Narrowly Defeating an Incumbent

Here's a question that occurs to me in light of my previous post: how often has the incumbent President narrowly lost a Presidential election? Well, let's run down the list. When Bill Clinton beat George Bush, he did so by a 5.5% popular-vote margin, equivalent to a 6.8% margin among the two-party vote, and scored 2.2 times as many electoral votes as Bush. Moreover, Bush managed only 37.5% of the overall popular vote, due to Ross Perot's third-party bid. Ronald Reagan beat Jimmy Carter by nearly 10 points, and got 10 times Carter's electoral tally. In 1968 Lyndon Johnson didn't even make it to the general election (this has happened other times). Franklin Roosevelt won 57.4% against Herbert Hoover, who fell under 40% and carried just eight states worth 59 electors. In the wacky three-way of 1912, William Howard Taft won a stunning eight electors on the "strength" of his 23.2% popular-vote showing. In 1828 Andrew Jackson crushed John Quincy Adams 178-83 in the electoral college, and 56% to 43.6% in votes.

That leaves us with just a few examples. In 1840, William Henry Harrison (who had come within 4000 votes in Pennsylvania of becoming President four years earlier) beat Martin Van Buren by a 6-point margin popularly and a roughly 4-1 margin in the electoral college. In 1800 Thomas Jefferson and the Democratic-Republicans won 73 electors to President John Adams' 65, a very narrow margin; however, in the handful of states irregularly allowing popular votes, Jefferson won over 60% of the vote. Then you had the Cleveland-Harrison festival, where Harrison "beat" Cleveland by a "margin" of negative 0.8% in the popular vote, and just 233-168 in EV's, and then Cleveland beat Harrison by a 3% margin, taking 277 EV's to Harrison's 145. I'm tempted to throw those elections out, since Cleveland won the popular vote in both of them. Likewise, since in Jefferson's day the popular vote didn't really exist, I'm tempted to throw that out, too.

We're left with the 1840 and 1992 elections, which featured popular-vote margins of roughly 6% and much more landslide-style electoral college performances. In other words, it's rare. When an incumbent President loses, they tend to lose big. And I may be a bit of an optimist here, but I doubt Obama is going to lose big in 2012. Maybe he will: maybe the economy will get that much worse, and Romney will somehow run a strong campaign. Interestingly, I also once found the converse, i.e. when incumbent Presidents win re-election they usually increase their original margin of victory. I guess close elections featuring incumbents are just pretty rare. This makes sense on the prevailing theory, that when times are good or getting better you just re-elect the incumbent and when times are bad and getting worse you dump them for the other guy. The 2012 election is weird, then, in that times are bad, getting better at an unacceptably slow pace, and the alternative is considered, well, awful. So perhaps there just isn't that much precedent on the subject. In any event such historical precedents don't actually have much predictive value, since there are always lots of them on both sides, but it's an interesting result nonetheless.

Obama is Leading Mitt Romney

Some recent Public Policy Polling surveys, such as one from Nevada showing Obama and Romney tied there, suggest that Obama is locked in a pretty tight race with Mitt Romney right now. And indeed he is! But he is, nevertheless, leading that race. Here's a projected electoral map based on most recent PPP state polls, or reasonable expectations of which way a state will break:

Now, PPP hasn't polled Indiana, because you can't computer-dial there, so I've given that state to Romney, even though Obama won it in 2008. Look closely at this map. Obama is not leading in New Hampshire, Nevada, Ohio, or Pennsylvania, all of which he won (some of them handily) in 2008. And yet, he wins this election with 299 electoral votes locked up, compared to Romney's 195 (with the remaining 44 EV's tied). Obama could lose all three tied states, plus either North Carolina or Florida where he holds a 1-point lead, and still win (with 284 or 270 EV's, respectively, the latter being a win on the number).

Now, this is not to suggest that Obama is in great shape. I think his odds versus Romney are roughly speaking even. But he is currently a whisker ahead of Romney. Despite an approval ranking of just 42.8%, and net approval of -9.4%. Those are awful numbers, Romney's the best the Republicans have by a long margin, and yet Obama is ahead of him. Meanwhile, GDP growth numbers announced today were better than expected, though not good. It is truly amazing how much the Republicans are screwing up an opportunity to beat a genuinely unpopular incumbent Democratic President. Maybe they'll still pull it off, but the odds that they won't are way, way better than they "ought" to be.

Further Thoughts on Porn

For the record, I'm doing readings for a class about the First Amendment and obscenity. That's why the stream of posts on the subject.

We ban child pornography. I don't think very many people protest this fact on freedom of speech grounds, including First Amendment absolutists like Justices Black and Douglas. Why? Well, I think it's because we recognize that, while the dissemination and consumption of porn may be just plain expressive, its production is not. We recognize in the production of child pornography an element of sexual abuse. And this is perfectly legitimate. But, wait a minute. Doesn't this suggest a really easy way to justify banning pornography wholesale? After all, we criminalize prostitution. Certainly we think that the state may criminalize prostitution if it wants to.

Isn't there a pretty hefty element of prostitution in pornography? A person is having sex in exchange for money. The only difference is that it's not their partner who's paying them, but rather the producers of the "film" pay all participants. But should that make a difference? Only if the justification for banning prostitution is that those wicked women are seducing men out of their money, which I'm pretty sure it isn't, at least not in 2011. (And that's certainly not the justification for criminalizing the customers of prostitution.) So why shouldn't the state get to say, look, we don't care much about the expressive content of porn, but its production is perforce either prostitution or slavery, and we're pretty uncool with either of those options? This removes the whole question of pornography from the realm of the First Amendment, allowing us to conclude rather easily that it should not be protected without imperiling any other First Amendment guarantees.

I'm not sure I would support that criminalization, and I'm fairly certain that you could construct a society in which I wouldn't. That follows from essentially the same logic that says that I wouldn't support criminalization of prostitution in societies where empirically the concerns from exploitation weren't present. Not all (female) feminists agree with this point of view, but some of them do, and I don't think it is a priori unreasonable. But if we have the sense that pornography is really, really bad for society, as MacKinnon clearly does, I think there are pretty good ways to justify banning it without calling it censorship of expression.

