Mr. President, after reviewing the remarks made in this Chamber, and the testimony regarding the proposed limited nuclear test ban treaty, I am impressed by three arguments–one in its favor, two in opposition.

In favor of it, after all is said and done, is a hope, usually described as a faint glimmer, that this may be the first step toward easing tension in the world. It is difficult, if not impossible, to argue with a hope. It is an emotional thing; and in its soft and gentle glow, arguments appear harsh. The more fragile an illusion, the more rude must seem the attempts to shatter it.

I have warned, and will continue to warn, that nuclear weapons are not the cause of tension in this world; that if all were to disappear magically overnight, the tension would remain, so long as world communism remains dedicated to aggression and obsessed by its irrational vision of man as a mere cog in the machine of history.

But hope heeds only itself. How does one remind hope that, hitherto, on-site inspection has been the qualification of our trust of any arms control scheme? How does one remind hope that the technology of remote detection still has not developed fully to a point where it can replace such inspection? Or how does one tell hope, sprung from fear, that fallout is less a present threat than smog and fumes of everyday life? If we say these things, hope–revulsed–shrinks from our harsh words. One who says these things stands alone, a sad, somber, and unwelcome guest in a house of celebrants.

We are, apparently, well past arguing with hope. The future will shatter the hope and will sober the celebrants. But we must wait.

For my part, and the part of the other few who must heed other voices in their conscience, there is only the time now to say why we will vote, as we must, to oppose approval of this treaty. I perceive two reasons, basically; and I have based my decisions upon one.

First, there is the reason that this treaty is a political ambush, baited by the necessity of the Soviet to ease the many pressures upon its tyranny. This has been discussed on this floor. The argument impresses me; and I share, with those who have made it, bewilderment at why freedom is aided by putting salve on the wounds of tyranny. But that is not the argument which, alone, moves me to vote as I must and as I will.

I will vote “no,” because of how I read history and perceive the future. I see in our history, in this nuclear age, that what peace we have had has been possible because of our strength. I see in our history the clear course of Soviet aggressions and breaches of the peace: They have poured through gaps in our strength. They have been stopped when those gaps are closed or were precluded when our guard remained high.

I see no change in the future until or unless the objectives of communism, not merely their weapons, change. And not even hope has spoken to us so far of a change in those objectives. Rather, all say that the objectives remain unchanged. But hope, it seems, can hear that truth and still proceed, whistling past the graveyard of experience.

Thus, if strength is the shield of peace and weakness the way to war and defeat, it is the impact upon our strength that concerns me most.

What is that impact? have we not heard assurance after assurance that our strength will be upheld under this treaty? We have, indeed.

But assurances are not facts, promises are not performances and I do not feel that freedom’s strength, in a time of freedom’s peril, can be armored by either. Such strength is a matter of here and now, not of “if and when.” Real hope must be founded upon real strength.

There is a catalog that has been laid before us of the price in strength we will pay under this treaty. Have we seen a similar catalog of a Soviet price? Hope may see such a catalog; reality does not.

The major heading of this catalog of America’s price, America’s strength, is that the treaty, perhaps gently but nonetheless firmly, closes the door of knowledge.

Now the Senate must pardon me for speaking of real weapons in the real world. As I have said, the words sound harsh in the glow of hope. Truth often does.

There has been work underway in our laboratories toward the design, development and test of a device with a yield of 80 to 100 megatons. Now the door will close on that, if this treaty is ratified. Does it close on similar knowledge for the Soviets? We only know that they have tested–tested, mind you, not just conjectured–devices with yields approaching that range, and we have not, and we will not under this treaty.

[Editor’s note: Tsar Bomba, the largest nuclear device ever detonated, with a yield of 50 megatons, was detonated by the U.S.S.R. on October 30, 1961. The device had a design yield of 100 megatons, but was dialed back for fear of excessive fallout.]

We have never tested fully the stamina of our hardened missile emplacements. The treaty will close the door against such tests. Will it close such a door for the Soviets? We only know that there is evidence that they have tested–have tested, not theorized–hardened structures.

Not knowing whether our missile emplacements or missile sites will withstand a severe blast, how can we be sure of our great deterrent, which is a second-strike capability? How can we ever be sure that any missiles will leave their sites with the lack of knowledge that we have of the environments to which they will be subjected?

