Political Philosophy, The Law

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.


A Little Iowa Perspective

Karl Rove was just on XM Radio’s POTUS ’08 channel, and he mentioned that fewer people vote in the Iowa Caucus than vote in Wichita, Kansas. He also mentioned that fewer people vote in the Iowa Caucus than vote here in Dakota County, Minnesota. (Of course, he had to mention that nobody knows where Dakota County is…)

Ultimately, he’s right, slams to this county aside. Iowa doesn’t represent a particularly valid cross-section of voters on either side. If you’re part of the Romney or Clinton campaigns, that’s at least some comfort. Iowa’s important because it’s the first real vote, but even then it doesn’t matter all that much in the grand scheme of things. A good campaign can lose Iowa and still win nationally. Even though Hillary Clinton and Mitt Romney lost the expectations game, there are plenty of other states in which to mount a comeback. Romney has fewer options on the Republican side than does Clinton, but even he’s not dead yet.

Campaign 2008, Politics

Iowa: The Fallout

Well, Barack Obama and Mike Huckabee took the top spots in Iowa, and by some impressive margins. Obviously, they’re the big winners tonight as they have momentum into the next crucial contests—New Hampshire for Obama and South Carolina for Huckabee.

The big losers: the former frontrunners Hillary Clinton and Mitt Romney. Clinton can afford to lose Iowa and still keep in the game. If Romney loses to McCain in New Hampshire, I don’t see him remaining viable. He has the money, but he needed to win Iowa or at least finish close to Huckabee. Losing New Hampshire would sink his campaign.

There are two Republicans who should feel good about Iowa who aren’t Huckabee: McCain and Thompson. McCain will probably win New Hampshire, which takes Romney out of the race. Thompson could then benefit from Romney’s loss as his supporters could easily go his way based on conservative credentials—but he’s going to have to tailor his pitch to put them on his side rather than McCain. Thompson needs to do well in South Carolina to stay viable, which means that McCain and Huckabee have to take some dings before then. In some ways, this situation benefits him the most. Iowa and New Hampshire take out Romney, which narrows the field and leaves conservatives looking for an authentic conservative choice—and my guess is that Thompson has a lot more appeal with National Review-style conservatives than McCain and certainly more than Huckabee.

Edwards also places, which keeps him alive. The problem is that Obama could easily steal his thunder, and his speech in Iowa was lackluster at best. In some ways, it would have been better for him to switch places with Clinton—if Clinton and Obama end up clashing, he could come up the middle.

The problem with Iowa, especially on the Republican side, is that it’s an outlier state. Huckabee’s win won’t necessarily translate elsewhere. Remember that in 1988 George H.W. Bush lost in Iowa. In a contest like this where there’s no clear front-runner, Iowa’s narrow reach may not mean all that much.

On the Democratic side, it’s a three person race between Obama, Clinton, and Edwards. On the Republican side, it’s increasingly looking like the race may boil down to McCain, Huckabee, Thompson, and possibly Giuliani. In neither case is the outcome certain. Obama’s lack of experience may hurt him when he comes up in the big states like California and New York. A Romney loss in New Hampshire puts a big bloc of voters who don’t much care for Huckabee at play between McCain and Thompson. Edwards could sweep the South, putting himself in play.

Right now, my guess would be that if Thompson doesn’t do well in South Carolina, John McCain will be the Republican nominee. Huckabee is too divisive. For the Democratic nomination, I’m leaning more towards an Obama win, although I wouldn’t count Hillary out yet.

Obama, to his credit, does signal a break from the Clintonite school of politics which have corrupted American politics for years now. The “campaign war room” and the politics of personal destruction that marked the Clinton years hardly helped America’s politics. Getting rid of that would be a step in the right direction. The problem with Obama is that he’s winning on some vague notion of “change”—while doing little to describe what direction he’d take the country. Obama would be a formidable challenge for the GOP, but ultimately he doesn’t have the executive experience needed to be a successful President. He also votes like a doctrinaire liberal, which undercuts his ability to reach across party lines. He would do better than Edwards, but in the end his appeal is largely skin deep.

