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Cruz's eligibility

In the beginning, there was John McCain. People forget that “Birtherism” was summoned into being to challenge McCain’s quest for the Presidency, and we presciently debunked it in two posts in February 2008, one of mine and one of Pat’s.1 It was Phillip Berg, a Hillary Clinton supporter, who took the fateful step of applying the notion to Barack Obama, and thus was born a cottage industry of conspiracy.2 To their credit, the birthers sought to be consistently wrong, and went after Marco Rubio when he became flavor of the month: Rubio was born in Florida, but, they charged, he was born to non-citizen parents, and is therefore not a natural-born citizen.3 Perhaps we will one day have to confront that question, but Rubio’s swift fall from favor moots it.

The new flavor of the month is Ted Cruz, now a Texan Senator but fondly-remembered by many of us as a Texan litigator.4 I rather like him; like Chris Christy, he is a brash brawler well-suited to his home state, and while one would not wish to see him as a model for the next generation of politicians, he has a certain charm. I account the chances that he will run for President at something approaching one hundred percent. But Cruz, it turns out, was born in Canada to an American mother and non-American father,5 and this requires some discussion.

Article II section 1 of the Constitution of the United States requires that the President be a “natural-born citizen.” Constitutional text draws its content from the original meaning of that language.6 In particular, when the Constitution avails itself of the argot of the common law, it incorporates the relevant precepts thereof.7 We do not parse such terms-of-art as natural language, but rather give them the meaning that would have been inferred by a reasonable person contemporary with the founding.8 “Natural-born subject” was such a term-of-art, and, as we explained in the context of the McCain challenge, “natural-born citizen” therefore means in Article II law what Americans of the founding generation understood “natural-born subject” to mean in English law, mutatis mutandis.9 Thus, I argued, McCain is a natural-born citizen because he was born on American sovereign territory (which the Panama Canal Zone was at the time), and even if he wasn’t, Pat argued, English law at the time of the founding recognized that foreign-born children of Englishmen sent abroad by the king were considered natural-born subjects, and this rule was sufficiently embedded by 1788 that children of soldiers and diplomats would have been thought of as natural-born citizens. Either of these foundations alone would support McCain’s natural-born citizenship; both together make it a slam-dunk.

Neither, however, settle the question of whether Cruz’s citizenship is natural-born or statutory. The first is irrelevant; Canada is not American territory. The second won’t do it either, though, because Cruz’s parents were not there on the errand of the United States. They were there in a purely private capacity, and that is a distinct question.

Throughout our previous discussions, we have habitually referred to what was understood “at common law.” Truth be told, however, this has been a loose synonym for “settled English law”; the technical distinction between statute and common law is not the object in view.10 What we are interested in is English law as it would have been understood by the founding generation as the legal backdrop to their work.11 Their primary source for that law was Blackstone,12 the relevant portion of which was quoted by Pat’s post. It bears extended quotation here:

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. …

. . . .

WHEN I say that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, 29 Car. II. c. 6., for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's ambassadors born abroad were always held to be natural subjects, 7 Rep. 18: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of post-liminium) to be born under the king of England's allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute, [the Status of Children Born Abroad Act, 1350,] 25 Edw. III. st. 2., that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. Cro. Car. 601. Mar. 91. Jenk. Cent. 3. But by several more modern statutes, [the Foreign Protestants Naturalization Act, 1708,] 7 Ann. c. 5. and [the British Nationality Act, 1730,] 4 Geo. II. c. 21, these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A DENIZEN is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. …

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the fame state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, etc. 12 Wm. III. c. 2. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. 1 Geo. I c. 4. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless the also takes the oaths of allegiance and supremacy in the presence of the parliament. 7 Jac. I. c. 2.13

The most obvious clutch of points to take from this are that a natural-born subject is in the first place distinct from the "artificial" subject, i.e. a denizized (by executive act) or naturalized (by legislative act) subject,14 that the subject naturalized by legislation is categorically different from the subject naturally-born,15 and that the political rights of artificial subjects were limited.16

