Thursday, September 17, 2015

Donald Trump owns the time of possession statistic.


Donald Trump thinks it "unfair" that he got more talking time than anyone else at the GOP debate.
“A lot of them are friends of mine and they got no airtime last night,” Mr. Trump said “It was a little bit unfair to a lot of other people.”

Perhaps he does. Still, there is a reason why time of possession is such a closely watched statistic for NFL games: the team with the ball controls the game. In a debate, the guy talking controls the debate.

With 4,581 words spoken last night, Donald Trump had almost twice as much to say as Carly Fiorina, who spoke 2,694 words. So while Donald Trump might not have been as theatrically dominating as in Debate 1 (there was no Megyn Kelly setting him up for a devastating one-liner), he still owned the stage to a degree that has to have political pundits everywhere scratching their heads.

In the runup to the debate, CNN devoted 78% of their coverage to Donald Trump, commanding a whopping 580 minutes of coverage out of 747 minutes total.


According to Google Trends, Donald Trump topped all candidates in Google searches prior to the debate.


In media time before the debate, in viewer interest prior to the debate, and talking time during the debate, Donald Trump is beating all comers on time-of-possession.

Advantage: Donald Trump


Saturday, September 12, 2015

Is Kim Davis a latter-day Rosa Parks? I hope so.

One would have to be living on a desert island not to have some awareness of the legal fracas surrounding Rowan County Clerk Kim Davis, who chose to go to jail on a contempt of court charge rather than comply with the United States Supreme Court edict set forth in Obergefell v. Hodges (576 US ___(2015))  legalizing same sex marriages. For Ms. Davis, putting her name to a marriage license for two persons of the same sex was something her religious beliefs would not allow her to do in good conscience.  The courts ordered her to do so anyway, and she refused. And she was jailed on a contempt of court citation in response.

Those supporting her stance erupted in outrage. United States Senator and Republican Presidential Candidate Ted Cruz spoke out passionately on her behalf, declaring that it was unconscionable for the government to arrest a woman simply for "living according to her faith." Another GOP candidate, former Arkansas Governor Mike Huckabee, also took up her cause and worked to have her released, succeeding after she spent five days in jail.

Unsurprisingly, many of Ms. Davis' supporters compared her to civil rights icon Rosa Parks, whose refusal to give up her bus seat to a white man sparked the Montogomery Bus Boycott that heralded the onset of the Civil Rights Movement of the 1950s and 1960s. Equally unsurprisingly, many on the political left scoffed at such comparison.

Is Kim Davis a latter day Rosa Parks?

It is no slight to Rosa Parks to note that she stands chiefly as a symbol around which the Montgomery Bus Boycott could coalesce, In fact, a case could be made that the significance of her action stems from the sheer unpretentiousness with which she acted--her response to a threat from the bus driver to call the police was simply "You may do that". She was not seeking a confrontation, merely a bus ride. Nor was she at the vanguard of the Civil Rights Movement thereafter. Others, such as Dr. Martin Luther King, Jr., took her simple act of civil disobedience and launched a movement around it. Both in Montgomery, Alabama, and later in Detroit, Michigan, she was a quiet, even shy, unassuming woman, who chose to live quietly and largely away from the spotlight. As a result, Rosa Parks is remembered for the symbolism of that one act more than anything else.

By comparison, Kim Davis has been far more active, speaking at rallies opposing the Obergefell decision even prior to her incarceration--as well as having run for the elective office of County Clerk. 

However, in one key regard, there is a comparison to be made: Both Rosa Parks and Kim Davis engaged in an act of civil disobedience that other groups chose to leverage through lawsuits to correct a perceived in justice. Like Rosa Parks, Kim Davis is a symbol--of the First Amendment right to free religious expression to some, or a symbol of hatred, homophobia, and divisiveness to those who view same sex marriage as a fundamental right.

Thus we pose the question, is Kim Davis a latter day Rosa Parks?

Hopefully, she is--at least in this regard: my hope is for Kim Davis to become a symbol around which a movement can coalesce to reinvigorate a true Constitutional approach to jurisprudence, and a renewed respect for individual rights, both civil and fundamental, that the Constitution does protect quite forcefully.

In all of the controversy surrounding Kim Davis, one truth is made abundantly clear: Obergefell v Hodges is a horrendous ruling. It is horrendous not because same sex couples should not marry, or because homosexuals should not have certain rights available to heterosexuals, but because it is a disjointed and even contradictory ruling, with at best a specious link to the Fourteenth Amendment that serves as its Constitutional justification. Regardless of one's particular view on same sex marriage, the simple truth is that Obergefell is bad law.

At the beginning of his opinion, Justice Anthony Kennedy opines that "marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman." Further into his reasoning, he reverses himself, noting that "the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." Marriage is either a simple voluntary contract, as he first expresses, or it is a bond with deep religious (i.e., "spiritual") overtones; the two articulations are mutually exclusive.

Moreover, if marriage is a bond with religious overtones--and all three Abrahamic religious faiths: Judaism, Christianity, and Islam accord religious significance to marriage--then it is ludicrous for a Supreme Court to rule without contemplating how the First Amendment proscriptions against laws respecting the establishment of a religion would apply. Justice Kennedy mentions the First Amendment exactly once, at the end of his reasoning, and then largely as an aside.

But what if marriage is not a bond with religious overtones?