Question re: Pornography

I just read the opening paragraphs of Catherine MacKinnon's essay about why pornography should legitimately be prohibited. It's all very women-centric:

If women’s freedom is as incompatible with pornography’s construction of our freedom as our equality is incompatible with pornography’s construction of our equality, we get neither freedom nor equality under the liberal calculus. Equality for women is incompatible with a definition of men's freedom that is at our expense.

Okay, that's fine, but I have a question: isn't some porn of the all-male variety? Aren't there some women who watch porn? Considering that I'm pretty sure the answers to those two questions are both "yes," though the percentages may well be small, does MacKinnon's logic allow us also to censor gay male porn? Or porn enjoyed by women? And if not, isn't there a problem here? In a sense, MacKinnon's argument depends on the idea that women are always the ones getting screwed (in the non-sexual sense) when someone or anyone is getting, well, screwed.


EDIT: Her article on the whole is defending a particular anti-pornography ordinance based on the view that pornography is damaging to women's equality. She also makes clear that she isn't interested in defending the ordinance against 'views which have never been law,' such as First Amendment absolutism. I should state that I think she is 100% correct that, if we're going to get into the censorship business at all in this area (which according to the Court, we are), we should be allowed to do it on feminist grounds (or quasi-feminist, to encompass the concerns I raise in the previous paragraph). Also she is of course 100% correct that, even under the Black & Douglas view, child pornography or other forms of directly exploitative production techniques can and should be criminalized.

The Weird Limbo of the Republican Race

So, Herman Cain's inevitable collapse no longer looks so inevitable, and is starting to look kind of, uh, yesterday's news? Already happened? Something. So for the past few days we've been treated to a) a parade of stories about the implosion of the Cain campaign, and b) a parade of polls taken before the last debate that show the same old Cain/Romney race with Perry a very distant third. It is my assumption that these polls do not reflect the current state of the field. So what is the current state of the field? We don't know. It'll be very interesting to see what happens when a few more recent polls get released.

UPDATE: According to PPP, the state polls of Nevada and Wisconsin they conducted over this weekend continue to show the Cain/Romney two-man race, with Gingrich in 3rd and Perry's favorabilities awful. That surprises me, quite a lot. Maybe it won't hold up, but it looks like the past week of what felt like rather dramatic changes in the dynamic of the race didn't actually affect anything. If that's the case... is Herman Cain's support somewhat more solid than I had thought? If the week he's had hasn't cut into his support? I mean, if the apparent polling strength of Cain was as weak and symbolic as I thought it was, you'd think that any little excuse to vote against him, and especially waffling like he's displayed lately on the abortion issue, would be latched on to with a vengeance. So, it's weird, and if the polling doesn't start changing soon I'm going to revert to my earlier state of thinking that just maybe Cain has made himself into the real deal.

About that Nobel Peace Prize

So today Barack Obama announced that he is going to ultimately and wholly ending the War in Iraq at year's end. Now, okay, I know that he's done lots and lots of stuff that isn't very peacenik-y, but looking at the roster of Nobel laureates it looks to me like anyone who ever is involved in the ending of a war gets a Nobel Peace Prize. And Barack Obama has single-handedly ended a (decade-long, illegal, catastrophic) war. Nobel Peace Prize, deserved.

ReyesWatch Update

Apparently five Mets executives spoke to Joel Sherman and conveyed the impression that they don't think Jose Reyes is likely to sign with the team. The article in question mentions that the Marlins, Nationals, Braves, and Brewers might all be strong suitors for Reyes, diminishing the odds of the Mets' being able to keep up with the market offer. But I've separately heard reports that the Nationals are unlikely to bring in a big free-agent hitter like Reyes. Meanwhile Brewers shortstop Yuniesky Betancourt, of whom Brewers GM Doug Melvin recently said that he is "a better player than what his critics said," hit an insane .310/.326/.500 in the post-season, including 5 rather clutch RBI's in the six games of the NLCS, and the Brewers will have re-signing Prince Fielder as their first priority. As for the Braves, I continue to think that Jose Reyes is not going to want to sign with a team that has Michael Bourn, for the very simple reason that they couldn't promise him that he wouldn't start any games batting anything other than first this year. There is zero reason for him to agree to that; he hates batting other than leadoff. That just leaves the Marlins, a team with a fraction of the money the Mets have even amidst their difficulties, who already have a shortstop who in his peak (one to two years ago) people said was better than Reyes. Now sure, they could move Hanley to third, and maybe they will, but given Ramirez' somewhat apparently fragile mental state it might not be as great an idea as it sounds. The Tigers, another team I've heard mentioned, also have a very good shortstop. They could move Peralta to third, but what if they think (plausibly) that he's the better defender than Reyes? Could they promise Reyes that he would start every game at shortstop?

The point is, every other team out there has lots of good reasons not to go after Reyes, too, or for Reyes not to want to sign with them. Maybe we'll get lucky, the market for Jose will be weaker than expected, and the Mets can stay competitive after all.

Romney Handicap Update

PPP's new Ohio poll shows Obama with a -9 favorability, but Romney only managing a draw against him. Now, admittedly they think the undecideds would break decisively against Obama, but that's still a 9-point Romney handicap (obviously all the others give a bigger handicap, and I am not buying Herman Cain running only three points worse than Romney). Admittedly Romney's handicap in Ohio was 11 points in their last survey, so this isn't evidence that the handicap is increasing, but it also doesn't seem to contradict the idea that it's higher than the 5-6% range it looks like on average.

Here's a map of the Romney handicaps to date. Darker blue is a bigger handicap that Romney's giving to Obama, purple is a smaller handicap, and as the purple begins to turn slightly into reddish-pink the Romney handicap is negative:

In general I feel like Romney's strengths are not well-aligned with swing states. His relative strength in parts of New England (CT/NH/ME) could theoretically win him some states, though not big ones, and he's almost strong in Pennsylvania and Michigan, which is troubling. Other than that, the places he's strong are Georgia, South Carolina, Arizona, Utah, and South Dakota, none of which Obama is really planning on winning, and New Mexico, which, uh, Romney ain't winning. Not after Perry's pushed him this far right on immigration. Meanwhile some of his worst states are North Carolina, Colorado, Iowa, Wisconsin. These are states the Republicans will need to be winning. I continue to have this hunch that Romney's weaker than he appears.