But perhaps the more important thing to take from it is that at the time of the founding, the materials available to the founders would have suggested to them that English law on who was a natural-born subject was more pragmatic than coherent. The common law, strictly-understood,17 seems to have generally required both of the elements that Pat and I discussed: "There are two Incidents regularly that are necessary to make a subject born; First, that his parents, at the time of his birth, be under the actual obedience of the King; secondly, that the place of his birth be within the King's dominions."18 But the child of an alien, if born in the king's realm, was also held to be a natural-born subject of the king, which tilts more toward ius solis, and the child of an Englishman is a natural-born subject even if he is born outside of the king's realm so long as his parents were sent there by the king, which tilts more toward ius sanguinis. Meanwhile, statutory law tilted decisively toward ius sanguinis: The child of an Englishman in good standing was accounted an Englishman. Its drift in the eighteenth century was doubtless liberal, but its substance was ancient. Blackstone appears to frame the organizing concept as a practical one of allegiance, and this makes a lot of sense when we consider the statutes, but it is hard to understand how this can explain the common law's more ius solis moments, and so it's hard to set that concept to work in explaining the law's vector. What would the framers have made of this?

Fast-forward two centuries. In 1970, Rafael and Eleanor Cruz are working in Canada for an oil company.19 Eleanor is an American citizen, but Rafael is not.20 If we now try to apply English law as reported by Blackstone, problems quickly mount. The common-law exception privileging the children of agents of the crown doesn't apply, and the statutory privileges are framed in stubbornly androcentric terms: Children born on foreign soil "whose fathers were natural-born subjects, are … natural-born subjects themselves." The foreign-born child of a British man was a natural-born subject, but what of the foreign-born child of an British woman married to a Cuban political refugee domiciled in England? What would the founders have understood English law to say of that child's citizenship?

And what are we to infer from the Immigration Act, 1 Stat. 103 (1790), which provided that "the children of citizens of the United States, that may be born beyond sea or out of the limits of the United States, shall be considered as natural born citizens"? Does the first clause abolish the patrilineal focus of the English statutes? Does the second restate the understanding that such children were natural-born citizens, or does it imply that they were not (insofar as statutory text is not to be read as a nullity)? Does "as" mean "as if they were" (as it clearly does in the preceding clause of the statute) or "to be"?

The reader may be anxious to know how these vexing and intricate questions may be resolved, and may be frustrated to learn that I will not do so here. For our purposes, it suffices to say that although Cruz is probably eligible, a legitimate question mark hangs over it. The practical question therefore becomes this: Is Cruz really so good a candidate that we want to license another four or eight years of birtherism? Is he really so good a candidate that we are willing to risk a constitutional crisis if the Democratic candidate should lose the election's voting phase and seek victory in its litigation phase? (Do not think for a moment that they are not sufficiently brazen.) Because I have a hard time answering those questions in the affirmative, it seems to me that the existence of this question mark suffices to end Cruz's candidacy before it begins.

