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Tyranny Of The Minority

Law professor Paul Campos takes a critical look at the Iowa Supreme Court’s recent decision upholding gay marriage. (The Court’s opinion is available here.) Campos finds that the legal reasoning behind the decision was lacking:

Stripped of its verbiage, the court’s opinion comes down to the following claims: First, it’s a bad thing for the state to treat people differently on the basis of sexual orientation, unless the state has a good enough reason. Second, the reasons the state gave for treating same sex-couples differently from opposite-sex couples in regard to marriage weren’t good enough.

That’s it. These conclusions might raise various questions in the mind of someone who hasn’t enjoyed the benefits of a legal education. Such as, what was the court’s basis for these claims? Is there anything specifically “legal” about these conclusions? And how did the judges figure this stuff out, especially given that it took more than a century before anyone noticed Iowa’s constitution contained this requirement?

The problem with the Iowa decision is that there isn’t a strong legal rationale for this decision. The Iowa Constitution cannot require the recognition of gay marriage because gay marriage was not acceptable at the time that the Iowa Constitution was written. In essence, the judges are reading their own personal feelings into the law. While the Iowa Constitution is more broadly worded than the federal Constitution, there is still no plausible argument that it was designed to allow for same-sex marriages. What the Iowa Supreme Court has done amounts to going back and changing the words of the Iowa Constitution to mean something that it never was intended to.

Even those who want gay marriage should be troubled by this. There are seven members of the Iowa Supreme Court. There are nearly 3 million Iowans. In a democratic state, 7 people should not be presumed to have the power to set sweeping social policy for the other 2,999,997 people.

Yet that is what happened. The Iowan people did not vote to have gay marriages recognized in their state. In fact, a clear majority of Iowans oppose gay marriage. Yet the voice of the people have been overruled by just 7 people. That is troubling, not only from a standpoint of separation of powers, but because it ultimately hurts the cause of gay marriage. The likely outcome of all of this will be another Prop 8, and even if the Iowa Constitution’s amendment process means that the vote won’t take place until 2012, having this decision essentially forced upon the people of Iowa will not make gay marriage more popular.

This is a clear case of judicial activism. Judges should follow the law, and avoid legislating from the bench. The legal case for gay marriage presented in this opinion is woefully thin—rather the judges decided to enforce a set of social norms on Iowans by their will rather than the legislative process. Even those who support gay marriage should be troubled by that. This is an example of the tyranny of the minority, where the few use judicial overreach to enforce their views in a way they otherwise could not. No matter what the outcome, that kind of circumvention of the democratic process is wrong. The very foundation of our government is based on fundamental values like separation of powers and the consent of the governed. The Iowa Supreme Court has made a sweeping change to Iowa’s social policies and laws without the consent of the people. If such a thing were to stand, it would mean that states are governed not by voters, but by the few.

Crystal Ball Watch 2008

Every year I do my annual round-up of predictions for the coming year, some of which come true, many of which, well, do not. Last year’s predictions turned out to be less than accurate—let’s see how I did.

Politics/National

  • Hillary Clinton defeats Obama for the Democratic Nomination. She picks Mark Warner as her running mate. — Nope, instead Obama managed to run a better ground game, and buoyed by a synchophatic media, he took the nomination. Instead, Clinton gets to be Obama’s Secretary of State, where she will enjoy the Sisyphean task of trying to create peace in the Middle East rather than resurrecting her political career. It’s essentially like being exiled to Siberia for her.
  • She then narrowly loses to the Republican candidate (who is not Mike Huckabee). — Instead, Obama won by a convincing margin and an Electoral College blowout. But Huckabee was not the nominee, thankfully.
  • Sensing a weak field, Michael Bloomberg runs for the Presidency on a third-party ticket, picking CNN anchor Lou Dobbs — Chuck Hagel as his running mate. He barely registers in the polls, despite pouring millions of his own money into the race. Not even close. Apparently Bloomberg isn’t a dumb as I thought.
  • The Democrats retain control of Congress, but not be margins large enough to threaten vetos. Pelosi and Reid remain in control of their respective chambers, but end up being just as ineffectual as they have been over the last major year. Congress still does almost nothing throughout the year, and this Congress leaves with no major legislative achievements to its name. — The Democrats won’t get their veto-proof Senate majority, but this year was another GOP bloodbath. The Democrats have to lead now, however, and that will be more challenging for them. The only legislative “achievement” this year? A massively unpopular “bailout” bill that represents one of the biggest dangers to this Republic in decades. Congress is and will remain profoundly unpopular because of it.

