Thursday, June 25, 2009

Recent history

In the wake of the scandal regarding Mark Sanford's extramarital affair, many pundits are saying that Sanford can never be elected president. They are probably correct.

On the other hand, why should we be so certain that a southern governor who marries a woman from the northern suburbs of Chicago and then cheats on her can't make it all the way to the White House when the last southern governor who married a woman from the northern suburbs of Chicago and then cheated on her got elected president twice?

Wednesday, June 24, 2009

What time is it in Indiana? Whatever the hell time Washington wants it to be!

One of my brothers used to work in a Chicago office with a few employees who commuted to town daily from nearby Indiana. There apparently was a running gag going on in which the employees who resided in Illinois teased the Hoosiers over their state's time zone intricacies--most of the state is on Eastern Time but the areas close to Chicago are on Central Time, plus Indiana until recently didn't have Daylight Savings Time except where they did, etc.

Since my brother was also a big fan of the TV series The West Wing, this episode, not surprisingly, was one of his favorites. From the wikipedia summary:

"Much of the episode deals with the trio's attempts to get home; however, their journey is delayed by several mishaps (Cathy's car runs out of diesel, they board the wrong train, they miss their plane due to confusion over time zones, etc.) As their journey continues and Josh and Toby debate campaign strategy (eventually concluding that the election should be about the voters' everyday concerns, and not about Bartlet vs. Ritchie), the three of them are exposed to the culture of rural Indiana."

I think the episode concluded with Josh and Toby discovering that people in rural Indiana were apprehensive about having as their choice for President either Barbara Streisand's husband or the father of the guy on Two and A Half Men. By the way, I always thought the title of this episode was "What Time is it in Indiana?" and it probably should have been as that sounds a lot more interesting that "20 Hours in America."

But in thinking about the Constitution the other day--as I do a lot--something dawned on me. Why exactly is it that Indiana for years was permitted to exercise the power to say: "No thanks, the rest of America, we choose not to participate in Daylight Savings Time. It confuses our livestock too much."? (The time change really is confusing to the animals at my petting zoo; they don't understand why all of a sudden we're arriving to work, feeding them, or putting them into the barn for the night an hour earlier or later.)

To answer this, let's look at it the other way, top down instead of bottom up. Why does the federal government have the power to establish time zones and institute Daylight Savings Time in the first place?

If you check the Congressional findings of fact from 15 U.S.C. 260a (2007), you'll notice that there is no declaration such as "pursuant to the power of Congress to regulate commerce 'with foreign nations and among the several states' granted by Article I, Section 8 of the United States Constitution..." to let you know specifically what authority they are grounding this legislation on. I personally wish they would always do this; every single law in the United States Code should begin with a reference to its basis in the Constitution. Nevertheless, since the findings of fact end with mention of the benefits of "expanded economic opportunity" and "extension of domestic office hours to periods of greater overlap with the European Economic Community,'' and since the law appears in Title 15, entitled "Commerce and Trade," it's safe to assume Congress is exercising its authority under the Commerce Clause here.

Then again, Article I, Section 8 also empowers Congress to "fix the Standard of Weights and Measures" and it certainly doesn't seem a stretch to say that time is a kind of measure. So Congress could just cite that constitutional authority as a reason why they can create time zones or enact Daylight Savings Time. Or they could argue that both constitutional grants of power are relevant here. The point is, it's pretty clear that the federal government isn't stretching it to say they can decide what time it is in Indiana.

So why did Indiana prior to 2005 get to say "Hell no, we won't go!? Or maybe more appropriately, "This is a crock, don't change our clocks!"

The answer is that Indiana could ignore Daylight Savings Time not because they said they could, but because the federal government said they could. From 15 U.S.C. 260a:

"(1) any State that lies entirely within one time zone may by law exempt itself from the provisions of this subsection providing for the advancement of time, but only if that law provides that the entire State (including all political subdivisions thereof) shall observe the standard time otherwise applicable during that period, and (2) any State with parts thereof in more than one time zone may by law exempt either the entire State as provided in (1) or may exempt the entire area of the State lying within any time zone."

I find what comes right after that in the law somewhat amusing:

"It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section."

Uh... okay, you guys in Congress say it's your intent to supersede state laws except you just gave the states the authority to supersede federal law. Josh and Toby could have mused over that bit of bureaucratic weirdness while they were getting lost and stranded all over Indiana.

