Why I Can't Support the Constitutionalization of the Right Against Gerrymander

I'm a huge fan of Baker v. Carr, and all its progeny, the cases which for the first time in our nation's history subjected the apportionment process to constitutional scrutiny, and declared the fundamental principle of "one man, one vote."* I also think that there is roughly-speaking zero good reason for anything resembling the kind of gerrymandering that's standard fare these days. I'm pretty sure that if you plugged a population-distribution map into a computer, and gave it a few parameters about respect for political divisions, respect for demographic distinctions, etc. versus the desire for compactness and simpleness of form, that computer could spit out a map of equipopulous districts rather quickly. I think we ought to do that, rather than let committees of the politically-powerful draw maps to achieve various ends. And yet, I just cannot bring myself to support the idea that anything like independent, non-gerrymandered districting is required by the Constitution.

The fundamental logic behind the idea that this is a constitutional requirement, or should be anyway, is that we want the voters to choose the government, not for the government to choose the voters. A scheme of partisan gerrymandering, where the opposing party's voters have their votes diluted much as blacks had their votes diluted in old Southern maps, seems like an obvious case of one party using power to perpetuate its own power. I'm open to the idea that this is not acceptable, constitutionally speaking. But lots of gerrymanders aren't like this! They are, often, for the purposes of 'incumbent-protection.' In some states, the two parties achieve a state of detente, in which each is allowed to protect all of its incumbents, reducing the number of 'swing districts' and locking in the status quo. This seems uncool, right? We want The People to retain the power to vote their government out of office.

But here's my problem: they have that power! Voters can just vote for someone else if they want to! If a district is drawn in which Barack Obama captured 70% of the vote, with the intention of creating a "safe seat" for some Democratic incumbent to cushily occupy for all eternity, the voters of that district retain a complete right to kick that incumbent out of office if they so choose! Given that we have a fairly universal open primary arrangement in this country (and I do think there may be some sort of right to an open primary, though I'm not sure what I think about that issue), those Democrats can just vote for some other Democrat in the primary, as happened to Emmanuel Celler and Adam Clayton Powell in deepest-blue New York City. Or they could vote for some independent candidate. Or for the Republican. It's up to them. That it is highly unlikely a majority of them will decide they prefer the Republican challenger to the incumbent Democrat does not mean that their right to elect whomever they damn well please as their representative has been in any way lessened.

To put it another way, I just can't bring myself to accept that there's a right to live in a swing district. Hell, if we could define swing districts precisely that would seem to imply that voting preference couldn't change, which would make the whole notion of a right to vote kind of silly. The fact that I, and the vast majority of my fellow inhabitants of the First Congressional District of Rhode Island, have a fairly well-settled preference for the Democratic Party over the Republican Party, does not mean that our right to vote has been infringed!!!  I take about as much offense at an incumbent-protection map, like the one that governed California for the last decade, but c'mon people, it's just not an infringement of the right to vote, as malapportionment is. It's not an attempt to remove political power from members of one race, or one political faction. It's just the creation of relatively more districts which, we expect, will be won by large margins as opposed to small margins. There's no right to have roughly fifty percent of the people in your district favor each political party. So however much I might favor independent districting, I just can't conclude that it's a constitutional requirement.





*That's how the principle was phrased at the time; obviously, it should now be rendered "one human, one vote." (And yes, that's better than "person," because we don't give non-humans any votes, now do we?)

Bad Originalist Logic

Here's a kind of argument originalists tend to make about the Fourteenth Amendment that I just hate: "X was a long-standing tradition of the northern states prior to 1868, therefore the Fourteenth Amendment was clearly not originally intended/understood to prohibit X." Hello? The Fourteenth Amendment was a big, radical change to our Constitution. Arguably, as Thurgood Marshall said on the two-hundredth anniversary of the Declaration of Independence, "while the Union survived the civil war, the Constitution did not." The Fourteenth Amendment transformed our Constitution in the entirety. It is not to be presumed that a great many deeply traditional state practices were not outlawed by that Amendment, the first piece of the Constitution in history to substantively limit a state's general powers. It changed things! Its entire point was to change things!

On the Civil Rights Cases

The big holding of the Civil Rights Cases of 1883 was that the great human-rights sentence of the Fourteenth Amendment applied only to state action; that, therefore, the fifth section of that Amendment only empowered Congress to enforce those prohibitions on state action; and that, therefore, the Civil Rights Act of 1875 was unconstitutional:

It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws and the action of State officers executive or judicial when these are subversive of the fundamental rights specified in the amendment.

There are plenty of ways of arguing against this conclusion. My grandfather had a creative one, namely that the word 'citizen' in the first sentence of the Amendment is not just an empty title, but is rather rich with meaning. Part of being a citizen, he argues, is that you will be treated in the public forum on a more-or-less equal basis with your fellow-citizens. By this logic, the "state action" doctrine is simply inappropriate in these cases. I like that argument, and think it broadly correct. But one can reach the same conclusion on a rather more narrow basis, I think.*

The Return of Conservatives Who Lie

This is sort of comforting, in an odd sort of way. From Newt Gingrich, when asked if there's anything he wouldn't do to be President:

“Sure, there are lots of things that I wouldn’t do. I wouldn’t lie to the American people. I wouldn’t switch my positions for political reasons. It’s perfectly reasonable to change your position if facts change, if you see new things you didn’t see in the past. Everybody’s done that — Ronald Reagan did it.

“It’s wrong to go around and adopt radically different positions based on your need of any one election. Because then people have to ask themselves, ‘What will you tell me next time?’