Obergefell is still bad law, first and foremost for injecting religious overtones via Justice Kennedy's reasoning where none should apply, Moreover, the First Amendment also guarantees people a right to peaceably assemble--more broadly termed the right of free association. People may join together in such fashion as they wish, without interference from government, so long as they keep the peace.

With or without consideration of religion, "marriage" is and must be a First Amendment issue, not a Fourteenth Amendment one.

A key limitation to the language of the Fourteenth Amendment must be noted: it guarantees merely the equal application and equal protection of the law. The Fourteenth Amendment in and of itself cannot establish new rights. The Amendment which guarantees rights not otherwise enumerated within the Constitution is the Ninth Amendment, which Justice Kennedy ignores completely. If one therefore seeks to address the Constitutionality of marriage laws and eschews the First Amendment, the Ninth Amendment is still the vehicle by which a right not articulated within the Constitution can be defended. If there is no right of marriage protected by the First Amendment, or definable under the Ninth Amendment, there can be no right upon which the Fourteenth Amendment can operate.

Predicating an assertion of right on the Fourteenth Amendment without invoking one or more other Amendments or passages of the Constitution is irrational on its face.

Finally, Obergefell is contradictory in this regard as well: while it asserts marriage to be a fundamental right, it then endorses the existence of an entire corpus of laws curtailing that right, despite providing not a whit of substance to a supposition that such laws are themselves narrowly tailored and in furtherance of a valid compelling purpose.

What compelling purposes might the state have in regulating marriage? Justice Kennedy lists a set of benefits he attributes to marriage: "...taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules...." Intriguingly, however, none of these rights involve the issuance of a marriage license--the particular sticking point that landed Kim Davis in jail--but merely an acknowledgment by the state that a couple are married. It is worth noting these benefits are available even in the states that recognize a "common law" marriage for which there is no formal license issued. Based on his own listing of state-granted benefits to married couples, the state has an interest at most in recognizing a marriage, but that is hardly a justification of a need to regulate marriage. 

It should be immediately obvious that when a state has the power to issue a license, it has a corresponding capacity to at any time revoke that license. Obergefell reasserts and reaffirms the power of the state in exactly that fashion--and that is something I cannot envision sitting well with sames sex marriage advocates should the mood of the court turn against them in the future.

Obergefell v Hodges is bad law. That is the inescapable conclusion. It is bad law because it is bad reasoning. Because it is bad law it relegates either same sex couples or religious adherents to a discriminated class--and the Constitutional standard is no discrimination, period. Whatever defects one may argue existed in marriage law before Obergefell, such a schizophrenic ruling can hardly provide substantial and sustainable remedy. Had Justice Kennedy started with the Constitution, a moral, just, and defensible decision was very much within his grasp--for he himself delivered all the necessary particulars to rule against the issuance of all marriage licenses altogether; such a ruling would have eliminated in its entirety the question of same-sex marriage.

Obergefell v Hodges is bad law. By failing to read the Constitution much at all, let alone properly, Justice Kennedy supplanted his own personal predilections for the rule of law that is the Constitution. By failing to reach a Constitutionally rigorous and sound decision, Justice Kennedy elevated the rule of the Court over that of the Constitution. By doubling down on the power of states to issue and regulate marriage licenses, Justice Kennedy elevated the power of the State above the rights of the people, ironically even as he wrote an opinion purportedly celebrating those selfsame rights. 

Rosa Parks was a face and a symbol for the Montgomery Bus Boycott. She humanized issues mired in the mechanics of law and business policy. She became the focal point for people's anger at the injustices of a society that was drawn up to be "Separate but Equal.". By being that symbol, by consenting to be that human face, she gave immediacy and impetus to the Civil Rights Movement.

Such a symbol is needed once more. We need a face to humanize the dangers and challenges of judicial overreach, of judicial whimsy, of judicial tyranny. We need a focal point to stand against such injustice.  Obergefell needs to be overturned, not because same sex marriages are themselves wrong, but because the rationale Justice Kennedy used to legalize them is wrong, because it rests entirely on the whimsy of the judiciary and takes no substantive notice of the text or meaning of the Constitution, nor of the essence of what "fundamental rights" means. Obergefell needs to be overturned because it empowers the state at the expense of the people.

In defending her religious convictions Kim Davis defended the most fundamental right of all: liberty. Surely that is a right all Americans can agree needs defending to the utmost.

Wednesday, August 26, 2015

Straight from the Gray Lady--The media is officially untrustworthy

As a general rule, it is a bad idea to build too much off a single quote from a single source. Context and nuance alone can render the single quote's informational value problematic at best.  My preference is always to build a thesis using multiple sources, unifying the multiple data points into a single thesis.

However, there is the rare occasion when the single quote is noteworthy all on its own, when a single news item is noteworthy all on its own. This morning, the New York Times gave us one such news item. That it is regarding the insurgent political firebrand Donald Trump should surprise no one.