Also, the debate and post-debate window do not appear to have been great for Romney. I'm still not convinced he wins the nomination.

Adventures in Bad Poll Reporting

Usually Gallup does a very good job reporting on their own polls. This one, however, which shows that 53% of Americans blame Barack Obama either a great deal or a moderate amount for the nation's economic problems, is an exception. Their headline is "In U.S., Slight Majority Now Blame Obama for U.S. Economy." Huffington Post's headline was "Gallup: Majority Of Americans Blame Obama For Bad Economy," quite logical given Gallup's headline. But when I see that headline, I intuitively assume that it's one in the continuing series of polls asking who do you blame more for the nation's problems, Obama or the Republicans? It is not. Indeed, we can tell it is not because 69% blame George W. Bush a great deal or a moderate amount. I've seen polls asking Obama vs. (Bush and the Republicans). Gallup doesn't include current Republicans. The amount that I blame George W. Bush for the nation's current problems is going down, ever so slowly, with the amount that I blame John Boehner and his cohort going up much more quickly.

Also, of course, there's the standard complaint against this poll: the last three results on the same question were 50%, 48%, and 50% covering the last year-and-a-half. 53% is not a big change from that. It's not a big enough majority that we can be statistically confident that it is in fact a majority, or that there was any change from prior editions. But mainly my problem is that the headlines suggest that a majority place primary blame with Obama, when the poll continues to suggest the exact opposite.

The Question All Death Penalty Supporters Need To Answer

It's a reasonable assumption that anyone who in any way supports the death penalty probably doesn't believe that executing a genuinely guilty heinous murderer is fundamentally wrong, so that's not the question. Rather, the question is this:

What is the highest rate of execution of innocent persons that could exist without making you cease supporting the death penalty?

This is a question that simply must be answered before a conversation about the death penalty can commence. But I rarely hear it asked. (The rate in question can be in just about any units: innocents per execution, innocent executions per capital crime committed, innocent executions per year, or per capita per year. Whatever.)

Jesus was a Conservative? Dude, do you know what "conservative" means?

Herman Cain apparently thinks that Jesus Christ was a conservative. No, seriously. "Never before and not since has there ever been such a perfect conservative." The substance of his argument seems to be that in the years of Jesus' life the welfare state did not exist.

Now, never mind the fact that, as far as I can tell, Jesus Christ never espoused anything remotely resembling a political philosophy, save perhaps for the line about giving to Caesar what is Caesar's, which sounds to me like an early formulation of separation of church and state. He's all about moral philosophy, and his moral philosophy is all peace, love, and kindness (plus a bit of theology). Now, conservatives like to claim that that's their moral philosophy, but that they just don't believe the government is the appropriate agent for that philosophy. But liberals also claim that that's our moral philosophy, and that government should be the agent. So the fact that Jesus' moral philosophy was peace/love/kindness doesn't seem to suggest any particular political philosophy. Even if it did, he was living in the pre-democratic age when all things political philosophic were different.

But, uh, does Herman Cain know what the word "conservative" means? It means resisting change!!! That's the definition. Wishing to preserve the status quo. "Holding to traditional attitudes and values and cautious about change or innovation, typically in politics or religion." Does that sound like Jesus Christ to you? Hell no! He was a frickin' revolutionary! The Pharises and such were the conservatives, the ones who saw this rabble-rouser trying to overthrow their nice elite-empowering religious traditions and didn't like it one bit. Jesus was the guy trying to upset the applecart, to radically re-shape all ideas theological or philosophical. The one deeply and profoundly critical of the system. The guy with the beard and sandals. Not a conservative. Look it up.

We Wish You Well

According to the recent CNN/ORC poll, 67% of Americans say they are rooting for Obama's policies to succeed, including 92% of Democrats, 66% of independents, and 39% of Republicans, while just 25% say they are rooting for his policies to fail. Though the 67% is down from 86% in March 2009 and 71% in December of that year, it's up from 61% in December of 2010. But, per that same poll, just 36% believe that Obama's policies will succeed, with 59% expressing the opinion that they are likely to fail. That 36% is way, way, down from 64% in March '09, 52% in December '09, and 44% in December '10.

That gap, those who apparently want the President's policies to succeed but don't believe they will, is what I find interesting. (I'm assuming no one thinks Obama will succeed but wants him to fail.) Originally that gap was 22%, then 19%, then 17%, and now it's 31%. Roughly speaking that's the middle third of the electorate right now. So the question is, what's up with these people? Are they people who might say, "well, I'm always rooting for America to succeed, so I'd love it if I turn out to be wrong and Obama's policies do end up working, but I just think his policies are the wrong ones"? Or, conversely, "I support Obama's policies and (obviously) hope they succeed, but believe that the system/the Republicans won't allow him to succeed in pursuing them"? Or some mix of the two, perhaps just a general desire for the world to get better but a general belief that it's not going to any time soon. My guess is that most of the additional 10% in this group this year are not of the more-or-less Republican persuasion, who "hope" for Obama's policies to succeed just because they want the world to get better, but oppose him substantively.

In any event, I think it's pretty clear that Obama's task is to get these people to vote for him. That means convincing people that they ought to like his policies better than Mitt Romney's policies, and convincing those people that his failures are not his own fault, and telling those people that the thing to do to voice their frustrations with the lousy state of things is to vote to re-elect him and also vote against Congressional Republicans, whose fault the failures are.

Is Obama Starting to Welcome Their Hatred?

For twelve years this Nation was afflicted with hear-nothing, see-nothing, do-nothing Government. The Nation looked to Government but the Government looked away. Nine mocking years with the golden calf and three long years of the scourge! Nine crazy years at the ticker and three long years in the breadlines! Nine mad years of mirage and three long years of despair! Powerful influences strive today to restore that kind of government with its doctrine that that Government is best which is most indifferent.