International

  • Violence in Iraq remains sporadic, as US forces slowly withdraw. Iraq becomes less and less of a domestic political issue. Al-Qaeda attempts a Tet Offensive, but it is quickly crushed thanks to solid intelligence provided by Iraqi civilians. — I was correct on the first part, but al-Qaeda hasn’t been able to push back in Iraq. For all practical purposes, the “war” in Iraq is over, and our mission will be to train the Iraqi police, military, and government as best we can. President Obama seems like he will not precipitously withdraw from Iraq, and there’s no reason to. Gen. Petraeus and the U.S. military has done its job in Iraq. What’s sad is how little recognized their monumental achievement has been.
  • The center-right remains triumphant as Nicolas Sarkozy, Angela Merkel, Kevin Rudd, and Stephen Harper all work towards free market reforms in their respective countries to great popular acclaim. — For the most part, this is true. Stephen Harper’s problems in Canada may end up hurting the divided Canadian left more than him. The big problem is whether the financial crisis will lead to a dangerous expansion of government or the realization that the more control government has over industry, the more problems with one will harm the other.
  • The situation in Pakistan remains deeply unsettled, with Musharraf having only a tenuous hold on power. — Musharraf is out of power, and so far Pakistan has not yet exploded as some had feared. But it hangs on the knife’s edge, and if Pakistan collapses, the effects would be catastrophic.
  • Iran continues to rattle sabers, and continues to enrich uranium, while the Bush Administration tries to ratchet up diplomatic pressure—to no avail. — This was a sure bet. Iran has no reason not to rattle their sabers, because they know that no one has the stones to stop them. However, with oil price plummeting, it may be domestic turmoil that does what the rest of the world won’t.
  • The Annapolis Peace Conference accomplishes nothing as once again Israel offers concessions and the Palestinians end up being too divided to offer anything in return. — This was like predicting that the sun will rise in the East and set in the West.
  • China improves its image with the Beijing Olympics. — They did, but they remain a curious hybrid of free-market optimism and state-run oppression. China remains a country that is divided between the future and the past, and what is keeping that arrangement together is the entrepreneurial spirit of their people. They could be a superpower, or their country could collapse, and it’s hard to tell which way things will go. There is the potential for a major economic crisis in China this year, and the effects could be massive.

Economics

  • While the media continues to paint their picture of economic despair, the real story continues to be the “Goldilocks economy” of low unemployment, high economic growth, and steady wage growth. — Oh, how I wish that came true. While the first half of 2008 was relatively strong, the economic crisis of the last half was the beginning of a fundamental economic shift. What happens from here is anyone’s guess, but it seems likely to get worse before it gets better.
  • The sub-prime mortgage issue fades as the impact becomes more fully known. As the uncertainty fades, it becomes clear that the fears of recession were baseless. — I don’t think that the assumptions about the recession were right at that time (although there is some evidence that the recession did start around December of 2007), but there is little question we’re now in a recession. While everyone blames Bush, the real culprit is years of Washington and Wall Street engaging in an incestuous relationship—and both parties are guilty of that. We need to realize that in many cases regulation does not level the playing field, it tilts it.
  • Oil prices stabilize around $100/barrel. — Oil has fallen to around $40/barrel this month, which is probably too low. The equilibrium price is probably closer to $100, but right now the market is seeing a major collapse in demand. That means cheaper oil, and more hurt for petro-dictators like Chavez and Ahmadinejad. However, we can’t expect the prices to stay this low forever.

