Hayek In the Rear View Mirror

February 16th, 2015

Friedrich Hayek is one of the patron saints of modern libertarianism. He wrote a book in 1944, called The Road to Serfdom, that predicted that western societies were going to fall sway to totalitarianism. He said that any level of economic planning would not work and so would require greater and greater government control, until inevitably, the government would completely take over.

It is a theory that is profoundly wrong, as even the most casual observation of the events since World War Two show, but one that still drives a great deal of modern conservative politics. Both Rand Paul and Paul Ryan are fans of Hayek, and both have stated that any government involvement in the economy is doomed to fail.

I analyzed this topic from the book in some detail in a recent article in Alternet. My title was Hayek in the Rear View Mirror, but they changed it to: Big Economic Theory Underpinning Libertarian Economics Is Total Baloney. Their title is more to the point, but mine was more poetic.

Minimum Wage and Unemployment

February 13th, 2015

Republicans consistently say that raising the minimum wage will hurt employment. If that is true it should show up in the overall employment data. If raising the minimum wage hurt employment then unemployment should go up after the minimum wage is raised. So the unemployment rate should be higher in the months after the wage is raised.

The following chart sets out the change in unemployment rate in the months after the minimum wage was changed.

Change in Unemployment and Minimum wage

[Here’s a link to a bigger version of the chart: http://thedisappointedoptimist.com/wp-content/uploads/2015/02/Change-in-Unemployment-and-Minimum-wage.pdf]

The national minimum wage was established in 1938. It has been changed 28 times since then. It has been raised 26 times, and lowered 2 times. Unfortunately the Bureau of Labor Statistics does not have data before 1950, so we don’t have records of the impact of the raise in the minimum wage before, but since 1950 the wage has been changed 26 times. It has been raised 24 times, and lowered twice.

If raising the minimum wage forces employers to lay off workers then the opposite should be true. Lowering it should spur hiring. But the scant statistics we have don’t really support this. The minimum wage was lowered from $1.25 per hour to $1.15 per hour in September 1964. The next month the unemployment rate was the same. It went down slightly, from 5.1% to 4.8 percent the next month, then up slightly to 5.0% the month after that. The wag was lowered from $1.60 to $1.30 in February 1969, but in the following three months the unemployment rate remained exactly the same at 3.4%. So, from the two statistically insignificant samples we have, lowering the rate doesn’t have much of an impact on hiring. But two data points are not persuasive.

Turning now to the twenty four raises in the minimum wage. Republicans make the claim that raising the minimum wage as an absolute, without nuance or equivocation. If that is true then the unemployment rate should rise every single time the wage is increased. But this has not happened. From the chart it is clear that the unemployment rate has gone down in many cases, in up in many cases. In the first month after the change, the unemployment rate went down ten times, and up eight times. So employment increased ten times after the minimum wage was increased, but it did decrease eight times after the raise. It stayed the same eight times. So the claim that raising the wage will, absolutely and without fail, lead to rises in unemployment is clearly not true.

One month is not a statistically valid sample, so I looked at unemployment over a three month period after the rate was raised. In most cases the rates jumped around a bit. In nine cases the unemployment rate went down and stayed down over a three month period. In seven cases in went up, and stayed up. In most other cases it jumped around. A few times it went up then down, and a few times it went down then up.

One important point to note: if you look at the unemployment rate charts of any year you will notice that they are constantly moving, going up and down. There are innumerably factors that impact the employment rate. These rates are “seasonally adjusted” so they take in to consideration the increased retail employment in November and December, and the increased construction employment in the summer months.

Based on this data I can say that raising the minimum wage does not cause unemployment. It is a canard. It sounds logical, but statistics do not support the contention.

Making Sense of Ferguson

January 29th, 2015

[This was recently published on CounterPunch under the title “The Police and the American Mind.”  My Original title was “The Thin Blue Line.”]

The only way to really make sense of the events in Ferguson, Missouri, and Staten Island, New York, is to understand two concepts. The first is that police believe themselves to be the thin blue line that stands between civilization and chaos. And the second is the “broken windows” theory of policing.

The “Thin Blue Line” is a common colloquialism for the police, but it’s more than that. It’s the way that the police, and many people in society, particularly conservatives, view law enforcement. Law enforcement is all that stands between civilization and chaos, the police are the Thin Blue Line that protects society from anarchy.

