Some Are More Equal Than Others

The LA Times covers Mitt Romney's Hamptons fundraiser:

A New York City donor a few cars back, who also would not give her name, said Romney needed to do a better job connecting. "I don't think the common person is getting it," she said from the passenger seat of a Range Rover stamped with East Hampton beach permits. "Nobody understands why Obama is hurting them.



"We've got the message," she added. "But my college kid, the baby sitters, the nails ladies -- everybody who's got the right to vote -- they don't understand what's going on. I just think if you're lower income -- one, you're not as educated, two, they don't understand how it works, they don't understand how the systems work, they don't understand the impact." (bold mine - JMG)

While quotes like this are not that surprising, it is no less nauseating to see the well-to-do parade around their own high-minded opinion of themselves. Even worse — in my mind — is the heads I win, tails you lose logic to it; if you're poor, you're not educated enough to make the decision I agree with, and if you're educated like me, you'll vote for the candidate that wants to slash Federal investments in education[1], among other things.



[1]From the CBPP:

The cuts that would be required under the Romney budget proposals in programs such as veterans’ disability compensation, Supplemental Security Income (SSI) for poor elderly and disabled individuals, SNAP (formerly food stamps), and child nutrition programs would move millions of households below the poverty line or drive them deeper into poverty. The cuts in Medicare and Medicaid would make health insurance unaffordable (or unavailable) to tens of millions of people. The cuts in non-defense discretionary programs — a spending category that covers a wide variety of public services such as elementary and secondary education, law enforcement, veterans’ health care, environmental protection, and biomedical research — would come on top of the deep cuts in this part of the budget that are already in law due to the discretionary funding caps established in last year’s Budget Control Act (BCA).

Constitutional Originalism and Linguistic Plasticity

This is something I have been meaning to write for sometime, and now that the Affordable Care Act has been decided, and we've just celebrated our nation's 236th birthday, I think it's the appropriate moment to give it a try.



Supreme Court Justice Anton Scalia, well know from his originalist streak in Constitutional analysis, gave an interview last January. He made the point that as far as he reads the Constitution, women have protections against discrimination inherent in the original text.

You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society. (bold mine - JMG)

Reading Scalia's response, one of the immediate thoughts that jumped into my head was that the justice's instance that “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box” breaks down with various groups in society are not enfranchised to use said ballot box. I mean, yes, it is very simple and elegant when all you need is to persuade you fellow citizens about what you believe to be the proper policy or representative; but when the issue is about fundamental rights like suffrage or equal status under law, then no, it's not simply just "a legislature and a ballot box." Agitation for fundamental protections (like say, the legal ability to have a spouse) almost always requires cultural shift. In other words, it is really easy for Scalia to glibly extoll on the virtues of the democratic process, when the entire apparatus of the democratic system favors his European, heterosexual male viewpoints.



Linking this back to questions about how much 'original intent' plays into judicial interpretation, I am really bothered by Scalia's lack of recognition to the plasticity of language. Dr. Steven L. Taylor touches on this in a recent essay.

The words simply do not mean the same to readers now as they did then. Not only has the language itself changed, but the way we comprehend the world is different. Regardless of one’s view of the ACA, the fact of the matter is that the word “commerce” means something different to a person in 2012 than it did to a person in 1787. Consider the following terms and do a quick mental trip through time: “war,” “army,” “arms,” “Commander-in-Chief,” and so forth. Beyond the specific words and their meanings over time, there is much in the Constitution that is simply vague. What, pray tell, is (to pick a big one) “the general welfare”?

Concepts like "who 'citizens' are?", or "what does 'equal protection under law' mean?" are legally important (and discrete), but very philosophically abstract. The intent of the phrase "all men are created equal" was really really groundbreaking at the time it was made, but today its originalist meaning of enfranchising only white, male landowners strikes me (and, I would hope—most) as hopelessly patriarchal. To me there's a bit of intellectual cowardice in the insistence on being exclusively concerned about original intent, because it is a real failure to engage messy concepts like context and viewpoint. Sure, the Founding Father's didn't intend for women to be enfranchised citizens; but that's highly related to the fact that we were still fighting wars over enlightenment concepts like individual self-determination and representative government.



Just because we had a prevailing understanding of a word in 1776, it does not follow that we should preserve this understanding in amber for all time, for all generations of Americans to be subject to. The context of the Constitution's development, and the viewpoints of its writers should be very pertinent to our current interpretation of the document's meaning, but we need to reconcile how the diversification of legal and intellectual perspectives advances the core ideals of the United States Constitution; namely a government of the people, by the people, for the people.

My President

More Gateway Sexual Activity

Just a quick update, just to prove I'm not making anything up. Newsy has put together a well sourced compilation on the story, and it includes actual people who actually think the law is a good idea.







