California

Everybody’s got their knickers in a twist over the California Supreme Court’s recent ruling that Prop 22 (a popular initiative to enact a statutory ban on same-sex marriages) was unconstitutional under the California State Constitution’s guarantee of equal protection. The court declined to reconsider, and also declined to issue a stay of its order directing state officials to stop denying marriage licenses to otherwise eligible same-sex couples. Apparently, same-sex couples started getting married a few days ago.

My position on gay marriage is that equal protection does not, in this case, justify expanding the welfare state, because all (or very nearly all, more on that below) the legitimate features of marriage are already available to same-sex couples as a function of private contract.

Both sides of the gay marriage debate have been irked by one thing or another in this mess. Pro gay marriage activists were upset when, in 2007, the California legislature passed legislation (AB 43) to overturn Prop 22, but Gov. Schwarzenegger vetoed it, saying he wanted to wait for a court ruling. Turns out, this was the right thing for him to do, because Prop 22 could not be repealed by an act of the legislature. The California State Constitution provides that statutes enacted by popular initiative can only be repealed by another popular initiative. Neither the legislature nor the Governor had the power to enact AB 43, so Schwarzenegger was quite right to defer the question to the court.

Californians have another popular initiative set for the November ballot to enact a constitutional ban. (Prop 22 was a statute, not a constitutional provision.) This would override the California Supreme Court’s decision and allow state officials to refuse to grant marriage licenses to same-sex couples.

In the meanwhile, California’s liberal welfare-state benefits will be greatly expanded. If I were one of those people who had nothing better to do, I’d find it quite interesting to calculate up the actual cost to the California taxpayers in additional state entitlements.

Of course, the California same-sex marriages conducted between now and November are still not the same thing as straight marriages.

Federal

Because, of course, the biggest marriage-related welfare benefits come from the Federal government, which has the DOMA, which bans Federal recognition of same-sex marriages. So just because you’re gay and married in California (or Massachusetts) doesn’t mean you get the same stuff straight couples do.

But in an interesting twist, the Bush Administration (specifically the Office of Legal Counsel, who represent the Executive in legal matters) has taken a legal position recognizing (sort of) a civil partnership performed in Vermont for some Social Security purposes.

In a recent opinion letter, the Office of Legal Counsel determines that a child of a same-sex partnership formed under Vermont law may receive the non-biological parent’s Social Security Child’s Insurance Benefits, even when the parent-child relationship between the non-biological parent and the child was created by the civil union, not by adoption.

See, Child’s Insurance Benefits are paid regardless of the marital status of the parent. They are granted based on the child’s ability to inherit under state law. Vermont allows children of same-sex unions to inherit from both the biological parent (if any) and the non-biological parent. Once state law creates that relationship, it becomes a legal relationship independent of the one between the parents. So the Federal government ends up recognizing the parent-child relationship created under Vermont’s civil union law.

What this means now is that a married gay person’s Social Security benefits can go to his spouse’s child, but not to his spouse.

Of course, Social Security should go away. It is forced wealth redistribution. But it sure is interesting how these things work.

One Last Thing

My opposition to legislation specifically authorizing gay marriage is based on the fact that it is unnecessary - all the legitimate features of marriage can already be accomplished through private contract, and the illegitimate features of marriage aren’t something I’m willing to tolerate in the name of equal protection. However, I’ve been thinking about it, and I may have found one legitimate feature of marriage that cannot be achieved except through state-sanctioned marriage: the spousal evidentiary privilege. That’s the rule that says that no one may be compelled to testify against his spouse in court. I hope to write more about this after I’ve learned a bit more about it.

Posted by Qwertz at 9:45pm on 19 Jun | No Comments

Gus Van Horn mentions the difficulty of arguing against the government’s use of behavior-modifying techniques in mixed-government contexts:

Unfortunately, everyone is so used to the government owning the roads … that few so much as bat an eye when they hear of the government looking for ways to psychologically manipulate people into doing its bidding. Indeed, in this limited context, it is hard to argue productively against the government taking advantage of such knowledge about human perception.