Society/Culture/Technology

  • At MacWorld, Apple announces iTunes movie rentals – in HD, with a new Apple TV to match. They also announce an enhanced iPhone, an ultraportable MacBook with a flash-based hard drive and long battery life. Apple stock continues to climb. — This all turned out to be true. The MacBook Air is not quite the machine I imagined, but I love mine and think it’s the best built laptop I’ve ever bought.
  • However, Amazon’s DRM-free MP3 download store starts stealing some marketshare from iTunes. More studios embrace selling their music unencumbered by DRM, leading iTunes to abandon their FairPlay DRM on music by the end of the year. — Amazon’s store is still very nice, and Apple would love to ditch DRM, but the music labels are still resisting. The day the RIAA and the labels become irrelevant is rapidly approaching, however.
  • Despite blockbusters like Indiana Jones and the Kingdom of the Crystal Skull and Star Trek, box office receipts decline both in number of tickets and dollars grossed as the price of high-def movie equipment declines. While movie ticket sales decline, sales of HDTVs, home theater setups, and HD-DVD and Blu-Ray players soar. HD-DVD players hit the $100 mark by the end of the year, meaning that HD-DVD adoption pulls away from Blu-Ray. — Star Trek was pushed back to next summer. HD-DVD lost the format war. But the larger point remains, movies are becoming more of a personal thing, and with the economic downturn, that’s going to be ever more of a factor next year.

Also, No Country for Old Men did win Best Picture, as it very well should have.

My predictions were widely off the mark in a year of phenomenal “change.” Obama’s surge, the economy’s collapse, and the aftereffects of both were currents that will carry us into a turbulent new year. But every new year is a turbulent one, and the assumptions we all make now may be as broken as the ones I made a year ago.

Later, my predictions for 2009, as well as an important announcement.

The Great American Brain Drain?

The Asia Times has an interesting, if disturbing look at how the world’s “intellectual capital” is making an unprecedented shift to the East:

Chinese parents are selling plasma-screen TVs to America, and saving their wages to buy their kids pianos – making American kids stupider and Chinese kids smarter. Watch out, Americans – a generation from now, your kid is going to fetch coffee for a Chinese boss. That is a bit of an exaggeration, of course – some of the bosses will be Indian. Americans really, really don’t have a clue what is coming down the pike. The present shift in intellectual capital in favor of the East has no precedent in world history.

Our language is shaped by the way we think, and we have an entire generation where the ability to think critically has withered. When we replace Homer with Homer Simpson, can we really expect people to be able to think deep thoughts?

Sadly, that analysis is likely correct. The United States is losing its competitive edge. We are not preparing our children for the future. We immerse then in Barney rather than Bach, and the results are a generation that simply can’t think. The Asia Times talks about the value of classical music in forming a strong and supple mind:

Any activity that requires discipline and deferred gratification benefits children, but classical music does more than sports or crafts. Playing tennis at a high level requires great concentration, but nothing like the concentration required to perform the major repertoire of classical music. Perhaps the only pursuit with comparable benefits is the study of classical languages. It is not just concentration as such, but its content that makes classical music such a formative tool. Music, contrary to a common misconception, does not foster mathematical ability, although individuals with a talent for one often show aptitude for the other.

The problem is that the concepts of “discipline” and “delayed gratification” are practically foreign to Americans these days. We’ve become a nation that has begun to systematically rout out the qualities that make us strong. Instead of allowing children to explore, we coddle them. Instead of teaching the classics, we teach drivel. We teach “self esteem” instead of formal logic. A classical education trained young minds to think critically, appreciate culture, and inculcated them with the values necessary for life in a democratic society. Now, thanks to the relentless dumbing-down of society, that sort of education has been cast out as being “patriarchal,” “ethnocentric” and even just plain “racist.” It is any irony that the Chinese seem to have a finer appreciation for our culture than we do.