The one thing I am really struck by, is how uncertain everybody seems to be when it comes to actually defining what "gateway sexual activity" is. The bill itself is described as one intended to make sure Tennessee's sex education classes remain focused on abstinence[1], and seems to penalize educators who encourage non-abstinent behavior or contraceptive use. Representative John DeBarry, a supporter of the bill explains:

“I think you and I both would know when we’re looking at a kiss, and when we’re looking at, for lack of a better way of saying it, someone who is trying to open the door to more activities,”

Somewhat related, TIME states that

Some detractors argue that it could unreasonably punish teachers for allowing students to cuddle, hold hands or even hug, whether in the halls between classes or at a school dance.

Even after Barry's explanations, we're right back where we started; with a bizzare tautology that makes a person liable or condoning an activity that is literally defined as condoning said activity. If all the bill's supporters have is vauge allusions to door-openings and and "more activities", then I'm not quite sure how this will withstand even the most cursory legal scrutiny.



[1] Surprise!

Social Networks and General Speech

We invest a lot of time and money into making communication faster, and our communication gadgets fancier. I don't think this is a bad thing at all, but I am also not convinced its is wholly a good thing either. I get text messages and e-mails sent to a device I carry in my pocket, a fact that continues to ever so slightly blow my mind. The internet and smartphones certainly improve people's efficiency and productive capacity.
But it also provides more opportunities to share things that aren't necessarily 'ready' for sharing, or weren't really meant to be shared in the first place. I continually resist the urge to share the latest cute cat picture on Facebook because, well, they're are enough cute cats all over the internet. Private thoughts tend to be best left to private places, and I think we're still working on what is private as participants in this developing world of social media.

Near the end of chapter 13, Vonnegut creates an extended section of Kilgore Trout fiction[1], which describes something remarkably similar to our current trajectory. In the fictional universe of Trout's novel, people from earth can gain steady work across the galaxy as "language teachers". Why? Well:

The reason creatures wanted to use language instead of mental telepathy was that they found out they could get so much more done with language. Language made them so much more active. Mental telepathy, with everybody constantly telling everybody everything, produced a sort of generalized indifference to all information. But language, with its slow, narrow meanings, made it possible to think about one thing at a time—to start thinking in terms of projects. (198 emphasis mine - JMG)

Some of you may remember an essay I wrote about Arendt's The Human Condition, in which I probed some of Arednt's ideas of 'the public sphere'. Arednt was specific on how speaking or thinking the public sphere entailed of shaping one's thoughts for public consumption, and more specifically;

[...] that everything that appears in public can be seen and heard by everybody and has the widest possible publicity (50 emphasis mine - JMG) 

Now, I want to make a few qualifications here; Arendt is talking about publicly available communications (in a political context). Vonnegut/Trout is envisioning an existence with universal mental telepathy, where all thoughts are by definition public. While I don't think we're anywhere close a grim future where we're all plugged into each other, a la The Matrix, but more and more communication tools are in the business of encouraging personal disclosure (e.g. Facebook, twitter). We are certainly entering a period of redefinition of what thoughts are acceptably public or private, and I do think that Vonnegut's imagination should serve as a cautionary example of unfettered exchange.

[1] Vonnegut's use of science fiction within his own fiction reminds me of Alan Moore's "Tales of the Black Freighter" within Watchmen.

A Man of Principle

Massachusetts junior Senator Scott Brown has thrice voted to repeal the Affordable Care Act, but he has told the Boston Globe that "of course" he includes his 23-year-old daughter on his congressional health plan.



For those who are unfamiliar with the details of health law and policy, prior the the Affordable Care Act, the health insurance industry's standard was that dependent children were no long eligible for coverage under their parent's plan upon college graduation.



As someone who only has insurance coverage because of the current Massachusetts law, and could only get coverage in other states because of the national law, I find Sen. Brown's callous insistence on voting to revoke healthcare coverage for his constituents, while glibly acknowledging how he and his family benefit form the very law he supposedly opposes on deep philosophical grounds, to be a microcosm of everything wrong with conservative legislators.

Gateway Sexual Activity

New name for a rock band? No, just the latest from Tennessee's legislature.



Once again the party of 'limited government' and 'personal responsibility' looks for new ways to legislate individual sexual conduct. The bill itself defines such activity as:

(7) “Gateway sexual activity” means sexual contact encouraging an individual to engage in a non-abstinent behavior. A person promotes a gateway sexual activity by encouraging, advocating, urging or condoning gateway sexual activities;

According to The Tennessean, the bill passed the state's House "68-23, with all but one Republican for it."



I understand that the GOP's fundamental organizing base is evangelical christian networks, and that these type of bills make perfect sense from a strategic perspective. But this is becoming grimly comical. The bill passed the Senate 28-1 on April 5. This will be an actual law that actual Tennesseans will have to live with.