He is, of course, lying. His various policy shifts from, say, 2007 to the present day on issues like a health-care mandate or a cap-and-trade scheme to address global warming has absolutely zero to do with seeing new things he didn't see in the past. Both were mainstream, conservative, market-based approaches to pressing national or global problems four years ago. Then Obama won an election, and tried to pass them both through Congress (batting 1-for-2), and now they're both evil socialism!!! So naturally Newt is now against them. That's the exact same move Romney pulled on those issues, and which Gingrich is attacking him for. So what's comforting about this? That he feels the need to lie. The words I quoted above could've been spoken by any liberal: we're all about changing our opinions when the facts change, and in fact frequently use that justification for apparent 'flip-flops' that conservatives try to accuse us of. Now we, admittedly, do a reasonably good job of living up to that ideal, or at least of trying to, something one cannot say of Newt. But at least he feels he needs to pay lip-service to the good, liberal ideal here. It's sort of like the kind of nostalgia one might have over 'compassionate conservativism': not that there actually was anything compassionate about George W. Bush's platform, but he felt he needed to say there was. Today, most Republican candidates go around trying to reassure voters that there isn't a tiny little speck of compassion in their policy positions. That's another area where Gingrich feels the need to lie, referring to his immigration policy (of allowing local citizen-boards to deport illegals on the basis of personal whimsical dislike, which is probably unconstitutional) as 'humane.' It isn't. But it's kind of nice he thinks that a humane immigration policy is still a good thing.

Eleven-Dimensional Chess After All?

I'm not going to argue policy here. Policy has been steadily getting worse since John Boehner's fingers closed around the gavel, and it is not the point of this blog post to argue whether Obama's been doing a good job of softening that blow. But consider the following: having spent the last several months mounting a broad campaign for economic stimulus (not under that name, of course) and, rather successfully, blaming Republicans for blocking said stimulus, Obama got to make a statement today criticizing Republicans for blocking efforts toward deficit reduction! This strikes me as approximately as win-win as you can get, politically (if you believe that such messaging matters at all). Policy wonks talk about how we should have deficit-financed stimulus now and fiscal consolidation later, but we need both. Well, Obama has positioned himself so that he is simultaneously the ardent champion of "stimulus NOW!" and the stalwart defender of "fiscal responsibility over the long-term," with the wicked Republicans his antagonists in both conflicts. Personally I'm inclined to think that this kind of messaging matters a tiny little bit around the margins, but that could be important in a close election (and I don't think that Obama's going to lose in anything other than a close election). Given how predictable it was that a) the Supercommittee would fail, and b) Republicans would bitch about actually having to let the defense cuts get triggered, it sort of makes you wonder whether he meant for this to happen.

Originalism and Relativism

You wouldn't really think that Justice Antonin Scalia is someone who buys deep into relativism, would you? I think he has a pretty clear notion that some ideas or cultures are just better or more correct than others. But it just occurred to me that a big part of his argument for originalism, or his version of it anyway, depends on an assumption of relativism, or even an assumption of an assumption of relativism. (Note: I'm defining relativism to mean the denial that truth can have meaning independent of people's beliefs.) In discussing "faint-hearted" originalism, the notion that the doctrine may sometimes suggest results too severe to contemplate, Scalia uses the example of the Eighth Amendment, saying that there might be some punishments that even judges who view themselves as originalists would find unconstitutional even if it could be definitively shown that in 1791 they were not considered cruel or unusual, such as public flogging or branding. Here's his quote on how to justify that faint-heartedness:

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content—that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.”

Notice here that he thinks the only options are "viewed as cruel and unusual when this clause was enacted" and "viewed as cruel and unusual when this clause is being applied." For anyone except a relativist, it would seem that there would be a third option: "actually cruel and unusual"! There is a damn good reason why he avoids this option: because it gives a lot of validity to the "evolutionary" or "living" reading of the Constitution.

Ways to Divvy Up Runs Above Replacement

Baseball-reference's formula for runs above replacement for a position player involves adding together several run values: runs above average from batting, runs above average from baserunning, runs above average from reaching on error, runs above average from not-grounding-into-double-plays, runs above average from fielding, positional-adjustment runs, and replacement-level runs. Add these up and you get Runs Above Replacement; divide by (roughly) ten and you get Wins Above Replacement. They also give a rough division of these into oWAR (offensive WAR) and dWAR (defensive WAR), where dWAR is just runs above average from fielding divided by (roughly) ten and oWAR is just the rest. That's one way to divide up the various categories of Runs Above Replacement, but it doesn't strike me as being in any sense the best one. Here are some alternatives.

Make Congress Super

The "super" part of the "supercommittee," occasionally known as a "super-Congress" when people wanted to imply that it was somehow undemocratic, was that its recommendation, if delivered before this week, would be immune from amendment or filibuster. It never had the power to pass laws; the Constitution has some pretty specific things to say on that subject. (It is, however, somewhat fuzzier on the subject of sentencing commissions.) But filibuster and amendment are venerable old tools of obstruction, and protecting a piece of legislation from them is a good way to aid it through Congress. Not good enough, if the median Senator and the median Representative can't possibly reach an agreement on the issue, let alone the two sides of the committee itself. But that committee is not, after all, dying this week, just losing the "super" part. This is regarded as tantamount to death in the political media, which seems like a good justification for making the following recommendation again:

Give Congress these superpowers!!!

If we think that it's good to protect legislation on an important subject from the filibuster, then hey, here's an idea: let's abolish the filibuster! (After all, it can scarcely be presumed that Congress passes frivolous legislation, though it has probably happened with depressing frequency.) If we think that open amendment rules allow minorities to act in bad faith to obstruct a bill with majority support, then we should reform amendment rules. Saying "the filibuster and amendment rules are big problems, so let's create a SuperCommittee to deal with one specific important problem and allow it to override those rules" is not the right way to go. If you want a super-Congress, try making Congress itself a little more super.

Barack Obama: Second-Best Democratic President Ever?