 For nearly four years you have had an Administration which instead of twirling its thumbs has rolled up its sleeves. We will keep our sleeves rolled up.

 We had to struggle with the old enemies of peace--business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.

 They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob.

 Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me--and I welcome their hatred.

 I should like to have it said of my first Administration that in it the forces of selfishness and of lust for power met their match. I should like to have it said of my second Administration that in it these forces met their master.

- Franklin Delano Roosevelt, Halloween, October 31st, but except for the decades-old linguistic style couldn't you picture Barack Obama saying that sometime soon, in conjunction with the Occupy Wall Street protests?

I've been liking to draw a parallel between the Barack Obama Presidency and the Presidencies of Harry Truman and Bill Clinton, respectively, in the aftermath of the 2010 midterm elections. My argument, as regular readers (if any exist) may recall, was that Obama should start out sounding like Clinton, wanting to move to the center and compromise, but then anticipate an eventual and necessary shift to a more "Give 'em hell!" Trumanesque strategy once the Republicans refused to compromise. But honestly, for the first time in a few years I'm noticing the parallels between Obama and Franklin Roosevelt. Part of that is because of Obama's new behavior, and part of it is from being reminded about FDR's first time.

Death Penalty Weirdness

From a couple of recent polls on the death penalty, presumably inspired by the Troy Davis fiasco: in a CNN/Opinion Research Co. poll, people are split on the appropriate punishment for murder, with 48% favoring death and 50% favoring life without parole. But, in that same poll, 72% think an innocent person has been executed in the last five years. Meanwhile, a Gallup poll finds 61% saying they favor the death penalty for murder (not specifying life without parole as the alternative always gets a higher support level for capital punishment), but 64% don't believe that the death penalty deters murders. They also find that 52% believe the death penalty is administered fairly. If I assume all of these are valid percentages, and if I line the numbers up so that no one who takes an nth-percentile anti-death-penalty position on one issue will take a position less than the nth-percentile on any other question, then I get the following distribution of American citizens. 23% believe that the death penalty deters murder, and is applied fairly, and that no innocents have been executed in the last five years, and accordingly support the death penalty, even over life without parole. 9% are like those 23%, but they do think we've killed some innocent people recently. The next 16% are like the last 9%, but don't think the death penalty deters murder. They do think it's applied fairly, however, and therefore support it completely. Another 4% follow that 16% in thinking that the death penalty is applied fairly, but would prefer life without parole. Finally we have 9% who don't think the death penalty deters murder, do think it sometimes kills innocent people, do not think it is applied fairly, and do not support it when given the alternative of life without parole, but do support it when not prompted with that alternative. Then we have 35% who oppose the death penalty on every possible measure.

Expansion: A Quantitative Approach

Baseball has apparently decided to destroy all numerical elegance in the structuring of the leagues and the post-season, starting next year. That's a shame, because they could've decided to make the game considerably more elegant. I get that a recession probably isn't the best time for this, but for a good many decades the game of baseball had sixteen teams, eight in each league. The neat thing about this is that the entire league was on a power of two. Then we had fifty-or-so years of expansion, which took us from a sixteen-team world to... a thirty-team world. So close to thirty-two, the next power of two up, and yet so far. So, we have unequal leagues and awkward divisions, or at least we had those things until next year, when we'll have odd-numbered leagues and awkward playoffs. There are also certain teams that struggle mightily to attract attention and attendance in their current cities. So, which current teams seem to be most inopportunely located, and which cities lacking a team seem most like they could add one? Let's take a look!

On Accuracy

I just went to the The Ides of March, George Clooney's new political thriller/drama/whatever movie. Now, of course, I'm not going to say anything about its plot, or anything, but the movie's been getting some discussion in political blog-y circles so I thought I'd address a certain criticism of it, namely that it does not accurately represent the aspects of the political process that make up its setting. As best I can tell, being not a political insider myself but knowing a fair amount about how politics actually works, second- or third-hand, this is basically true. But I found that I didn't mind that at all watching the movie. Basically it's willing suspension of disbelief: because I was interested in the story and the characters, I didn't care that the setting was not 100% realistic. Maybe it wasn't even 80% realistic, or 60% realistic. But that's okay, because the point is how the setting affects the plot and the characters. That's just a personal opinion, but I don't feel like the lack of accuracy to the 'real world' detracted from the actual stuff of the movie, even remotely.

Uncharacteristic David Brooks Rebuttal

Unlike a lot of liberal bloggers (who are all many orders of magnitude more famous than I am), I don't often write posts responding to David Brooks columns. And I'm not going to respond to very much of his latest, but there is one line I'd like to address:

Liberals see it [tax policy] as a way to punish the greedy and redress the iniquities of capitalism. Conservatives see tax increases as an assault on the enterprising class perpetrated by arrogant central planners.

The latter half of that statement is true. Hell, the latter half of the former half of that statement is true. Liberals do, indeed, see the tax code as a tool to smooth income inequality. Because it is. Maybe it's not the best one, but it'll get the job done. But, uh, punish the greedy? That's really not the point. Yeah, it's about redistribution, but it's about redistribution because a thousand dollars each in the hands of a thousand poor people will create a lot more well-being than one-million dollars in the hands of one multi-millionaire banker. It's because we want to take care of the less fortunate, and the only way to do that is to ask the more fortunate to pay a numerically, though not philosophically or ethically, disproportionate share. Progressive taxation is a pretty direct way to get there.

Prove It

Apparently Paul Ryan and Haley Barbour have endorsed Herman Cain's nonsensical 9-9-9 plan. This would appear to be a sign of the non-joke nature of the Caindidacy. (Oh, lame Herman Cain puns will not go away until he does.) This is very surprising. But it is not at all unwelcome. Here's my message to the Republicans, and in particular to the Tea Party Republicans, about Herman Cain:

You know how we liberals keep saying that y'all just oppose Obama because he's black? And you keep saying that we're the real racists and it's all about small government principles? Prove it. Make Herman Cain your nominee in 2012 and I will officially admit that your opposition to Obama is not a cipher for racism. And then I will laugh, very heartily, during the months of the general election campaign, while Obama tears through your woefully incompetent candidate. Go ahead, I dare you.

