Futures and Options

Or maybe not.

It seems that the FDA has ruled that Cheerios (yes, the General Mills breakfast cereal) are a “drug” and the media are having a field day with this.  On objective analysis it’s really a simple case of a governmental agency being a little bit pedantic in the way that governmental agencies tend to be.  The usual suspects on both sides, however, are desperately searching for ways to paint the actions as either ridiculous liberal nonsense that is all Obama’s fault, or as a great leap forward in public safety that Bush held back because he was a slave to corporate interests.

Obviously, this is neither, and, thankfully, most people understand that.  This is really just one of those rather comical situations that come up when regulations get byzantine and when there are grey areas in the law.  The FDA’s position certainly appears to be legitimate under a purely literal reading of the applicable laws, but this particular violation, despite being called “serious” by the FDA’s letter, strikes me as the equivalent of being pulled over for going 68 mph in a 65 mph zone; yes it’s technically against the law, but it is difficult at best to argue that there is any substantive risk to the public involved.

Meghan, Meghan, Meghan…

If this kind of behaviour keeps up, I’ll have no choice but to rescind that marriage proposal.  You’re only 24, so I’ll give you a break because of that, and everyone has their moments, but really you should have known better than to spout off in the middle of a room filled with reporters.

Think that you actually own the property you have a title to?  Well, think again.  The National Parks Service has just announced that they will begin condemning land surrounding the Flight 93 crash site in order to meet their “need” for a 2,200 acre memorial site.  2,200 acres.  For a single memorial.  As a comparison, the National Mall covers less than 310 acres, and contains the following:

• The Washington Monument
• The National Museum of American History
• The National Museum of Natural History
• The National Museum of Art Sculpture Gallery
• The National Gallery of Art
• The United States Capitol Building
• The Ulysses S. Grant Memorial
• The National Botanic Garden
• The National Museum of the American Indian
• The National Air and Space Museum
• The Hirshhorn Museum and Sculpture Garden
• The Arts and Industries Building
• The Smithsonian Institution Building
• The Freer Gallery of Art
• The Arthur M. Sackler Gallery
• The National Museum of African Art
• The National World War II Memorial
• The Lincoln Memorial

Mount Rushmore, gigantic faces carved into the side of a mountain, covers less than 1,280 acres.  But the National Parks Service has determined that the Flight 93 memorial requires 2,200 acres or roughly the same total amount of land as the city in which I grew up; a city of nearly 5,000 people.  I understand the desire to have a memorial at the Flight 93 crash site.  I even think that it’s a good idea.  But 2,200 acres is clearly ridiculous.

Even ignoring the acreage excess, the fact that the National Parks Service is reneging on earlier promises not to use eminent domain is unconscionable.  This is land that people have had in their families for generations.  Land whose confiscation would require, in some cases, the current owner to relocate his business, at great expense.  All because the National Parks Service cannot be satisfied with “only” 1,700 acres (more acreage already than the National Mall and Mount Rushmore combined).

We can all agree that the passengers on Flight 93 were indeed heroes, but these passengers were acting to defend the individual freedom for which this country stands.  Using the government to forcibly confiscate individual property is no way to honor the sacrifice that they made.

In an absolutely stunning turn of events today, it has been discovered that a model posed for a lingerie ad.  This is something that has, of course, never happened before in the history of mankind and the media are understandably shocked and dismayed by these actions.  Even though the photographs show less than the average woman’s bathing suit this model’s actions represent a clear danger to society’s moral fibre and the offending model and beauty pageant winner obviously deserves to be scorned.

Or maybe I’m over-reacting just a tiny bit.

Maine’s governor has signed a bill legalizing homosexual marriage.  Notably, the bill includes language that explicitly protects the rights of religious institutions to refuse to perform marriage ceremonies for homosexual couples:

3.  Affirmation of religious freedom.   This Part does not authorize any court or other state or local governmental body, entity, agency or commission to compel, prevent or interfere in any way with any religious institution’s religious doctrine, policy, teaching or solemnization of marriage within that particular religious faith’s tradition as guaranteed by the Maine Constitution, Article 1, Section 3 or the First Amendment of the United States Constitution. A person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal.