I just read Jonathan Chait's excellent piece about liberal inability to feel satisfaction with Democratic Presidents. To a certain extent I think this feeling is understandable: American politics has never come particularly close to producing results that are good enough, and we shouldn't shut up about, or try to forget, this fact. But that doesn't mean we shouldn't recognize and appreciate those people who make American politics get a whole damn lot closer to good enough. So, in that spirit, let me present a list of names: James Buchanan, Jimmy Carter, Grover Cleveland, Bill Clinton, Andrew Jackson, Andrew Johnson, Lyndon Johnson, John Kennedy, Barack Obama, Franklin Pierce, James Polk, Franklin Roosevelt, Harry Truman, John Tyler, Martin Van Buren, and Woodrow Wilson. That's all the Democrats who have been President (counting Jefferson and cohort as members of a different party). Which of them had a greater Presidency than Barack Obama's had so far? Note that by "had a greater Presidency" I mean "did more good things, as a net matter, during their Presidency." We might like Carter's post-Presidential self, or the memory of JFK, better than we like Obama, but that doesn't count. Who was a better liberal President than Obama?

Don't Fear the Privileges or Immunities Clause

In 1868, Congress passed and the American people, well, sort of ratified the Fourteenth Amendment to the United States Constitution. Its first section transformed the fabric of our government more or less from top to bottom. Its first clause overturned the Dred Scott decision, granting citizenship to all persons "born or naturalized" in the US. The third and fourth clauses guaranteed due process of law and equal protection of the laws to all person within each state's jurisdiction. But the second clause was pretty clearly supposed to be at least as important as these other clauses:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

This, rather plainly, was a vehicle for enforcing protections of nationally-defined individual rights against the state governments. Except the Court didn't see things that way, holding in the 1873 Slaughterhouse Cases that only those rights regarding federal matters (access to ports and waterways, running for federal office, protection on the high seas, etc.) were "privileges or immunities of citizens of the United States," while ordinary civil rights were not. They seemed to justify this holding on the grounds that it was just implausible that Congress meant to shift protection of all civil rights from the states to the federal government. That's clearly absurd.

But I've heard another, somewhat less absurd argument for why one ought to be skeptical of using the Privileges or Immunities Clause as the vehicle for "incorporation" of general civil rights against state governments, instead of the Due Process Clause: the former protects only citizens, while the latter protects all persons. This sounds plausible: it should trouble us if the right to freedom of speech, or free exercise of religion, or any of the privacy rights the Court has found over the past century, were only to be enjoyed by citizens, and not by lawfully resident aliens. But this objection also seems to me to be one that does not actually stand up, because of the Equal Protection Clause.

This Land Is Your Land

Last night I heard Pete Seeger, Tom Paxton, and John McCutcheon performing This Land is Your Land, along with a bunch of other people I'd never heard of before. It was quite an experience. They sang all the verses, especially the socialist ones; Pete Seeger sang the one about "but on the other side it didn't say nothing." Anyway, all of this got me thinking about the idea that this song ought to become our national anthem. I'd certainly prefer it to the current occupant of that position, but it strikes me that it's really more a substitute for God Bless America. Obviously the socialist verses are never going to become anything official, but the first verse and chorus are rather comparable to God Bless America:

As I went walking that ribbon of highway
I saw above me that endless skyway I saw below me that golden valley
This land was made for you and me.

This land is your land, this land is my land
From California to the New York Island
From the Redwood Forest to the Gulf Stream Waters
This land was made for you and me.

Are You Kidding Me?

In the 1927 case Buck v. Bell, the Supreme Court of the United States declared, eight to one, that forced sterilization laws were perfectly constitutional. Oliver Wendell Holmes, so often the hero of the Lochner era, wrote the opinion. Louis Brandeis and Harlan Stone, two great liberal Justices, joined that opinion. Holmes' argument was basically that this was a small sacrifice to ask people to make for the betterment of society. A few choice quotes:

"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."

"Three generations of imbeciles are enough."

This case would have been unanimously decided the other way at any time in our nation's history after 1945. Under modern doctrines which hold that contraception and abortion and "gay sodomy" (Scalia loves to bring up that term; I think he thinks he'll get people to vote with him out of pure "ickiness" factor) are protected rights, that legal result would be immediate, but that's not the point. Before World War Two, eugenics was seen as a reasonable idea. Now it's seen as Hitler, and not without reason. But ultimately this law should stand or fall based on its own nature, not what someone else did under the same banner of eugenics.

While We're At It, the Gingrich Handicap

See the original post on the Romney handicap. The Gingrich handicap is exactly the same idea, just for Newt Gingrich instead of Mitt Romney. Well, what do we find when we look at the Gingrich handicap? It's a lot bigger than the Romney Handicap. The recent PPP national poll found Gingrich polling three points worse than Romney, for a 12-point handicap. That's about the smallest gap anywhere. In the state surveys I classify as "recent," in which Romney displays about a 10-point handicap on average, Gingrich is spotting Obama a 17-point edge. That's enormous. Honestly, a 10-point handicap candidate is pretty awful to begin with, and should make us reconsider the idea that Romney's a strong candidate. But -17 is just abysmal. Note that Lyndon Johnson's approval rating around the 1964 election was probably well above the record 61% of the popular vote he received, i.e. Mr. Catastrophically Weak Candidate Barry Goldwater actually posted a negative handicap, by this metric, relative to President Johnson.