Realignment Lunacy

(Warning, this is going to be a little bit of a rant.)

So, apparently the Houston Astros are going to move from the National League to the American League, negating the impact of the 1998 move of the Milwaukee Brewers from the American League to the National League in order to allow for the two new expansion teams, the Arizona Diamondbacks and the Tampa Bay Devil Rays, to reside one in each league without having, uh, fifteen-team leagues. Oh well, even-numbered leagues were nice while they lasted. Which was from 1871 through 2011, apparently. Meanwhile, we're apparently about to have ten-team playoffs, five in each league.

Look, do you people just not get how numbers work in this context?

The Establishment Clause, Christmas, and Me

I was reading, in a book about Thurgood Marshall, about some cases regarding holiday displays on government facilities. It's a fairly natural part of the sequence of issues regarding the Establishment Clause. Prayer in schools is unconstitutional. Displaying the Ten Commandments in schools is unconstitutional. Displaying a manger scene in front of City Hall is unconstitutional. Maybe putting up Christmas trees or menorahs is also prohibited? Well, here's the thing: I'm someone who is generally a bit of a radical about the Establishment Clause. I think that "in god we trust" on the money is unconstitutional, that "one nation under god" in the Pledge of Allegiance is probably unconstitutional, and, hell, there might even be problems with the fact that Sunday is the weekend all the time. But Christmas trees don't bother me, and neither do menorahs. Why? Because I like them, that's why! Christmas trees are nice! They're pretty! So are menorahs.

And here's the thing: especially with the tree, it just doesn't strike me as a religion thing. I recognize that this isn't true of the menorah, which is supposed to represent a certain miracle in the history of the Jewish people (although honestly, as a certain Jon Stewart-Stephen Colbert musical duet points out, it's a pretty weak miracle, right?), but the Christmas tree is just not a Christian thing. It's a pagan thing. And since, last I checked, pre-Christian paganism isn't terribly prominent in American society, I really don't think that putting Christmas trees up is a religious thing. It's a secular thing. Christmas is not one of the most important days of the year from the perspective of religious Christianity. Hanukkah is not very high on the list of Jewish holidays. But they're by far the most culturally prominent holidays of their respective religions. Why? Because you celebrate them by putting up trees, lighting candles, giving presents, spinning dreidels, and above all else, eating lots of chocolate! They're fun holidays, and they coincide neatly with the onset of real winter, the solstice, cold weather that makes everything feel really cozy, etc. When the government puts up a Christmas tree, it has nothing to do with the Christian faith, and everything to do with a secular tradition that's been banned by aggressively Christian regimes in the past. I think it's a similar story with menorahs.

I think that a religious person ought to be the one who wants to find these holiday displays unconstitutional. (At least, that is, if they accept the 'neutrality principle' often thought to underlie the Establishment Clause.) The previous paragraph was an effort by me to claim Christmas and Hanukkah as secular events. A religious person ought to mind that. And the logical conclusion of their minding that has got to be a desire to find these displays unconstitutional. Preventing municipalities from putting up Christmas trees will not impair the celebration of Christmas. But allowing those displays only serves to emphasize how much Christmas really isn't about religion anymore. So, Mr. O'Reilly, how would you like to lose your supposed War on Christmas? Oppression, or assimilation?

(Incidentally, the case of Christmas trees is highly singular. Most things that could be called religious displays are in fact religious displays, like crosses or Ten Commandments signs, and any attempt by religious people to argue that they are secular is just bad-faith BS. You know it's bad faith because, as I say above, isn't it really offensive to Christians to say that a cross isn't about Christian religious faith, and the resurrection of Jesus Christ?)

Gingrich? Really?

My father was of the opinion, from rather early in the Republican primary contest, that Newt Gingrich would be the nominee. When Gingrich's campaign crumbled into dust, and he sank to ~3% in the polls, he admitted he was probably wrong, though he wasn't yet ready to concede defeat. After all, John McCain's campaign crumbled to dust in the summer and fall of '07, but he made a comeback. Such things do happen. Well, according to the only pollster I trust, PPP, Gingrich is in third place now, at 15%, behind Cain's 30% and Romney's 22% but narrowly ahead of Perry's 14%. My whole logic as to why Romney will lose is that Cain's bubble seems very likely to pop at some point, and those supporters aren't going to Romney. Typically I assume that means they'll go back to Perry, which is where most of them came. But maybe not. His campaign still seems kind of moribund, and Gingrich is trending upward in the polls. At this point I will not be shocked if Gingrich ends up winning. I won't be shocked if Perry wins, either, or if Romney does manage to hold on. (I will be shocked if Cain wins, though. Genuinely shocked.)

Needless to say, I would be thrilled if Gingrich beats Romney. Romney was tied against Obama in that poll, with a net -6% favorability. Perry's got a -9 margin against Obama, and -34% favorability. Gingrich has a -11 margin, and -26% favorability. I don't think you can be elected President with the kinds of numbers Perry and Gingrich are putting up. I dare the Republicans to nominate anyone other than Romney; if they do, it'll be a fun year!

Romney's Handicap

I mentioned in my last post that each different Republican candidate appears to give Obama a certain 'handicap' in his re-election bid. That is to say, you can roughly think that every change of 1 point in Obama's net approval rating will cause a 1-point change (in the same direction, obviously) in his margins over his Republican opponents. But for each different opponent, there's a different calibration. In one poll Obama might lead Romney by 3 points, Perry by 8, and Palin by 17, all obviously with the same approval rating. So each candidate is giving him a different handicap. I thought I'd take a look at trying to quantify the Romney handicap.