This is an excellent compromise as it grants homosexuals full access to the secular institution of marriage (with all applicable rights and responsibilities) while simultaneously protecting the freedom of religious groups to administer (or refuse to administer) the sacraments as they see fit.

People, this is how it should work.  No court-forced decisions.  Protection of religious freedom included with a change in secular policy.  If only the remainder of the states were this intelligent.

(In case anyone wants to see the text of the bill, it is available here.)

Cato has a very good opinion piece about Obama’s high-speed rail plan, something that has dropped off the radar screen for many in light of the recent (and wholly artificial) H1N1 flu hysteria.  Not content to leave the rail funding in only the “stimulus” bill (which has so much pork that it might as well be called sausage), there’s wasteful spending on “high-speed” rail in the 2010 budget as well.  The article does a fantastic job of noting the disadvantages of rail as opposed to the interstate highway system and sums things up quite beautifully:

Interstates paid for themselves out of gas taxes, and most Americans use them almost every day. Moderate or high-speed rail would require everyone to subsidize trains that would serve only a small elite. Which symbolizes the America that Obama wants to rebuild better?

Check out Randy Barnett’s proposal for a Federalism Amendment to the Constitution. You can post comments and see updated versions of the proposal here. Probably a fanciful exercise, but as Professor Barnett points out, “Stranger things have happened — including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.”

Yesterday’s New York Times article on Obama as a law professor offers much to consider, once you get past the author’s obvious love affair with the president’s so-called pragmatism. There are three points in the article worth discussing: (1) judicial pragmatism; (2) judicial minimalism; (3) potential nominees to fill Souter’s seat.

First, pragmatism. It may be a beneficial trait in a politician, but pragmatism is the antithesis of a proper judicial attitude. Pragmatism connotes a willingness to approach every issue with an open mind and a commitment to finding the best outcome for every problem, regardless of preconceived ideology. Obama is the quintessential judicial pragmatist, the article claims; he cares not a whit for “high theory.” In this regard, Obama’s pragmatism in this regard is equated with reasonableness. He does not always strive for the liberal or conservative outcome; he merely wants results that are reasonable in any particular case. Now, to be sure, no judge should strive for a liberal or conservative agenda in all cases, and of course every judge must approach each case free of preconceived notions of how that case should be resolved. But it does not follow that job of a judge is to consider what the most reasonable policy outcome of a case is, and decide the case on those grounds. The role of a judge is to apply the law – constitution, statutes, regulations, and prior cases – to the particular set of facts before him. Ideally, judges would be like calculators with robes and lifetime tenure: plug in the facts, plug in the law, and they would spit out the correct answer. And if the law you feed in is garbage, the answer you get out should be garbage as well; a judge is not free to tweak the input or the output simply because he thinks it smells bad. In the end, Obama’s disregard of “high theory” is simply a lack of firm commitment to the mandates of our legal texts. And let’s be realistic: the article’s implicit endorsement of pragmatism over “abstraction” is an implicit dig at the Court’s current champion of abstract high theory, Antonin Scalia.  The popular narrative of Scalia’s jurisprudence often grants that he is a principled jurist  but holds that his commitment to principle (in Scalia’s case, the “conservative” principle of originalist interpretation) comes at the cost of ignoring the real-life consequences of the Court’s decisions, which all too often hurt the little guy.  Scalia is too principled, it seems.   But a brief glance at his actual record quickly explodes the notion that Scalia’s principles always lead him to the “conservative” outcome.  For example, his commitment to the text of the Constitution and statutes have led him to be an unlikely champion of the rights of criminal defendants and terrorist detainees in Guantanamo (in the earlier detainee cases).  He didn’t decide those cases the way he did because he is a pragmatist; he decided them based on a principled reading of legal texts.