Through the eyes of hope, of course, we see tests of major weapons and systems as unnecessary. Hope says that what we have is enough, that these high-yield devices are of minimum military efficiency. Lapsing only for a moment into the language of harsh fact, it is asked if several 20-megaton devices are not far better than one 60– or 100-megaton device. Again, the answer must be along the horizons of knowledge and not along the edges of the statisticians ledger sheet.

It is the knowledge of the effect, the environmental effect, of high-yield explosions, the sort we have not tested and will not test under this treaty–it is in such knowledge that we will be weakened by this treaty.

Prompt gamma pulses from high-yield explosions are known devastatingly to distort electronic circuitry.

[Editor’s note: A beautiful example of refusal to split the infinitive!]

We know very little about that subject. We know that megaton yields of which the enemy is capable could render unusable our entire communications system. It would even render unusable our entire domestic electric systems at astonishingly high distances. Since my colleagues have not been to well informed in that field, at the end of my remarks I shall ask consent to have printed in the Record some information that I have gathered on that subject, but I shall not offer it now.

Interference with electronic triggers is an area of grave concern. So is the effect upon missile guidance systems. so grave is the concern, that our military men must ask if the Soviets do not have the capability, with the knowledge gained in their exclusive high-yield tests, of thoroughly disrupting our retaliatory missile systems. They must ask if their systems can survive the melt-down of fissionable materials by neutron impact, the effect of X-rays, the disruption of communications and radar blackout from beta rays, from gamma rays, from fireball effects.

Ask the men who must man the missiles and they say tests are needed. Ask if the Soviets have not already tested in this area and we find that we do not know–but there is ample evidence upon which to presume that they have.

Ask the man upon whose command rests 90 percent of the strategic striking power of this Nation: Ask General Power the impact of this treaty upon the strength about which he knows as much as any man. We have all heard his answer. This treaty is not in the national interest.

Ask the man whose job it has been to work with the most advanced weapons system: ask General Schriever the impact of this treaty. We all have heard his answer. He felt he could protect his country better without the treaty.

And what of the Joint Chiefs of Staff altogether? Remember now, if you will, only that they finally supported the treaty because of many safeguards, many promises, and political advantages of which other had spoken. But remember every other day of your life, every day that the time bomb of Communist treachery ticks closer to detonation, that they spoke and spoke clearly of military disadvantages under this treaty.

Pray God that we do not have to remember that under attack, weakened and unprepared.

Remember also their warning that a state of euphoria would be the most deadly consequence of the treaty. Remember that as we now officially study increased trade with the Soviets. Remember it when the next steps are taken, the pacts proposed, the agreements signed. It is not too late to remember those things now, but other, more popular tunes seem to dance in the air.

I shall not recite the page after page of cataloging of the U.S. price in strength that this treaty exacts. Senators know of them; they have heard or read them. They can restudy them. Let me just sum up the price: Under this treaty we close the door on sure knowledge of the survivability of our second-strike capability, the very capability which, until know, has been the shield of peace in this world. We halt the search for the widest span of nuclear know-how at a point where the total test yields of the Soviet are a full third greater than our own.

If I had no knowledge of weapons and of the enemy, then I would wish also to vote for this treaty and share the brief illusion that it brings. But I have lived too long with reality, too long with the men who are dedicated to our defense, too long with the facts of the enemy’s dedication, to discard all that I am and all that I know.
I will vote against this treaty because it will erode our military strength. I will vote against this treaty because it preserves the enemy’s advances in high-yield weaponry while freeing them to overtake our lead in low-yield research. We pay a price; they do not.

I do not vote against the hope of peace, but only against the illusion of it. I do not vote for war, but for the strength to prevent it.

I have been told, as have others, I am sure, that to vote against this treaty is to commit political suicide.

I will vote against this treaty because in my heart, mind, soul and conscience, I feel it detrimental to the strength of my country.

If it means political suicide to vote for my country and against this treaty, then I commit it gladly. It is not my future that concerns me. It is my country-and what my conscience tells me is now best I may preserve it.

The Senator then asked and was granted unanimous consent to include additional written materials in the Record, and then responded to questions from the floor.

Source: 1963 Cong. Rec. 17557–58.

Any typos are my own. I typed it rather quickly.