Warning, Republicans: Presidential Approval is Volatile

Barack Obama's job approval ratings are not very good right now. Pollster.com's average puts it around 43% nationally. And yet, in this environment, we have the scary-good polling firm PublicPolicyPolling showing that Obama is tied nationally with Mitt Romney, his most likely general election opponent and by far his most formidable potential foe, and leads Romney by 4% in Iowa. Moreover, that's in an Iowa poll where Obama's approval rating had declined by six net points since August and his lead over Romney had declined by... six net points. In other words, as I've long been suspecting, Obama's general-election vote share looks a lot like a direct, point-for-point translation of his approval rating, plus some handicap depending on who his opponent is. And notice that Romney's trailing Obama by four points in a state where Obama's net approval rating is -9. That's a 13-point net handicap. That's enormous! So it's not so much that Romney's a strong candidate, but rather that Obama is sufficiently vulnerable that even a very weak candidate like Romney is competitive against him, and all of Romney's primary competitors are incredibly vulnerable. Okay, fine, that's the situation. It looks pretty decent for Republicans, actually.

Don't Limit Utilitarianism

In class today, my philosophy of law professor repeatedly defined utilitarianism as the family of philosophies that hold that a) the welfare of sentient beings matters tremendously for ethical thinking, and b) nothing else matters at all. That's a good, accurate definition (though I'm paraphrasing slightly on Part A, with the language about sentient beings, it's still the gist of what he said). But the problem is what he did with it. Because he was saying things like, under a utilitarian view one would have to approve of two people twisting a child's arm, and inflicting pain on that child, just because the two of them get a kick out of it. Two people having fun, one person in pain, it's a net win, so he says. But there are some serious problems with this, because in making that assertion he's using the word "utilitarianism" in a much more restrictively defined fashion.

In order to reach the kinds of conclusions he reached, you have to define a kind of utilitarianism that is, roughly speaking, strictly additive. That is to say, you're talking about a kind of ethical calculus in which you just say, X net well-being for this person, Y net well-being for this person, Z net well-being for this person, so on down the line; add up all of those values, and then maximize the result. That is, to be sure, a utilitarian kind of ethics. But not the only one. The only requirement of a utilitarian ethics, as I see it, is that your utility function be a function of the welfares of sentient beings, and nothing else. That gives you a lot of discretion! For one thing, we haven't yet assumed that suffering and happiness are to be measured in the same units. Maybe we adopt a utility function that highly prioritizes the avoidance of pain. In that case, you shouldn't twist the kid's arm, because our utility function doesn't value your pleasure as highly as it values avoiding the kid's pain. In fact, we could theoretically have a utility function that says that an increase in pain for one individual can never be justified by an increase in pleasure for another individual, but only by a reduction in pain for others that is commensurately large. Thus, twisting the kid's arm to save the world, or even to save one life, would be justified, but even if all seven-billion people in the world would get a tremendous kick out of seeing this little kid's arm be twisted, that's not enough to justify it. Again, all we're caring about are the welfares of sentient beings, and we've just avoided his result.

Simply saying the word "utilitarian" really doesn't commit you to very much about your ethical philosophy. All it commits you to is never making an argument that X is good that you cannot translate into an argument that X will increase the welfare of at least some sentient beings, and can plausibly be claimed to increase the welfare of sentient beings in the aggregate; similarly, to never making an argument that Y is bad that you cannot translate into an argument that Y will decrease the welfare of at least some sentient beings, and can plausibly be claimed to decrease the welfare of sentient beings in the aggregate. That's all. The specific rule for adjudicating between competing interests is not determined simply when we decide to be utilitarians. Within the big tent of utilitarianism we can have reasonable arguments about how to tally up the score, and when X will outweigh Y. But we are not committed to the view that we should twist that little child's arm, not even remotely.

Mitt Romney's Herman Cain Problem

Mitt Romney has a problem named Herman Cain. Cain is now leading PublicPolicyPolling's latest foray into the vital Iowa contest, with 30% to Romney's 22%. Other polls show the two in the other order, but much closer; whatever, I trust PPP way more than any other pollsters at this point. In late August, Cain was getting just 7% in Iowa, compared to Romney's 19%. But that's not Romney's problem, or at least, his problem isn't that Herman Cain will win the Republican nomination instead of Romney. It's that the rise of Herman Cain tells us a hell of a lot about the Republican primary electorate: they really, really, really don't want to vote for Mitt Romney.

Nancy Pelosi Is Awesome, Continued

Now, of course, there's no guarantee that this will happen, but Nancy Pelosi's 3 years, 363 days of service as Speaker of the House put her 18th all-time, two measly days behind Joseph Martin, the Massachusetts foil and of and gavel-swapper with Texan Sam Rayburn. Supposing the Democrats take back the House next fall (which I admit is a reasonably big "if"), there's every reason to expect Pelosi to add two years to her record, which would put her at 5 years, 363 days. That would be seventh all-time. Behind the following people: Sam Rayburn, who is never ever going to lose his #1 spot, Tip O'Neill, John McCormack, Dennis Hastert, Champ Clark, and some guy named Henry Clay. If she could get another four years somehow, without losing another four anomalous days, she'd move ahead of Hastert into fourth all-time, behind only Rayburn, O'Neill, and McCormack. Obviously, as I said, there's no way to know if that will happen, but I bet you anything that John Boehner is never going to see his name very high on this list.

Reyes and the Hall of Fame

Just for fun, I've been playing around with the numbers and trying to see how I would construct a baseball Hall of Fame, from scratch, and I just went through the shortstop section. My observation was that twice the career numbers of Jose Reyes would compare really well with a lot of Hall-caliber shortstops throughout history. If we doubled Jose's career so far, he'd have 2600 hits, 444 doubles, 198 triples, 162 home runs, 1470 runs scored, and 740 steals in 8906 at-bats and 9680 plate appearances. He'd be second all-time among players with at least 40% of games at short in triples, behind Honus Wagner; 11th in doubles; 11th in hits; hell, he'd be 20th in home runs! He'd be eighth all-time in runs scored, seventh in extra-base hits, seventh in total bases. All while being just 14th in plate appearances. And, oh yeah, something else: he'd be first, all-time, in stolen bases, seventeen ahead of Honus Wagner, and nearly 100 steals ahead of third-place Bert Campaneris.

