Stand Your Ground

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

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.

To Change Washington, Elect Women

[Note: This was submitted to the Herald-Leader but not published.]

If you want to fix Washington, elect women. It’s just that simple.

Many people are frustrated and deeply troubled by the bitter partisanship in the country and the widespread dysfunction in Washington that it has caused. There are all sorts of theories as to the cause, and lots of ideas about how to fix the problem (including mine). But the easiest and quickest way to fix Washington, to end the divisive partisanship, and to get government running properly again is to elect women.

When the government was shutdown in early October of this year, it was a bi-partisan group of women Senators who were able to work together and devise a plan that was marginally acceptable to both sides. This allowed Congress to fund the government and get it opened again. The Senators included Republicans Susan Collins of Maine, Lisa Murkowski of Alaska and Kelly Ayotte of New Hampshire, and Democrats Patty Murray of Washington, Barbara Mikulski of Maryland, and Kirsten Gillibrand of New York. Resolution of the budget impasse was just the most prominent example. According to a recent study, women are 31% more effective at advancing legislation in Congress than are men.

The success of women in government is not unique to the United States. According to some international studies, the more women in elected positions within a nation’s government, the fairer the political system, and the more effective the government. It is no coincidence that the nations with the highest standards of living – the Scandinavian countries of Europe – have the highest percentage of elected women in government, at just over 40%. Studies show that the more women in government, the more that rise to leadership in commerce and industry. This is important now that more women are college graduates than men.

The voters of Kentucky are fortunate to have a number of excellent female candidates running in 2014, particularly Alison Lundergan Grimes for Unites States Senate, and Elisabeth Jensen for Congress in the Sixth District in central Kentucky. Both are Democrats, as am I, so I realize that my reference may seem partisan. But that’s a problem for the Republican Party in Kentucky to address, not me. There are a number of intelligent, effective, and deeply conservative female politicians around the nation. This includes Governor Nikki Haley of South Carolina, former Secretary of State Condoleezza Rice, Senatorial Candidate Liz Cheney of Wyoming, and Representative Marsha Blackburn of Tennessee. All are committed conservatives, but all have admirable track records of effectiveness. They are partisan, but not the hard edged, bitter and pugnacious partisanship of many male politicians.

I’m not suggesting that all women politicians are wise and effective, because they’re not. And I am not suggesting that women are not overly partisan, because clearly there are some women that are as divisive and mean-spirited as men. There are ineffective women politicians on both sides of the political aisle, and bitterly partisan women across the political spectrum.

But the reality is that, in the main, women have proven to be more interested in working on advancing policies than in fighting over ideas. They are willing to cooperate when necessary, and compromise when appropriate. The Republican Party would be well advised to find more competent female candidates. But in the meantime, the nation will benefit by electing those women who are running now.

Nothing Funny About Nullification

State Senator Damon Thayer was on The Daily Show recently arguing that Kentucky had the right to nullify laws that it did not agree with. The show mocked Thayer, and plenty of other people have piled on, but it seems like a good time to actually address the issue of nullification.

Thayer’s argument was that the people of Kentucky did not vote for President Obama so they don’t necessarily have to comply with laws he supports. He also mention in an interview in the newspaper that he discussed the Tenth Amendment on the Daily Show, but that argument was cut.

The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Conservatives frequently argue that this amendment proves that the nation was envisioned as a federation, and that the states are equal to, if not supreme over, the national government.

The only problem with this argument is the Supremacy Clause, which says that “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land …..” Courts, including the Supreme Court, have consistently held that this provision means that Federal laws supersede state laws, and that the states cannot nullify federal laws.

States have long sought to nullify federal laws that they don’t like. In the early years of the nation southern states attempted to nullify federal laws regarding slavery that they opposed. The first attempt was the Kentucky and Virginia Resolutions, drafted and pushed largely by Thomas Jefferson and James Madison in opposition to President Adams’ Alien and Sedition Acts, that said the states had the power to interpret the Constitution and could not be forced to apply laws they found unconstitutional. Jefferson attempted to get other states to pass similar resolutions, but every other state rejected the idea.