What is surprising is the frank admission the New York Times makes regarding Spanish-language news media covering Donald Trump's campaign, and Univision news anchor Jorge Ramos in particular.  Ramos was the journalist who was rather unceremoniously ejected from a Trump press conference yesterday (depending on one's perspective, because he was challenging Trump on his immigration policy or because he was being rude, unprofessional, and disruptive--I am very specifically avoiding commenting on either perspective here as it is wholly not relevant to the topic at hand). The New York Times said very explicitly that Univision--and indeed all the Spanish-language news media, is clearly and unapologetically biased where their coverage of Donald Trump is concerned.  Specifically, New York Times reporter Ashley Parker wrote the following (emphasis is mine):
Mr. Ramos was eventually allowed to return. But for the Spanish-language press, which has grown in size and influence in politics, the tense exchange was a highly public flexing of muscle against a candidate who many outlets no longer pretend to cover objectively: They are offended by Mr. Trump’s words and tactics — and they are showing it.
People should pause to reflect that the essence of journalism is that dispassionate objectivity the New York Times freely acknowledges is being dispensed in at least some cases regarding Mr. Trump.  The full definition of the word "journalism" in Merriam-Webster reads as follows (again, emphasis is mine):
1
a :  the collection and editing of news for presentation through the media
b :  the public press
c :  an academic study concerned with the collection and editing of news or the management of a news medium
2
a :  writing designed for publication in a newspaper or magazine
b :  writing characterized by a direct presentation of facts or description of events without an attempt at interpretation
c :  writing designed to appeal to current popular taste or public interest
Unsurprisingly, the New York Times did not enumerate which of the many news outlets it felt have eschewed the core journalist virtue of objectivity where Donald Trump is concerned. However, it does not need to make that enumeration. The New York Times is a news outlet itself of no small consequence; it is a paper with a long publication history, and bills itself as "All the News That's Fit to Print.".  

Today, the news that is fit to print is that at least some portions of the news media are not interested in being objective regarding a leading candidate for the Presidency of the United States. Today, the news that is fit to print is that at least some portions of the news media are not interested in presenting the entirety of the factual record surrounding Donald Trump's chosen signature issue--illegal immigration. Today, the news that is fit to print is that at least some portions of the news media are in fact lying to their readers--they are either misrepresenting Donald Trump's stances and statements, or they are misrepresenting their own advocacy and bias regarding those stances and statements.  Today, the news that is fit to print is the admission by the New York Times that the news media itself, long arrogating to itself the position of the "Fourth Estate" somehow above the dirt and mud of politics and issues, has finally and unapologetically descended into that political dirt and political mud.

It matters not that some only some news outlets are shamelessly biased. It matters not that they are only shamelessly biased against Donald Trump. It matters not because the nature of bias is such that it cannot be just some outlets and it cannot be just Donald Trump. Misrepresenting his stances and statements mispositions other candidates stances and statements, and thus misrepresents all candidates. To misrepresent Donald Trump is to simultaneously misrepresent Hillary Clinton. To misrepresent Donald Trump is to misrepresent Barack Obama. There is no position of political philosophy or ideology that can proceed with a substantive and honest discussion of either candidates or issues when there is not at least an effort at honesty and objectivity. To allow biased advocacy as objective journalism--which even the New York Times ultimately is doing--without criticizing at least Univision and Jorge Ramos for their departure from traditional journalistic standards is to be complicit in that bias and to be complicit in the lie. If any of the news media tolerate bias from any of the news media, the credibility of all news media is called into question.

This is noteworthy not because it is shocking to find media bias. Accusations of media bias have been around for as long as there have been news media. This is noteworthy because the media has reached a level either of arrogance or cognitive dissonance that it no longer cares whether or not it is seen as biased.

Supporters of Donald Trump will with some justification read the New York Times article with a sense of "I told you so!". But anyone who reads the New York Times coverage of Trump's dustup with Jorge Ramos and Univision is left with the same unsavory conclusion--American news media is simply not trustworthy, nor does it care to be.

The Megyn Kelly mess

In recent days, Republican Presidential hopeful Donald Trump has been engaged in a running feud with Fox News commentator Megyn Kelly. The feud started after Ms. Kelly questioned "The Donald" during the first Republican debate--hosted on Fox--inquiring about commentary he has made regarding women, both on social media and in person. After seeming allowing the dispute to die down while Megyn Kelly took a 10-day vacation, upon her return the feud flared up again when Trump posted on Twitter about her return, referring to her as a "bimbo":
The media reaction has been in large measure predictable: Donald Trump has been lambasted for being "misogynistic" because of the "bimbo" word. To be sure, most would agree that such language is unnecessarily crude, crass, and generally rude.


While Donald Trump might be fairly reproached for rather ungentlemanly conduct, the hyperfocus on Trump's tweets entirely overlooks two aspects of this on-line feud.



First and foremost, Donald Trump does not advance his candidacy one iota by complaining about Ms. Kelly's journalistic style. Whether her questions as moderator of the debate were fair or unfair is simply not relevant. Ms. Kelly is a news commentator, a "talking head", and no more. She is not an issue to be debated. Even if she shows bias as a journalist--and her lead question to Trump in the debate was absolutely a "gotcha" sort of question about his now-famous trash-talking feud with media personality Rosie O' Donnell--it is a poor demonstration of political leadership for Donald Trump to be distracted from the issues framing his campaign by that bias. 

Trump demonstrated that he is indeed a serious contender for the Republican presidential nomination in 2016 by releasing an immigration plan that even liberal commentators acknowledge is substantive despite their disagreeing with large parts of it.  He wins plaudits from all angles for forcing a serious discussion on a serious issue--immigration reform. Obsessing over Megyn Kelly's "gotcha" attacks during the debate can only prove a distraction to that discussion, and the more substantive that discussion gets nationally the more credible a Presidential candidate Trump becomes. Megyn Kelly has nothing to offer in that debate--not critique, not analysis, not rebuttal.