But Indiana and the other states can't ignore just any old federal law enacted pursuant to Congressional powers. For example, see 29 U.S.C. 206 (2007) the federal minimum wage law. Exceptions are made for Puerto Rico, the Virgin Islands, seamen, and agricultural workers--but unlike with the Daylight Savings Time law, there is no provision allowing a state to opt out of the legislation. Indiana has to pay what the other states pay.

Somewhere in Indiana there must be a business owner who would argue it's a bigger imposition on his operation to have to pay a set minimum wage every hour of every working day than to simply have to reset clocks twice a year. But the Supreme Court upheld the constitutionality of Congress setting a federal minimum wage almost seventy years ago, in United States v. Darby, 312 U. S. 100 (1941), so nobody is likely to get very far at this point challenging the minimum wage, although that won't stop folks like Walter Williams writing an article every year or so decrying the practice. My attitude, frankly, has always been that no matter what, you're GOING to have a minimum wage. It's just that if you don't let Congress decide what it is, the rate will instead be set in a boardroom in Oak Brook, Illinois, or Bentonville, Arkansas. I don't see that as an improvement.

But what about looking at this a slightly different way. What if Indiana reinstituted its dismissal of Daylight Savings Time, but then immediately after they did, Congress decided to amend the law, rescinding the offer to states to ignore the policy if they choose. In other words, in this scenario Congress would veto the Indiana law. Could they do that?

Well if they did, you know somebody from Indiana would challenge the legislation in federal court, making a Tenth Amendment argument that Congress was intruding on a prerogative of the several states. But I can't see how the Hoosier plaintiff could prevail. Not only would the feds cite United States v. Darby, they'd cite dozens of cases going back to McCulloch v. Maryland, 17 U.S. 316 (1819) in support of the proposition that when Congress has authority to act, their authority is exclusive.

Anyway, that's moot since Indiana now has Daylight Savings Time. The state also went for Obama last November and Indiana University hasn't won a Big Ten men's basketball title in seven years. So all three of the things that used to distinguish Indiana from the other Great Lakes states--no Daylight Savings Time, always voting for the GOP in presidential elections, perennial hoops champion--are by the wayside now.

Thursday, June 18, 2009

Words, meanings, and change

Have a look at this sentence from a letter James Madison wrote to George Washington, dated April 16, 1787:

"The great desideratum which has not yet been found for Republican Governments seems to be some disinterested & dispassionate umpire in disputes between different passions & interests in the State."

There are three words in that sentence that deserve comment. One is desideratum; how often do you run into that? I had to look it up; it means "something desired as essential." I don't think I've ever used it in a sentence.

The second word to discuss is disinterested. In The Radicalism of the American Revolution (1991), Professor Gordon S. Wood makes an important point:

"Republicanism... put an enormous burden on individuals. They were expected to suppress their private wants and interests and develop disinterestedness--the term the eighteenth century most often used as a synonym for civic virtue: it better conveyed the increasing threats from interests that virtue now faced. Dr. Johnson [in the first English dictionary] defined disinterest as being 'superior to regard of private advantage; not influenced by private profit.' We today have lost most of this older meaning. Even some educated people now use 'disinterested' as a synonym for 'uninterested,' meaning indifferent or unconcerned." (pp. 104-105).

If you didn't know the sense in which Madison used "disinterested," you might misunderstand his meaning.

Finally in the trio of words I call your attention to is "umpire." Talk about conveying a different meaning today. When you hear the word umpire--even if you're not a baseball fan--isn't the first thing that pops into your head a guy with a mask and a chest protector bellowing "STEEEERIKE THREE!" And you probably even know that there are three other umpires in a big league game, but somehow your first mental image isn't the man in blue at first, second, or third base, is it? It's the guy crouching behind home plate.

Merriam-Webster's online dictionary informs us that umpire originated in the fifteenth century. In other words, it was around for about four hundred years before it got the baseball oriented definition we regard as most familiar today. Webster lists the sports meaning second after "one having authority to decide finally a controversy or question between parties" which is obviously what Madison meant. We can deduce from this how easily the word came to be used in baseball, as the umpires there most certainly decide a question between parties.

But when you read the sentence Madison wrote, you have to remember that neither he nor Washington ever, even once in their lives, heard "umpire" and thought of some guy standing behind home plate at Wrigley Field, Turner Field, or Fenway Park. Baseball hadn't been invented yet. Nor can we in our heads truly recreate that experience--that is, hearing "umpire" and thinking of Webster's older, more general one instead of its newer, sports specific one.

