The Hypocrisy of Conservative Constitutional Theory

So the blogosphere is up in arms about the latest wing nuttery to come from the hard core of Republicans that remain after all the centrists have been kicked out of the party. Virginia's Attorney General has ordered (back in March) that state's public universities to stop treating sexual preference as a protected class. Now, a bigoted Republican on a power trip is not really news. What's interesting is the reasoning he applies. Last week, AG Cuccinelli justified his position by arguing that the 14th Amendment only applied to those groups that were at issue at the time of its passage. Since sexual preference was not an issue in 1868, the 14th Amendment cannot possibly apply.

This is absurd and internally inconsistent. He seems to be making a version of the typical right wing rhetorical argument about constitutional interpretation. Many movement conservatives (I'll call them "Movementarians" in keeping with the theme of this blog), like to argue that the constitution should only be interpreted to mean exactly what it meant at the time it was written. That is, they believe that the constitution has an objective meaning that is constant throughout time. This is just like the fundamentalists' view of the Bible and of course we know there is a high correlation between Movementarians and Fundamentalist Christians.

But there is an inherent flaw with this view. We have very little idea of what exactly the people who wrote the Constitution were thinking. Granted, we have the Federalist Papers etc (which contradict many dearly heald Movementarian dogmas) but these are intended as one side of a debate about a compromise already arrived at. In any event, what Movementarians are left with is their best guess TODAY of what the framers intended 200 years ago. Their (erroneous) assumption is that their interpretation is both uniquely correct and immutable.

And this is where the hypocrisy comes in. On the one hand they argue that the Constitution cannot be interpreted without destroying it. On the other hand, they cannot help but interpret it themselves. If all they said was "my interpretation is preferable to your interpretation" I'd disagree with them but I wouldn't accuse them of hypocrisy. But they make the argument that their view is the objective "truth" and anyone who doesn't agree 100% with them is "interpreting" - which is dismissed as fruitless and disloyal (they often call it "un-American").

Consider the implications of their kind of argument. Taken to its logical conclusion, amendments to the Constitution itself are an act of disloyalty to the intentions of the framers. That would mean that even the Bill of Rights is "Un American." Given their views of all but the 2nd half of the 2nd Amendment, I wouldn't be shocked if they were OK with dispensing with the whole shebang.

I'm not legal scholar so I'm sure that LTG will find critical omissions in my discussion. I look forward to his comments.

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First Sheila

Hi Everyone,

Australia's Labor Party changed leaders today. That means that, even though there has been no election, there is a new Prime Minister. And get this... She's a "Sheila!" That's right, Oz has its first female head of government.

This is an usual but not unheard of event in parliamentary democracies. Parliamentary systems are organized around parties. The head of government is the leader of the party that has a majority of seats (or leads the coalition of parties that has the majority of seats - usually). When that party loses confidence in their leader, they can change who their leader is. That's what's happened in this case. Apparently, Labor Party members were upset at former PM Rudd because of his backing off a number of policies widely supported by Labor members, including a green house gas emmissions trading scheme designed to help Australia meet their Kyoto Protocol goals.

This is a big deal for Australia and Australian women. Good on ya'!

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Biden Puts it Well!

Here a great statement by Vice President Biden about Republican Congressman Barton's apology to BP. I think this sums up very nicely the contrasting view the Democratic and Republican Parties. The Democrats think government is supposed to protect average people from the abuses of big business. Republicans think government is supposed to protect big business from the demands of regular people.

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Hollywood, Race and Classical Stories

There is a brewing controversy again (it comes up periodically) about Hollywood's attitude towards race. The latest brewhaha is over the casting of Angelina Jolie as Cleopatra. Some African Americans are upset because they insist that Cleopatra was Black and so should be played by a Black actress. This raises a few issues in my mind that I'd like to get off my chest.