The other aspect that is getting missed by commentators across the spectrum is that Ms. Kelly is fairly shallow and even trite as a journalist. Harping on Donald Trump's prior crass behavior is hardly a meaningful debate question--even if Trump regrets his behavior in hindsight, as a simple matter of political strategy is does him no good to admit it now. In fact, his unwillingness to make apologies for being blunt, brash, and bombastic during the debate has resonated with potential voters, and contributed to his rise in the opinion polls after that first debate. That Ms. Kelly chose that as her lead question to Trump says more about her journalistic integrity and political acumen than it does about Trump's core values. Arguably, even Fox News regards her as not much of a journalist, depending on how much significance one can ascribe to Fox referring to her as "talent" and not a "journalist" in a post-debate release about her feud with Trump. Never forget that Ms. Kelly has been the source of such classics of journalism as her 2013 on-air statements that both Jesus Christ and Santa Claus were "verifiably white" (whatever that means). Although a lawyer by training, other commentators dismiss her as an "egomaniiacal smart-aleck". To borrow some of Donald Trump's boorish rhetoric, Megyn Kelly is a "drama queen."

Trump's feud with Ms. Kelly is wrong, not because he committed some unpardonable sin by referring to her as a "bimbo", but because it is a political distraction. His feud with Megyn Kelly is as airy and as insubstantial as is Ms. Kelly herself. Trump has the ability to spar with the best, debate with the best--he's shown that time and again. That ability needs to be focused on issues, not pretentious journalists. That is what his campaign, his ambition, and this country require of him.

Thursday, August 13, 2015

Draft Biden, Justify Donald Trump

The news this week that Democratic Presidential hopeful Bernie Sanders has vaulted ahead of Hillary Clinton in the New Hampshire polls has sent chattering class scurrying for cover.  It has also given renewed impetus to the "draft Biden" scenario.

Consider: Bernie Sanders is drawing large crowds at rallies around the nation--the largest of any political candidate on either side of the aisle, he's energizing a large part of the base of the Democratic party, and the response of the party leadership to his success on the campaign trail is to look around almost desperately for a more "suitable" candidate. The crowd favorite--the unquestioned crowd favorite, judging by the size of the crowds--has been deemed "unelectable" by the Democratic Party leadership.

The first primaries of the 2016 election season are still six months away, and candidates can rise and fall, and rise again many times in that time frame.  Howard Dean similarly energized crowds in the 2004 contest only to fade as the Iowa caucuses approached.  Moreover, on two occasions Sanders' rallies were upstaged by activists from the "Black Lives Matter" movement, and essentially driven from the stage by their tactics--and to prevent a third he has brought members of that movement into his campaign. To presume that Bernie Sanders has any sort of lock on the nomination at this juncture would be ludicrous.

Indeed, Bernie Sanders does not yet enjoy a broad base of support among minority voters--a key constituency of the Democratic Party; as late as July, his favorability rating among non-whites was still at a lethally low 25%. Having been twice on the receiving end of minority activist antics can hardly be seen to help strengthen that number, although it is also possible that embracing the Black Lives Matter activists within his campaign will help him connect better with minority constituencies.

It is also true that Bernie Sanders has refused to formally align with the Democratic Party before now; a self-identified Socialist, he caucuses with the Democrats in the Senate but is nominally an Independent.  Whether that presents a credibility concern for him either with the Democrats or with the general electorate, should he win the nomination, remains an open question.

What is not an open question is that Bernie Sanders is surging in the Democratic polls, just as Donald Trump is leading in Republican Polls.  Indeed, the Washington Post has noted the odd parallels between these two campaigns from outside either party's mainstream, and then rather condescendingly wrote off both candidacies as transitory phenomenon, concluding that "this too--and these two--shall pass." The candidates grabbing not just the headlines but also the attention of the nation are not those from either party's rank and file--Bernie Sanders for the Democrats, and for the Republicans Donald Trump, followed (in some order) by Carly Fiorina, Ted Cruz, and Ben Carson. The reality of the moment is that what these candidates are saying--and how they are saying it--is of far greater interest to Americans than the rhetoric coming from the more conventional candidates who have thus far thrown their hat into the ring.

It may very well be that Bernie Sanders' main selling point among Democratic voters is that he stands outside the status quo of Democratic politicians. His political career has been defined by his quirky refusal to embrace the apparatus of a political party, maintaining a stance as a political independent throughout his terms in both the House of Representatives and the Senate. At the very least, that notion of independence is being consciously articulated by Sanders' supporters. In a supreme political irony, a career politician has cast himself as the outsider and the agent of meaningful--and in this case liberal--political change, and the voters are rewarding that stance handsomely.

Whatever one makes of Bernie Sanders' politics or his proposals, that he is reflective of voters' desire to alter the status quo cannot be denied. In this coming presidential election cycle, the public demands different candidates, with different themes, different messages, different backgrounds. Even more than 2008, the animating force in the coming Presidential contest seems to be a rejection of the status quo, and a rejection of those who represent the status quo.