  1. 1. See Simon Dodd, McCain's Eligibility, Stubborn Facts, Feb. 16, 2008, http://stubbornfacts.us/politics/2008_election/mccains_eligibility; Pat HMV, On McCain's Birth and Eligibility to be President, Stubborn Facts, Feb. 28, 2008, http://stubbornfacts.us/politics/2008_election/on_mccains_birth_and_eligibility_to_be_president.
  2. 2. See, e.g., Chris Danielson, The Color of Politics 172 (2013); cf. Simon Dodd, Establishing eligibility, Stubborn Facts, Jan. 26, 2011, http://stubbornfacts.us/politics/2012_election/establishing_eligibility (collecting cases).
  3. 3. See, e.g., Javier Manjarres, Is Rubio Eligible to be President, Breitbart, April 22, 2013, http://www.breitbart.com/InstaBlog/2013/04/22/Is-Rubio-Eligible-to-be-President-of-the-U-S .
  4. 4. See http://www.oyez.org/advocates/c/r/r_ted_cruz .
  5. 5. See David Graham, Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S., The Atlantic, May 1, 2013, http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/ . Any lingering doubts about Cruz's intent to seek the Presidency must surely evaporate in the face of his decision to renounce any vestigial Canadian citizenship, see Aaron Blake, Cruz will renounce Canadian citizenship, Post Politics, Aug. 19, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/19/cruz-will-renounce-canadian-citizenship .
  6. 6. See, e.g., Simon Dodd, The limits of the Recess Appointment Power, part III, Stubborn Facts, April 26, 2010, http://stubbornfacts.us/law/limits_recess_appointment_power .
  7. 7. See Simon Dodd, Eligibility, redux, n.1, Stubborn Facts, May 2, 2008, http://www.stubbornfacts.us/politics/serranos_eligibility ; Simon Dodd, In re Firearms debate, 3 MPA __, __ n.__ (2013); accord, e.g., Wilson v. Arkansas, 514 U.S. 927, 931 (1995).
  8. 8. "The touchstone of Constitutional interpretation 'is the original public meaning that the text’s words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted.'" The Limits of the Recess Appointment Power, supra, part III.A.1 (quoting Michael Stokes Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010)); see generally ibid., n.5.
  9. 9. United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898); Minor v. Happersett, 88 U.S. 162, 167 (1875). This could be changed by constitutional amendment, but it probably has not been changed (as might be contended) by section one of the Fourteenth Amendment, and I assume that this is so for our purposes here.
  10. 10. Cf. Thomas Wood, An Institute of the Laws of England 10-11 (1754).
  11. 11. Cf. Astoria Federal S. & L. Ass'n. v. Solimino, 501 U.S. 104, 108 (1991) ; Merck & Co., Inc. v. Reynolds, __ S. Ct. __, 2010 WL 1655827, at *11 (April 27, 2010).
  12. 12. Neder v. United States, 527 U.S. 1, 30-31 (1999) (Scalia, J., concurring).
  13. 13. 1 William Blackston, Commentaries on the Law of England 354, 361-62 (1765) (emphases added and some citations omitted).
  14. 14. Cf. Wood, supra, at 23.
  15. 15. Thus, to preempt a future iteration of this problem, it is beyond cavil that an American whose citizenship was conferred by legislation, even if conferred in momento partus by legislation, is a naturalized and not a natural-born citizen.
  16. 16. Blackstone cites the Act of Settlement 1700, 12 Wm. III. c. 2 § 3: "[N]o person born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging, although he be naturalised or made a denizen (except such as are born of English parents), shall be capable to be of the privy council or a member of either House or Parliament or to enjoy any office or place of trust either civil or military or to have any grant of lands, tenements or hereditaments from the Crown to himself or to any other or others in trust for him."
  17. 17. Compare, e.g., entry Common law in Giles Jacob, A new law-dictionary containing the interpretation and definition of words and terms used in the law etc (1729) ("the Law of this Kingdom, simply, without any othyer Laws; for such Laws as were generally holden before any Statute was enacted in Parliament to alter them"), with entry Statute, in ibid.
  18. 18. Entry Alien, in ibid.
  19. 19. Kate Zernike, A Test for the Tea Party in Texas Senate Race, Nov. 17, 2011,
    http://www.nytimes.com/2011/11/18/us/politics/ted-cruz-is-a-test-for-the-tea-party-in-texas-race.html?_r=2&
  20. 20. He became a naturalized citizen in 2005 and appears to have been a resident alien in the United Statesin 1970. See Ted Cruz, Wikipedia, http://en.wikipedia.org/wiki/Ted_Cruz#Early_life (visited Aug. 20, 2013).

The aftermath

Yes, three quarters of the country can be wrong; the meanings of legal texts aren't decided by polls. But which texts are law can often be decided by polls, and if the President hoped to make a cause celebre of a decision by the court to strike down Obamacare, that door would appear to have been closed by the fact that even a New York Times poll says that three quarters of the country—so read four fifths, correcting for bias—would agree with the court.

Walker wins in Wisconsin!

Unions hardest-hit. I liked this line, from Politico's coverage: "Vince Lombardi, the man who taught [Wisconsinites] to think with clarity about the severe consequences of victory and defeat, once offered this gem about life: 'Show me a good loser, and I’ll show you a loser.'” Somehow one gets a sense of what Lombardi would have made of John McCain's 2008 autorotation of a campaign.