The “broken windows” theory was developed in the early 1980s by criminologists James Q. Wilson and George L. Kelling, who found that crime exists in every human society, but crime rates are higher where there are other signs of social disorder. In areas where there are broken windows, for example, there’s a sense that no one cares about the physical infrastructure of society, and that lack of concern trickles up. Vandals break more windows, then maybe break into the building, possibly even burn it down. These little crimes go unreported and unpunished, and so more crimes occur. The result is that there is not only more petty crime in dilapidated areas, but more serious crime. So Wilson and Kelling said that society should spend more time on the small stuff. Fix the windows, scatter the panhandlers, arrest the turnstile jumpers. Deal with the low-level crimes and the more serious crimes will come down.

The police in New York City began to take this approach in the mid-1980s. They went after graffiti artists, panhandlers, toll jumpers and the like, and instituted a zero-tolerance approach to most petty crime. As a result, crime came down, and in some cases significantly. Times Square went from a mecca of porn theaters, prostitutes and drug dealers to a tourist haven. Based on this success, the broken-windows concept spread across the country. Police began to see low-level crime as the first sign of anarchy, a potential the crack in the dike that protects civilization from a flood of crime. Petty criminals aren’t just sad sacks filching cigarettes, they’re the advance guard of social decay.

You can see this theory at work when you watch the video of five police officers confronting, taking down and killing Eric Garner. To those of us watching the video, Garner’s only crime was selling loose cigarettes. But to the police he wasn’t just some petty criminal, he was a broken window, the first sign of anarchy. And anarchy must be confronted with a phalanx of officers.

Read Officer Darren Wilson’s grand jury testimony about his confrontation with Michael Brown: Brown wasn’t some kid who may have snatched a handful of cigars from a convenience store. He was a “demon.” And Officer Wilson knew in his bones that he was all that stood between that “demon” and civilized society. And so he acted accordingly.

The view of the police as the thin blue line between chaos and civilization permeates our society. Flip on your TV and watch “NCIS,” “Bones,” “Criminal Minds,” or reruns of “Law and Order.” What these shows all have in common (beyond wooden acting and a high body count) is the view-point that law enforcement is all that stands between civilized society and a wave of crime.

Local news is dominated by fires, car wrecks and crimes. And in virtually every news story there are lots of flashing lights and at least a few police officers trying to repair one of the cracks in society.

We have all internalized this idea. So have the citizens who sit on grand juries. They know that the police are the thin blue line. And even if they don’t think about it in those terms, a district attorney or county prosecutor is there to remind them. The prosecutor may say something like: “Those officers put their lives on the line every day protecting you and me. They need tools to deal with dangerous situations and dangerous people. And they need to be afforded the discretion to deal with those dangerous situations.” So the grand jury grants them that discretion. They afford them the leeway to protect society, which means that they weigh the situation, the deadly encounter, in favor of the police officer and against a potentially dangerous person. The result is that Officer Wilson in Missouri, and Officer Daniel Panteleo in Staten Island, New York, are not charged.

Many people see this and say that it is racism. And so the thin blue line intersects racial lines. There is no denying that black Americans are arrested, prosecuted and incarcerated at a much higher rate than whites. Blacks make up about 12 percent of the population, but account for roughly 37 percent of the prison population. So on first blush it appears that blacks may be more prone to crime than whites. But if you cut the numbers differently and correct for wealth and poverty, the numbers equalize somewhat. This plays out across all crimes, but is seen most clearly with drug crimes. While five times as many whites use drugs as blacks, according to a NAACP report, African Americans are incarcerated at ten times the rate as whites. And while the violent crime rate is much higher overall for blacks than whites, it is similar for blacks and whites of similar socio-economic levels. So crime is largely a product of poverty not race. This leads back to the broken-windows theory. Poor neighborhoods are often dilapidated, and there is a good deal of petty crime. And so while blacks are no more likely to use drugs or commit crimes that whites, they are more likely to live in poor neighborhoods, and so are treated based on the broken-windows theory and punished harshly.

The result is the perception, based on arrest and incarceration rates, that blacks commit more crimes than whites. Police deal with this on a regular basis. They see the broken windows and the petty crime of poor black neighborhoods, they know the “broken-windows” theory of criminology, and they put two and two together. So when they see a black guy on the street potentially engaged in a petty crime, they don’t really see Michael Brown, they see a representative from the world of broken windows. They think they’re being even handed, but their vision is obscured by facile theories about broken windows and clichés about thin blue lines.