Getting back to Newt, there's a pretty broad band of states, both in recent surveys and in older ones dating back to last winter, where his handicap is in the realm of 17 to 23 points. Then there's a handful with a dramatically smaller handicap. Among recent surveys, that's Nevada (12), North Carolina (also 12), and Mississippi (7). Nevada and North Carolina are swing states, and pretty good places to be relatively strong (although there's the caveat that Romney's handicap in that NC survey was also anomalously low, and I suspect that may be random variation rather than anything else). But this is some serious unelectability. If we assume zero undecideds, then Obama's approval rating would need to be 41.5% in order for Gingrich to tie him nationally, under these numbers. If we assume as many undecideds as we see in the latest pollster.com trendlines, we'd need to see an Obama approval of 39% before Gingrich could start thinking about winning. I'm pretty sure the Obama people are counting on an approval rating greater than 39% on election day (not that they might not get it, but that if they don't it won't be surprising when he loses). If they nominate Newt, they're throwing this election away, unless something massively changes over the next year. Go for it, guys! It worked so well in the 2010 Senate races, after all.

Time to Let Mr. Justice Kennedy Decide Again

So apparently the Prop 8 intervenors will be allowed to defend the measure on appeal from the federal district court in which it was struck down. That means appeals will happen, which means that the Supreme Court will hear the case. Which means that it will all boil down to Justice Kennedy's particular inclination in this case. As usual, as it will be with the health-care law, as it was with Citizens United and DC v. Heller. As it will be until some Justice gets replaced by a President of the opposing party. I believe in the idea of constitutional law that is actually about law and truth and justice and all that, and not just nine people voting based on clear political preference, but the recent Courts have clearly not been living up to that standard. In any event, the law is obviously unconstitutional, I have a fair amount of hope that Kennedy is feeling ready to accept that fact, and I really look forward to reading Scalia's dissent if it's a dissent he's writing. His majority opinion would not be much fun to read. I also think it can be confidently predicted that a winning decision in this case will not arouse massive resistance as Brown and Roe did: this decision's time has come.

Romney Handicap Continues to Grow

I've defined something I call the Romney Handicap, which for any given poll is Obama's net margin over Romney in the general-election trial heat minus Obama's net approval rating in that same poll. The idea behind it is that it tells us what approval rating Obama needs to beat Romney: if the Romney handicap is 5 points nationally, then Obama should be able to tie Romney nationally even if his net approval rating is -5. When I originally wrote my post on the subject, the average Romney handicap from all the most recent Public Policy Polling state-level surveys was around 6 points, maybe a little bit less. But shortly thereafter I noted that more recent surveys had shown a larger Romney handicap, and indeed, several weeks later that trend has continued. Of the twelve PPP state polls I designate as "recent," a category that starts a month or two ago and includes all polls taken since that time, the average Romney handicap has been 10.25%.

The range has run from 17 points (Ohio, a bad place for Romney to be at his very weakest) down to just four points, in North Carolina. PPP polls NC every month, and the month before the most recent the Romney Handicap there was much larger. Mississippi clocks in with a 5-point Romney handicap (which I don't think Obama will much mind as one of his relative weak spots!). Other than these three outlier states, the range is from a 7-point to a 14-point handicap. Meanwhile, while the previous PPP national poll showed a Romney handicap of just 6 points (a tie vs. Romney but a -6 approval rating), this month Obama has opened a three-point lead on Mitt while retaining the lousy approval rating, for a 9% handicap. All of this suggests that, over the past couple of months, Mitt Romney has become a weaker candidate, by somewhere from three to five (net) points nationally. That's a big deal. An extra three points of margin, nationally, would've made John Kerry President. In a close race, the damage Romney's sustained of late could make the difference. By the theory of this model, the break-even point for the Obama vs. Romney match-up has shifted from a -6% Obama approval rating to a -9% or -10% one. Pollster.com tells me that right now Obama's national approval is -6.8%, similar to what PPP found. If the election were held today, therefore, Obama would be re-elected over Romney, but only because of the growth of the Romney Handicap over the past few months. This continues to be a trend worth watching.

$90 million, 6 Years. Really?

Apparently the Marlins' opening offer to Reyes was $90 million spread out over 6 years. That's an average of just $15 million per year, vastly less than the nearly $26 million that Fangraphs says he's been worth, on average, in his four good years ('06, '07, '08, and '11), and barely more than the $11.5 million he was worth in a disappointing 2010. Now, here's the thing: legend has it the Mets are reluctant to go more than four years for Reyes. If that's a firm sticking-point, it's an idiotic one. Among other things, the expectation has got to be that five years from now this team will not be as hard-up for cash as it is right now. In other words, the marginal value of a dollar for the Mets is much higher now than it will be five years from now. The $15 million they might risk paying an aged or injured Reyes in 2017 will be worth a lot less to them than the $20 million they might pay him next year.

More to the point, this is a just-plain-low salary. Suppose the Mets are in the extreme willing to go to five years, and don't care as much about the dollar figure as about not exceeding five years. Well, if those five years have an average salary of $18 million, then the headline figure on the contract would be... $90 million. Add in some reasonable options for future years, maybe vesting if he stays really, really healthy in Year 5 and team or mutual if he doesn't, and you're talking about a contract that sees Jose Reyes' lifetime earnings be categorically higher than under the Marlins' offer. If you assume that a) Reyes will take the longest-in-years guaranteed contract he can find, and b) the Mets are categorically unwilling to match a six-year offer, then yeah, this blows the Mets out of the water. But a) would be a slightly strange principle on which for Reyes to be operating, and at the very least there's no reason to assume it must be true.

Voting, Political Parties, and Radical Politics

I caught the tail end of an argument today between a friend of mine and another Brown student whom I did not know, debating the merit of partisan politics as opposed to extra-political direct action, etc. Now, the friend of mine (who was arguing the relatively more mainstream position) wasn't against effective direct action, either the MLK kind or the OWS kind; I certainly approve emphatically of such demonstrations, as long as they're effective. But the one I didn't know was maintaining that there's no point working through the political system, because both parties are equally in the thrall of corporate money. This country's government has been under the control of monied interests for the last 150 years, he said, nearly non-stop, and the only time things have ever gotten even a tiny bit better has been when the people went outside the system to demand that things get better. I, being someone who likes the democratic, political system, tried to argue with him for a short while. Some of that concerned the question of whether Democrats are really no better than Republicans; he said the difference is negligible, but as this is plainly false I won't argue against it here. What I will do is defend my main point, which is that ultimately any outside-pressure social movement has to transform itself into a serious force within electoral politics if it wants to get anything done.