"So we all agree that Obama was lying on the issue, the rest is an argument about the timeline."

Big picture philosophy of philosophies

At MP, I have a post following up on this 2009 SF post, if anyone's interested. It looks briefly at liberals and conservatives in terms of epistemological anxiety.

"The amendment would hold that the rights protected by the Constitution are enjoyed only by individuals acting individually"

"...individuals acting in collaboration with others would be stripped of those rights."

The obvious consequences of a rather ill-conceived amendment to respond to Citizens United. Needless to say, unless the reading of this amendmen is incorrect, this is a really, really, really bad idea. This is the sort of misshapen monstrosity that could only cme from hasty thinking and unchecked passion. The crew at NRO have framed this in terms of a left-wing power grab in order to silence conservative dissent from the government, but I'm not prepared to lay that intent on the authors of this thing, as it is no doubt an attempt to fix a problem with a cure worse than the disease. The thing is, this would help to create that sort of arrangement, and would in fact leave all political speech subject to regulation.

I'm with NRO on this one--this is bad stuff, and most likely won't go anywhere. The commenters over there are convinced this is proof of the grand leftist conspiracy to crush American liberty. It's all straw man logic I know, but this does make it harder to dispel that fear with stuff like this coming down the pike.

The First Amendment's fine the way it is, folks. Let it be.

AND: The text:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

At first glance, it doesn't sound menacing, but a closer look reveals a glaring problem: Clause 2 appears to cancel out Clauses 1 and 3, because if Clause 2 limits the speech of corporations in such way that lines up with the opposition to Citizens United, then Clauses 1 and 3 are negated. If this isn't so, then this whole thing collapses on itself, and renders it symbolic and toothless. It's entirely possible that they've crerate a symbolic non-measure--either way this looks to be ill-conceived out of the gate.

"When Seuss compared The Cat in the Hat to Kerensky-style leftism, he may have been exaggerating,"

"...But when he called The Lorax 'propaganda,' he wasn’t wrong."

ADDED: I really should add a bit of context to this. Lou Dobbs' default position appears to be high dudgeon and demagoguery--and I think his baseless attack on The Secret World of Arrietty is exactly that, baseless, among other things. As far as The Lorax goes, as far the film having a environmentalist message, and the movie targeting children, he's not wrong. Not having a deep-seated opposition to environmentalism, this doesn't really bother me, but for certain self-appointed culture warriors, this is a big deal. Oh, well.

Besides, he shouldn't worry too much--they're kinda doing a half-assed job, anyway...

(Notes on) The limits of the impeachment power

N.b.! The following is not a complete post. It contains the opening parts of the first draft of a post that I was writing in January 2009; it never came close to being finished, and the moment for it passed. It's languished for years in the drafts pile. What's more, I do not now either endorse or repudiate the argument that I was seeking to make, which you can see in outline (the more skeletal parts never made it off the blotter, so there's some holes and the end is completely missing).

So why publish now, almost three years later, and why in this state? Well, a lot of research went into it, and I think there's some valuable material in here that pertains generally to impeachment. Over the last couple of years, I've strip-mined this draft for its research time and again when impeachment issues have come up. For that reason, and since impeachment may become a hot topic again in the coming weeks, I thought that I'd share it "as is."

The limits of the impeachment power

"a hundred-ton gun which needs complex machinery to bring into position, an enormous charge to fire it, and a large mark to aim at." - Lord Bryce, on impeachment.1

Via Prof. Jacobson, I see that Bruce Ackerman is arguing that Judge Bybee should be impeached because of advice he gave while serving at OLC prior to his nomination to the bench. If the Senate had known about that advice, Ackerman charges, it would never have confirmed his appointment to the Ninth Circuit, and impeachment is warranted because it would “focus[] on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?”