And so when the police, and conservative commentators, see people protesting events in Ferguson or Staten Island, they see a number of things. First, they see the police as being unfairly accused of racism. But more importantly they see a direct challenge to how the police do their job, about how they protect civil society. The protestors are questioning how the police man the ramparts, how they patrol streets fraught with chaos. The police, and their supporters, don’t see protestors raising legitimate concerns about how to protect society; they see people who are naïve to the dangers that face society. They see the protestors as deluded about the steps necessary to keep anarchy at bay, and trying to fray the fabric of the thin blue line. And so conservative commentators respond with outrage, and the police respond in riot gear.

Does Government Only Worsens the Problems it intends to fix?

January 4th, 2015

“Government intervention never works but in fact prolongs and worsens the problems it is intended to fix.” Senator Rand Paul

I came across this quote recently while doing some research on Republican’s views of “The Road to Serfdom,” by Friedrich Hayek. Hayek is the intellectual forefather of much conservative thinking on government intervention into the economy. Paul’s statement was published in an essay he wrote for The Intercollegiate Review, a magazine for college Republicans. It is available on line at Rand Paul’s Challenge to Students.  The essay is a year old, but it seems to encapsulate Senator Paul’s hostility toward the government.

So how accurate is Paul’s statement? Does government intervention make things worse? There is no doubt that government can often be ineffective and bumbling. We see examples in the paper every day. But does that mean that government only makes things worse when it tries to fix a problem?

Let’s think about a couple of examples here in the United States, to test this theory.

After the Second World War, President Eisenhower decided that the nation had a transportation problem, and he proposed a government program to fix it. The problem was that it was extremely difficult to drive from one side of our country to another. Eisenhower had recently commanded a military force that pushed from the shores of France deep into Germany, and done much of that on Europe’s road system. Eisenhower decided that the United States needed something similar, and proposed our interstate highway system. This system is now fully built. Did it worsen the problems of national transportation?

There’s no doubt that highways have created a bunch of unanticipated problems. These range from expanding urban sprawl to the demise of small towns as commerce moved to the nearest Interstate exit. But did the government intervention into the national transportation system “prolong and worsen the problem it intended to fix” as Paul flatly states. Nope, not even close.

Here’s another example. During the creation of the nation the founders felt that it was important for the government to establish a system to protect inventors and creators, to allow them to profit from their creations as a way to spur innovation. And so they included a provision in the Constitution, and Thomas Jefferson established the United States Patent Office. Did the patent office “worsen the problem it was intended to fix”? Not even remotely. The United States has the most dynamic and innovative economy in the world, largely because of the way we protect intellectual property.

But clearly these aren’t the kinds of things that Paul and other conservatives are talking about when they condemn government action. Mostly they’re talking about welfare and economic regulations. So, do these programs make things worse? It’s hard to analyze if you only focus on this country, but far more clear if you look at all the nations of the world.

Put simply, those nations with robust welfare systems have far less poverty than those nations that don’t. Just compare Western Europe with South America, or Africa. And well regulated economies are far more productive than lightly regulated economies. Compare the OECD countries (the 20 richest countries in the world) with most of the rest of the world.

Obviously there are outliers. There are a few remaining communist countries, like Cuba, Burma, Cambodia, and North Korea, and their economies are in shambles and their people in poverty. Clearly total government control of the economy as a means to ameliorate poverty does not work. But modern Western economies, with sensible regulation, are doing extremely well.

I’m sure conservatives will say I’m cherry picking positive examples, or creating a straw-man argument. But Paul said “government intervention never works.” He didn’t qualify it. I’m just holding him to his own words.

One of the knocks against Conservatives is that they are clueless about history. But they don’t seem to know much about the modern world either. Are they really unaware that countries without welfare systems are third world nations mired in poverty? Don’t they realize that countries without effective governments are chaotic failed states? Don’t they ever look at the world and see that countries with welfare systems have far less poverty than countries that don’t? Or don’t they see that the economies of the richest nations are regulated, while unregulated economies are pathetic?

I think that there are at least two causes to this problem. The first is that Fox News doesn’t do much international reporting. So Senator Paul doesn’t ever learn what goes on in the rest of the world. And he knows that his supporters don’t know either, so he can get away with making these statements. The other problem is the idea of American Exceptionalism, which allows conservatives to ignore the lessons from rest of the world. But the rest of the world exists, and it can teach us many valuable lessons. And one of those lessons is that government can fix problems.