The worst case scenario is an Edwards/Huckabee match, in which case I’ll say to hell with it and end up voting for Ron Paul just out of spite for such big government paternalists. Ideally, I’d like to see an Obama/Thompson contest—Obama’s idealism is a nice contrast to the general pessimism of the Democratic Party, and Fred Thompson has the strongest grasp of policy. An Obama/McCain race would also be interesting for much the same reason.

What the ripple effects of Iowa may be are not quite yet apparent. Hillary Clinton is certainly down, but she’s not out. The same may not be true for Mitt Romney. Will Mike Huckabee cruise to the GOP nomination and end up splitting the party? Could John McCain consolidate the conservative vote after his now-likely New Hampshire win? Iowa has provided an interesting start to the formal 2008 race, but its only a start. What happens in the next few weeks could provide quite a few more surprises for us all.

Campaign 2008, Politics

Iowa Predictions

While I have no idea what the outcome of Iowa will be (and I doubt anyone else does either), I’ll venture a few predictions for tomorrow’s matchup in Iowa:

On the Republican side, Huckabee peaked too early. The attention he got caused people to take a look at his record, and it’s not good. Huckabee sailed in on homespun congeniality, but the more people look, the less substance he has, and where has has substantive positions they usually rub the Republican base the wrong way. I would cautiously predict that Huckabee will do worse than expected—mainly because he has nowhere to go but down. His support is soft, and he doesn’t seem to be moving in the right direction to take a convincing win.

It’s safe to predict a Romney win, since he’s poured so much into Iowa. However, to be viable, he has to pull off a convincing win. If Huckabee is sliding, that benefits Romney.

There’s not one, but two dark horses in Iowa. McCain and Thompson are fighting for third place, and both have been doing better than expected. Thompson needs a strong third-place finish in Iowa to remain viable. McCain hasn’t campaigned in Iowa, but does have a base of support there. Zogby is showing a late breakout towards Thompson. If Fred can get 15%+ that keeps him alive until South Carolina. If McCain does well (double digits) that keeps him alive until New Hampshire, where he has a chance at the top. It all depends on where those last undecided voters go—if Thompson were to pick up a lion’s share of undecided voters (which seems possible), that could give him the finish they need. If they go to McCain, that puts McCain a real edge given that New Hampshire will give him a boost as well.

The real story of the Republican side of Iowa is not who wins, but who gets out alive. I’m guessing that we’ll lose Rep. Hunter by the end of the week, since he has no traction nor any chance of gaining it.

Rudy’s out of Iowa—last year he was the front-runner, now he’s running a dangerous game that could easily put him out of the race before he really gets started. He won’t break single digits in Iowa, but what he needs is for Iowa and New Hampshire to be won by different people so that no front-runner emerges. If Romney wins both, Giuliani may be in trouble.

On the Democratic side, Clinton, Edwards, and Obama are all in play. I doubt Edwards will win, although he’ll come in a strong third. His brand of economic populism plays well with the Democratic base, but he’s not electable, and he’s been running for office longer than gaining experience. He couldn’t win his old Senate seat back, and he and Kerry lost ground against Bush. Kerry was smart enough to realize that he was damaged goods—Edwards is too vain to notice.

The Obama-Clinton race will be the one to watch. Obama’s run a campaign much like Howard Dean’s, except smarter. He also has the same problem that Dean has—his base of support is with people who don’t tend to vote. Still, I wouldn’t count him out. My sense is that he could very well win in Iowa, which would put Mrs. Inevitable in a very tight spot. Obama’s playing a dangerous game, however. The Clinton smear machine has him in their sights, and while their first shots were weak, sooner or later they’ll take him down.

If Clinton wins, it puts Obama in a tight spot. He has to perform, and he needs national momentum to do that. A Clinton victory puts the spotlight on her, and without an upset, Obama’s strength in Iowa will be put a roadblock to her path to the nomination.

If I had to guess, I’d say the former frontrunners will be the future frontrunners: which means narrow wins for Clinton and Romney. Huckabee leaves Iowa intact, but the pressure on him won’t go away, and he’ll do poorly in New Hampshire. Thompson needs a strong third place finish in Iowa and a win (or near win) in South Carolina to stay alive—which means that Thompson will need to campaign hard in South Carolina to keep Huckabee down.