That may be a good question, but I want to suggest it was a passenger on a ship that has vanished over the horizon, one that cannot now be called back through impeachment. Assuming that Bybee could be impeached for his conduct at OLC, and assuming that Congress can impeach an officer even after their resignation (historically a hotly contested point), Bybee could be impeached and barred from future appointments, but could not be be removed from his present office on the basis of impeachment qua an OLC officer or impeached qua a judge for his conduct at OLC. Text, history, and practice are all strongly suggestive of this conclusion.

  1. 1. 1 James Bryce, The American Commonwealth 212 (1914).

Indirect effects

To some folks' consternation, the "ban" on incandescent lightbulbs goes into effect in a few hours. Imagine a government policy which discourages and thereby disrupts the supply of a particular commodity: Is the policy analogous to a ban?

As I understand it, the "incandescent lightbulb ban" obliges manufacturers of lightbulbs (of any kind) to meet certain prerequisites ("efficiency"). Because it wouldn't be economical for manufacturers to produce compliant incandescent bulbs, the manufacturers in practice simply shut down production and make compliant bulbs of other kinds. The "ban" is thus mediated by private entrepeneurial choice: The regulation doesn't ban incandescent bulbs, it just creates a regulatory framework in which the product becomes unavailable in the marketplace.

Now imagine that a state government imposes a regulation that medical facilities wishing to offer abortion must meet certain prerequisites ("health and safety," informed consent," etc.), and it would not be economical* for clinics to comply. The "ban" is thus mediated by private entrepeneurial choice: The regulation doesn't ban abortion, it just creates a regulatory framework in which the service becomes unavailable in the marketplace. Has the state banned abortion?

___________
* Absent market distortions not present in the lightbulb debate—fanatical pro-abortion ideology could lead some outfits like PP to operate at a loss in some states.

An eleventh thing that didn't change, and one thing that did

An eleventh thing that didn't change with the guard might have been "Signing statements are still valid," or, to be more precise, "Signing statements are still not inherently invalid." You may remember that half-baked sloganeering about things wot Bush done was a major component of the Democratic primary last time around, and candidates gleefully fulminated against any practice of the Bush administration to which a name could be put—signing statements, for example. Thus, while I have no problem with President Obama issuing signing statements as a Constitutional matter, I must say that, like Cap'n Ed, I'm puzzled about how President Obama doesn't have a problem with what Senator Obama decried.

Added: Here's Obama's signing statement. There's nothing problematic in it—it looks a lot like the sort of signing statement issued by President Bush—save for the total absence of an explanation as to how it squares with Senator Obama's views! You can change your mind, but it's common courtesy to say why. A few years ago, I speculated that if the Democratic candidate won the 2008 election, their use of tools then decried as Bush administration black magic might renormalize those tools in the public mind. It doesn't seem to have happened that way—see this.

The Levin-McCain bill

There's another outbreak of "didn't-read-the-bill-itus" doing the rounds—this time about S.1867. For an example, try this.

The fuss is remarkably silly. As a general matter, the bill says (§1032) that when a person who is determined "to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda," and "to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners," and "who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40), the military may hold that person "pending disposition under the law of war." (The preceding section explains more about that.) But the bill continues: "The requirement to detain a person in military custody under this section does not extend to citizens of the United States" or "to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution" (emphasis added).

OK, So Which One Is It?

I find myself continually confused by conservative critics of Obama, who accuse Obama of being both a power-mad radical bent on wrecking the country, and a bystander, who simply sits back and does nothing. Which one is it? Besides the fact that President Obama has made good faith efforts to get the Supercommittee to come to a deal, and that the ultimate legal power to create the deal rests with Congress, I'm not really sure what else Christie thinks Obama should've done. I'll bet a hefty sum that if Obama had tried to do it Christie's way, the same people would accuse him of abusing his power, and strong-arming Congress, or silencing conservative dissent, or something like that. It's not just the ignorance that's troubling--it's the unseriousness of it all.