Judicial Review, Variously Situated

I just read Jeremy Waldron's article The Core of the Case Against Judicial Review, so there may be a few judicial-review-themed posts in the next few days. Here's the first one. Fundamentally I think there are three practical questions regarding judicial review. First, should a nation like the United States, which possesses a tradition of relatively successful judicial review, abolish or weaken that institution? Second, should a nation like the United Kingdom, successful and prosperous with a tradition of legislative supremacy and no constitutional review, create the institution of judicial review? Finally, should a nation with no strong tradition any which way which is creating a new government for itself decide to include the institution of judicial review in that government? These are three very different questions, and there is in principle no inconsistency about thinking that the U.S. should retain judicial review and that Britain should not institute it.

And So It Comes To This

"This" being, of course, Romney vs. Gingrich. Hermain Cain is dead as a candidate, long live Herman Cain as a talk show host or something. Huntsman, Santorum, Gary Johnson, and a whole host of others were never appreciably alive. Bachmann is as lifeless as they are, though she at least had a heartbeat for a while. Ron Paul will get his usual 13% when all's said and done, no more, no less, because thirteen percent of Republicans actually agree with him; he's never been running to win. And Rick Perry, well, he cratered a while back, this latest miscue forecloses any possibility of a comeback, and, uh, I forgot the third thing. (Sorry, I think that's legally obligatory right now.) So we're left with Romney/Gingrich. Intrade has Romney at around 70% odds to win, and Gingrich around 13%, with the rest going to various others who are at this point basically demised. Personally I like Newt at those odds. Two national primary polls have been released that were in the field after this past Sunday: they show the Romney minus Gingrich margin at four points and zero points: that says toss-up. Off the top of my head I can't see why the remaining sixty to seventy percent of Republicans not currently backing one of these two would mostly break toward Romney; perhaps they will, but perhaps they won't.

In any event, Romney's finally going to have to fight. Notice how his strategy for dealing with Trump, with Bachmann, with Perry, and now finally with Cain has been to stand back, stay quiet, and let them immolate themselves. (Of course, his strategy for dealing with Palin, Huckabee, Pawlenty, etc. has been to stand back, stay quiet, and watch them decline to run.) He can't beat Gingrich without getting into the ring. Unlike all Romney's other foes, Gingrich can talk. Coherently. About national policy issues. Hell, he's even kind of a wonk, though of course he's a wonk who's wrong about everything. This is probably good for the Republicans, because Romney would certainly have to fight against Obama and if they just nominated him by the acclimation of the corpses of rival campaigns strewed around him, they wouldn't know if he was a competent fighter. They still don't; presumably Gingrich will help us all find out. Obviously I hope Gingrich wins, since the American people already know that they violently dislike Newt. But at last we've found the real Republican primary. Mitt Romney or Newt Gingrich: pick a side, we're at war.

Reyes, the Mets, the Marlins, and Short- vs. Long-Term

Apparently the Marlins might offer Jose Reyes something like a three-year, $20 million per year deal. People are arguing that Reyes ought to accept that deal: he'd get three years to play in his prime, and would then get to hit free agency again, still (more or less) in his prime! But here's the thing: stipulate that Reyes might be interested in taking that deal. Why in the world couldn't the Mets match it? It's clear to me that they can fit the ~20 million into next year's payroll, especially if the deal is a little bit back-loaded. Most of the concern I've heard from the Mets people is over giving Reyes lots and lots of years. I'm pretty sure that if Reyes goes to the Marlins on a three-year deal, it doesn't just mean the Mets weren't interested in him, it means he's not interested in the Mets: not with a hometown discount, and not without one. If so, he's been lying, publicly, repeatedly, for the past year.

Meanwhile I'm fairly certain the statement in this article that "most people in baseball think it’s already a forgone conclusion that Reyes will take his talents to south beach" is false. It's still November, guys: nothing's a forgone conclusion. And as to his forming "one hell of an infield" with Hanley Ramirez, Omar Infante, and Gaby Sanchez, I think Wright, Davis, and Tejada/Murphy compare not-unfavorably to that group.

People Liking Obama Better

A Gallup poll conducted within the past week shows some interesting results. It's one of these "do you approve of how Obama's handling Issue X?" polls, and the last time it was conducted was August. Back then, Obama had positive marks on just one of eight issues, coming in at +13 on "terrorism." He was worse than -30 net on "creating jobs," "handling the federal budget deficit," and "handling the economy," with -47 on the deficit the worst. All in all he had an average ranking of -21% on these eight issues. Three months later, and he's got a positive rating on "terrorism," "foreign affairs," "the situation in Afghanistan," and "the situation in Iraq." That's all the foreign-policy stuff; terrorism is still his strong suit (seriously), at a whopping +32 now. His low is still the deficit (an issue designed for disapproving of people over), where he's still mired at -41. But in the last three months he's gained eight net points on the economy, fourteen on foreign affairs, six on the deficit, twenty-one on Afghanistan, two on health-care policy (as to which nothing's happened), nineteen on terrorism, twelve on creating jobs, and twenty-three on Iraq. Currently his average rating is -8%, not good but a lot better than -21%. Excluding health-care, he saw an average increase of nearly 15% per issue.