Of course, all these predictions are going by the polls. The polls, as in 2004, could be entirely wrong. Thompson’s Iowa barnstorm could turn him into the John Kerry of the GOP, the single-digit candidate who suddenly became the frontrunner. Huckabee could collapse as Dean did, and for some of the same reasons. Clinton could sink and Obama could soar. Edwards’ populism could propel him to the top. McCain could surge in Iowa and then take down Romney in New Hampshire, putting him ahead.

Part of the fun of Iowa is watching expectations crash and burn, and there could be a lot of political wreckage strewn from Council Bluffs to Dubuque after tomorrow night.

UPDATE: Bob Novak predicts Hillary will come in third in Iowa. That would be a real blow to her campaign. However, I think the “Dean factor” is at play here—a candidate that excites younger voters doesn’t do so well in caucuses which are dominated by older voters who are deeply entrenched into politics. Then again, a narrow Clinton win doesn’t help her much, as it leaves two viable competitors who could present further challenges down the road.


Fred’s Message To Voters

Fred Thompson has a lengthy video message to Iowa voters, which lays out in some detail the case for his candidacy:

What struck me about this message is that Sen. Thompson reached out to Democratic voters as well:

You know, when I’m asked which of the current group of Democratic candidates I prefer to run against, I always say it really doesn’t matter… These days all those candidates, all the Democratic leaders, are one and the same. They’re all NEA-MoveOn.org-ACLU-Michael Moore Democrats. They’ve allowed these radicals to take control of their party and dictate their course.

So this election is important not just to enact our conservative principles. This election is important to salvage a once-great political party from the grip of extremism and shake it back to its senses. It’s time to give not just Republicans but independents, and, yes, good Democrats a chance to call a halt to the leftward lurch of the once-proud party of working people.

So in seeking the nomination of my own party, I want to say something a little unusual. I am asking my fellow Republicans to vote for me not only for what I have to say to them, but for what I have to say to the members of the other party—the millions of Democrats who haven’t left the Democratic party so much as their party’s national leadership has left them.

For all the phony populism of the Democratic Party, they’re not the party of working people, no matter how much they protest to the contrary. The Democratic Party in its modern incarnation represents the interests of the secular coastal left. They have to adopt a populist veneer because if they were honest to the American people they would never win election in a country where self-identified conservatives outnumber self-identified liberals 2-1. What do they stand for? A United States with a foreign policy that fecklessly thinks that Bashar al-Assad and Mahmoud Ahmadinejad can be talked into ending their campaign of terrorism across the globe. A United States in which Osama bin Laden is given the same procedural rights that Tony Soprano would have. A United States of higher taxes, unlimited abortion on demand (at taxpayer expense) and a United States that would follow the failing model of Britain’s NHS or Canada’s socialized healthcare system. Is this really the United States that is envisioned by the mainstream of American society? The Democrats are deluded enough to think that if they can wrap the bitter pill of Fabian socialism in enough sugary rhetoric, the American people will swallow it.

The American people deserve better than that.

Sen. Thompson represents the basic principles of the Republican Party—a strong national defense, respect for the values which create a successful society, and the sort of limited government that our Founders intended. It seems that the primary critique of Sen. Thompson—that he doesn’t campaign hard enough—is a substance-free critique. The reality is that Sen. Thompson’s campaign is the more intellectual strenuous, the one with the best policy positions, and the clearest in its goals and objectives.

What this country needs is not someone who can claim to “feel your pain” while letting this country continue to slide. What we need is a leader, someone who is willing to make the hard decisions that will need to be made in the next few years. The next Administration will almost certainly have to deal with an entitlement crisis that will quickly consume trillions of dollars. Who is best equipped to handle that crisis? A candidate who talks about the problem or a candidate who has a plan on the table that can realistically solve it?

There’s something to be said for style, but it doesn’t substitute for real substance. This country needs solutions, not more empty rhetoric. Sen. Thompson has put those solutions on the table, which is why he deserves the support of Iowa voters this Thursday.


Burning Shoe Leather In Iowa

Patrick Ruffini takes a look at Fred Thompson’s Iowa campaign schedule. The media narrative of Thompson being “lazy” on the stump has always been that—a media narrative. And as any educated consumer of media should know, what the media thinks and the truth might not dine at the same table.