Two-year-old Shoots Hole in NRA Theory

January 1st, 2015

On December 30, 2014, in Hayden, Idaho a two year old shot and killed his mother. The woman was shopping at Wal-Mart, with the boy and her purse in the shopping cart. She had a license for a concealed handgun, and the gun was in her purse in a special zippered pouch for a concealed weapon. Her son reached into the purse, and the gun fired, killing the woman. Presumably they boy was playing, and just thought it was a toy, or maybe it was a tragic accident and the child inadvertently hit or squeezed the trigger. The news story is not clear on the details. [Here’s the Story from Fox News .] But ….

According to a favorite gun advocate slogan, “Guns don’t kill people, people kill people.” The idea behind the slogan is that murder is intentional, and if someone is intent on killing they will do it with whatever tool is available. The slogan strongly implies that every killing is intentional, and if a gun is not available the killer will use something else. So, according to this theory, if that toddler in Idaho hadn’t used a gun he would have killed his mother with something else. Perhaps he would have toddled to the auto supply section and grab a tire iron to bash in his mother’s brains. But clearly that idea is as absurd as it is sick. The child obviously had no intent to kill his mother (and will undoubtedly be traumatized by it for the rest of his life). Had the gun not been in his mother’s purse he may have played with her car keys or cell phone, and she would be alive today. So clearly it was the gun that killed the woman. The gun killed the woman, not the child.

Every year roughly 30,000 Americans are killed by guns. (See, http://www.gunpolicy.org/firearms/region/united-states) Of that, roughly 10,000 are murdered, 19,000 commit suicide, and between 500 and 1,000 are killed accidentally. [The Wikipedia Entry for Gun Violence in the United States has a good overview of these numbers.] In 2011, the last year for which data is available, 32,163 people were killed by guns. Of that 19,766 committed suicide, 11,101 were murdered, and 851 were killed by accidental discharge of a firearm. [The CDC Data is here, in Table 2 ] There is no way to know about the 10,000 murders, and it is likely that if the murderer did not have a gun he would have used something else. (I say “he” because men commit 95% of all homicides. I apologize to the female murderers out there for my sexist language.) But it is worth noting that there were 4,852 murders by other means in the United States in 2011, so some would have been committed by other means. But just as clearly it is not true of those 500 to 1000 “accidental” gun. The two year old in Hayden Idaho had no intent to kill his mother, nor did the three year old in Arizona who shot his 18 month old brother, or the three year old in Oklahoma who killed his mother. Just Google “toddler shoots…” parent or sibling and you’ll get dozens of hits of small children inadvertently killing a family member. (It’s really disconcerting.) There is no way to know what percentage of the roughly 500 to 1000 accidental deaths each year are kids killing a parent, but clearly it happens with some frequency. Other leading causes of “accidental” gun deaths are people cleaning guns, and showing off with guns. But in every one of those accidental cases there was no intent to kill.

That means that between 5% and 10% of all non-suicide gun deaths each year are accidental, with no intent to kill. And this means that in 5% to 10% of all non-suicide gun deaths each year it was the gun and not the person, that did the killing. So guns do kill people.

The NRA and gun rights advocates may not care about logic, and they certainly don’t care about the roughly 1000 people killed accidentally by guns each year. They believe that their rights, or rather their warped idea about those rights, are more important than the lives of a thousand people a year. Those people are merely collateral damage, statistical blips, background noise lost in the chatter of silly slogans.

Ten Books that Changed My Life

January 1st, 2015

Someone posted this prompt on Facebook: what are the ten books that changed your life? Most people just listed ten books, but as I thought about it for a while, I decided that each might benefit from a brief explanation. Anyway, here’s my list:

1.   The Rise and Fall of the Third Reich, by William Shirer.

Before I read this book in my junior year in high school I thought that history was boring and meaningless. This book first cured the boring part. It was the first history that I’d read that read like a novel. It was (after the first 100 pages or so) fast paced and full of action. It was also not meaningless, perhaps because a number of my uncles had served in the War. Before reading this book I couldn’t stand history, after reading it I couldn’t get enough of history. I even got a master’s degree in history because of it.