And since Madison had a lot to do with the writing of the Constitution, it's important to acknowledge that even if you take the attitude that the Constitution should be interpreted literally, as it was written, there is always that little "umpire" problem. Some words just meant different things in 1787 than they did today.

Professor Randy Barnett made a very big deal of this in his 2004 book Restoring the Lost Constitution: The Presumption of Liberty. He took around a dozen pages (278-291) to discuss what the term commerce meant to the folks back in 1787. That's significant in the area of Constitutional interpretation because a whole lot of what Congress does they say they can do because of the power granted in Article I, section 8 "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Even things that seem as distantly related to commerce as the 1964 Civil Rights Act or the Animal Welfare Act are passed pursuant to a congressional finding of fact that somehow interstate commerce is involved. Here's how it's phrased in the opening salvo of the Animal Welfare Act:

"The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce..." (7 USC sec. 2131).

Probably the only thing less common than a sentence with the word "desideratum" is a sentence with the word "commerce" used three times.

Anyway, if President Obama is successful at pushing through a government health care plan, the final legislation will no doubt be proceeded with some mutterings about how this relates to commerce, because Congress has those powers and only those powers granted it by the Constitution, so they have to locate authority for universal health care somewhere, and you know it's going to be the good old Commerce Clause.

In Randy Barnett's book, he takes great issue with this, the notion that Congress can hop on the Commerce Clause and ride it anywhere. He shows--pretty convincingly, actually--that in the founding era commerce meant only "to trade or exchange" and that this is all Madison and his colleagues meant when they put the word into the Constitution. Using commerce to also embrace activities of manufacturing, agriculture--or health insurance--is a gross expansion of that original meaning. In that sense, what has happened with the word commerce is the opposite of what's become of umpire. While the most familiar meaning of commerce has expanded, today's most common definition of umpire represents a contraction of the potential meanings of the word.

But I'm not sure in the area of constitutional interpretation that we should look for fixed meanings of words in 1787. Or, for that matter, in 1868 when the Fourteenth Amendment was ratified. In ruling school segregation unconstitutional in Brown v. Board of Education, Chief Justice Earl Warren wrote:

"The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty."

True. But looking at it in a somewhat different vein, so what if even a majority of people in the nineteenth century looked at the phrase "No State... shall deprive any person within its jurisdiction the equal protection of the laws," and thought that sending black children to separate schools than white ones was not running afoul of that command? That doesn't mean that by 1954 the very same words "equal protection of the law" couldn't have come to mean a quite different thing, making school segregation unconstitutional.

I think whenever the debate centers around whether we have a "living" Constitution or not, it's all too easy to forget that we do, unquestionably, have a Constitution that is written. It's composed of words.

And words change. So the same text that existed in 1787 might conjure up different meanings in 2009.

Friday, June 12, 2009

Had we but world enough and time/ To blame everybody but the shooter for the crime

According to her entry on wikipedia, conservative commentator Ann Coulter was born in 1961. Women lie about their ages all the time, so maybe she was born in 1960, which would serve her right since the country elected a Democrat as president that year. But regardless, I'm reasonably certain Coulter hasn't yet seen her fiftieth birthday.

James W. von Brunn, the madman who opened fire at the Holocaust Museum in Washington, D.C. earlier this week, is eighty-eight. If wikipedia has the date of his birth right, he was born in the summer of 1920, which means he began his unfortunate stay on planet earth before Warren Harding was in the White House.

This also means that von Brunn was forty before Ann Coulter was born, and he was in his seventies before Coulter became famous.

Once in a while you'll see on late night TV one of those B science fiction movies from the fifties or sixties in which dinosaurs are shown together with cavemen. Of course, if you have the most modest education on earth's history, you know that the dinosaurs had been extinct for tens of millions of years before people came along. But the movie maker, of course, didn't really care about this timeline, he just wanted to show an iguana, photographed to look gigantic, chasing an attractive woman in a mini dress made out of bear skin.

Similarly, Michael Rowe of the Huffington Post doesn't care about the von Brunn--Coulter chronology. To him, it's not relevant that James von Brunn was already a senior citizen, with hardened attitudes towards Jews, blacks, and anybody else who didn't fit his definition of the human race, well before anybody had even heard of Ann Coulter. Rowe is anxious to find somebody to blame for von Brunn's despicable act, and apparently it's too simple to just accept the fact that he was an evil man with a long history of violence, so he began his commentary on the shooting with a diatribe against Coulter:

"Ann Coulter, the self-described "conservative Christian" right-wing talking head, is much on my mind as I contemplate the horrifying images that came out of Washington from the Holocaust Museum, where white supremacist James von Brunn opened fire in an attempted mass-murder of Jews. His killing spree was cut short by security guard Stephen Tyrone Jones who put himself in the line of fire and died so others might live.
I am remembering an
October 2007 segment of the Donny Deutsch Show where Coulter asserted that America would be better off if everyone was Christian and that "the Jews" merely needed to be "perfected" through conversion."