First, Hollywood is usually bad at portraying classical stories in the first place. Even European stories are bastardized by directors who refuse to do their homework. The story of the Spartans at Thermopylae and Beowulf (see a Scandinavian produced version of Beowulf here) were turned into well animated but cliche video games. Movies about classic norse legends are turned into ridiculous remakes of Conan the Barbarian (like the movie Pathfinder - see the Sami-Norwegian version here). Other examples are the movie Excalibur which portrays 6th century Arthurian legendary characters running around in 15th century parade armor. Or the monotone and American accented Kevin Costner portraying a 12th century Robin Hood using a telescope (and the African-American Morgan Freeman playing a Kurdish Saracen BTW). The list is endless. I'm sure the next step will be to show Anthony rescuing Cleopatra from the Battle of Actium with a McGyver'ed hang glider or something. In this context, the fact that Hollywood casts the ridiculously collagenated Jolie as Cleopatra is hardly unusual. Nor is it obviously part of some racist conspiracy. In my view, Hollywood is peopled largely by uneducated idiots. The appearance of racism is easy when dealing with idiots.

Second, can people please stop claiming that Cleopatra was "Black" in the sense we think of it today? Cleopatra came from a family of Macadonian Greeks that frequently practiced sibling marriage. It is probably true that her family occaisionaly married into prominent families from neighboring kingdoms but this family had a preference for "keeping it in the family" - literally. She only had 4 great grand parents (ewww). So let's figure that the chances of her having a Nubian (the only neighboring kingdom that was inhabited by people we would think of "Black" today) anscestor is about half what we would normally think. And most of the family's connections would have been to other powerful Hellenistic (Greek) kingdoms and empires in the eastern Medditeranean and Middle East. So we have a daughter of an absurdly incestuous family of Greek extraction that mostly interacted with other royal families of Greek extraction. The only reason to think Cleopatra was "Black" is because some people look up Egypt in their coffee table atlass and notice that Egypt is technically on the continent of Africa. But geography and race are more complicated.

Are there racists in Hollywood? Almost certainly - racism is part of the human experience. But are the casting decisions in major Hollywood pictures motivated by racism? I'm not convinced. They are often explained by sub-standard intellects convincing themselves they are great artists.

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BP Stands for Barton Prolapse

By now (it's all over the net), you've heard about Representative Joe Barton (R-Texas) apologized to BP CEO, Tony Hayward for the way the Obama administration was working with BP to set up a relief fund for victims of the oil spill. Imagine that. A Republican member of Congress actually apologizing to BP! For what?

Republican leaders immediately had one of those "ARE YOU INSANE?!" moments and rushed to pressure Barton to apologize for the apology. Too late. I think we all know which statement was sincere and which was BS.

Every Democrat in the country needs to run against their Republicans as the party of Big Oil and Big Banks. They are the party of the boss that you are convinced would lay you off to pay for his own bonus. Kieth Olberman is already talking about the "GOBP." He even had a little logo of a Republican elephant painted green with yellow flowers (ala the BP logo). And out of the elephant's trunk is a fountain of oil.

The Republicans spent the last few weeks accusing the Democrats of not doing enough in response to the oil spill. Then as soon as Obama actually does something tangible (setting up a relief fund at BP's expense), the Republcians accuse it of being a criminal enterprise and actually apologize on national TV to BP's CEO. I can't say I'm surprised.

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College Sports Earthquake

My apologies to our non-US visitors who are almost certainly more interested in the World Cup but the US college sports world is in the process of turning itself inside out. At the top level of competition there are (were) 6 conferences of teams: the Atlantic Coast Conference (ACC), the Big East, the South Eastern Conference (SEC), the Big Ten, the Big XII and the Pac 10. These conferences contain within them the most influential college sports programs in the money sports: football and men's basketball. And it is money that is driving the shake up. This is all about TV revenue; how it is generated and how it is shared. When it comes to TV cash, the Big Ten is the top dog with direct access to TV markets such as Chicago, Philadelphia, Minneapolis-St. Paul, Detroit, Columbus, Cleveland, Cincinnati and Indianapolis. The Big Ten also has the most equitable revenue sharing deal for its members. We're talking about tens of millions of dollars a year for each university's athletic program.

When rumors began circulating that the University of Nebraska was going to leave the Big XII to join the Big Ten, it was "game on." The first step was that the University of Colorado left the Big XII to join the Pac 10. Then Nebraska officially announced their move to the Big Ten. Now there are rumors that the U. of Texas, U. of Oklahoma, Oklahoma St., and Texas Tech will all jump to the Pac 10. The Big Ten is reportedly going to try to get a chunk of the Big East next. There are rumors that the Big Ten may try to woo U. of Pittsburgh, Syracuse and Rutgers (alternatively Maryland from the ACC). Rutgers is near to New York City, the holy grail of TV markets for the Big Ten. The Big Ten may go after the Big XII's U. of Missouri too. Of course, all this is part of the Big Ten's grand scheme to convince Notre Dame to join their conference - Notre Dame is currently in the Big East for all sports but football where it is independent. There are also rumors that the SEC is in a kind of bidding war with the PAC 10 for the Big XII's last remaining premier program, Texas A&M.