2.   Crime and Human Nature, by James Q. Wilson & Richard Hernstein.

Are people basically good or basically bad? That’s really the wrong question. The right question is: how do people really behave? What do statistics about crime and human behavior tell us about human nature? According to this book, about one third of all young men will commit a crime when they are young, but only about 5 to 10 percent of all males are criminals – susceptible to long term nefarious and illegal behavior – and about 1 to 2 percent of all women (and for women a large percentage of crimes are committed at the behest of men). This means that most people are good most of the time, but it does mean that a few people are really bad. This should influence how we deal with other people, and approach crime control, and has many other public policy implications. But for me this insight changed how I thought about humanity.

3.   Carnage and Culture, by Victor Davis Hanson

Why does Western Society dominate the world? According to Jarred Diamond, in his book Guns Germs and Steel, it is a bit of a fluke. But according to Hanson, who wrote this book in response to Diamond’s book, the reason is because of the Greek tradition (that dominates the Western world) of rational thought, free inquiry, and democracy. It is not because of Guns, Germs, or Steel. It is not a fluke. It was because the West had developed the ability to think honestly about problems and find the best solution. So the West was able to exploit gunpowder (which had been invented in China for entertainment purposes, i.e. fireworks), and exploit printing (which had been invented in China for decorative purposes) to transmit knowledge. The West was able to exploit Guns and Steel. This concept had a significant impact on my views about world history, culture, and political philosophy.

4.   The Autobiography of Maxim Gorki.

This book combines the pathos of Dickens with the joyous boyhood adventures of Mark Twain, but a dash of clear eyed realism from a master Russian realist. I discovered Gorki from Bukowski (see below), and loved his short stories. When you read them, or this autobiography, you will understand why the Russians rebelled, and perhaps get a glimpse of how it descended first in to utter chaos and then into extreme repression.

5.   Burning in Water, Drowning in Flame, by Charles Bukowski.

Bukowski blew my mind. I didn’t know you could say those things in print, and in funny and entertaining poetry to boot. Bukowski also introduced me to Gorki in his autobiographical novel “Ham on Rye.”

6.   American Caesar: Douglas MacArthur 1880 – 1964, by William Manchester.

Manchester is a brilliant writer, and in this book he had a stake in the game. He felt that General MacArthur saved his life. General Douglas MacArthur was a fascinating guy and lived an amazing life during an epic time in history, so this book covers a lot of ground. I learned about the War in the Pacific (during WWII) from this book. I also learned what it means to chose your battles. MacArthur won in the Pacific by only fighting on those islands that he absolutely needed, and simply ignored the rest. Manchester was a Marine scout in the war and knew that he and probably hundreds of thousands of fellow soldiers (American and Japanese) would have died had MacArthur followed the advice of some and fought on every island.

7.   The Amazing Adventures of Kavalier and Clay, by Michael Chabon.

I read a lot of fiction. I might not be obvious from this list, but I do. Somehow in the early 1980’s the more high-brow literary fiction became overly internal, maudlin, and uninteresting and difficult to read. (My sister blames Ray Carver.) This was one of the first modern works of literary fiction that read like an old time action adventure story. It reintroduced my to contemporary literary fiction and showed me what it could do. That said, I still love Graham Green and Thomas Hardy.

8.   Liberating the Gospels, by John Shelby Spong.

To truly understand Christianity you have to understand the Bible, and to understand the Bible you have to understand when, why, and how it was written. Once you understand that, its difficult to believe in ideas like literalism, infallibility, and divinity. Once you understand the development of the Bible, and the development of Christianity, you can see through the fallacies of the views of fundamentalist Christians.

9.   The Science of Liberty: Democracy, Reason, and the Laws of Nature, by Timothy Ferris.

Modern political liberalism developed contemporaneously with the scientific revolution. They actually developed hand in hand, with ideas from one feeding ideas in the other. The same ideas of reason, rationality, deduction and free inquiry that drove new ideas in science also drove new ideas in political philosophy. These changes and discoveries also drove the economy. History shows that open, rational thought (i.e. liberalism) leads to scientific advances, democratic government, and a growing economy. (There are shades of Hanson’s Carnage and Culture within,)

10.   Great Expectations by Charles Dickens.

This is my favorite novel. I felt that I had to include at least one novel simply because I liked it. And it had to be either Dickens or Hemingway, since those are my favorite writers, and for some reason (see Gorki above) I have a fondness for coming of age stories, so that left Hemingway out (his coming of age stories are all short, and collected as the Nick Adams stories). David Copperfield is a close second, and few literary characters are more memorable that Uriah Heep, but overall I like this best.

