any appreciable way since then.
As James points out, these trends against marriage predate even the creation of civil unions, a phenomenon that largely started in the 1990's.
On “NobLes Oblige: State Formation in Fantasy Settings Pt.1 – Musings”
Magocracy seems like it would be an inevitability and all manner of fantasy-setting states would trend towards it.
In order for magic to be cool for storytelling purposes, it generally must be powerful. Particularly if you've got wizards slinging fireballs and summoning demons, the magic-users would make for powerful (and probably very mobile) players in a set-piece infantry-and-cavalry battle. The army with wizards is going to have a big advantage over an army without them.
In most fantasy fiction I've read, magic has been an unusual sort of skill. Most people either don't or can't do magic. It seems only natural that wizards and sorcerers would percolate up to elite levels of society. Magic is also something that, depending on the rules of how magic works in the fantasy world, can effectively arm a criminal standing against the state's monopoly of force.
All this points to the successful military elites incorporating magic into their military and thus political power structures, at the risk of rendering themselves vulnerable to co-option and takeover by their wizards. At some point, some wizards (either good or evil, depending on the needs of the plot) will make a bid to personally hold political power, and boom, you've got yourself sorcerers ruling over non-sorcerers.
Maybe if the society had developed very strong norms for the rule of law, and some careful thought had been given to legal regulation of using and learning magic, you could have a situation where sorcerers would, over time, willingly subordinate themselves to mundane temporal authorities. But even then, laws and the identities of the shot-callers are inherently malleable and a clever magician would have inherent advantages at bending circumstances to her favor.
On “Wednesday Blognado: Talk is cheap, except when it’s very expensive”
Presumably, since your check would be written to "National Political Candidacy Bank," you'd be on your honor to indicate to whom you had directed the payments to go. "National Political Candidacy Bank" would probably have to have a rule rejecting any checks with memo lines so that your cancelled check couldn't indicate "Re-Elect Robert Ramirez!" on its face.
The other issue would be the Rubber Chicken Fundraiser. Robert Ramirez hosts a $1,000-a-plate dinner, and to get your ticket to the dinner, you have to direct $1,000 to the NPCB. In exchange, you get face time at the dinner with Officeholder Ramirez, who knows by virtue of seeing you there that you at least claimed to pay $1,000 to his campaign. Does the Re-Elect Robert Ramirez committee get some way to ensure that you've steered that $1,000 to Ramirez and not to some other candidate?
All the same, it's still an intriguing idea.
On “Pseudonymity And Social Networking”
I promise you, the answer to that question is as useless as it is insipid.
On “Changing a Trumwill’s Mind: HHS Edition”
Those would be some damn tasty burgers.
On “A Reconsideration: Obstruction and Teaching are Different”
Agreed that "denying access" is not the same thing as "failing to facilitate access".
On “Contraception, Catholics, Compulsion, and Compelling Interests”
I think Obama can win this one politically. The reason is that so many Catholics actually use and want contraceptives -- and everyone knows it.
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I'd be content with either. My familiarity here is with the tax code, not the PPACA.
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Yeah, I think that's a viable argument. I'm not persuaded -- I see an implication in the free exercise of religion here, but then again, I thought Smith was wrongly decided and I guess I haven't dropped that torch yet.
My big problem with the Smith case has always been how to define a "law of general applicability." Any law is generally applicable. It's illegal for me to use peyote for recreation; it's illegal for a Native American to use it for religious communion. The case that would be really questionable after Smith is Church of Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520. The Santeria church prevailed in that case because it had facts showing that the city specifically enacted a law against animal cruelty to shut it down. But under the reasoning in Smith, the city could say, "Hey, the Catholics can't do an animal sacrifice, either." Now, we'll likely never reach that point thanks to the RFRA -- but if Congress ever repealed the RFRA, I think the Santerians would be S.O.L. because Smith says that a "law of general applicability" like criminalizing cruelty to animals does not ever even implicate the Free Exercise clause; it's just not a concern at all.
That can't be right. If a law imposes a signifciant burden on a legitimate religious practice, we've got a Constitutional problem. If Catholics couldn't dispense communion wafers because a food inspector had not issued a restaurant license to the church, or the deacons hadn't been certified by the Alcoholic Beveral Control Board to card people before giving them a sip of the Blood of Christ, that would be a problem. Catholics are reasonably politically popular (these days, although that hasn't always been the case) so these scenarios seem laughably unlikely. But in the world of Constitutional law, we often deal with unlikely hypotheticals -- like the Obama Administration commanding a doctor at Georgetown Medical to dispense an abortifacient. So in a non-RFRA world, would you apply the rule of Smith to say that yes, the Health Board could theoretically shut down the ceremony of the Eucharist?
Alternatively, arguing on behalf of the government, could you shoehorn it in with the taxation power, as you suggest? "Do this, or you get taxed, $2,000 per employee." After all, once we're talking about tax dollars, we're beyond the realm of religious objections because it's the government's money that's being spent, not yours, and literally no one in the country has standing to object on religous grounds to how tax money is being spent, at least once it reaches the Executive Branch. This, I think, could be a very strong argument indeed. As I'll point out in a long-planned installment of the Great Cases that I'm now beginning to put together, taxation is in quite a lot of ways the most pervasive and unchecked power in the Constitution over individual behavior.
But again, if we hypothesize a tax targetted at certain kinds of people (say, employers who refuse to provide contraception coverage) and then make that tax punitively high (say, $75,000 per employee) then are we really in a world of tax policy incentivizing certain kinds of behavior, or have we now crossed some sort of threshold into, say, involuntary servitude, or takings? I don't know when that line gets crossed, but I believe that there must be such a line.
I am not aware of any action taken by this Administration to compel a religious entity to perform a service -- whether that be a same-sex wedding or an abortion or the dispensation of abortifacients -- against its will. I am aware of at least one state court that found a violation of state law in the denial of facilities rental when a church allowed one of its pieces of real property to be classified as a public accomodation so some lawyers made some money and a gay couple got to make a point and some politicians got a talking point. (The church later re-applied for a different kind of permit to re-classify the facility as private, and it can legally exclude gays now, just as Jesus intended, so the universe, or at least that portion of it that's in New Jersey, is in cosmic harmony once again.) But that was a state court, not a Federal official.
On “Is There Conservative Art?”
+1 to this.
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I didn't say "never." I said "rarely."
For every George Carlin who (mostly) pulls it off, how many others try and get applause but no laughter?
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Experience demonstrates that comedy can be funny, or preachy, but only very rarely both. I suspect art is the same way: it can be powerful and moving art, or it can convey a political message, but only rarely can it do both. So it's not the fault of conservative artists, or liberal artists, that they so rarely achieve both good art and a good message in the same work -- it's inherently a very tall order to achieve both.
Perhaps as the passage of time removes the political context of a work of art its technical mastery and artistic elements can become more prominent. We can look at paintings from the Renaissance and not see the politics of the day, since those politics matter to us almost not at all, even if contemporaries would have dismissed the painting as propaganda.
On “Leaguefest: A Preview”
And now I've actually gone so far as to offer my own post on the contraception coverage issue, one which I now consider to suffer from a theoretical flaw.