Which is why the chief beneficiary of any serious effort at this stage to draft Joe Biden into campaigning for President is likely to be....Donald Trump.  A career businessman who has never even run for elective office before (despite having flirted with a run for President in 2012), a recurring theme in "The Donald's" stump speech is a mantra he's repeated for years: "Nobody owns me". While Donald Trump is campaigning for the Republican nomination for President he has no grand affiliation with Republican party politics or the Republican party machine--and indeed has donated liberally to both Democrat and Republican candidates in the past, and has spoken out in favor of Democratic as well as Republican party policies. In his unapologetic attacks on illegal immigration, on bias in the media, and on the cronyism of both major political parties, Donald Trump has put forth an image of independence that so far has been matched by only one other candidate: Bernie Sanders.

By contrast, Joe Biden is someone who has been near the apex of Democratic leadership in Washington for decades, a two-time Presidential candidate who chaired Senate committees literally for decades prior to becoming Vice President in 2008. Regardless of his stance on issues, or his personal priorities for holding elective office, Joe Biden is nothing if not the ultimate insider. He is the status quo personified, the very thing voters on both sides of the political aisle are fervently rejecting.

If Bernie Sanders continues to dominate Hillary Clinton in the polls, and if the New Hampshire primaries draw near with him still enjoying a front-runner aura among Democrats, and if the Democratic Party leadership continues to respond to his success among Democratic voters by looking for anyone who can be a more "electable" alternative to Bernie Sanders, might that not broaden Donald Trump's appeal? If the Democrats throw Sanders under the proverbial bus, might that not create an opening for a Trump candidacy to woo erstwhile Democratic voters with his bombastic rhetorical pledge to "Make America great again," rhetoric that is every bit as populist as Sanders' own verbal assaults on economic, political, and racial inequality?

The Democratic Party would do well to consider the consequences of its actions. The alternative to a "President Sanders" might very well be a "President Trump."




Wednesday, August 12, 2015

All Life Matters

The recent anniversary of the shooting death of Michael Brown in Ferguson, Missouri, has been greeted with a fresh round of rioting, and a fresh shooting, with Tyrone Harris critically injured after drawing a gun during the anniversary riots

The headlines swirling around the fracas over Planned Parenthood and it's practice of selling dead fetal organs, ostensibly for medical research, are as gruesome as they are graphic. Coming as they are in the long buildup to the Presidential primary season, those news bits and sound bites compete for our narrow attention spans with a seemingly endless parade of protest movements and moments regarding police violence against African-Americans and minorities, perhaps none quite so troubling as the report that, in July, 2015, no fewer than 5 African American women died while in police custody.

What is to be said about our society, our culture, our civilization when we see headlines such as these almost daily?
How sad it is that there is no great surprise to seeing protesters chanting "black lives matter" at political events, seeking to steal a soup├žon of media attention and focus for their cause. It is sadder still that the twitterverse has co-opted the hashtag "#BlackLivesMatter" with a wide and growing array of similar constructions: "#FetalLivesMatter", "#BlueLivesMatter", "#BabyLivesMatter", "#MilitaryLivesMatter", and "#AllLivesMatter".

Are we truly so coarse, so crass, so desensitized to examples of man's capacity for inhumanity that we must now be reminded constantly that lives matter? Are we so cynical that we must be counseled that the proper reaction for unarmed people dying at the hands of the police is outrage? Does it really require graphic headlines and even more graphic videos and pictures of dead and aborted fetuses to remind us to pause, and reflect, and perhaps pray for the millions of unborn children terminated through abortion, and to pray also for the women making what can only be presumed to be a difficult, gut-wrenching choice with searing emotional implications?

Black lives do matter. There is no moral justification for police approaching someone with suspicion, hostility, and violence merely because they happen to be African American. If a person is unarmed, he or she should not die at the hands of the police, nor should they die while in police custody; we can do better than that, we can be better than that. Regardless of whether there is misconduct or malfeasance by police officers, for any detention to end in death can never be anything but unacceptable. 

Police lives do matter. Theirs is a dangerous and necessary job, and there is no moral justification for targeting them with violence. Without a police force to enforce laws and maintain civil order, anarchy and chaos would prevail on our streets. They are never above the law and are always accountable for their actions under the law, but neither are they beneath the law and bereft of the law's protections.

Military lives do matter. Any man or woman who opts to shoulder a piece of the burden of defending this nation--or any nation--and its interests ought to feel safe within our borders, far removed from the nearest battlefield. There is no moral justification for attacking soldiers when they are anywhere but on the field of battle.

Fetal lives do matter. Some might argue that a fetus, a child still growing within the mother's womb, is technically an appendage of the woman rather than a whole person, and that it is the mother's right to terminate a pregnancy if she so chooses. However, none can deny that every fetus, left alone and permitted to gestate fully, will be born a human being, endowed with all the inalienable rights and inherent dignity that our society claims is the divine right of every person. There is no moral justification for considering a fetus as mere "garbage", and medical waste, to be discarded with nary a second thought, or "recycled" for putative benefit to medical researchers. No matter one's stance on abortion, the aborted fetus is a potential life unrealized, and to pretend that our society is not in some way diminished when this potential is denied us is not supportable.