HT: Althouse (forgot to add the link)

Election 2011

Jon Chait and Charles Krauthammer each have a take on last week's elections that is well worth reading. Chait's, especially, makes for uncomfortable reading:

The Ohio result actually reflects a failure of conservative activists to understand what motivates the electorate. The conservative movement holds an ideological and generally principled opposition to government. Most Republican voters[, however,] don’t share that. They oppose government programs that seem to benefit people other than themselves.
. . . .
Republicans successfully mobilized public opposition to health care reform by portraying it as an attempt to take health care away from people like you and give it to the undeserving "them." Conservatives deliriously interpreted this as a triumph of anti-government ideology asserting itself. But as Republicans discovered when they voted for a budget to slash Medicare, the public remains staunchly opposed to cutting programs for people like themselves

Added: And then there's this from Ramesh Ponnuru.

Is it a bird? A plane?

Hufflepuff offers this; with no ado at all, let's dig straight in:

The 1% is using the super-secret Joint Select Committee on Deficit Reduction (a.k.a. the Super Committee), to reach directly into the pockets of the 99% and steal hundreds of billions of dollars from them. [Nonsense. Hey, if they can start with conclusory assertions, so can I! At any rate, this is the nauseating meme we're going to have to get used to for a while: The lexicon of "Occupy" and their preposterous claim to represent "the 99%," which they of course do not. Look on the bright side: For a while, "neocon" was the ubiquitous slur of choice for conservatives, but when did you last hear that one? To everything there's a season.] This committee has unprecedented power. [The "supercommittee" has no significant power whatsoever. When it was first created, I castigated the critics who claimed it was powerful and dangerous because, I argued, it had no more power than any individual member of Congress: It could propose legislation. No more. Well, that's not quite true, I'll admit. It can, in a sense, do something that no individual member may accomplish: it can not only propose legislation but also secure a vote on that legislation. So in that sense, it may be literally true that the committee has "unprecedented" power—but if "unprecedented" is used to imply that the committee is powerful, as it undoubtedly is, that is not the case.] It has been meeting behind closed doors for weeks. [So what?] Finally, though, its plans are leaking out, and they are not pretty.

In order to spare defense contractors [who make weapons that we need], the pharmaceutical industry [which makes drugs that we need], and other fat cats [who make and finance other, uh, "phat" things that we need], while appeasing the credit agencies, whose AAA ratings to crony-clients helped crash the economy, the Supercommittee has proposed slashing benefits for current and future beneficiaries of Social Security, Medicare and Medicaid, notwithstanding that the current deficit has nothing to do with these programs. [Read that again. Right, of course: Our current deficit has nothing to do with the trillions of dollars we spend every year on those programs. To justify this literally absurd claim, watch what they do next:]

. . . .

The following chart shows the causes of our current deficits:

[See? It's not entitlements that "cause[]" our deficit, it's "tax expenditures": The cause of our deficit isn't how much we spend, but how much we refuse to exact in taxation. Like their fictitious graph, it makes perfect sense if you shut up and stop thinking about it. Now, why do I say fictitious? Two reasons: First, the obvious one just mentioned, and second, the fact that their graph doesn't even purport to "show[] the causes of our current deficits": Notice that it begins in 2009 and goes out ten years. It's a projection, i.e. a more or less informed fiction (less, in fact: There's no credible way to accurately project tax revenues or the effect of the economic downturn ten years out, although liberal tax theories often pretend otherwise by fictitiously assuming that everything except rates will remain constant).

Of course, a nice thing about making up numbers is that no one can say that your numbers are wrong, but what we can do is look at the picture as we have seen over the last few years and judge the projection in relation to it. So here are federal outlays, receipts, and welfare spending over the last few years:

But don't worry folks—don't you believe your lyin' eyes! The current deficit has nothing to do with them programs comprising a large percentage of all spending!]

. . . .

The secretive and unaccountable Super Committee is meeting behind closed doors and proposing devastating cuts that would be shouldered by the 99%. [We've got to repeat this again: The "supercommittee" is accountable to Congress. It is a committee convened to propose legislation; it has zero power to pass legislation. It can do nothing without Congress' assent. "Unaccountable"?]

… The 1 percent may have most of the money, but the 99 percent have the votes. It is time for the 99% to tell them in no uncertain terms, Hands Off Social Security, Medicare and Medicaid! You don't speak for the 99%, pal, and neither does OWS.