To state the obvious first, how does an "award winning journalist and author" as Rowe's biography on Huffington Post declares, sit down two days after the tragedy, write "Ann Coulter is on my mind because of the Holocaust Museum shooting," and not immediately edit himself?

There are probably scores of commentators who might in the fury of initial composition write such a thing, but most have the sense to look at what they just penned, say to themselves "You know, that's not really an appropriate thing for me to say" and hit delete. Rowe went ahead with that sentence, composed several more paragraphs around that theme, and then posted it.

Some of you may be jumping up and down and saying "Oh yeah? Well what about the inappropriate things Coulter has written?" But of course, that begs the question why Rowe wouldn't say to himself, "I don't want to be hateful; unlike SOME commentators I could name," and immediately depress the delete key. The irony is that in calling Coulter hateful he comes across as particularly mean-spirited himself.

But back to the whole timeline point, you will notice Rowe doesn't mention that von Brunn was eligible for social security before Coulter ever showed up on TV. To hear Rowe tell it, you'd think von Brunn was an impressionable teenager who never read anything but Coulter's Treason.

Rowe snarls about Coulter's TV appearance in which she spoke of Jews being perfected. But if you think saying something like what Coulter did is the cause of the museum tragedy, and you pay as little attention to the timeline as Rowe does, you might as well hold English poet Andrew Marvell, who died in 1678, responsible for the shooting.

One of Marvell's best known poems is "To His Coy Mistress." It contains these lines:

"...I would
Love you ten years before the Flood;
And you should, if you please, refuse
Till the conversion of the Jews."

My now thirty year old college anthology includes a footnote to these lines that reads "According to popular chronology, the Jews were to be converted just before the Last Judgment."

Rowe probably won't write a post arguing that English professors are partly to blame for von Brunn's dark act because they teach Marvell's poem with its line that today seems anti-Semitic. But by bringing up Coulter, he surely has placed a foot on that slippery slope.

See, the minute somebody commits a heinous act and you start looking around for somebody other than the perpetrator himself to pin it on, there's no end to accessories to the crime. James von Brunn got his degree at Washington University in St. Louis, he served in the U.S. Navy Reserves, and he worked in a Madison Avenue advertising agency--and once again, he did all these things long before Ann Coulter was even a gleam in her parents' eyes. So should we look closely at von Brunn's contacts, the people who actually influenced him in college, in the navy, and in the workplace to see if any of them have some culpability in the shooting? By Rowe's logic, we should--but even he isn't going to follow through with that logic because he wants to slam Ann Coulter and not Washington University. (By the way, since von Brunn got his degree in journalism, he no doubt had to take a few literature classes and might very well have been required to read "To His Coy Mistress.")

You will notice that at the top of Rowe's post are hyperlinks to take you to articles concerning the keywords "George Tiller" and "Bill O'Reilly." Same song, different verse. Some people are trying to hold O'Reilly responsible for the reprehensible shooting of Tiller. No doubt there is also a crazy right-wing blogger or two out there blaming the slaying of Private William Long on Keith Olbermann, the Daily Kos, or some other liberal source that has bitterly decried the war in Iraq.

Enough, everybody. Can't we all just accept the fact that there are some hideously evil people in the world who would find an excuse to cause pain and misery regardless of what anybody else thinks or says?

Thursday, June 11, 2009

Constitutional powers and the people

The pollsters at Rasmussen issued these findings the other day:

...(T)he latest Rasmussen Reports national telephone survey found that 44% believe the Constitution doesn't place enough restrictions on the government. Only 10% hold the opposite view and say the nation’s governing charter places too many restrictions on government. Thirty-eight percent (38%) say the balance is about right."

I don't know what to make of a poll like this. Notice that the only requirement Rasmussen had of the people they interviewed was that they be voters. At the risk of sounding like an elitist, I'm pretty certain you'd get a more valuable expression of informed opinion if Rasmussen asked each person they call three quick, simple questions about the Constitution itself, and then only if all three are answered correctly would the pollster continue and ask whether the document gives the feds too much power or not.