[Royal personages] do not have the right to receive physical obeisance from American citizens. Miss Manners has had to issue the decree many times now that American ladies should not curtsy [ed: nor should American gentlemen bow] to royalty, and there are still those who do so at every available opportunity. They are in error, not only in the matter of world etiquette, but of geography, physics and ancient and modern history.

. . .

Bending the knee is the traditional gesture of an inferior to a superior. . . . The curtsy is but one form of the gesture of adoring a sovereign. . . .

Thus, those who believe that curtsying demonstrates their own high social rank or breeding are mistaken. Their geography is faulty if they think that bending down will elevate them; the notion that there is a law of physics stating that what goes down must come up is erroneous.

As for history, Miss Manners considers that the matter was settled by the philosopher Callisthenes, who disabused Alexander the Great of the notion that the Persian custom of groveling to royalty could be established in Macedonia and Greece. . . .

If you require more recent history, there is that matter of the war that we Americans fought to free ourselves of subjugation to the British Crown. . . .

How, then, do we Americans properly treat royalty? With the dignity and respect we naturally show to heads of state and other foreign officials. Our traditional form of greeting is to shake the hand. This gesture is not interchangeable with that of the curtsy [ed: or bow, or genuflection], as the State Department once tried to suggest when obfuscating the matter, claiming that the word “curtsy” being derived from “courtsey,” it signified no more. Your government should not have to inform you that the word “courtesy” derives from behavior in the courts of royalty, which is no business of ours.

Judith A. Martin, Miss Manners’ Guide to Excruciatingly Correct Behavior 692–94. (2d Ed. 2005).

www.youtube.com/watch?v=9WlqW6UCeaY

~U.S. President Barack Obama visits King Abdullah bin Abdul Aziz Al Saud in Saudi Arabia in June, 2009

www.youtube.com/watch?v=3kyD_e0Y7FQ

~U.S. President Barack Obama visits Emperor Akihito and Empress Michiko in Japan in November, 2009

Update, 24 Nov. 2009:

~U.S. President Barack Obama visits Chinese Premier Wen Jiabao in China in November, 2009

The Notice of Proposed Rulemaking is available online here [PDF].

You can upload your comments using ECFS here, using proceeding number 09–191. You can read others’ comments on ECFS here.

I’m writing comments to submit right now. I’ll post my comments here when I finish. I encourage everyone who loves the Internet and doesn’t want to see it become the Postal Service of the 21st Century to do the same.

By legislative action, no less. Without a court telling them they had to do it. That makes Maine the second state to enact same-sex marriage without a judicial order to do so, and the first state to enact same-sex marriage without a judicial order to at least create a parallel licensing system (as the Vermont Supreme Court did back before that state created its civil union system). Also, the first state to legislatively dispose of a prior legislative ban (Me. Rev. Stat. Ann. tit. 19-A § 701 (2009)).

My last law school exam ever starts in 10 minutes. Woo hoo!

“Orange.”

“Orange who?”

“Orange you glad you didn’t vote for McCain!”

I still say Stevens is due — he’ll be 89 this year. And Ginsburg has health issues. Luckily all three are part of the liberal bloc and will be replaced with liberals — not likely to upset court balance.

I’m in the middle of finals week in my last semester in law school. Assuming I pass everything, I’ll graduate on May 17th, which is incidentally the septenvigintennial of my birth.

Various plaintiffs married to or formerly married to and now widowed by persons of the same sex under Massachusetts law after Goodridge filed suit in the United States District Court for District of Massachusetts yesterday (case no. 1:2009cv10309) directly challenging the constitutionality of § 3 of the Federal Defense of Marriage Act, Pub L. No. 105–199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7) under implied equal protection afforded by the 5th Amendment’s Due Process Clause.

(For those who aren’t aware, the “Equal Protection Clause” under which equal protection challenges are most often raised is part of the 14th Amendment and applies only to the States, not the federal government. However, the 5th Amendment’s Due Process clause is interpreted to include an equal protection provision similar, but not identical to, the one in the 14th Amendment. Bolling v. Sharpe, 347 U.S. 497. The instant case is an equal protection challenge to DOMA under this doctrine.)

The plaintiffs were denied federal benefits by various federal agencies on the ground that DOMA prohibited federal recognition of their marriages. The relevant portion of the Act reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.