The most immediate impact of all of this is that the Big XII is about to disappear. The Big XII was the least urban of the 6 major conferences which means it had the fewest big TV markets. So it is not surprising that it is getting gobbled up by the other sharks.

The implosion of the Big XII leaves a number of its minor schools/teams out in the cold. One of them is Iowa State University. This is where it gets political. Iowa State's arch rival is the U. of Iowa which is in the Big Ten. With the economy struggling, Iowa State's athletic department has been given notice to become self sufficient or face the cuts. Iowa State can't hope to do that if it's not part of a major conference. Both the Democratic governor, Chet Culver, and the Republican Senator, Chuck Grassley, both of whom are up for reelection this year, have made public statements urging the Big Ten to take Iowa State. But Iowa State has little to offer the Big Ten in the way of additional TV revenue or profile. What's more, the early indications in the press/rumor mill are that the U. of Iowa is less than enthusiastic about ISU joining their conference and might even oppose ISU's entry into the Big Ten.

This little intra-Iowa spat provoked Grassley to threaten to look into the non-profit status of these conferences and the anti-trust ramifications of the emergence of these mega-conferences (the Pac 10 is on pace to go to 16 teams and the Big Ten may well reach that number too). It will be interesting to see how this will play out both nationally and in Iowa. ISU is known for engineering and agriculture. UI is known for its arts and sciences, law school and med school. With rural voters playing such a big part of the Republican electoral calculations, I'd expect Grassley to be especially vocal about trying to save ISU's sports programs.

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The BP Oil Spill, Deregulation, and Litigation

CNN's website is reporting this story about a survivor from the oil rig fire that started the now infamous oil spill in the Gulf of Mexico. CNN is presenting this as a story about the worker, his family and oh by the way, he's suing BP, Tansoceon and Haliburton for negligence.

Aside from this being an example of journalists doing their best to trivialize the important and turn every news event into a human interest story, the story also sheds some light on how the US regulatory state functions - or rather doesn't.

For the last 30 years the US has steadily reduced the level of regulatory protection for workers, consumers, and the environment. In Republican administrations, even the residual regulatory authority gets defunded or coopted or otherwise hindered. The secret meetings Vice President Cheney had with energy company big shots is an example. Another example is the scandal about Bush administration regulators recieving drugs and sex from oil companies in exchange for looking the other way on safety and evironmental standards.

So what constraint is there on big corporations? Litigation. That's it. When a company like BP or Transocean or whoever, ignores repeated indications that the rig is unsafe until it kills 11 workers and destroys the ecosystem (and economy) of the Gulf of Mexico, there is no consequence for them other than being sued in civil court. Most of the time, the big corporation can use their deep pockets and expensive teams of lawyers to deter any law suits at all. But once in a while, a case is big enough news or clear cut enough that a plantif will step forward. In those rare cases, companies can find themselves being judged by juries that slap them with huge judgements. It is only the - slight - fear of this possibility that keeps companies like BP in check at all. So don't scoff at the class action law suit. Don't hate the "trial lawyer." After 30 years of essentially privatizing our regulatory protections, they're all that stands between us and a Dickensian nightmare.

This is why Republicans constantly harp about "tort reform." What they want to do is eliminate even this anemic constraint on corporate abuses.

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Another Poor Quality Wall Street Journal Article

So the WSJ published an article claiming that Liberals do poorly on "basic economics." Here are the questions with the "wrong" or "unenlightened" answer in parentheses, according to the askers. You will notice these are not "basic" questions but highly ideological questions.

1) Mandatory licensing of professional services increases the prices of those services (unenlightened answer: disagree).

If the listener is thinking only in terms of 'sticker price' then yes. But the liberal listener is likely to respond to the hidden costs of untrained professioanls. Is an unlicensed quack doctor cheaper than a board-certified surgeon? Depends on what you mean by "cheaper."

2) Overall, the standard of living is higher today than it was 30 years ago (unenlightened answer: disagree).