"The irrevocability of everything"

That's the evocative phrase used by a fellow I was talking to recently, and it's a good lens through which to view the locution "such-and-such threatens to take us back." It is wheeled out in political contexts by those who say that conservative reforms would "take us back a century," for example, or "repeal the new deal," etc., and in the ecclesial context by those who say that various proposals (especially those that fall under the heading "the reform of the reform") would "take us back to before Vatican II."

The trope is exhausted, and I'm tired of it too. There is no going back; even if we erected the same juridical framework we had a century ago, to the letter, we would not be transported back to that world, because the world has moved on. And that's where the irrevocability of everything comes into play: The same bell, when installed in a a new bell tower, will have a different ring. Do people really believe that our progress towards women's equality, for example, has to do solely with legal machinery such as Title VII, rather than broad-scale changes in our culture? Only by making such an assumption could they insist that it would all be undone by repeal. (Such laws of course promoted the change, but it's one-way: Their enactment promoted change but their repeal won't undo it.) If anyone actually believes that, they're wrong, for the same reason that the so-called "tenthers" will be disappointed to discover that even reversion to EC Knight and National League of Cities will not reverse the federalized mindset of modern politics; the legal framework can be changed, but society has changed and those changes can't be called back by mere statutes.

So time move relentlessly forward. But that doesn't mean that mistakes aren't made along the way, mistakes that we can try to correct as we move forward—sometimes by recovering things we dropped along the way, sometimes by taking out and dusting off ornaments that were put in the trunk along the way. Of course, the folks who really wanted that stuff in the trunk aren't happy, but that doesn't mean we're "going back" by taking them out.

One problem with the progressive paradigm is that it can seem agnostic to destination. If we're moving forward, that's progress, right? Well, at risk of getting into teleological problems, we should care about where we're going, because we are going to get there. So we should think about where the road leads (thus which road we want to be on) and measure progress in terms of distance thence. And if we one day realize that we have taken a wrong turn and driven several miles on a road toward somewhere other than our destination—toward Hell or Hull or Halifax—progress doesn't mean forging ahead, it means turning about smartly and getting back to the right road.

Post facto
MP: Straight talk on altar girls (Oct. 19, 2011)

The fierce urgency of right away

Four days ago, last Thursday, the President made some demands of Congress:

I am sending this Congress a plan that you should pass right away.
. . . .
You should pass this jobs plan right away.

Pass this jobs bill — pass this jobs bill, and starting tomorrow, small businesses will get a tax cut if they hire new workers or if they raise workers’ wages. ... You should pass it right away.
. . . .
You should pass it right away.
. . . .
And in this time of prolonged hardship, you should pass it again -- right away.
. . . .
Regardless of the arguments we’ve had in the past, regardless of the arguments we will have in the future, this plan is the right thing to do right now. You should pass it.

Etc. ad nauseum. You get the idea. Anyway, today, four days later, he says that he'll send them the bill tonight.

Minor candidates and the process

In another place, an objection is raised to the exclusion of fringe-of-the-fringe candidate Fred Karger from the GOP debates. The question isn't why he's out, in my view, but why others are in.

I've said this several times over the last few years, but I think it's important enough to say it again. In 2007, I argued that the 2008 primary should be wide open; we should have a nice robust field with all major sections of the party represented. I was wrong, and foolish; I have recanted. (See, e.g., tthis.) What I failed to take into account is that there are significant downsides to expanding the field, particularly in regard to debates. It should be obvious that since debates have limited time, the more candidates there are, the less time each will have to speak. And that's a problem, as I shall explain.

Some people say that if you don't allow minor candidates into the debates, how will they get a chance to shine? I answer that the argument sounds rather like people who post their band on Wikipedia and fight the inevitable deletion for want of notability on the grounds that the band will become notable through the exposure gained by their wikipedia entry. It's much the same here: The argument mistakes the purpose of a primary. If you haven't shone brightly enough to be a serious candidate before the primary, you have no place in it. The purpose of a primary isn't to have a conversation about the direction of the party, or to make people feel included, and so on. It isn't to let hidden gems shine, as I've just said. The process' purpose is simple and specific: To pick the party's nominee. Nothing more.