Two plaintiffs are government employees who have been denied health benefits for their spouses under the health insurance programs offered by the government as their employer. Their spouses are named as plaintiffs but have questionable standing. Both primary plaintiffs are employed by government agencies that should not exist: the United States Postal Service and the Social Security Administration. A fifth plaintiff is the surviving widower of a former government employee who has been denied survivor’s benefits. This plaintiff’s decedent was a member of Congress.

Four plaintiffs have sought to file income tax returns as “married filing jointly”, and have incurred greater tax liability by filing as “single” or “head of household” than they would have incurred had they been able to file as “married filing jointly.”

Three plaintiffs are widowers who have been denied lump-sum Social Security death benefits. This is a clearly improper welfare-state benefit. Another plaintiff seeks to increase her social security benefits on the basis of her spouse’s higher lifetime earning during their relationship. Her spouse is named as a plaintiff, with dubious standing. This plaintiff seeks this increase based on the entire relationship, not merely during the time of the marriage. This particular claim raises extremely negative PR implications, see below.

One plaintiff sought and was denied a renewed passport in his married name. Under the law of all states (including Massachusetts), either spouse may effect an immediate, legal change of name by executing a marriage license in the chosen married name. This plaintiff chose to take his spouse’s last name, and was denied a passport bearing that name when he offered his marriage license as proof of the legal name change. His spouse is named as a plaintiff, and I can think of no viable argument by which the spouse can claim standing.

All of these claims (except the last one) are exactly why Congress passed the DOMA — to prevent gay couples from drawing on the federal purse.

Some of the benefits demanded by the plaintiffs are benefits that result from a relationship with the federal government as employees, albeit as employees of improper agencies. But in general there isn’t anything wrong with the government employing people and compensating them. Ancillary question: can the government as employer offer health insurance as compensation, and if so, in what form? If the government can offer to pay for health insurance for its employees, can it legitimately place any non-performance-based restrictions on it?

The social security claims are a PR nightmare, because they represent exactly what proponents of DOMA feared when the Act was rammed through Congress in 1996. (I’ve read most of the Congressional Record concerning the Act for an article I am writing. I won’t cite to it here, because, trust me, you don’t want to read it.) Additionally, one of these claims seeks SSA recognition of a lesbian relationship prior to marriage, and even prior to the legalization of marriage in Massachusetts. The wrong kind of gay marriage opponent will latch onto this feature to whip up rhetoric in favor of further complicating legislation.

Of all the claims, the passport one is, in my view, the best. It is also fairly weak. For one thing, the plaintiff could simply go to a Massachusetts court and request an additional order of change of name, separate from the marriage license, and offer that order to the State Department (yes, that is why Hillary Clinton is named as a defendant — she’s the Sec’y of State now) as proof of change of name.

All of the claims suffer from a major defect. They claim violation of the 5th Amendment’s silent equal protection clause on the grounds that plaintiffs have been treated differently from similarly situated opposite-sex couples. But plaintiffs are not similarly situated with opposite-sex couples. They are married in a form of marriage that is distinctly different than opposite-sex marriage, not just at law, but in fact. Same-sex relationships are different from opposite-sex relationships, married or not. The complaint relies exclusively on this “similarly situated” argument, and does not make any argument that Congress’ different treatment of something which is, in fact, different is in violation of equal protection. The complaint alleges that the disparate treatment is made “without justification in excess of Congressional authority,” but the burden of proof in this case will be on plaintiffs to show that Congress’ exercise of its authority to treat different things differently had no rational basis. (Gay marriage is not a fundamental right, affording strict scrutiny. Being gay is not a suspect classification affording strict scrutiny, although some have argued that Lawrence v. Texas suggests that it might be something special, subjecting statutes discriminating on that basis to intermediate scrutiny, like statutes discriminating on the basis of gender.)

In sum, this is not the best set of claims on which to challenge § 3 of DOMA.

More on this later. Maybe. If I’m not too busy.

Bad things.

September 11

I thought about blogging on September 11, but I couldn’t think of anything new to say. That’s sad. Seven years, and nothing has gotten better. Nothing tall and shining has risen from Lower Manhattan except the same phantom lights that are dragged out every year to stand in for real honor. Politicians putting on a show, so they look like they’re doing something meaningful. The day has become a joke. An opportunity for public displays of affected grief, vapid speeches about “never forget[ting]”, and other political grandstanding. What the politicians and the bureaucrats and the local civic event planners and university presidents don’t understand is that the only meaningful memorial is to do something about it. Destroy the enemy. Rebuild what was destroyed. Better. Stronger. Taller. Rekindle the flame of the West.