Even animal lives do matter. At first reading, the headline that medical researchers seek to grow the organs and tissues harvested from aborted fetuses and thus alleviate several organ transplantation shortages in this country seems a small, almost trivial dimension to the ongoing saga of Planned Parenthood selling those dead fetal organs. Yet that would ignore the long and dramatic history of People for the Ethical Treatment of Animals, whose primary focus is to end cruel and inhumane practices of using animals for medical research, subjecting these inarticulate yet still sentient beings to experiments and procedures that would be considered crimes against humanity were they performed on humans. There is no moral justification for blithely blundering ahead with such research, glorifying all that science can do without pausing to consider if there are limits to what science should do. Literary masterpieces such as Mary Shelley's Frankenstein and H. G. Well's The Island of Dr. Moreau remind us still that science untrammeled by conscience is ultimately monstrous and barbaric.

I do not claim to know how to solve the injustices of police violence. I do not pretend to grasp the rage African Americans feel when the police abuse their authority and the trust we necessarily grant them. I will not pretend to comprehend all the emotional and ethical dimensions surrounding abortion. I am but a single man, with finite wisdom and understanding.

Yet even within my finite understanding of the universe around us, I understand that wisdom necessarily begins with the sanctity of life. I understand that every death is a subtraction, just as every birth is an addition, and to dismiss either the subtraction or the addition as so much dross, a thing unworthy of even a moment's acknowledgment, is a small, subtle, sublime subtraction from my own humanity. I understand that the words of Thomas Jefferson still ring true even today, "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." I understand the ring of truth echoes also in Dr. Martin Luther King's "Letter from a Birmingham Jail," when he reminded the world that "injustice anywhere is a threat to justice everywhere." I understand that police brutality and unpunished crime both threaten the very existence of civilized society.

I understand that, as President John F. Kennedy said so poignantly a half-century ago: "Our most basic common link is that we all inhabit this planet. We all breathe the same air. We all cherish our children's future. And we are all mortal.

I understand that life matters--that all life matters. 

The madness and chaos I see in the news every day of late--that I do not understand. Not at all.



Wednesday, August 5, 2015

A Law Repugnant to The Constitution is Void -- John Marshall's path to nullification

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

With this sentence in his historic ruling in the Supreme Court case Marbury v. Madison, Chief Justice of the United States John Marshall established the power of the Supreme Court to identify whether an act of Congress was unconstitutional, and thus lacked the force of law. But did Chief Justice Marshall also set forth a legal doctrine whereby anyone, a state government or even the people at large, might be able to similarly overrule the Congress? A close reading of this historic ruling indicates that he did.

The doctrine of judicial review was by no means novel in Marshall's day (indeed, from extemporaneous notes during the Constitutional Convention in 1787, we know of 11 delegates who specifically commented on the judicial review as a power of the court). The capacity of courts to review and comment upon laws was well established in the state of jurisprudence at the time,  nowhere in the text of the United States Constitution itself is the power mentioned. The judicial power is described explicitly in Article III, Section 2, paragraph 1:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Constitution thus established the scope of "the judicial Power", but chose not to define the nature of that power. Marshall, in formulating the reasoning within Marbury, opted to fill in that gap, arguing that "It is emphatically the province and duty of the judicial department to say what the law is." The court, in Marshall's view, is called upon to state the substance of a law (and, by extension, the limits of a law). Marshall actually engaged in some legal hair-splitting, arguing that while Marbury was certainly entitled to a legal remedy in his case, the language of the Constitution was at odds with the language of the Judicial Act of 1789, which was the enabling act that created the nascent federal court system for the United States.

Language lies at the heart of the Marbury ruling, for Marshal also wrote that "It cannot he presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it." Every word within the Constitution is significant, according to Marshall, and has meaning. But if words are essential to the Constitution, they are equally essential to Marshall's rendered opinion. Consider now the meaning of "province" and "duty" as Marshall applied them:
It is emphatically the province and duty of the judicial department to say what the law is.
province - proper or appropriate function or scope
duty - a moral or legal obligation; the force of moral obligation
Marshall asserted that not only are courts well equipped to state clearly the meaning and intent of laws, they are obligated to do exactly that. Moreover, by declaring the role of the court to say "what the law is," Marshall proposed that the state of the law--of any law--to be pre-existing. A court merely discerns what is already there.

Marshall did not arrogate to the Supreme Court any special power to overrule Congress' power to enact laws.  Rather, his formulation was a mere expression of a pre-existing reality: a law that is inherently at odds with the dictates of the Constitution lacks any validity or operative force. Marshall's notion of judicial review was not that courts are granted authority to invalidate laws on the basis of Constitutional compliance, but merely that they are endowed with the competency to articulate whether or not a law is invalid because of Constitutional conflict. What Marshall did claim for the courts was a duty to render that articulation--according to Marshall's thesis, the Marbury ruling was a requisite operation of the courts, something that had to be said, and no more.

As Marshall did not arrogate to the courts the power to render laws unconstitutional, neither did he derogate the capacity of other entities--the states or even the people--to identify laws as being unconstitutional.  Marshall's claim, as articulated within Marbury, was not of power but of duty, but nowhere in the Marbury ruling is there any language which makes either the duty or the competency exclusive to the courts. Given that Marshall was already consciously micro parsing the text of the Constitution as well as the Judicial Act of 1789, it hardly seems likely that he would have been so semantically sloppy as to fail to incorporate exclusive language into the Marbury ruling had he been so inclined. The question of whom besides the courts might be possessed of that competence is neither asked nor answered within the ruling.