Is this last-minute push enough to make a difference? It did in Thompson’s Senate race, where he came back from behind in a similar last-minute push. In many ways, the dynamics of the campaign benefit two people: McCain and Thompson. Huckabee peaked too early, and now he’s starting to show the thin-skinned petulance that many noted during his tenure as governor of Arkansas. Romney is doing well, but he’s expected to do well, and is now in a difficult race with Huckabee, which leaves the middle wide open.

I don’t think Thompson could win Iowa, but a third-place finish keeps him in the race. A strong third-place finish gives him crucial momentum into the later races. If McCain beats Romney in New Hampshire and does well in Michigan, the race could turn into a Thompson/McCain race, which would be very interesting. As much as I respect McCain, conservatives are more likely to look for someone with a stronger conservative record. If I had to guess, I’d say that the latest Strategic Vision poll has the best view of the race. They show Huckabee breaking 30%, Romney close behind at 25% and Fred Thompson at a respectable 16%. If Thompson breaks 20%, he will vastly outperform expectations. If he gets around 15% in Iowa, he’s still in the race. Less than 10%, and it’s likely that his campaign is over. I would look for Thompson to come in right around the 15% mark and a solid third place.

Of course, everything is still in flux. The race could change dramatically in the holiday season, especially if Huckabee stumbles. This race has practically infinite possibilities—other than the bottom tier (which is dwindling now that Tancredo is out), any of the putative front-runners have a chance. Could Thompson come from behind? Could McCain? Could Rudy reinvigorate his campaign? Is Romney’s momentum enough? Could Huckabee solidify his base beyond evangelicals? We’ll know in the next few weeks, but right now as the country rightly pauses for the celebration of Christmas, there are far more unanswered questions than solid predictions.

Campaign 2008, Idiotarianism, Politics

Not-So-Great Moments In Pandering

Reason finds a wonderful Christmas tale of how a 7-year-old girl got the best of Mike Huckabee:

“Who is your favorite author?” Aleya Deatsch, 7, of West Des Moines asked Mr. Huckabee in one of those posing-like-a-shopping-mall-Santa moments.

Mr. Huckabee paused, then said his favorite author was Dr. Seuss.

In an interview afterward with the news media, Aleya said she was somewhat surprised. She thought the candidate would be reading at a higher level.

“My favorite author is C. S. Lewis,” she said.

Ouch. Just ouch.


Is McCain Surging In Iowa?

That’s what the latest ARG poll of Iowa shows. McCain is ahead of Romney in that poll. In NH, ARG shows McCain tied for first place.

What this goes to show is how volatile polling in Iowa really is. The dynamics of the race are constantly shifting, and a long-shot contender like McCain has just as much of a shot as Romney or Huckabee. Because this is a caucus rather than an open primary the actual results will be decided by a relatively small number of people—and those people aren’t always the people answering the pollster’s questions.

It will be interesting to see if Sen. McCain can execute an “up the middle” strategy in Iowa and New Hampshire. The big issue that has been hurting McCain has been immigration, but that issue hasn’t been dominating the headlines as much as it has. McCain has a strong appeal with fiscal and national defense conservatives, and he’s an acceptable candidate with social conservatives as well. If McCain does well in Iowa and New Hampshire, it could completely alter the dynamics of the race.

Could there be a McCain/Lieberman unity ticket in the future? I wouldn’t be making any big bets on it, but in this fluid time, it’s not impossible either.


Fred’s “I Paid For This Microphone Moment”

Fred Thompson is getting some good reviews of his debate performance this afternoon, while the Des Moines Register (or as we used to call it “The Locust Street Liar”) is getting hammered for running a joke of a debate. The former Senator got a couple of good shots in, most notably when he went after the idiocy of the debate format:

Note the focus meters going through the roof—if Thompson can connect like that more often this race could get very interesting.

Thompson could easily come in a strong third in Iowa, which gives him some room in the key contests in South Carolina and Florida. This race is very much up in the air, and Romney, McCain, Giuliani, Thompson and Huckabee all have paths to the nomination. Again, look at how the actual results in Iowa confounded the pollsters in 2003—expect that something similar could result this year as well.