Second, judicial minimalism.  This one is trickier.  The article suggests that Obama is skeptical of the courts imposing too much social change all at once; the courts shouldn’t get too far out in front of public opinion, or they risk losing their legitimacy in the eyes of the public.  Fair enough.  As a descriptive matter, I think Obama is correct here.  The Supreme Court always enjoys a much higher approval rating than the President and Congress, partly because most of the really big political decisions that affect people’s lives don’t come from the Court.  The Court tends to make fewer people mad than the other two branches (with some notable exceptions).  But let us examine the presuppositions of Obama’s supposedly minimalist views, and how they relate to his views on pragmatism.  First, Obama’s view (or at least the article’s take on his view) is that some amount of social change is indeed within the province of the Supreme Court. As an abstract matter, social change is not part of the Supreme Court’s job description.  We typically leave that to the state and national legislatures.  Judges, by contrast, are supposed to judge – to compare the case they have in front of them to the socio-legal standards already enshrined in our Constitution and laws. Even a “minimalist” approach to social change is too much, if the texts at issue do not mandate it.  Conversely, the governing texts may legitimately require the Court to get way out in front of public opinion (Exhibit A: Brown v. Board of Education), and so an overly minimalist attitude might prevent a judge from doing real justice.  Bottom line: judges should not be minimalists any more than they should eagerly search for ways to impose.  They should simply go where the language of our legal texts lead them.

Finally, a word on the three possible nominees mentioned in the article:  Cass Sunstein, Elena Kagan, and Diane Wood. Notwithstanding the previous two paragraphs, I think all three are extraordinarily intelligent and highly-qualified for a seat on the Court.  They are legal thinkers who take ideas (dare I say “abstraction”?) and texts seriously, and in the vast majority of cases would perform their duties admirably.  (Full disclosure: I argued in front of Judge Wood during a moot court competition and have seen her on the bench several times; she is tough, well-prepared, and doesn’t let lawyers get away with anything.)  Conservatives will not agree with them on everything, but we need to have realistic expectations of any Obama nominee.  The President is owed deference on his nominations, as long as they are qualified, as Sunstein, Wood, and Kagan undoubtedly are.

It occurred to me yesterday as I was responding to a comment from the lovely Suzanna Logan that, while I have been critical of what she calls the “conservative core”, I have not, to date, provided a summary of my own positions.  While this is a very effective rhetorical tactic as it allows one to avoid the nasty work associated with actually defending a position of one’s own, I am forced to admit that it is rather disingenuous.  If I am going to criticize others, I, at the very least, owe them the courtesy of defining my own positions so that they can respond in kind.

So, Suzanna, I’ll let you decide if I was correct in defining myself as a RINO or not.  To the rest of you, this one is going to be long.  If you get bored easily, this might be a good time to go back to browsing FailBlog or LolCats.  In no particular order, here are the issues and a summary of my positions (list shamelessly borrowed from OnTheIssues.org, modified to suit):