There were numerous subsequent cases where the Supreme Court rejected the idea of state nullification of Federal Law. In 1809, in the case of United States v. Peters, 9 U.S. 115 (1809), the Supreme Court held that the state of Pennsylvania could not pass a law nullifying a federal court decision. In McCullock v. Maryland, 17 U.S. 316 (1819) and Osborn v. Bank of the United States, 22 U.S. 738 (1824) the Supreme Court held that states could not impose restrictions on the Federally chartered Bank of the United States. In Worcester v. Gorgia, 31 U.S. 515 (1832), the Supreme Court held that the state of Georgia could not pass a law making Georgia law applicable on Indian Territory, which is governed by federal treaty.

The “Nullification Crisis” involved an attempt by the state of South Carolina to nullify the Tariff of 1828 (known as the Tariff of Abomination) which imposed duties on imports of certain manufactured goods. The Tariff benefited the industrial Northern States, but hurt the South. South Carolina passed a law saying the Tariff was unconstitutional, and that the state would not enforce it. President Andrew Jackson, no friend of federal power, threatened to send in federal troops to enforce the laws, but the issue was resolved by a compromise Tariff bill.

The Court dealt with nullification and slavery in a number of cases, particularly involving the Fugitive Slave Act, which required free states to send slaves back to slave states. Pennsylvania tried to prevent enforcement of the law, but the Supreme Court said they could not nullify federal law, in Prigg v. Pennsylvania, 41 U.S. 539 (1842). The Wisconsin Supreme Court held the Fugitive Slave Law unconstitutional, but the U.S. Supreme Court overturned the Wisconsin decision, and also set out a detailed analysis of the idea of nullification. See, Ableman v. Booth, 62 U.S. 506 (1859).

The Civil War ended many arguments over the balance between state and federal power, but the issue arose again starting in the 1950’s, and the national government began to deal with civil rights for African-Americans. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court held that the ideas of equal protection in the Federal constitution superseded state laws segregating schools. Most Southern states were outraged, and they dredged up the theory of nullification. Arkansas passed a law that said that the state did not have to integrate its schools, and the federal government could not make them. The Supreme Court, in a 9 to 0 decision, said that the states had no power to nullify federal law. See, Cooper v. Aaron, 358 U.S. 1 (1958).

I find it troubling that conservatives are again trying to revive this long discredited legal theory. I also find it strange that conservatives, who are supposed to believe in and respect the lessons of history, are so ignorant of history.

A Tale of Two Programs

I was recently reading a blog post by a conservative commentator talking about using on line resources and on-line course to “fix” the “problems” with American higher education. Something struck me about this. There is no doubt that there are some problems facing the American higher education system, the main one being price, and certainly the availability of on line courses could provide greater access at lower cost. But the American higher education system is the best in the world. In fact it is the envy of the world. China and Saudi Arabia are trying to build new universities from scratch to mimic American universities. Students from around the world flock to the United States to attend our colleges and universities. And according to the Shanghai “Academic Ranking of World Universities” the vast majority of the top universities in the world are in the United States.

One could look at this and say that the market has spoken. The worldwide market for education has said that the higher education system in the United States is the best in the world. Despite this many conservatives hate it, and want to change it. On the state level many conservative state legislators are trying to strip funding from public colleges and universities. And at least two conservative governors, Rick Perry of Texas and Bob McDonnell have proposed plans to restructure state schools that most academics say will erode the quality of state universities.

So the United States has the best higher education system in the world, and conservatives want to change it.

Compare that with the American health care system. It is a system fraught with problems. Millions are uninsured and lack access to adequate health care services. They do have access to emergency health care services, but this drives up the cost of health care for everyone else. The cost of health care is rising far faster than the rate of inflation. The United States spends more per capita on health care than any other nation, yet we have a poor infant mortality rate and a relatively low life expectancy, particularly for a developed country. The cost of health care is a drain on the economy, and a competitive disadvantage for American businesses.