So that's the standard against which any given component of the process must be judged: That which makes the process more efficient is good and that which makes it less efficient is maladaptive. Sucking resources away from—and reducing the practical scrutiny on—the leading candidates, which is the net effect of including minor candidates. Including candidates who have zero chance of winning the nomination in debates reduces the time for meaningful answers by the candidates who do; it is of no relevance what Ron Paul thinks about bombing Iran, but it is of immense importance what Mitt Romney and Rick Perry think about it, since one of them may be the next President, and it is not a worthwhile tradeoff to give Paul a minute on the spotlight at the expense of losing a minute in which Perry can be pressed. If you want a soapbox, get a youtube account.

That's why no-hopers like Gary Johnson, Thad McCotter, and Andy Martin aren't allowed in and why no-hopers like Ron Paul, Rick Santorum, and Herman Cain shouldn't be allowed in.The same held true in 2008: There was simply no reason for the Democratic parimary to be clogged up with people like Joe Biden, Chris Dodd, or Mike Gravel. I do not say, of course, that but for their presence the Dems might have nominated Hillary (as a large number of Democrats from the party's left and right alike now seem to acknowledge they should have), but I do think that reduced scrutiny of the leading candidates was a problem, and extra candidates didn't help.

The threshold ought to be something realistic—I hate to put a number on it, but 15% sounds like a good place to open the bidding.

"A good place to start would be restoring the lifestyle of the president to something Calvin Coolidge might recognize."

That's the punchline to this by Mark Stein, which I commend to you and largely agree with. I would back off a little from Stein's position insofar as I recognize the necessity for the President to travel and the wisdom of doing to in a manner which allows him to function as the chief executive while doing so. Nevertheless, Presidents could travel less and with less. This is especially true when a President happens to believe—as this one does—that carbon poses a mortal threat to our civilization and demands a reduction in the everyone else's activities that might generate it.

An Odd Standard

Okay, let me preface this by saying that the chances of me casting a vote for Ron Paul are something below nil, and I don't agree with him on practically anything, but I find it real hard to disagree with this, from Jon Stewart:


The Daily Show
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I'll say again, I'm no fan of Ron Paul's views, but besides the fact that he really has been one of the most ideologically consistent candidates in thirty years (he has had basically one message, and as Stewart says, has been about "the small government grassroots business," since 1974), the fact is, he came in second at the straw poll. He has supporters. People who are outraged about Newsweek not giving Bachmann the treatment she deserves as a legitimate candidate, ought to be outraged about this also.

Now this isn't new, and as Dave Weigel points out, there is sort of a reason why Paul gets snubbed. Let's be honest--Ron Paul has no real shot at the nomination, but neither does Santorum, or Gingrich, or Huntsman, or even Herman Cain. Santorum did worse than Pawlenty, and Pawlenty's out. Huntsman earned less than a hundred votes. I get why Perry gets covered--he just got in, and is polling well, but why Santorum? Why Cain? Why Huntsman? If you're going to apply the "long shot" rule, apply it equally. This doesn't have to be hard--as long as you're an unbiased observer, just report the facts.

I'll say once more than this isn't any kind of endorsement of Paul--I disagree with with almost all his views, but there does seem to be an odd standard at work here.

Better late than never

Buried in a lot of crud, Drew Westen gives us this gem:

A second possibility is that [Obama] is simply not up to the task by virtue of his lack of experience.... Those of us who were bewitched by his eloquence on the campaign trail chose to ignore some disquieting aspects of his biography: that he had accomplished very little before he ran for president, having never run a business or a state; that he had a singularly unremarkable career as a law professor, publishing nothing in 12 years at the University of Chicago other than an autobiography; and that, before joining the United States Senate, he had voted "present" (instead of "yea" or "nay") 130 times, sometimes dodging difficult issues.

Priceless. How times change! Time was when folks like Mr. Westen would scream "racist!" at anyone who suggested such a thing. Someone's making progress...

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