In other words, Twice Jose Reyes would be an all-time great offensive shortstop. And guys like Alex Rodriguez, Ernie Banks, and Robin Yount, who began their careers as shortstops but then switched positions mid-way through their careers, are included in the rankings above. Run the threshold to, say, 70% of career games as a shortstop, and he becomes a top-5 all-time shortstop. Now, granted, the man does not have the defensive numbers that someone like Ozzie Smith, or really most of the Hall of Fame-caliber shortstops, put up throughout their careers, but defensively at least he's no Derek Jeter (the second-worst defensive player all-time according to baseball-reference, and the 7th-worst according to Fangraphs). And remember, all of this is assuming he can just double his career so far. That career has seen only five healthy, productive years out of the nine he's played. And there's also some evidence (see: his 2011 National League batting championship) that he's gotten even better than he used to be. It makes sense: 28 is typically the age when players enter their prime.

The point is, there's every possibility that Jose Reyes will be one of the greatest offensive shortstops of all time, not to mention the best speedster ever to play the infield. If the Mets know what they're doing, they'll make sure this offseason that when he gets his plaque, it's got the Mets' logo on his cap.

Reyes Landing-Spot Analysis

I am not, even remotely, a baseball insider. I can read MLB Trade Rumors as well as the next person, but I have no way to actually know what goes on in any given GM's office. But I want to write a post about likely destinations for free agent Jose Reyes, so I'm going to do it using these principles:

1. A team with a particularly entrenched shortstop, or a shortstop they're invested in, is not going to be interested in Reyes. Not because he wouldn't make their team better, but because they'd be wasting someone, and thus wasting money. Reyes is the best shortstop in baseball.
2. A team with a particularly entrenched leadoff hitter will be an unattractive destination for Reyes. He likes batting leadoff, and he's a free agent now. Is he really going to sign with a team that can't basically say, we can basically promise you that you'll hit first in the order every day in 2012, and after that until you start to suck? I doubt it.
3. Jose is likely to command a salary in the ~$15-20 million range. Teams whose payrolls in 2011 weren't all that much more than that are unlikely to be interested. Teams who weren't paying any of their players appreciably more than $10 million, also not likely players.

So, with that in mind, here's my analysis:

Rasmussen Reports Surrenders

I used to like the polls from Rasmussen Reports. Through the 2008 election cycle, I thought their horse-race numbers were some of the best in the game, and I was willing to tolerate the presence of a bit of right-wing spin on their website. Very quickly after the '08 election, though, I became completely disenchanted with them, very quickly. I believe that the moment when I stopped ever routinely visiting their website was when they introduced this absurd "political class/mainstream America" concept. The idea was that they asked people three questions, which were supposed to identify something about, I dunno, populist versus elitism. The point was that a) those questions actually identified left-wing political opinions, roughly speaking, and b) they attached exceedingly biased labels to the two positions. So then they would use these things to demonstrate, of course, that the left-wing position on some issue was favored only by the "political class" while "mainstream America" had the conservative view. The second they started doing this stuff, I quit looking at their polls.

So I recently discovered that they did a poll on the Occupy Wall Street movement, and while of course they spin the poll as far away from this fact as they can, a plurality of voters (~43%) had a favorable opinion of OWS. What I wanted to see was how those numbers broke down by their political class/mainstream America divide, since you would really think that something calling itself "Occupy Wall Street," or "We Are the 99%," that carried out mass demonstrations against bankers and plutocrats and what-have-you was certainly on the populist side of the isle. I was hoping to find that their numbers showed that positive opinion of OWS was a feature of the political class, which would be a nice little talking point for me to use in demonstrating that their distinction is really just a left/right distinction, with a good label on the right and a bad label on the left. That wasn't what I found. Instead I found that they didn't break their numbers down using those labels. It appears very much like they've abandoned the concept of political class vs. mainstream America. It's about bloody time, whenever it happened.

Not that I'll go back to looking at Rasmussen polls, or anything, though...

The Justification for Statutory Rape Laws

Statutory rape laws strike me as kind of weird. Even if a) the defendant can show that their partner deliberately concealed from them the fact that they were underage, or b) the defendant can show that their partner really, really, really wanted to have sex with them, i.e. it was extremely consensual in standard parlance, the defendant is still guilty. The only plausible rationale for this kind of strict liability is the idea that you don't want to put the burden of having to press charges on a minor, who might be easily intimidated or pressured out of wanting to do so. Some young girl can, for example, be pressured into saying that she consented when it actually was standard-order rape. And, of course, there's the fact that as the age of the minor involved approaches zero, it crosses a threshold at some point beyond which any claim of either a) or b) is just impossible. You can't not know that an eight-year-old is underage, and it's just true that an eight-year-old is not going to meaningfully consent to have sex. You've gotta draw a line somewhere, I guess, though as a matter of real-world psychology I think eighteen is a little too high. Then there's the idea that a teenager can be rather easily manipulated into "consenting" by an older, more experienced predator, and that we don't want to let that predator say "but she said yes!"

But that is not, apparently, anything related to the reason why we have statutory rape laws involving teenagers who might actually naturally want to have sex. The Supreme Court once overturned a statutory rape law that applied only against men who had sex with underage women, and applied even when the man was underage himself. Why did the state have such a law in the first place? Why, to prevent teenage pregnancy, of course! Why did the court strike the law down? Because it held that the unequal treatment of men and women was not even rationally related to the desire to prevent teenage pregnancy. The dissent (by right-wingers) argued that since women have the natural penalty of pregnancy that attaches to sex, but men don't, the law in question just "evened up" the incentives facing each gender.

Can I just say how seriously f@cked up all of that is? The sexual criminal code is not an instrument of social policy like that. The whole point of sex crimes is that they are not really sexual in nature but rather violent in nature, using sex as an instrument of violence. The ideas of statutory rape given above have nothing to do with that basic notion. We're imprisoning people and placing them on sex offender registries because we want to disincentivize teenage pregnancy? If we're so keen on preventing teenage pregnancy, why not require that all youngsters who have sex use some form of birth control? We don't find such laws for adults to be valid, but that's because we don't think the state has a valid interest in preventing people who want to get pregnant, or at least who want to take a reasonable risk of getting pregnant, from doing so, if those people are adults. If we think the state has an interest in preventing teenage pregnancy, in what way is a law against sex using birth control even remotely 'narrowly tailored' or 'minimally invasive'? Why are we even calling the crime in question rape, when it clearly is nothing of the sort?