Despite these problems, conservatives oppose changing the system.

I’m baffled. Conservatives want to change the best system in the world, but don’t want to change a deeply flawed system. Weird.

Economists Agree: Immigration is Good for the Economy

Economists Agree: Immigration is Good for the Economy

Now we just need to get politicians on board.

A recent study indicates that most of the growth in the U.S. labor force over the next twenty years or so will be from immigration. The study also shows that immigration is good for the economy. This should not be a surprise since most economic studies show the positive effects of immigration. In fact the only people who disagree are conservative politicians.

This study also shows that most immigrants live in metropolitan areas. And for metropolitan areas to thrive they need to continue to be a magnet for immigration.

An article describing the study, with a link to the study itself, can be found on Quartz at Almost all Growth.

Security, Surveillance, and Privacy

Edward Snowden’s recent leaks revealed that the NSA (the National Security Agency) has been collecting information on every telephone call made in the United States. The NSA doesn’t listen in on the calls, but it does record the caller’s telephone number, the recipient’s number, and the duration of the call. The Director of the NSA, James Clapper, has confirmed that the NSA is, in fact, collecting this phone information.

The scope and extent of NSA surveillance of American citizens is troubling to say the least, and down right scary to say the most.

Republican Representative Justin Amash of Michigan has filed an amendment to the pending Defense Appropriations Bill that would end “blanket collections” of this phone information, and only allow collection of this data when someone is the subject of an investigation. Amash and an interesting group of liberals and conservatives are concerned that the government is going too far in collecting information on all Americans.

This issue raises important questions about balancing security and privacy. Most people agree that one of the main purposes of government is to protect the security of the nation, but is it possible to go so far in protecting security that it infringes the rights of the people? Certainly so. Clearly it might be possible to maintain the maximum level of security in a militarized police state, but it would no longer the nation our founder’s created. Individual rights, political liberty, and personal freedoms are core components of this nation. We should be loath to trade away any of those in a misguided attempt to protect our security. But most people are certainly willing to accept certain reasonable restrictions in a balanced and thoughtful attempt to gain some added level of security. So is the NSA program the former of the later?

The NSA says that they need to have all of this information so they can sort through it to see who is calling certain places (say the lawless regions on the Afghanistan Pakistan border) or certain numbers. The NSA says that in order to find the needle in the haystack, they need to be able to sift through the hay. The NSA also says that they have used this process to stop a number of terrorist attacks.

Rep. Amash and others say that the NSA is violating our right to privacy, but the courts have long held that there is no right to privacy in our phone records. We have a right to privacy in those things that we keep private, and have far less right to privacy in those things that are essentially not private. The question is whether there is a reasonable expectation of privacy.

The courts note that when we make a phone call we rely on the phone company, and today we rely on numerous phone companies. Once upon a time when we made a phone call we would call an operator who would connect us to the person we were calling. Clearly the operator knew who we were calling, and we knew that the operator knew. While phone companies have long since abandoned operators to connect phone calls, they still need to know where the call is coming from, and where it is going to, in order to make the connection. We give this information to the phone company in a trade off in order to reach our desired party. We may not realize that we are doing this, but we are. And, once upon a time, we used to get a phone bill that showed every number we called, and the duration of the call. This was standard on the old long distance phone bill. So we were aware, whether we appreciated it or not, that the phone company had this information. And if we were sharing this information with the phone company, then it could not be private.

The same holds true for e-mail (since we rely on our ISP and the phone companies to transmit the data) and snail mail (since the address on an envelope is on the outside for anyone to see).

I am concerned about this level of scrutiny and surveillance of the American people. It does smack of big brother. But I also recognize the need for searching through this kind of information. I think the better solution is not to kill the program, but to create better oversight. Perhaps there should be a Congressional Committee that can periodically review the operation of the program. I also think the Foreign Intelligence Surveillance Court (the secret court created to review requests for subpoenas to conduct investigations based on the data obtained from these broad surveillance programs) should have clear, and public, criteria for authorizing a subpoena, and should periodically publish information about how many requests are made, and how many are granted. And if it turns out that government agencies are abusing the program, then perhaps we should consider restricting it, or eliminating it entirely.