I've seen a lot of these "approval on the issues" polls, and I've essentially never seen a shift this dramatic. Since August people have started to like Barack Obama a lot better, just about across the board. They don't like his handling of the economy, because the economy sucks, but the economy hasn't really gotten much better in that span and people are nonetheless liking Obama's handling thereof significantly better. Meanwhile foreign policy, which (remember, people?) was the original raison d'etre for the Obama candidacy, has re-emerged as his comparative strength. Moreover, he's actually strong there now: people like his foreign-policy, according to this poll, by an average margin of 13%. The past few months have seen Obama get a lot more confrontational with the Republicans, calling them out on a variety of issues. That should make people like the Republicans a lot less, and I think it has. But it looks like, combined with some genuine good developments in foreign policy, the new, confrontational Obama is making people like Obama more. Keep it up.

Originalism and the Supremacy Clause

We've been talking about originalism a lot in my Philosophy of Law class this past week, and today we ended class with a discussion of "abstract" vs. "concrete" originalism. They're fairly familiar schools: the abstract originalists looks for what principles were originally intended/understood to be written in the Constitution, and then applies those principles as best we currently can, while the concrete originalist looks for what would've  been the originally intended/understood result in any specific case, and then reaches that same result. Arguably abstract originalism, the idea that one should judge the semantic meaning of words in the Constitution through an Originalist Dictionary and then use some other interpretive philosophy to understand the meaning of the vague, abstract clauses, is almost just trivially true. In any event it does not force us to anything resembling a Scalia jurisprudence, so we should care quite a lot whether abstract, trivial originalism or concrete, forceful originalism is more appropriate. One question might be, does the Constitution tell us anything about that debate?

Honestly, Guys? Newt Gingrich?

The answer may be yes. Not only is Gingrich moving up in polls, but Herman Cain's supporters continue to consistently name Gingrich as their second-choice. Given how awful Rick Perry's favorabilities have been of late, even with Republicans, I basically believe at this point that he's cooked. But Romney's not gaining any ground, and the re-emergence of Gingrich puts him in a tricky spot. Assume that at some point Cain implodes, and most of his support goes to Gingrich, setting up essentially a Romney-Gingrich match-up. Here's Romney's problem: Gingrich is perhaps the only person in the field who is more conservative than Romney, not an eccentric libertarian, and can talk coherently about policy. And Gingrich can do that! The things he says are very, very wrong, but he's in a different league than Michele Bachmann, Herman Cain, even Rick Perry. Paired against any of those people Romney could say not only "vote for that guy and you'll just make Obama's life easier," he could say "that guy is flagrantly incompetent." And even in the Republican Party flagrant incompetence matters. But Newt Gingrich is clearly competent. He's not as electable as Romney, but that's a hard argument to make outright without coding it through incompetence of some kind. Gingrich's campaign originally collapsed due to some strange combination of lack of buzz and strange inept dysfunction, but now that he's back I think he's the most credible threat Romney's faced all year: a genuine conservative with stature, gravitas, and competence. He trumps Romney, matching him on his strengths and lacking his most glaring weaknesses. Once it becomes Romney-Gingrich, how exactly does Romney win?

(All stipulating that the serial sexual harasser cannot continue to survive indefinitely, of course. If I end up being wrong about that, hey, I won't be complaining.)

On the Ten Commandments

Noticing a theme here? Yep, it's all Establishment Clause, all the time for me today.

Anyway, I'm reading Van Orden v. Perry, in which the Court upholds the display of the Ten Commandments on the Texas capital grounds in Austin, where it is one of twenty-one monuments described as reflecting Texas' identity. The majority contends that such a display does not constitute an endorsement of religion, and to illustrate that point they mention the frieze around the walls of the Supreme Court. The frieze displays various lawmakers throughout the ages, one of whom is Moses, holding a partial copy of the Ten Commandments. The Court argues that, since this display is acceptable, the Texas display must be as well. But there's a huge difference.

The Origin of Christmas

The majority in an opinion upholding the display of creches at public Christmas displays refers to such nativity scenes again and again as depictions of the origin of Christmas. An essay by Michael McConnell argues that total secularism in society would abolish Christmas trees, Christmas lights, the star on top of the tree, etc., since each has a religious meaning. I don't doubt that those elements do have a religious meaning (though I don't know what the tree signifies). But the holiday of Christmas, as celebrated in America in 2011, did not "originate" with the birth of Jesus. According to Wikipedia, the gift-giving comes from Saturnalia, the trees, wreaths, and lights from the Roman new year, and the Yule log and much traditional Christmas food comes from various Germanic feasts, including, you know, Yule. That's the origin of Christmas: a whole bunch of ancient pagan winter festivals. Christianity co-opted those festivals, took perhaps the best of each of them, and then declared that the winter festival was now about Jesus' birth. (This, despite the unlikelihood of Jesus' having actually been born in late December.) Perhaps portraying the origin of the holiday is a secular purpose, but falsely portraying as the origin of what is actually an ancient pagan holiday co-opted by Christianity as having been Jesus' birth is plainly not one.

More on Establishment, Public Reason, and the Lemon Test

The three-pronged Lemon test, first used in Lemon v. Kurtzman to overturn state laws funding the teaching of secular subjects at parochial schools, states that a law is one respecting an establishment of religion, and therefore unconstitutional, unless it

• has a secular legislative purpose;
• does not have the primary effect of either advancing or inhibiting religion; and
• does not result in an excessive entanglement with religion.

Conservatives don't like this test, and have basically managed to persuade the Court to abandon it, though never declaring that Lemon has been overturned. One thing to note about this test is that the first part, requiring secular legislative purpose, is awfully similar to Rawls' idea of public reason. You can enact a statute with a religious motive, according to this test, so long as you can also justify it using public reason alone. (Of course you still might fail the latter two prongs.) I like this requirement very much, for the following reason. Suppose the state enacts a law that could not possibly be defended under public reason, a law which could not possibly have been introduced in the legislature, in good faith, by someone lacking in any comprehensive doctrine and knowing only the public reason. What does this mean?