Our pop culture hardly helps. As one former teacher finds, many American students are unable to express itself in any meaningful way. As the retired English teacher in the article noted: “When you read, you get to see the language used correctly, and you’re exposed to a range of vocabulary far beyond your own. I listen to students today, and the number of words they use is limited to slang and colloquialisms.” That dumbing-down will have a major effect on this nation’s ability to compete. Our language is shaped by the way we think, and we have an entire generation where the ability to think critically has withered. When we replace Homer with Homer Simpson, can we really expect people to be able to think deep thoughts? Because we never expose our children to culture, they never learn to truly appreciate it.

Not only that, but the values of hard work and diligence are not just values that enhance one’s own life. In his fascinating new book, author Malcom Gladwell notes it takes 10,000 hours of practice to excel at a given task. That’s three hours a day for a decade—which requires patience, determination, and a strong work ethic. But if we do not have a culture that supports patience, determination, and work ethic, then our chances of creating great artists, scientists, engineers, and scholars diminishes. Culture plays a major role in the success or failure of a nation, and we are losing the cultural basis for our success.

We can, and must, do better. We need to radically reform our educational system and reform our culture, or we will be unable to remain the superpower that we are today. Our competitiveness is based not as much on GNP or military power as it is in our ability to innovate and explore. We have the world’s greatest economy because we have the most innovative and entrepreneurial people on the globe. But it does not have to stay that way. We have to recognize that our education and our culture has to be about developing the skills needed to compete, and rewarding success while marginalizing failure. We cannot be a nation that has full self-esteem about our own decline.

It is time to dust off the Caesars and the sonatas, and push our children to be something more. Each generation has the potential to outshine the last, but only if we push them to do so. The United States can remain a superpower, but only if we are willing to keep it so.

Barack Obama Versus Alexis De Tocqueville

Armed Liberal, an Obama supporting blogger, has one of the more interesting takes on the whole Obama “bitter-gate” flap from a liberal perspective:

Here’s another thought: Obama believes that the people he’s discussing – poorer, gun-owning, church-going economic left-behinds in rural America are bitter and negative toward government because it hasn’t delivered.

There’s an alternate hypothesis, which is that they don’t think it’s supposed to. That there are a solid body of Americans who believe – with whatever justification or historical validity – that government’s role is to leave them alone. I’ll bet that people who believe those things tend to migrate away from major cities or never move to them, tend to go to church a lot, believe in guns, and in American culture. They are – wait for it – culturally conservative.

I think liberals can reach them, should reach them, and must reach them. I think they can because I think there are ways to reframe the ‘values’ issues that have divided us, and because I think that there is a key issue to bridge – the perceived value of what those poorer, gun-owning, church-going folks in small towns actually get from the government. . . .

I’ve asked for a long time what, exactly the Democratic Party has done in the last 20 years for a typical 35-year-old single mother who works as an administrative assistant in a big city. The answer: not a hell of a lot. Not anything I can think of.

To that I’ll add the question of what the Democratic Party has done in the last 20 years for the 35-year-old son of a factory worker who manages to get temp manufacturing jobs, alongside his wife, and tries to support his three kids doing it. He’s getting by because his dad had a great retirement plan and equity in his house. To him, the government wants to close his hunting areas to protect spotted owls, let his 14 year old daughter get an abortion without his consent, and charge him more and more for the priviledge.

So in a way, I’m agreeing with Obama – without the cultural baggage, which may be devastating to his candidacy.

Armed Liberal is doing something that the Democrats have failed to do—and that is take people who don’t agree with them seriously. That is something that Barack Obama isn’t able to do—because he has absolutely no cultural connection to Middle America. Obama’s statement about “bitter” voters was one of those rare moments in American politics where a candidate does something absolutely fatal: says what he or she actually believes. Obama’s appeal is all about the rhetoric of “hope” and “change” and other empty terms, but Obama’s substance is that of a man of the left. His statement was one in which the “hope” façade briefly slipped and the real Obama slipped through.