Yet on one point Marshall left absolutely no room for debate: any law which is contrary to the Constitution is by its very nature without authority. Such a law is void, lacking both legal form and legal substance. With or without a ruling by a court, such is the nature of law, according to Marshall.

As a direct result, not only did Marshall affirm judicial review to be an organic part of the role of the judiciary, he also articulated a basic framework of nullification. A legislature can only pass laws in accordance with its authority, as rendered by a governing constitution; it is morally impossible, under Marshall's logic, for a legislature to pass laws beyond the scope of its authority--should it put statutes down in writing which are at odds with the governing constitution, such statutes are from their moment of creation simply words without form, without meaning, and without force of law. No ruling of the Supreme Court, or any court, is needed to void such statutes; conflict with the governing constitution alone is sufficient.

Whom besides the courts might have the competence to articulate a law's invalidity? Within the framework of the Constitution, certainly the individual states can make a strong claim to such competence, for the Tenth Amendment reserves an expansive and indeterminate set of powers to the several states and to the people of the United States:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
As the Constitution is silent on whom enjoys the capacity to articulate a law's invalidity, the Tenth Amendment offers at least a presumption that such capacity is given to the states, inasmuch as the Constitution failed to prohibit that capacity to the states

The Constitution itself states explicitly that it is intended to be the supreme law of the land. There is no statute nor charter within the United States which is superior to the Constitution. As the Preamble states most eloquently, it is by the Constitution--and by the Constitution alone--that the United States is given legal form, substance, and reality.  Any legislative act not in accordance with the Constitution lacks both substance and reality. 

As John Marshall so eloquently illuminated in Marbury v Madison, the Supreme Court is charged with stating what the law is. It is therefore given to the rest of the United States--to the several states and ultimately to "We The People"--to state what the law is not.







Saturday, July 11, 2015

Donald Trump -- Blunt, but no racist, no bigot.

It has been long since last I posted on this blog. Too long, at least for me. It is time to write once more, time to reason, time to think, and--hopefully--time to be heard.

The great controversy of this day is the allegedly "racist" comments Donald Trump made during his announcement of his candidacy for the 2016 Republican Presidential nomination.  But were they really racist?

First, this is what Donald Trump actually said:
Thank you. It’s true, and these are the best and the finest. When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.

But I speak to border guards and they tell us what we’re getting. And it only makes common sense. It only makes common sense. They’re sending us not the right people.

It’s coming from more than Mexico. It’s coming from all over South and Latin America, and it’s coming probably— probably— from the Middle East. But we don’t know. Because we have no protection and we have no competence, we don’t know what’s happening. And it’s got to stop and it’s got to stop fast.
These are harsh words, of that there is no doubt.  Donald Trump is not known for nuance, but for bombast, and that is very much in evidence here.  

The reactions to his words have been incendiary.  Commentators across the political spectrum denounced his comments, and Republican politicans quickly moved to distance themselves from his words.  Latino commentators in particular (and perhaps understandably) decried his words as "bigoted". Others used the word "racist".

Merriam-Webster's Dictionary supplies the following definition for "bigot":
a person who strongly and unfairly dislikes other people, ideas, etc. : a bigoted person;especially : a person who hates or refuses to accept the members of a particular group (such as a racial or religious group) 
Merriam-Webster also supplies the following definition for "racist":
a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race 
Can we surmise from Donald Trump's words that he is bigoted--he dislikes either Mexico or the people of Mexico in general? The words do not support that charge.  There is no broad derogation of Mexico--there is a critique and a criticism, but does that criticism rationally lead to an overbroad condemnation of all the people of Mexico?  I do not see that it does.

Donald Trump's core thesis is that the country of Mexico is not sending her best people, but rather her worst--criminals and drug abusers, specifically.  Setting aside for the moment any factual substance that might be made to these charges, the words themselves apply clear distinctions among the citizens of Mexico.  If there are some who are "their best", and those earning Donald Trump's scorn are not those persons, but others, then clearly Donald Trump is not placing all persons hailing from Mexico in the same bucket. His thesis would not exist either logically or semantically if this were not so. 

Can we surmise from Donald Trump's words that he is a racist, and believes the people of Mexico to be inherently inferior? Within the aforementioned critique, I do not see where there is any presumption that the "problem" illegal immigrants are bringing with them is simply that they are "Mexican".  Again, the distinction between "the best" and those "with problems" makes such contention logically impossible.  Further, Donald Trump is quite explicit about the problems of which he speaks: drugs and crime.  Is there an inference in these words that all Mexicans are criminals and drug abusers? No--again, the distinction between "the best" and those "with problems" makes such inference logically impossible.

Raoul Lowery Contreras criticized Trump's rhetoric as bigoted, charging:
He told Fox’s Sean Hannity that Mexico was not “sending us their best.” Mexico, Trump claims, is sending us drug people, murderers and rapists, implying that that is all Mexico sends us; no oil, no cars, no air planes, no car parts, no construction cement, no fruits and vegetables, no seafood, no flat screen TVs or more than 500,000 farmworkers who produce much of our food.
This charge fails immediately, because Trump specifically addressed problems of immigration, not broader commerce.  "When Mexico sends its people...." is how Donald Trump's assertion begins. Oil, cars, airplanes, cement, agricultural products are most assuredly not people.  Mr. Contreras' assertion is at odds with the text of Trump's remarks, and attacks a claim simply not made.