It clearly means that the state is not using public reason! Instead we can see that the state's internal motivation for its action must be derived from some comprehensive doctrine, or some class of such doctrines. And this means that the state itself has subscribed to a comprehensive doctrine, or some class thereof. But what on earth is an establishment of religion if not the state's subscribing to a particular religious doctrine, or a particular class of religious doctrines? Suppose that New Jersey passed a law saying "The State of New Jersey believes in the divinity of Jesus Christ." This would be plainly unconstitutional, right? Even if it doesn't have any tangible effect on anyone directly, this is an establishment of religion. But when the state passes a law that one cannot possible support without believing in the divinity of Jesus Christ, that law contains, implicitly, the above statement. It is therefore just as unconstitutional, every bit as much an establishment of religion. One can broaden the statement, perhaps maximally to "the State of New Jersey believes in God." That's invalid, therefore anything which could not be supported without that belief is invalid. Prayer to open legislative sessions, or court sessions, or whatever: invalid. "In God We Trust" on the money: invalid. "Under God" in the Pledge of Allegiance: invalid. All of these things declare that the government, not just the people, believes in god. And the government is not allowed to believe in god, even if every single one of its officials does.

Public Reason and Holiday Displays

John Rawls has this idea of public reason. In a pluralistic society, says Rawls (also assuming that we are and always will be in a pluralistic society), people have lots and lots of different so-called "comprehensive doctrines," religious, political, or moral philosophies that inform the entirety of a person's worldview. If two people holding different comprehensive doctrines try to conduct a discussion with each other, each one making arguments based thoroughly on their comprehensive doctrines, they might as well be speaking different languages, and will end up talking past one another. So Rawls has his idea of the overlapping consensus, which is roughly speaking the set of values that can be endorsed by all reasonable comprehensive doctrines in a society. Any member of pluralistic society, then, can assume that any other member of that same society will share the values in the overlapping consensus. Public reason consists of arguments made in terms of those consensus values, i.e. public reasoning means arguing in terms that any random member of society who does not share your comprehensive doctrine could share.

Rawls' big idea (okay, one of Rawls' many big ideas) about the terms of public discourse in a pluralistic democracy is that, while it is perfectly acceptable to make arguments in the public discourse which are rooted in one's comprehensive doctrine (typically but not exclusively a religion), when you do so you have to make sure to back up your doctrinal arguments with some arguments at public reason. Otherwise, why should anyone else in the society listen to you, except those who happen to share your comprehensive doctrine? Martin Luther King's A Letter from Birmingham Jail is a masterpiece of this method, moving back and forth between explicitly religious arguments addressed to his nominal audience, a group of white clergy, and secular arguments that track the religious ones and tend toward the same conclusion.

So, here's my thought about this notion of public reason. An absurdly big deal in Establishment Clause litigation (I have a presentation to give on the Establishment Clause this week!) is what kinds of holiday displays by the government are acceptable. A Christmas tree? A menorah? A nativity scene? What's the limit? Well, I have a theory: the appropriate rule is that there should be a good public-reason argument for setting up any holiday display. A Christian wants to put up a nativity scene because of their comprehensive doctrine. I, an atheist, have no reason to want a creche on government property, and I have a hard time imagining an atheist who did want one. But I, a random member of society presumed to lack a comprehensive doctrine, have plenty of reason to want a Christmas tree put up. For one thing, Christmas trees are absurdly pretty. For another, look, maybe Christmas is in some sense an important religious holiday, but it's a much, much more holiday in its purely secular component. Hell, there has historically been a War on Christmas, but it has always been waged by zealous Christians who believed the holiday insufficiently religious. Likewise Hanukkah: the ratio of Americans who "celebrate" Hanukkah to American Jews who actually celebrate Hanukkah is quite large, simply because the number of American Jews is tiny while Hanukkah is a pretty big-deal secular holiday. So we have plenty of public reason to want trees (which are pagan anyway!) and menorahs, but as best I can tell it's hard to find a public reason for the nativity scene.

Oh, and there's always a public reason to celebrate any religion that lets you eat chocolate or give presents.

Note to Republicans re: Herman Cain

Apparently Republicans and Republican-leaning independents believe, 55%-39%, that the allegations of sexual harassment against Herman Cain are not a serious matter. Moreover, 69% say the situation will not make a difference in how likely they are to vote for Cain for President, and the remainder split just 23%-4% as to whether it makes them less or more likely to support him. (Honestly, 4%? Allegations of sexual harassment make you more likely to support the guy?) Now, okay, on one level I get it. If we were in the general election, and it were Cain vs. Obama, and I agreed more with Cain on the issues than with Obama (which is emphatically not the case), I'd vote for Cain. I'd vote for him despite the improprieties in his past. For a more substantive example, there have been lots of allegations of sexual misconduct against Bill Clinton throughout his life. If I had been eligible to vote in 1992 or 1996, even knowing everything about Clinton's sexual misconduct that we know now, I'd've voted for him over Bush, Dole, and Perot, practically without a second thought.

But, uh, Republicans, you do know it's not the general election yet, right? And, um, that Barack Obama guy you claim to be so desirous of kicking out of office? He would be cackling for a week if you nominated a guy who, on top of already being Herman "9-9-9" Cain, Herman "Bad-Pizza Mogul" Cain, Herman "Ubeki-beki-beki-stan" Cain, has also been accused of sexual misconduct. No incumbent President would dare pray for an opposing candidate that weak on paper, because it would be an unreasonable request. You couldn't possibly expect to be that lucky. Seriously, how do you not get that, when the matter at hand is who you want to be your party's standard-bearer, a history of sexual impropriety is something you want to avoid?!?