• Abortion:  Personally opposed, but I agree with Roe v. Wade.  I support bans on late-term and partial-birth abortions (i.e. cases in which the fetus would be viable outside the mother’s body).  While I would never counsel anyone to choose an abortion, I have yet to be convinced that there is a valid secular argument for outlawing early-term abortions.  I recognize that this leaves me open to accusations that I am trying to be on both sides at the same time.  I am also admittedly not fully comfortable with the fact that, by holding this position, I am effectively endorsing something that I believe to be murder.  However, at the same time, while murder after birth is clearly destructive to a cohesive society in ways that have nothing to do with morality, abortion lacks the same clearly-demonstrable socially-destructive nature when viewed in a purely secular light.  Additionally, I cannot shake the thought that it might (note, might) be more merciful to prevent an unwanted child from being born in the first place than to bring the child up with the knowledge that he or she was never wanted.  On this last, however, I remain unconvinced either way.
• Budget and Economy:  A balanced budget is always preferable to deficit spending.  However, just as emergencies come up in personal life, so to do emergencies come up at a national level.  There will be times (e.g. during large-scale wars such as WWI or WWII, or during severe national emergencies such as Hurricane Katrina) when deficit spending cannot be avoided, but this should never be the normal condition of our national budget.  In cases where budget overruns are threatened, preference should always be given to reducing services over increasing taxes.  Borrowing money to cover budget shortfalls should be an absolute last resort, reserved for times when there are literally no other options available without catastrophic consequences.
  The economy functions best with the fewest regulations, but reality dictates that there be common-sense regulations for businesses.  For example, reserve requirements for banks are necessary to prevent banks from excessive lending, and usury laws are valuable to prevent predatory lending practices.  At the same time, any attempt to protect people from themselves will ultimately fail and regulations such as those that “encourage” banks to make risky loans or that restrict a bank’s ability to deny credit for financial reasons are ultimately more harmful than helpful.
• Unions:  While I support the right of workers to organize for the purposes of collective bargaining, I also support an employer’s right to fire and replace striking workers.  I strongly oppose the “union shop” laws in many states that allow a union to mandate membership as a condition to being hired into certain jobs.  Whether or not to join a union should always be an employee’s free choice and should never be a condition of employment.
• Civil Rights:  I have always believed that the only important thing about a person is his or her mind and I share Dr. King’s dream of a world where all people are judged by the content of their character and not by their race, gender, religion, sexual orientation, or any other irrelevant superficiality.  In light of this, I oppose any quota- or points-based affirmative action system.  I strongly support the right of legal restitution in cases where discrimination has occurred and I have nothing but contempt for those who would judge others by outward appearance.
• Crime:  I support the death penalty.  While I do not believe that the taking of a life should ever be considered lightly, I firmly believe that there are situations in which a person’s actions have been so extreme that there is legitimately no hope of rehabilitation.  I agree with the current system of automatic appeals and the difficulty involved with sentencing a criminal to death because of my belief that it should not be considered lightly.  I fervently believe in the principle that all people are innocent until proven guilty and, as a consequence, I do not support the issuance of “no-knock” warrants.  I believe that no-knock warrants endanger both suspects and police by increasing the chances of a law-abiding suspect being surprised and attempting to defend himself or herself from the invaders without knowing those invaders to be law enforcement agents.
• Drugs:  I neither use, nor endorse drugs.  However, neither do I support the current “war on drugs”.  I feel that the current “war on drugs” has consumed vast amounts of law enforcement resources that could be better used in other areas and that it creates criminals out of people who are, in all other aspects, law-abiding citizens.  While I understand, and agree with, the moral argument against recreational drug use, I do not feel that the enforcement of moral directives is the proper use of governmental and law enforcement resources.  I believe that the majority of so-called “recreational” drugs should be treated like alcohol; the substances themselves should not be absolutely proscribed, but there should be severe penalties for crimes committed while under the influence.
• Education:  I support school voucher systems and homeschooling options.  I believe that public schools have been severely over-extended by requirements like the “no child left behind” act which make it increasingly difficult for schools to hold back children who legitimately need to repeat a grade.  I believe that the “zero-tolerance” policies in place at many schools represent cowardice and an unwillingness to stand up for common-sense rules that don’t result in expelling children for carrying cough drops.
• Environment:  I believe that we need to continue the vast progress that we have made in reducing the environmental damage created by humanity, but I do not believe that the government is always the best option for enforcing this progress.  In some cases, such as the regulation of automotive emissions or quality standards for drinking water, I acknowledge the necessity for overarching governmental intervention.  However, I believe that plans that restrict consumer choice like CAFE or the recent mandate for compact fluorescent light bulbs are not proper uses of governmental intervention.  If there is truly a great need to reduce the consumption of a particular resource, the more efficient means of achieving a reduction in consumption is to increase the taxation of that resource rather than taking legislative action to mandate that consumer products meet certain efficiency requirements.