And Therein Lies the Problem

October 4th, 2014

For evidence that conservatives live in a fantasy land, look no further than the current conflict over teaching American history in suburban Denver.

Recently a Republican school board member in a suburban Denver county offered a proposal for a panel to review the teaching of American History, and called for instructional material that presented “positive aspects [of American history that] promote citizenship, patriotism … respect for authority and respect for individual rights. See, Denver Post, Jefferson School Board.  But the proposal also said that the materials should not “encourage or condone civil disorder, social strife or disregard of the law.” [http://www.denverpost.com/news/ci_26601519/jeffco-school-board-curriculum-committee-idea-latest-divisive ]

The Jefferson County School Board member who presented that proposal is named Julie Williams, and is a member of a prominent and politically active conservative Republican family. [http://www.denverpost.com/news/ci_26620327/jefferson-county-public-schools-faces-crisis-over-school]

Others have written a great deal about the dangers of white washing history, and that is certainly true. But the real problem here is the glaring internal contradiction in these particular conservative goals. Their two goals – (1) teach patriotism, which undoubtedly in their minds includes reverence for the founders, and (2) discourage teaching anything that would promote civil strife, social disorder or disregard for the law – are mutually contradictory. The reason is that this nation’s founders were revolutionaries. They emphatically disregarded the law, they actively sought social strive, and encouraged civil disorder. So a lesson in patriotism, a lesson about the founders, will be a lesson in civil, social, and political disobedience.

The inescapable conclusion is that Ms. Williams, and the conservative school board members and members of the public who support her, know absolutely nothing about American Revolutionary War history. I suspect that they know next to nothing about any other era in American history, but I don’t have the evidence to support that. But I do have ample evidence to support my claim that she, and many conservatives who think like her, know nothing of American colonial, revolutionary, and constitutional history. And yet they claim deep and abiding admiration for that history.

This is but one of the many contradictions inherent in the conservative belief system. There are many others. They claim reverence for the free market and equal abhorrence for the American media and culture, but the culture is the purest product of a free market. They revere capitalism and venerate traditional families, but it is capitalism that has destroyed the traditional family. The worship the modern economy and loath science, but the modern American economy is a product of science. The list goes on and on: that which they most revere has produces, time and time again, that which they most loath. No wonder they are angry and troubled. And therein lies the problem with American politics.

Stand Your Ground

August 15th, 2014

According to a newly released report by a commission of the American Bar Association, stand your ground laws hinder law enforcement, and states that have enacted stand your ground laws have seen an increase in homicide.

Here’s a link to the ABA Press Release: States with stand-your-ground laws have seen an increase in homicides, reports task force

Here’s a link to the full report: ABA Stand Your Ground Report

I will weigh in after I have had a chance to read the full report, and not just the press commentary on the report.

Well Played

June 29th, 2014

Thoughts on the Marriage Equality Rulings

I’ve been hearing interesting tidbits from the many Federal Court cases around the nation striking down various state restrictions on Gay Marriage. Recently a Federal Court in Wisconsin struck down that state’s ban on gay marriage, and in the opinion the judge addressed the argument that the state should have the right to support “traditional marriage.” Polygamy, the Judge noted, was once considered a traditional form of marriage. When the 10th Circuit Court of Appeals struck down Utah’s ban on gay marriage it spent some time discussing the burden on the children of gay parents who are unable to marry.

Federal courts across the country are consistently striking down bans on gay marriage, and the rulings have contained detailed Constitutional arguments. Issues of equal protection under the Fifth and Fourteenth Amendments have been analyzed historically, legally, theologically, and philosophically. But, as noted, a wide variety of other issues have been addressed. It seems like nearly every conceivable argument against allowing gays to marry has been analyzed and rejected.

It is as if the courts are making some sort of coordinated effort to address every possible legal, political, or practical argument against gay marriage. If one court misses an issue, or a new argument is raised in the media or the courts, another court adds it to its ruling. Are the courts working together, colluding somehow?

It may seem like it, but the reality is that it’s the litigants that are engaged in the broad and comprehensive strategy. Here’s a little secret that most people don’t know. Judges don’t always write the Court’s opinions. They often crib their rulings from the legal briefs of the winning party.