The All-Encompassing Equal Protection Clause

One of my grandfather's books, Structure and Relationship in Constitutional Law (which I recently read for the first time), consists in large part of the exercise of arguing that most or all of the content of the Due Process and Equal Protection Clauses (and perhaps Privileges and Immunities, too, if it weren't so diminished by case-law) would be contained in the Constitution even if those Clauses had never been written into it. Likewise he argues that the First Amendment freedom-of-speech right, at least as applies to its 'core' of political speech rights, would be properly read into the Constitution even if the words specifically granting the right were lacking. He uses his "structural" reasoning form, in essence arguing that the structure our Constitution establishes, that of a federal republic, and the relationship of citizen contained in the first clause of the Fourteenth Amendment require, between the two of them, rights to political (and quasi-political) speech, due process of law, and equal protection of the laws.

It's a very interesting line of argument, and I think I basically agree with him about it, but whereas he wanted to take away the Equal Protection Clause and then reconstruct it from structure and relationship, I find myself drawn to seeing how much of the rest of the Constitution we can strip away and then reconstruct purely from the Equal Protection Clause. (All of this is on the assumption that we have good reasons to incorporate the Equal Protection Clause against the federal government as well as the states, which (under Bolling v. Sharpe) we do.) I think it's obvious that the Fifteenth and Nineteenth Amendments can be properly read into the Equal Protection Clause, and (in combination at least with the citizenship and Privileges and Immunities Clauses) so can the Thirteenth. More ambitiously, I think a lot of the First Amendment can be properly derived from Equal Protection. Certainly the Establishment Clause, which is construed as prohibiting any kind of second-class citizenship, or even 1A-level citizenship, constructed on the basis of religion. Equal Protection prohibits second-class citizenship on the basis of anything. If I were in a more ambitious mood or it weren't late at night (and me with seventy pages of reading to go before I sleep!), I might try to construct arguments for inferring the Free Exercise Clause or the protections of speech, the press, assembly, and petition from Equal Protection, although as Grandfather noted the latter protections can be largely derived just from the words "democracy" and "citizenship."

Since it comes after the First Amendment, I also think it's reasonable to view the Equal Protection Clause as modifying to a certain extent the content or structure of the rights in the First Amendment. In particular I think the Equal Protection Clause has interesting ramifications for the Free Exercise Clause, in that I'm pretty sure under Equal Protection if not under the Establishment Clause, as Scalia claims, government shouldn't get to discriminate against the class of non-religious persons. That statement has some import in considering the question of whether to grant religious exemptions to facially-neutral laws of general applicability: mustn't we also grant exceptions for secular conscience? And, if so, what is left of law? Cannot the pothead claim that his conscience demands that he smoke marijuana? And if not, how can we reject this claim, while accepting the claim by certain persons that their religion requires that they smoke peyote, and not in essence give a lesser set of rights to the non-religious?

Predicting the Future is Hard, Jose Reyes Edition

Today I read several things about the impending free agency of Jose Reyes. One of them said that an insider with the organization told the writer that the Mets have no intention of keeping Reyes, that their offer will be cursory. Later that same article claimed that, also on the basis of some kind of insider rumor "knowledge," that the Detroit Tigers plan on making a serious run at Reyes. Another article, predicting the destinations of 50 top free agents, predicted that Jose would find his way to Milwaukee, and also mentioned the Nationals, Braves, Phillies, Giants, Pirates, Reds, Twins, Rays, and Cardinals as teams needing shortstop help (aside from, obviously, the Mets in whom Reyes' departure would leave a gaping hole). What with Milwaukee's having declined an option on Yuniesky Betancourt, despite his awesome post-season run, I can't really argue that the Brewers might be serious players, but a) Reyes won't sign with a team that has Michael Bourn, as he would have to compete for the leadoff spot; b) the Phillies will not sign Jose Reyes; c) I have repeatedly heard that the Giants might be interested in Rollins (who might be interested in them) but definitely feel Reyes is out of their price range; d) the Pirates, Reds, Twins, and Rays are all just way too small-money teams to sign Reyes (as the article acknowledges); e) the Cardinals and Rafael Furcal have expressed mutual interest, though obviously not on the terms of the $12 million option the Cardinals declined yesterday; e) the Nationals also ought to lack the funds to go after Reyes, and they already have a passing-fair shortstop (though not one without his problems).

Finally, I read an article saying that Dave Dombrowski, the General Manager of the Detroit Tigers, stated in so many words at a press conference today that the team would not go after Reyes. Moral of the story? Prediction is hard, especially about the future. One guy says he has insider source that the Tigers are in, and then we get objective "outsider" confirmation that they aren't in. So far what we know is that the Mets haven't signed Reyes yet. Every single report I've heard, and there are lots of them, suggest that no one expects the Mets to sign Reyes during their exclusive negotiation period. It also seems like the "market" for Reyes will be surprisingly weak, with most of the teams anyone has suggested as potential landing spots sounding cautious if not skeptical if not uninterested. That's what we know. These facts are consistent with the idea that the Mets really have no intention of keeping Reyes, and will only make a perfunctory offer. They're also consistent with the idea that the Mets just don't want to outbid themselves, have every intention of going hard after Reyes, but don't want to make the kind of Piazza-esque offer that is so clearly better than anything else Reyes could get on the open market that it removes the desire to test said market unless they have to. If Reyes hits free agency on Thursday and discovers that there just aren't any teams interested in signing him to a seven- or even six-year deal, so that it's the Mets' five-ish-year offer versus other five-ish-year offers, then we'll start to see whether there is genuine interest between the Mets and Reyes in connecting at a reasonable price. Not before then, not on the basis of anonymous tips from so-called insiders, and not from such anonymous tips reported by people who have previously declared early and often that they don't think it would be wise for the Mets to bring Reyes back.