Election Politics

Veep picks came out. And they were perfectly in line with my analysis of this election. Palin is more zealously religious than McCain, and Biden is a bigger socialist than Obama. It follows the pattern. Main ticket appeals to the center while appeasing the power base with with the No. 2 slot. Everything falls into place as expected. The choice of Palin, especially, confirms that the Republicans are the party with the support of the religious right. A Republican win this year will be a major win for Jesus. We will not recover easily.

Court Watching

One of the dangers of a McCain presidency sits, aged and waiting to retire, on the Supreme Court. Justice Stevens is 88 years old. A very staunch liberal, Stevens also supports O’Connor’s “no endorsement” test for deciding Establishment Clause cases.

That is, when someone challenges some government action (say, putting a statue of the Ten Commandments in a state courthouse lobby) on the ground that it violates the Establishment Clause (“Congress shall make no law . .&nbsp. respecting an establishment of religion . . . .”), the Court will look to see whether the action appears to endorse religion in a way that makes non-religious people (or adherents of other religions) feel like political outsiders, and, if it does, will strike the action as unconstitutional. Sure it is not a perfect test, but it is the most secular approach to church-state separation currently in good legal standing. (The Lemon Test, which isn’t really from Lemon v. Kurtzman, is narrower than O’Connor’s test, and is on shakier footing, having been several times rejected and resurrected by the Court.)

Some on the Court hate this test, and would allow the government, especially state governments, to express their own religious views. Thomas and Scalia chief among them. Both have expressly stated that they would take the opportunity, should it be presented to the Court, to disincorporate the Establishment Clause. See, the Establishment Clause, like most of the other provisions of the Bill of Rights, apply to the states only by virtue of the 14th Amendment’s command that “No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The protections of the Bill of Rights have, one by one, mostly been “incorporated” into the concept of due process, thereby being made applicable to state governments through this part of the 14th Amendment. (On exception is the 7th Amendment’s guarantee of a jury in civil cases at common law where the amount in controversy exceeds $20. This guarantee has not been incorporated into due process, and is not enforceable against the states.)

So when Scalia and Thomas talk about disincorporating the Establishment Clause, they mean to take it out of the concept of “due process”, and stop enforcing the clause against the states. This is in line with their jurisprudential approach, a form of Originalism called “original meaning.” They argue that the original meaning of the Establishment Clause was that the Federal government should have no power to disestablish the state churches that were established at the time of the adoption of the Constitution. If the Supreme Court disincorporated the Establishment Clause, the states would be free not only to endorse religion (in the general or in the particular), but would be free to fund religion directly creating de facto, or even explicitly de jure official state churches.

What does this have to do with Justice Stevens and the election? Well, there are a few more steps we have to go through, so keep reading.

Justice Alito is relatively new to the Court, so he has not had the opportunity to express his views on disincorporation. During his tenure as a Circuit Court Judge, however, he has been a consistent enemy of the separation of church and state, supporting state action that would fail both the Lemon test and O’Connor’s “no endorsement” test. Chief Justice Roberts also has said nothing about disincorporation, but he also has a not-so-secular track record on Establishment Clause issues. Even if Alito and Roberts are not in favor of total disincorporation, both are demonstrably in support of a major shift in Establishment Clause jurisprudence away from O’Connor’s “no endorsement” test to a far less toothy “no coercion” test, which would only prohibit state action that forces people to participate in religious activities. This is a position that would easily gain Scalia’s and Thomas’ votes.

The remaining Justices, with the sometime exception of Justice Breyer, who was responsible for the flip-flop in the Van Orden v. Perry–slash–McCreary County v. ACLU of Kentucky fiasco back in 2005, are pro-“no endorsement”.

Five on the good side, four on the bad.

And Justice Stevens, who is on the good side (of this issue) is 88 years old.

I suspect that Justice Stevens is holding on out of hope that a Democrat will be elected in November. Stevens is no fan of the Bush Administration, and I’m sure he’d be damned rather than allow Bush to name his replacement. If he waits to retire until after January 20th, he’s got a (roughly) 50/50 chance that a Democrat will be in office.