Science and Government Support

The Federal government has supported scientific advancement since Vice President Thomas Jefferson got Congress to fund Eli Whitney’s attempts to manufacture muskets with interchangeable parts. Whitney failed but government support for other continued until Sam Colt perfected it in the 1850’s.

The government has supported both practical and speculative science. The “space race” created a need for increasingly small electronics, and researchers working under government contract created the transistor and later the micro-chip.  Fear of massive infrastructure disruption in the event of a nuclear attack led to government funded research into the development of a fragmented communication system called ARPANET, which was the earliest form of the internet.

But beginning in the late 1980’s the Federal government spent less and less on support for science. In the last 25 years government support has been cut by fully half. The results have been most obvious in publications in scientific literature. Research from the US used to dominate, but now researchers from the European Union are now producing nearly as many papers as US researchers. And while US funding has declined, government funding in other nations has climbed significantly. China’s R&D spending is growing at 20% a year.

The reality is that scientific research will continue, but the US will no longer dominate as it had in the past. The problem with this is that scientific research often (very often) leads to new technologies, new products, and new businesses. Most of the world seems to understand this, which is why other nations are increasing government supported research. But a few people don’t seem to get it. And unfortunately those people — conservative Republicans — have an outsized influence in the American government. They are clearly being penny wise (watching every penny) but pound foolish.

Government support for scientific research has been an important component of American economic growth and supremacy, and I find it frightening that Congressional Republicans are willing to turn their backs on that history.

 

Can the Government Play Moneyball?

I just read an outstanding essay in this month’s Atlantic Magazine titled “Can Government Play Moneyball.” It asks whether the federal government can analyze the effectiveness of programs in the same way that baseball now analyzes the effectiveness of ballplayers. This means they are evaluated based on statistical data and verifiable criteria to judge effectiveness, and not hunches and wish full thinking. The authors, both former senior high level budgetary officials, one in the Bush administration and the other in the Obama administration (Orszag), describe their frustrations in trying to evaluate the actual effectiveness of programs, and disappointment that ineffective programs could not be killed because of political support.

The article is available on line here: Can Government Play Moneyball

The article notes that administrations since Clinton have tried to evaluate, on some level, the effectiveness of programs. Remember Clinton’s Reinventing Government? The Bush Administration established the Program Assessment Rating Tool, which the Obama Administration was continued. All of these efforts have identified government programs that simply don’t work, but in many cases, when the administration tries to defund the program, it runs into opposition for Congress. The article mentions two programs, one supporting individualized payments under Medicare, rather than bundling, and the other an after school education program, that were both shown, irrefutably, to be ineffective, but neither administration was able to kill the program due to opposition from Congress.

The article notes that the Bush program evaluated roughly 1000 programs, and 19% were rated effective, 32% were moderately effective, 29% adequate, 3% ineffective, and another 17% un-ratable due to insufficient data. I was surprised by these numbers. I would have thought that 10 to 15% of the programs would be ineffective, so I’m surprised that such a high percentage were at least somewhat effective.

The point is that government programs should be evaluated for effectiveness, and those that are not effective should be jettisoned. The problem is that there is never any provision in the bill creating a program to evaluate its effectiveness. The article suggests a number of proposals to address this defect. One proposal suggests that 1% of the budget of a program should be set aside for evaluation. The results of the evaluation can be used to improve the program if it needs it, or justify killing the program if it is proving ineffective. Another proposal, which New York Mayor Michael Bloomberg is using, is to make many new programs temporary, and they only become permanent if they prove their effectiveness.

I think that these are excellent ideas. Ineffective government programs should be eliminated, but their effectiveness should be evaluated based on valid criteria and good data, and not political beliefs and desires. I particularly like the idea of subjecting all new programs to a “probationary” period for them to prove their effectiveness. Government should not be wasting money (the taxpayers money) on programs that don’t work.