That was kind of a rant, and I get that in many states the statutory rape laws may be designed to actually combat things like power-differential rape between people of different ages, or sexual abuse of genuine children. But if the best answer we can give for why we need to hold that fifteen-year-olds lack the ability to legitimately want to have sex is that the Council of Elders wishes they wouldn't have sex, because then they might get pregnant and Bad Things would happen, then it seems to me that all we've got is a massively disempowering, puritanical morals code.

Separation of Romance and State

You know how we like to say that separation of church and state is as much for the benefit of church as for the benefit of state? Well, the following quote from someone at a Brown Democrats meeting, discussing the state of marriage equality politics in Rhode Island, reminded me of that idea:

There's nothing romantic about the term 'civil union.'

Yep. Nothing romantic about the term civil union. But, if I may, romance is not a legitimate state interest. I don't say that because I dislike government (if you're reading this blog, you probably know that), but because I'm a huge fan of individual private lives. Romance, it strikes me, is one of the most fundamentally private personal interests I can conceive. The reason I don't want the state trying to foster romance per se is that romance will best be fostered by letting people just commingle amongst themselves and have romantic interactions. There are other things that a government might want to foster, social stability and what-have-you, that are often given as benefits of marriage, all of which could in theory be promoted just as well by a system of civil partnerships conferring certain legal rights, privileges, and obligations, but with no supposed connection to "romance." Then you could let people who had strong romantic feelings about one another go have a big flowery ceremony and start calling themselves married, and maybe lots of those couples would want to get a civil partnership as well.

I don't have an enormous problem with having government do the marriage thing directly, so long as it obeys the good ol' Equal Protection Clause while doing so, but it's just a thought: getting the government out of the romance business would probably be a good thing for romance itself.

Bad, Bad Arguments

To be faithful to our written Constitution, a jurist must recognize and respect the limiting nature of its terms. Granted, what a term such as “due process” requires in a particular circumstance is not always clear. Nevertheless, there should be no question at all about whether a 34-year-old or a naturalized citizen may become President of the United States. That the terms giving rise to most questions of constitutional meaning lie somewhere between inherent ambiguity and mathematical certainty is no excuse from the duty of fidelity to the text. Rather, to be faithful to the written Constitution a jurist must make it his goal to illuminate the meaning of the text as the Framers understood it.

So quoth one of the obnoxious libertarian scholars in my constitutional law/political philosophy reading that I've been doing just now. See what he does there? The first 4.8 sentences, out of 5, are a really strong argument for textual fidelity, including ample respect for the fact that much of the constitution is vague and that this allows a lot of interpretive discretion. But then, at the last minute, he sneaks in "as the Framers understood it." Nothing in the argument in the rest of the paragraph (and none of the argument earlier in the essay, or subsequent) is dedicated to showing or trying to show that "fidelity to the text" means "fidelity to the text as the Framers understood it." My favorite interpretive principle from Steve Calabresi is that people can misunderstand their own rules. So, for instance, in 1868 a bunch of people put the following into the federal Constitution:

No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

At the time, people thought that meant some things, and didn't mean others. Notably, they pretty clearly didn't think that meant schools had to be integrated; they didn't think it meant you had to give women any particular degree of equal protection; and they certainly didn't think it meant that groups like "poor people" or "gay people" had any equal-protection rights. And they were wrong! The phrase above most definitely means that schools must be integrated, and women get equal protection, too, and so do gay people, and probably poor people should as well. That's what the text says. Saying we have to interpret that as the framers understood it is, in fact, to diverge to the text, to apply not the words enacted into the Constitution but rather to apply the particular ideologies of 1868. That ain't fidelity to the text.

Anyway, that was just a really bad argument that pissed me off.

Limited Morality

I'm reading a paper for my philosophy class about "moral luck," the idea that the moral value of things you do can in fact depend on the results and not just on the expected results (in the strict statistical sense). But that's sort of beside the point of this post: early in the essay (which is as far as I've gotten) it uses the parable of a hypothetical person called Gauguin, a "creative artist who turns away from definite and pressing human claims on him in order to live a life in which, as he supposes, he can pursue his art." The author contends that this decision is morally justified iff he succeeds in becoming an artist (however we wish to define that), but is morally unjustified if he fails in that effort. I don't really care about this contention, but what I do care about is the fact that this example shows up in a paper on moral philosophy.

I'm not sure exactly what the other "definite and pressing human claims" on our hypothetical Mr. Gauguin are supposed to be. If the idea is that, by making this choice, he is neglecting to help other people that you can reasonable consider him to have a natural obligation to help, as for instance his family, then that's one thing. But if the idea is just that instead of choosing a life suited for material comforts or a decent standard of living or romance or some other personal good, i.e. a different set of goods for Mr. Gauguin and no one else than the ones he ends up pursuing, then isn't this just not a moral question even remotely? And if it is, then can't we evaluate it without caring whether he turns out as a successful painter? If he's neglecting his duty to care for others by pursuing his painting, that's selfish, and it's no less selfish if he achieves a personal feeling of success as a painter. But if we're not talking about obligations to others that he neglects, but rather the way he chooses to live his own life for himself, then it's not a moral question. This is true because, in slightly excessively economics-y language, the individual has a plenary right to determine his or her own utility function. It's up to him how he wants to live his life, modulo the effects his life has on other people's well-being. If he has regrets about the choice he made, they're not moral regrets, are they? They're strategic regrets. He thinks his prior self was foolishly overestimating the odds of success, or underestimating the suffering incumbent on failure, or underestimating the benefits of the safe, non-creative life. Or something. And he wishes he had chosen differently. But as long as he's wishing that solely because of his own well-being or lack thereof, it's not a moral or ethical concern.

More on Reyes

As I understand it, the common gripe against Reyes' tactics last Wednesday are that "batting titles should be reserved for heroes, not cowards," and that bunting for a base hit his first time up and then taking himself out of the game in order to (in all probability) beat Ryan Braun for the batting championship. So, some problems with this.