Barack Obama really does believe that the reason why cultural conservatives vote the way they do is because they’re “bitter” and they need to be shown the way. That attitude is arrogant and condescending to those who don’t share that viewpoint—but to those who agree, it’s “truth.” It’s the same argument that George Lakoff has been making for years—if one just “reframes” the issues, then Democrats will win the heartland.

It is, unsurprisingly, wrong. The left never really gets America. They don’t understand that cultural conservatism isn’t a recent backlash, but it’s the default state of American political life. Barack Obama, while a very educated and erudite candidate, should probably read some Tocqueville before spouting off again. The values of those Pennsylvania voters isn’t an aberration from the “real” American electorate, it is the real American electorate. Those Pennsylvania voters are the descendants of the largely Scots-Irish frontiersmen and women who settled this nation in the first place. They, for lack of a better term, are America 1.0—the people who made this country what it is.

Obama is from another culture entirely. The reason why he fails to understand the voters of the American Midwest is he has absolutely nothing in common with them. He doesn’t share their culture, their philosophy, their worldview, and he certainly does not share their view of government.

Armed Liberal gets it right: Pennsylvania voters do see government as a problem rather than as a source of all solutions. The problem is that the Democrats aren’t going to change that by promising more government solutions. It isn’t about getting “value” from government—although that is important—it is that every time that the power of the state is increased, the power of the people is necessarily decreased. They don’t understand that opposition to Big Government isn’t pig-headed obstructionism, but it’s entirely pragmatic. They don’t get that there’s a reason while Middle America would rather get help from their neighbors and their churches than from a government agency. They don’t understand concepts like subsidiarity (which even though most Middle American voters don’t know the term, they understand the concept) and how important it is to have solutions that are close to the people rather than diffused to Washington. This country was founded on the principles of limited government by and for the people, supported and enriched by an innumerable array of voluntary organizations. That is the America of Alexis de Tocqueville and Andrew Jackson, and that is the America that still represents a key plurality in American politics today.

Barack Obama is a very intelligent person, a fantastic orator, and certainly someone who cares for people. He is also from a culture that is relatively alien to traditional American values. Despite all the passion from his supporters, the cold, hard reality remains that Barack Obama will never be President of the United States. He can’t reach out to Middle America because he is not of Middle America, and he doesn’t understand the culture of Middle America. His rhetoric of “hope” and “change” may enthrall those who see American culture as drastically needed a realignment towards “progressive” values, but to those who have a justified suspicion of putting all one’s trust in government, his message does not resonate.

UPDATE: Marc Ambinder also gets it wrong. It’s quite fascinating to me to see progresive commentators make arguments such as this:

At his San Francisco fundraiser, Obama was sketching out a variation of the Thomas Frank argument about working class voters who seem to choose candidates whose policies cut against their economic interest. In Obama’s version, working class voters in the Midwest have been inured to promises of economic redress because both Democrats and Republicans promise to help and never do; since government is a source of distress in their lives, they organize their politics around more stable institutions, like churches or cultural practices, like hunting. The outlet for their economic duress is in lashing out, in giving voice to their grievances; In Obama’s formulation, Republicans are especially eager and willing to exploit cultural trigger points.

What Ambinder and most of the modern-day progressives keep failing to understand is that churches and cultural practices existed before the current economic downturn, before the Rust Belt existed, even before the Industrial Revolution reached the New World. The key mistake that Ambinder, Obama, and the rest make is assuming that cultural conservatism only exists because government hasn’t done enough for people—as though there’s something intrinsically wrong about not wanting more and more government services. They completely forget that this country was founded upon a justified skepticism and distrust of government—and far from being an aberration, the attitudes of Middle American voters are more true to the American tradition than their pro-government progressivism is.