As a law student, this topic has caused me a great deal of concern over the past few months. I have wanted to write something about it, but have not had the time or energy to do so in any great detail. Now that the semester is over, I intend to put some substantial effort into it. I will use this post to record my initial thoughts on the problem, in anticipation of a more thorough, well-written post at some point in the future.

Constitutional Law really got me started thinking about this issue. So much of Con Law is skirting, evading, rationalizing, or outright ignoring contradictions created by unexamined bad premises. I hope to develop several concrete examples, but for now, take the example of student speech (the Tinker line of cases). Students are protected by the First Amendment’s guarantees of freedom of expression, but schools have a significant interest in carrying out their educational mission, which may at times require curtailing students’ ability to speak freely on campus.

In my head, there is no problem here. The First Amendment applies only to government actors. A school, as a private actor, may run itself as it sees fit, and may curtail student speech as much as it wants. Students who do not like it may take their business elsewhere.

But wait! Most schools are not private actors. The government runs them. Therefore, the schools are subject to First Amendment restrictions. Now what do we do?

No matter what standard of review you apply to restrictions on school speech, there must be at least a legitimate state interest in regulating the speech. In school speech cases, the state interest is in carrying out the educational mission of the school - the same interest a private school would have in regulating student speech, except here it is being offered by the government.

On the one hand, the operator of a school has a legitimate interest in regulating student speech in furtherance of its educational mission. But on the other hand, governments have no such legitimate interest. A government should not be able to get around something like the First Amendment simply by engaging in an activity that ought to be private. Government shouldn’t be able to inherit the rights of private parties by co-opting a private role.

Instead of questioning the premise - that government schools are acceptable - the legal system has created a complex, obscure, non-objective doctrine for balancing individual rights against government interests.

“!”

The idea that individual rights and government interests are things that can conflict and therefore must be weighed and balanced is so obscene that it makes me physically sick to my stomach every time I read a court opinion expressing it. Government has only one legitimate interest, as expressed in the four most important words of the Declaration of Independence: To secure these [individual] rights.

So when a case like Morse v. Frederick (the “bong hits 4 jesus” case) comes up to the Supreme Court, the rational thing to argue is that no balancing is required - the mere existence of a public school violates individual rights, including the student’s free speech rights. A rational legal system dedicated to protecting individual rights would progressively limit the powers of public schools to the point where they could no longer operate.

But ours doesn’t do this, because “society” places a value on public education, and because “democracy,” as expressed in the legislature, shows that “the people” want public schools. And who are the courts to question the will of the people?

All of this is important to me because I will one day be a lawyer. I will argue on behalf of clients. Can I ethically argue what I think will get my client the best result (the best result being the result closest to an objective ideal result), if in making that argument I must give sanction to the unchallenged false premise? Or do I challenge the false premise and lose my case, and perhaps my license? (You can lose your license for making a legal argument that is not, in the court’s opinion, rationally supported by existing law. Arguing that public schools are unconstitutional would be such an argument. It would also be a wrong thing to argue given the current approaches to constitutional law - by all the widely accepted jurisprudential models, public schools are constitutional. And because they’re constitutional, it is not in the power of the courts to do away with them, even though they really do violate individual rights.) By limiting what premises may be challenged, the courts get stuck with all these contradictions among individual rights and government interests. If you can’t challenge the false premises, you’re stuck in a situation with no right answer.

How do you argue for what is right in situations where there is no right answer?

I call these situations “sundae specials,” because of a metaphor that occurred to me almost a year ago: This is like asking whether you want sprinkles on your giant poison sundae. How do you make that decision, except by ignoring the gross underlying evil?

Other concrete examples include gay marriage (conflict between equal protection and the welfare state), the draft (do we allow discrimination based on gender in order to get fewer people drafted, or do we require Congress to draft qualified men and women, in the interest of equal protection?), and freedom of religion (misapplication of the principles of Free Exercise and No Establishment leads to contradictions between the two clauses).