• Foreign Policy:  It is irrational to expect that any country or entity other than the United States will have the best interests of the United States at heart.  To this end, while we absolutely need to value and carefully consider the positions of other countries in international affairs, the United States must ultimately be its own arbiter regarding foreign policy.  I do not condone extended unilateral actions, but I fully support immediate and decisive action when there are real threats to the safety of the United States and its citizens.  Teddy Roosevelt was absolutely right when he said that the United States should, “speak softly and carry a big stick.”
• Trade:  I dislike protectionist trade policies because I believe that they reduce or eliminate the incentive for domestic companies to innovate.  However, I also realize that many countries lack the worker protection laws and living standards that increase the costs of American labor and I would support import tariffs based upon the worker conditions of the countries of origin in order to level the playing field for American labor and encourage companies to keep their manufacturing facilities in the United States.
• Gun Control:  I support the repeal of the Hughes Amendment to the Firearm Owners Protection Act which, if repealed, would once again allow the civilian purchase and transfer of newly-manufactured fully automatic firearms as long as all National Firearms Act provisions are met.  Obviously, I therefore also strongly oppose any attempt to reinstate the entirely ineffective “Assault Weapons” ban.  There is no support for the theory that law-abiding firearms owners are the problem and such restrictions only serve to infringe upon the rights of people who present no risk to themselves or others.  I support a national concealed carry permit system and I agree that firearms manufacturers should not be held liable for injuries or deaths unless those injuries or deaths are the result of a defect in the firearm’s manufacture.  Aside from favoring the repeal of the Hughes Amendment, I support the enforcement of current Federal gun control laws and believe that proper enforcing these laws is the best means of preventing criminals from using firearms.
• Health Care:  I strongly oppose nationalized health care because it will reduce the ability of American companies to produce innovative new treatments for disease through price controls and over-regulation.  Nationalized health care also restricts the available options for people who suffer from chronic disorders such as Rheumatoid Arthritis and, in other countries, has resulted in people with such disorders being forced to accept substandard treatments because of governmental decisions that more effective options are too costly for the limited number of people who would benefit from their use.
• Homeland Security:  I do not support warrant-less wiretapping of any kind.  I also do not support torture, though I recognize that the line between what is and what is not “torture” is difficult to define, especially given the psychological methods that are employed today.  Methods that cause “severe” distress in one subject may not produce much distress at all in another.  I do not take issue with stress positions, isolation, or sleep deprivation but I am uncertain about waterboarding and I understand why many people disagree with the latter practice.  Overall, I am inclined to believe that the entire issue would have been much simplified had we simply chosen a “take no prisoners” approach to combatants.  I also believe that such a decision would have had an even stronger deterrent effect than our actual actions.
• Immigration:  I support the enforcement of current immigration laws.  When my great-grandparents came to the United States in the early 20th century, they came here legally.  They followed the applicable laws and worked hard to build a better life for themselves and their offspring.  I like to think they were successful.  I also think that it is disrespectful to all legal immigrants when those who enter this country illegally are rewarded by being given a path to citizenship.  I believe that we should not grant automatic citizenship to children born in the US unless the parent(s) are in this country legally.
• Military:  I believe that a strong military is a necessity for any country.  I also believe that a volunteer military is superior to a military made up of conscripts.  It is an uncomfortable truth that we live in a dangerous world and because of this it is irresponsible for a country to unilaterally disarm.  I believe that our soldiers deserve the very best that we can provide for them and I strongly support programs such as the GI bill to help ensure that our men and women in uniform have access to as much opportunity as possible.
• Social Issues:  I believe that homosexual couples should have access to all the same secular rights and privileges that are available to married heterosexual couples.  There is a difference between secular marriage and the religious institution of the same name.  As long as churches are protected from discrimination lawsuits for refusing to sanctify homosexual marriages, I see no problems whatsoever with allowing the government to issue marriage certificates to homosexual couples.  I also support allowing homosexual couples to adopt children.  There is no evidence whatsoever to suggest that a loving homosexual couple cannot provide a positive and nurturing environment for a child.
• Science:  I believe that young-earth creationism is nothing more than a willful denial of mountains of scientific evidence.  Creationism and Intelligent Design have no place at all in Science textbooks or classrooms.  At most, such ideas belong in the World Religions chapter of a Social Studies textbook.  Presenting these ideas as legitimate scientific theories serves only to disadvantage students and to weaken an already eroded understanding of logic and the scientific method.
  Additionally, I support stem cell research and I believe firmly that it has the potential to yield significant medical advances within my lifetime.
• Religion:  I worship at a liturgical church every Sunday that does not find me on an airplane for my job.  When I am on the road I worship at many different churches, but I officially belong to a small Anglican congregation in the Pacific Northwest.  While I appreciate the Anglican liturgy, I do not always agree with the church’s positions and my own theological bent can best be described as the the sort of “de-mythologized” Christianity that is, I feel, best described by writers like Rudolf Bultmann and John Dominic Crossan.  I realize that this puts me on thin ice with many conservative Christians, but the bare fact is that I do believe, fervently, that Christ is God’s son and that he is indeed the propitiation for our sins.

Over 2,000 words later, you have it.  Me, in a nutshell.  If you believe that this makes me a RINO, so be it.  If you believe that this makes me a far right extremist, so be it.  It is, after all, only fair that I put a target on my own back after taking so many shots at others.