Is the standard of living higher? Depends what you mean. Health care, education, and housing were all relatively cheaper in 1980 - much, much more so. Most families in 1980 were one-earner households; now they need two earners to survive. The minimum wage is lower, in real terms, than it was in 1980. The argument that the standard of living has gone up is clearest if you are in an upper-income group. For them, taxes have plummetted and incomes gone up dramatically.

3) Rent control leads to housing shortages (unenlightened answer: disagree).

Depends what you mean by a housing shortage. Rent control protects the available housing of people who could not otherwise afford it. Removing rent control raises rents - it doesn't lower them. From the point of view of a renter, higher rents are a shortage - a shortage of affordable housing. Today we have whole neighborhoods of near-empty houses ringing our cities with overcrowded apartments and streets full of the homeless. Is this a shortage?

4) A company with the largest market share is a monopoly (unenlightened answer: agree).

This just requires knowledge of what a monopoly is, technically. The corollary is always true: a monopoly is a company with the largest market share. The willingness to call a big company a monopoly is political: the term "monopoly" to a consumer means "a company that has too much power over me." Consumers will feel this helplessness even if the company is not a technical monopoly.

5) Third World workers working for American companies overseas are being exploited (unenlightened answer: agree).

I have no idea how this is calculated, but it is plainly a moral question, not an economic one.
The fact is that third world workers are paid less than American workers - often much, much less, like 50cents an hour - would be paid for doing the same job, even though the wages may be above-market for their country Whether this is exploitation depends on what you think exploitation is. Some people think all workers are exploited, even in the USA, as a moral matter.

6) Free trade leads to unemployment (unenlightened answer: agree).

This is the worst question in the bunch. Free trade definitely leads to unemployment. It has idled millions of American factory workers . Free trade kills industries. You can't buy an American TV anymore. See Detroit! What the authors of the question want you to acknowledge is that the expectation is that, over the long term, there will be a net growth in employment. Okay, but that wasn't the question.

7) Minimum wage laws raise unemployment (unenlightened answer: disagree).

There's no proof that minimum wage laws have ever raised the unemployment rate. The statement should be "without a minimum wage, more people would be employed, although at lower wages." This is correct. As written, however, it implies that when you pass a minimum wage hike, it increases the unemployment rate - something never seen. What happens actually in the real world is that it slows hiring for a period of time in some industries that are low-margin, and not in others where it just results in slightly higher prices or profits.

8)Restrictions on housing development make housing less affordable. (unenlightend answer: disagree).

Most people on hearing this question are going to ask: do restrictions on housing development lead to higher prices? We haven't seen any connection in recent years between housing prices and... well... anything tangible. Nor has the housing bust been associated with loosening of regulations. So while there may be a theoretical possibility that restrictions lead to higher prices, we know that those aren't the forces moving the markets today.

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Big Government Big Business and Liberty

The massive oil spill in the Gulf of Mexico is deeply depressing. It should also be instructive. The reason the government isn't doing more to respond to the oil spill is because Republicans have spent the last 30 years making damn sure it didn't have the capability to do so. At the same time, the fact that BP was able to rack up hundreds of safety violations and still continue operating its dangerous wells is due to a combination of Republican gutting of regulatory agencies across all policy areas (from financial practices to coal mines to oil drilling), and a willful refusal to impose costs on those companies the few remaining investigators did manage to catch violating regulations.

I think this is the core of the story. However, the press has decided that the story is "Obama fails to react swiftly." OK, fine. Let's assume that Obama could have acted more swiftly. What exactly could he have done? The government does not have the equipment or personnel to do anything. The best the Obama administration can do with the tools Reagan, Bush, Gingrich, and Bush II have left it is spew outrage at BP. But somehow it is easier to blame Obama than a 30 year trend in policy change.

So what does this have to do with liberty? How much liberty do the people on the Gulf Coast have? The negligence of a single company has robbed tens of thousands of their livelihoods, tens of thousands more of important value of their property, not to mention the irreparable damage to public lands along the coast and the ecosystem of the Gulf itself. And it wasn't big government that robbed them of these things. It was the rogue behavior of a giant corporation that government could have but failed to hold accountable for the consequences of its actions until it was too late.

In the end, although I support a free market approach in most cases, this is why I'm a Democrat. I'm more afraid of BP than I am of the Census Bureau or the Department of Education.

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