What sort of questions should be used as a screening device? Not anything challenging; I wouldn't ask "True or false: Thomas Jefferson wrote the Constitution" because you'd trip up more people than you would want to exclude from the polling. I'd suggest queries that are simple enough everybody should remember them from high school civics: "What do we frequently call the first ten amendments to the Constitution? Who does the Constitution say is the Commander in chief of the armed forces? According to the Constitution, how many Senators is each state entitled to?"

If somebody can't get those three questions right, I'm not sure I'm impressed with their opinion whether the Constitution gives the government too much power, too little power, or is just right.

Wednesday, June 3, 2009

Not illegal anywhere in the good old USA

"On June 11, 1958, Justice of the Peace Robert W. Farmer issued arrest warrants to law enforcement officers of Caroline County at the complaint of the county prosecutor, Bernard Mahon. Mahon, acting on an anonymous tip, alleged that the Lovings had, on June 2, 1958, 'unlawfully and feloniously' left the state with the purpose of marrying and returning to cohabit 'as man and wife against the peace and dignity of the Commonwealth of Virginia.'

"Three policemen... entered (the Lovings) unlocked house in the middle of the night and shone flashlights in Richard's and Mildred's faces. Sheriff Garnett Brooks demanded of Richard what he was doing in bed with 'that woman.' Richard didn't immediately speak, so Mildred answered, 'I'm his wife'... The newlyweds were charged with unlawful cohabitation and taken to the jail in nearby Bowling Green...

"Richard's warrant was executed during a visit from Brooks on July 13. Mildred's was executed four days later. Both pled not guilty to the charges. Because Richard was white, he was bailed out of jail after only one night, while Mildred, referred to as 'a Negress' by the county attorney, spent four more nights incarcerated until her hearing. Although Richard protested, he was told that if he tried to bail her out, he would have to return to prison." -- Newbeck, Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Henry Loving, 2004, pp. 11-12.

"Sally voted 'Yes' in the Legalize Same Sex Marriaige Poll. Join the 32,236 people who have already voted." -- Note that came over the "News Feed" section of my Facebook page yesterday.

It would be desirable to see another poll taken to determine how many people know there is only one "i" in marriage...

This is a matter of semantics, but I wish at least people in the media would get this correct. Gay marriage is legal in all fifty states. There are, however, only six states in which gay marriage is recognized. (New Hampshire just joined the club.)

The difference is actually pretty substantial. I live in Georgia, in the Heart of Dixie. A close lesbian friend muttered to me recently that this is the last state in the union where she will be able to marry. (Oh come on--we'll have it before Alabama and South Carolina at least!)

But another friend of mine a couple of years back was a guest at a local gay marriage. See, you can do that here. A gay couple in Atlanta can set a date for the ceremony. They can send out engraved invitations to friends. They can rent a hall. They can pay a preposterous amount of money for a cake. They can register for gifts at Bed, Bath & Beyond, and let's face it, if it's two gay men that's probably where they met. They can find a nice Unitarian minister to conduct the ceremony; Unitarian clergy have time on their hands since they don't spend time hearing confessions or dunking any one's head into water. And when it's all over, the happy couple can go live in a loft in Midtown.

And at no point in this scenario will the gays experience anything like what the Lovings--the couple who successfully battled to overturn Virginia's law making interracial marriage a felony--went through. Yes, it really was a felony. On page 224 of Newbeck's book she reprints the relevant law in Virginia at the time: "If any white person shall intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

Where the gay Atlanta couple of today is concerned, no justice of the peace will issue an arrest warrant based on an anonymous tip received from the Fulton County prosecutor. Atlanta cops won't be shining flashlights into any body's faces in the middle of the night. Nobody is getting incarcerated for four nights like Mildred Loving, or even for one night like Richard Loving.

Every day here in Atlanta, warrants are issued, doors are kicked in, and arrests are made to bring to justice those who engage in illegal behavior--murders, rapes, battery, auto theft, etc. "Illegal" is the antonym of "legal." Two gays sending out invitations and sharing a condo is not illegal. It's just that if they choose to apply the name "marriage" to the relationship between them, there's no paper with the official seal of the great State of Georgia saying, in effect "this meets the minimum standard we set for defining matrimony." There simply is a world of difference between saying marriage is illegal in Georgia and saying, more correctly, that marriage is not recognized in Georgia.

You may notice, however, that this distinction is seldom made.