Further, Rich Lowry, editor of the National Review acknowledged that Donald Trump did have a point:
This is obviously correct. We aren’t raiding the top 1 percent of Mexicans and importing them to this country. Instead, we are getting representative Mexicans, who — through no fault of their own, of course — come from a poorly educated country at a time when education is essential to success in an advanced economy.
Are his words intemperate and ill-considered, and thus is bigotry and prejudice to be inferred from that insensitivity? This could only be true if there is no basis in fact for the charge.  The internal distinctions he made within his comments preclude any charge of a hasty generalization--indeed he is not generalizing attributes at all. Are, then, his claims grounded in fact?

One substantive rebuttal to Donald Trump's comments was made by Simon Maloy in Salon:
Trump’s point – which he has restated and defended over and over in the past few weeks – is that Mexico is sending criminals, drug dealers, and rapists over the border to the U.S. That “point” is easily debunked: crime rates for immigrants are lower than for native-born Americans and immigrants are far less likely to be imprisoned. 
Maloy is referencing statistics put out by the Immigration Policy Center, which encompass various research efforts on immigration and crime spanning nearly 100 years.  Yet there are other equally compelling statistics worthy of mention:

  • The New York Times in 2010 reported that as many as 4.5 million illegal immigrants drive--illegally--in the US, many unable to even read or understand road signs.

  • Judicial Watch noted in 2014 that nearly half of federal criminal prosecutions centered around the border with Mexico:

Of the 61,529 criminal cases initiated by federal prosecutors last fiscal year, more than 40%—or 24,746—were filed in court districts neighboring the Mexican border. This includes Arizona, New Mexico, Southern California, Western Texas and Southern Texas. The two Texas districts each had more than double the convictions of all four federal court districts in the state of New York combined, according to the DOJ report. The Western Texas District had the nation’s heaviest crime flow, with 6,341 cases filed by the feds. In Southern Texas 6,130 cases were filed, 4,848 in Southern California, 3,889 in New Mexico and 3,538 in Arizona.
Not surprisingly, most of the offenses were immigration related. In fact, 38.6% of all federal cases (23,744) filed last year involved immigration, the DOJ report confirms. Nearly 22% (13,383) were drug related, 19.7% (12,123) were violent crimes and 10.2% (6,300) involved white-collar offenses that include a full range of frauds committed by business and government professionals. This is hardly earth-shattering news in fact, the nation’s southern border region has for years been known for its high crime rate compared to the rest of the country.

  • Latinos within the US are likely to underreport crime for fear of calling attention to their illegal immigration status. The Atlantic while attempting to rebut Donald Trump's rhetoric, made note of a 2013 study by Lake Research Partners, which found that 45% of Latinos acknowledged that fear of police investigating their own immigration status made them less likely to report crime.
  • Judicial Watch noted in 2013 that Mexican drug cartel violence was inhibiting journalists from reporting drug violence around the Mexican-US border, for fear of retaliation.
  • Huffington Post reports that a study by web news organ Fusion found that 80% of Central American women and girls are raped attempting to enter the United States..
That there are facts pro- and con- to be cherry picked in this fashion completely rebuts any assertion of bigotry or prejudice in his Presidential announcement.  His comments may be uncomfortable.  His comments may be inflammatory.  His comments might perhaps be exaggerated. They are not lacking in factual foundation and they are not bereft of supporting statistics--even before we have the unfortunate stories of murder victims such as Kate Steinle, a 32 year-old woman gunned down in San Francisco by a man who had been deported numerous times and still insisted on returning illegally to this country.

These facts, pro- and con- are what gets lost in heated charges of racism and bigotry, leveled simply because the words themselves make us uncomfortable.  Discomfort is not discrimination.  Realism is not racism. Bombast is not bigotry.

Donald Trump is brash, blunt, and outspoken.  Yet the furor surrounding his comments demonstrates that he has identified an issue of pressing concern for many in this country. Violent crime, whenever and wherever it occurs, is a major problem for those traumatized by it. It is no comfort to the family of Kate Steinle to quote statistics proclaiming a lower crime rate for immigrants than for native-born persons.  Such data does not dismiss the unavoidable contention that had her killer been successfully deported and not able to return, she might yet be alive and unharmed--a claim that can be reasonably leveled any time an illegal immigrant commits a crime or takes a life.  Such data contends with data that shows there is an illegal immigrant crime problem, that far too many illegal immigrants are indeed not coming to the United States to work and to build a life, but to prey on others--to rob, to rape, to kill. Such data does not dismantle Donald Trump's thesis that those coming into this country from Mexico are indeed less than "the best".  

Donald Trump's words are disturbing, but the issue behind them is real.  It is an issue that will not go away merely because we wish to avoid disturbing words. It is an issue that will not disappear merely because we wish to tread lightly around people's sensibilities.

Donald Trump is blunt. But he is not a racist, and not a bigot. In these words of his, there is no racism nor bigotry, but real concern over a real problem.  His words are a challenge to us all--to meet him with facts and with reason, to debate and discuss, and to not shrink from unpleasant issues merely because they are unpleasant.

Donald Trump has stated to want to make America "great again."  By fomenting a national discourse on illegal immigration, he taken a positive step in that direction.  That step will not be undone merely by attempting to dismiss him as either a racist or a bigot.