I will be writing more coherently about this subject in the future. Comments and suggestions for avenues of research are welcome.

Posted by Qwertz at 1:13pm on 6 May | No Comments

The President of the United States is not a man, but an office occupied by a man. And the office carries only those powers enumerated in Article II of the Constitution of the United States.

§1
The Executive Power shall be vested in a President of the United States of America.
…
§2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
§3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
…

Emphasis added.

Please note (and this is very important) that Article II does not give the President any power to set domestic policy. It states only that he shall recommend to Congress’ consideration such measures as he shall judge necessary and expedient. Recommend to their consideration.

The power of the President to propose legislation is exactly the same as the power of any other citizen who is not a member of Congress. I may write to my (or any) Congressman tomorrow and propose a Constitutional amendment repealing the Commerce Clause. I can recommend such a measure to Congress’ consideration. This is the same thing Article II says the President may do. The only difference is that the President is required to do so, and I am not. His suggestions may carry more weight with Congress, but they carry no greater legal authority. Article I §7 gives him a veto power, but this is a power of negation, not creation.

Therefore, when Presidential Candidates throw around domestic policy suggestions like national health care, mandatory public service, or writing God into the Constitution, do please remember that the President can suggest legislation all he wants, but the responsibility for enacting it lies with Congress.

This is just electioneering. The President does not have the power to compel Congress to consider any measure, and he does not alone have the power to enact such changes. Therefore, the domestic policies espoused by Presidential Candidates must always weigh less heavily on any election choice calculus than their espoused policies concerning the actual powers of the Office of the President: foreign policy, judicial appointments, and the faithful execution of the laws. Statements about domestic policy may suggest how a Presidential Candidate would carry out his Constitutional powers if he were elected, but the power of the Office to influence domestic policy is limited to the appointment power and the veto power.

The appointment power is a power of creation. No person may hold judicial office unless he first be appointed by the President. Congress holds the power of negation (the confirmation power). Furthermore, Federal judges sit for life, and can only be removed by impeachment. Vetoes may be overridden, and legislation may be easily amended or repealed. The appointment power is, therefore, the President’s strongest tool for affecting domestic policy.

Certainly Huckabee’s statements express an appalling enmity for the Constitution and for individual rights. But the actual proposal to amend the Constitution is not what makes Huckabee so dangerous.

Posted by Qwertz at 1:46am on 16 Jan | No Comments

I expected Huckabee would turn out on top of the Republican caucuses in Iowa. He won’t do so well in New Hampshire, at least.

I’ve always said Huckabee was more frightening to me for the ideological trends he represents, not for the possibility that he might be elected. And I still am not too worried about that.

What is interesting to me is Obama’s victory in the Democratic caucuses.

The two most religious candidates won in Iowa. The eleven month long, slow-motion train wreck begins!

Fortunately, Iowa has been off the mark as a November predictor for the past few cycles. I hope those ideological trends I fear, which have clearly shown themselves in Iowa, do not end up having broad national support.

Addendum

Now that I think about it, I’m interested to see what Huckabee’s Iowa win will do to his extremist religious base. Will we see a flood of Evangelical Christian voters energized by this high profile, mathematically insignificant win?

Posted by Qwertz at 11:07pm on 3 Jan | No Comments

It is difficult for me to express exactly how much this man scares me. Not just from a political standpoint, but as a person. Even the look of him portends terrible things. Perhaps he smells of doom.

It isn’t even the possibility, however remote, that he might be elected that scares me. A theocrat at 1600 Pennsylvania couldn’t do so much damage as, say, a theocrat at One First Street. It would still be awful, but if putting up a theocratic government is your goal, the Oval Office isn’t the most effective route.

What is really frightening about Mike Huckabee is that so many people - people who have secretly yearned for a more religious government for decades - are becoming more vocal about their desire for a tyrannical government. What happened?

But there is one upside:

If he does get nominated, voting for the Democrat will sting just a little bit less.

Posted by Qwertz at 11:30pm on 17 Dec | 1 Comment