The relation to McCain is this: McCain has the backing of the religious right. He will nominate someone who will play to their interests on key issues like abortion. Someone who is religious and excuses it under the rallying cry “States’ Rights”. He won’t get anyone else past the Republican Senate, and he won’t want to. If McCain nominates Stevens’ replacement, the vote-counting scale will tip the other way. The bad way.

The odds are better than even that, if McCain wins in November, we will see a de facto state-sponsored church within 6 years. Definitely in a Southern state. Probably in South Carolina.

The Year of the Veeps

Speaking of Vice Presidential picks, my mother has a theory that neither McCain nor Obama will last a full term in office. She thinks McCain will leave office over health problems and Obama will be assassinated. Unfortunately, she didn’t offer too many facts in support of this theory, but I do get the impression that a Veep Ascendancy is perhaps slightly more likely sometime in the next four years than it has been in recent decades. But perhaps it is just the Doom of the Now talking.

What Man Hath Wrought

Congress dug the grave for today’s rapidly collapsing economy during the Great Depression when it formalized our transition from a rights-based government to an entitlements-based one. But the nail in the coffin came in 1977, with the passage of the Community Reinvestment Act, 12 U.S.C. § 2901 et seq.. The Act requires banks to give mortgages to people who cannot afford them, for houses in declining markets, and on similar terms with mortgages to financially stable folks in good areas. The Act requires banks to make very risky loans, and then audits the banks to make sure they’re in quota compliance. Affirmative action for high-credit-risk people. So to stay in business, banks had to make lots and lots of risky, often worthless loans, but doing so took lots of money that the banks had to find some way to recoup. So they did what they could with what they had. They sold on the high-risk mortgages to big financial houses, who aggregated them and split them up into tradeable securities.

Why? To even out the risk and minimize the impact of individual defaults on these high-risk mortgages. Here’s how it works when things are normal: You have 1000 mortgages. Some are high-risk, and some are sure to pay off. But sometimes it is hard to tell which is which, so you can’t really get a good price for the good ones. So you dump them all in a pot and divy them up again into a new product: the Mortgaged-Backed Security. You make (for the sake of ease) 1000 of these out of your big pot. These are securities someone else can buy. Each one grants a right to enforce each of the mortgages, but only for 1/1000 of their value. In this way, the high risk mortgages are moderated by the low-risk ones. The risk of default is spread out. You can get an even price across the pot. You get a consistent product. And fluctuations in the housing market, or the wider economy, are buffered.

But when everything in your pot is shit, you don’t get an evenly-mediocre but generally safe product. You get shit. So you sell it at a bargain basement price. But this shit, which is backed by mortgages that are a hair’s breadth away from worthless, is extra–sensitive to wider housing and economic pressures. Because these are mortgages owed by people who can barely afford to make payments. When the economy slows, even slightly, for any reason, great galloping scads of people will miss payments, will fail on their mortgages, and will render these securities you’ve been selling totally worthless.

Mortgaged-Backed Securities are the market’s way of trying to cope with the steaming pile of shit handed to it by the Community Reinvestment Act. But the problem with shit is you can only spread it around. You can’t make it smell nice. See, the banks would have closed if they couldn’t sell the risky mortgages on. And whoever they sold them to would have stopped buying if they couldn’t minimize the risk and sell them on again at a marginal advantage. But the shit kept coming in, in the form of more and more high-risk “subprime” mortgages required by the Community Reinvestment Act. Until everyone is up to their earballs in shit.

The banks are involved: you get bank failure after bank failure. The pseudo-State-sponsored mortgage lenders are involved: you get Fannie Mae and Freddie Mac. The brokerages and securities houses are involved: you get Bear Stearns and Lehman Brothers and Merrill Lynch.

But where do these Mortgage-Backed Securities end up? They are traded back and forth on the markets. They sit in mutual funds and retirement funds and pension plans and individuals’ portfolios. And when the economy turns and they become worthless in a heartbeat, all of these crash. The result is today’s stock market crash.

The market managed these mortgages in the best way it could, but it couldn’t eliminate the underlying problem. The market could only buffer and postpone the disaster created by Congress in 1977. But the market will take the blame for today.

Things look very, very bleak. Underpinning all this bleakness is the slow death of Western culture.

Next week, I will make a post covering the more optimistic side of things, and what will be needed to save the West.

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.

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.

§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.

www.youtube.com/watch?v=onHkywYc_1M

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.