Here’s a little bit of information on how a case works. Before trial both sides write a joint trial brief setting out the facts that are agreed and the law that they agree apply in the case. In these gay marriage cases the controlling law is obviously the Fifth and Fourteenth Amendments, and whatever state law is at issue. Many of the basic facts in the case will also be agreed upon, such as the date the various restrictions were enacted. Both sides also submit trial briefs setting out their interpretation of how the law should apply in the case. The judge, or more commonly the judge’s law clerks, will typically do independent research to verify the law cited by the litigants, but it is not uncommon for the judge to adopt the legal reasoning and arguments of the winning side. The judge is obviously convinced by their argument, so rather than spending the time to write lengthy ruling, the court often cuts and pasts arguments from the winning party. So the arguments that the judge discusses in the ruling are very often the arguments raised by the litigants.

So the fact that courts have addressed a wide variety of different arguments is evidence of a well-developed and highly coordinated legal strategy by the groups supporting gay marriage, including the ACLU, and an organization called Freedom to Marry. These organizations are undoubtedly addressing every possible argument in their trial briefs, and setting out detail legal and historical analysis of every possible issue. If they miss an issue in one case, or if a judge gives short shrift to an issue in one case, or if a new argument gets raised in one case, the issue gets briefed in detail in every subsequent case.

So, by the time the issue of marriage equality reaches the Supreme Court there will be detailed analysis and rulings from a multitude of jurisdictions. The Supreme Court is certainly not bound by the rulings of lower courts, but the Court does have to give serious consideration to these rulings. And it will find in difficult to overturn well-reasoned rulings with detailed legal and historical analysis. Well played.

Here’s a link to a good list of marriage equality cases: http://www.freedomtomarry.org/litigation

Here’s are a couple of recent court rulings, and some of the particular topics addressed by the court.

On March 21, 2014 a U.S. District Court in Michigan struck down that states ban on gay marriage as a violation of the 14th Amendment. The court spent some time addressing a study cited by the opponents of gay marriage by an anti-gay researcher named Mark Regnerus. The judge said that the study was flawed and “not worthy of serious consideration.”

On May 19, 2014 the U.S. District Court in Oregon held that Oregon’s constitutional amendment and statutes banning the freedom to marry violated the Equal Protection Clause of the 14th Amendment to the Constitution. The Judge in the case, Michael McShane said that the case is not merely about civil rights and equality under the law, but about love, devotion and family.

Just a few days later a U.S. District Court in Pennsylvania struck down that state’s ban on gay marriage. The judge in that cases compared the fight over marriage equality to the fight over education equality (and equality in general) embodied in the Supreme Court’s Brown v. Board of Education decision.

Doom … Doom I Say

June 17th, 2014

I’ve been listening to conservatives cry doom – doom, we’re all doomed – like a deranged Ghost from the “Christmas Carol” for most of my adult life. Conservatives have been saying for as long as I can remember that our society, or culture, our economy, our nation, all are doomed.

Carter must be defeated, or all is doom. 1980 was the first year I was able to vote for President, so I remember that pretty well. And since the election of Reagan in 1980 conservatives have cried doom … doom … all is doom. If liberals and liberal policies are not stopped, the nation, the economy, society, all of it is doomed. If Clinton is elected, we’re doomed. If Obama is elected, we’re doomed.

In the 1980’s we were doomed to defeat by the Japanese. In the 90’s we were doomed by rising China, and now were doomed by a mature China and the other rising BRIC countries.

But what’s happened since 1980?

Think about the modern economy, and what technologies dominate the modern world: computers, smart phones, the internet. Guess what: all were created in the United States (and to some degree in other supposedly ossified, sissified, corrupt Western nations – important advances in smart phone technology came out of Canada and Norway.) The modern economy was made in the United States. Virtually every modern advance was created in a nation that conservatives said was rotten and decaying.

The cries of doom over the last 35 years are as constant as night following day. Every few years a new doomsayer comes along. In 2010 it was the Tea Party, and their most prominent standard bearer, Rand Paul. Now there’s a new voice in the Republican Party, David Brat, the “economic” professor who defeated Republican Majority Leader Eric Cantor in Virginia. The singer may be different, but they’re singing the same old song: if liberals aren’t stopped, we’re all doomed.

It’s comical because it’s not only consistently wrong, but monumentally wrong.