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.