Cover the First Amendment in Whipped-Cream and Pasties

Now that it’s been called on its bullshit, the FCC wants a do-over.

“Today the Commission, supported by the ABC, NBC and CBS affiliates, filed a motion for voluntary remand and stay of briefing schedule in Fox Television Stations, Inc. v. Federal Communications Commission,” the commission said in a statement. “It did so at the request of broadcasters who complained they did not have the opportunity to be heard by the Commission before it issued its decision in its “Omnibus” order in March. Additionally, the remand would allow the Commission to hear all of the licensees’ arguments which is necessary for the broadcasters to make these same arguments before the Court.”

I’ll ask the obvious: does no one understand that “Congress shall make no law” is an absolute? And is it any surprise that an arm of the government granted unconstitutional power by that Congress will somehow abuse that power beyond its own rules? The key lost in this story is that Fox is not one of the networks asking for this “voluntary” remand in Fox Television Stations, Inc. v. Federal Communications Commission. Good. If it sticks this out through to trial, I promise to watch every So You Think You Can [Insert Unwatchable Activity Here]? show its producers can imagine. Just include lots of T&A and swearing when if the court realizes that the bulk of the FCC’s Congressionally-sanctioned nanny-mongering is unconstitutional.

Hat tip: Jeff Jarvis

Exceptions prove the fallacy of majoritarianism

Where to begin today? New York’s Court of Appeals ruled that the state can continue discriminating against same-sex couples. Apparently, a heterosexual oopsy with birth control proves that gays and lesbians don’t need the same rights.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

My interpretation is a slight simplification of the majority’s opinion, but only slight. Because a heterosexual couple can create¹ life because they forget to use a condom, they need marriage rights to help those potential offspring. Even if the couple isn’t married when the child is conceived. Or seeks to stay married. Or intends to ever get married. Nope, doesn’t matter. This decision is crap². Remind me again who is seeking special rights in this debate?

Meanwhile, the Georgia Supreme Court upheld its citizenry-supported bigotry today. I don’t have anything to say about the decision itself. Instead, I’d like to highlight the patronizing majoritarianism of Georgia’s governor:

“We don’t do a referendum very often,” Perdue said. “But when we do a referendum such as a Constitutional amendment, I think we need be very respectful of the people’s voice and listen to that. I think the Supreme Court has done that and I’m very grateful for their action and their affirmation of the people’s voice in overturning the trial court’s opinion.”

The governor also said that he hopes gay Georgians do not feel marginalized by the decision. He said they are free to work and live their lives here – they simply can not marry in the state of Georgia.

I’d like to find a direct quote supporting that second paragraph. If his words verify that summary, does that come with a pat on the head? I can only hope that every gay Georgian says a big “Fuck you” on his or her way out of the state.

For excellent analysis of this decision, read this thread at A Stitch in Haste.

¹ Excuse me. Since we’re now going with majoritarianism instead of science, our bigotry must conclude that a man and a woman cannot create life. Only the monotheistic God our nation’s founders included in our Constitution’s First Amendment is capable of such divine action. And traditional marriage is his conduit.

² Read Chief Judge Kaye’s dissent. It’s not possible for someone who understands our principles defining individual rights could walk away from reading this dissent and still think the supposed majority has any right to deny a fundamental right to anyone in America.

“It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation,” she wrote. “The court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Majoritarianism can’t accept that. The New York Court of Appeals proved today that it’s an activist court.

Digital Lefts Management in France

Two things interest me in this story explaining Apple’s possible response to French legislation requiring that songs purchased online be playable on any mp3 player. Personally, I think the choice is simple: Apple should close shop in France. When citizens in France are still walking around with the latest iPod every time Apple releases a new product, the government will have its answer on which the French consumer values more. Capitulation to the French central planners would only encourage other central planners in Europe. I suspect Apple pulling out of France would lead to the same nonsense surrounding region-encoded DVD players, preventing online purchases of non-compliant players. Permit central planners to invade on the small things and they’ll control the big things, too. So Apple should leave France.

More intriguing is this:

Members of the activist group Free Software Foundation have staged protests this summer outside of Apple stores across the country, with members dressed in colorful toxic waste suits and carrying signs that rate digital rights management software such as Apple’s as “Defective by Design,” the name of the group’s campaign.

Henri Poole, a Free Software Foundation board member, said that such software restrictions infringe on consumer rights and are designed to protect “antiquated business models.”

“We purchase [songs] and we think we have the same rights we had two years ago, but those rights are being eroded and the [digital rights management] rules can even be changed after you’ve purchased,” he said.

I agree that excessive DRM is indeed “defective by design.” However, as I’ve said before, I’ve come to accept that with the iPod and iTunes. I knew going into the deal exactly what Apple expects, what it will license to me. As such, I won’t argue that my rights are being eroded. Perhaps they are, but if I value something else more (convenience, functionality), that’s my choice. I don’t need a central planner to tell me how I’m supposed to enjoy my iPod. I want it to have Sirius functionality, but I’m not going to ask Congress to require it.

Of course, economically, I’m still discussing the French, so I leave open the possibility that French consumers believe it’s better to have nothing than something if that something is “exploitative”. If so, c’est la vie. I’m not the boss of them.

The Eighth Amendment isn’t on the ballot

This is why I do not like Justice Antonin Scalia as a Supreme Court Justice:

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

(concurring opinion in Kansas v. Marsh, 04-1170)

Reprehensible logic. The possibility that someone will be punished mistakenly is indeed a truism. However, when the punishment is death, “reduced to an insignificant minimum” is not acceptable. Executing an innocent man is murder, regardless of how happy the American people are with the derived good. Gleeful retribution is not a derived good. The possibility of a mistake is exactly the reason the government should not have the power to execute a prisoner. Do we still believe in a society where individual rights are protected from the whims of the majority?

Just as disturbing is Justice Scalia’s abdication of judicial responsibility. It’s an accepted position by the Court that capital punishment is Constitutional. But, and this is important, it makes no difference that the people love sending convicted felons to the executioner. The Court’s role is to interpret the Constitution. Interpreting “cruel and unusual” warrants a look, regardless of the outcome, beyond blind deference to mob rule. (Or taking collective joy in thumbing our judicial noses at for’ners.) If it doesn’t, there is no reason to bother with a Constitution.

Reckless disregard of our history

Like many people, I saw the scare tactics masquerading as news this weekend surrounding the New York Times. Fox News ran a story with “Is the New York Times risking American lives,” or some such nonsense. I don’t know enough to go in-depth, but I’m always inclined to side with the First Amendment as a default position. That’s why I found this essay particularly interesting. Instapundit found this section particularly useful, in a bit of “gotcha” mentality to the New York Times, I think. I disagree.

Why does the Times print stories that put America more at risk of attack? They say that these surveillance programs are subject to abuse, but give no reason to believe that this concern is anything but theoretical.

I don’t believe these stories put America more at risk, for the simple reason that I believe anyone who would attack America is (unfortunately) smart enough to assume all of the top secret programs the New York Times writes about. I think that’s a reasonable assumption for anyone interested in winning against the threat we face, rather than winning against the threat we face, as long as the right team does the ass-kicking. I have no time for partisanship in this war. So, I don’t think the New York Times is putting America at more risk of attack. On the contrary, I suspect it will lead to increased preparedness when intelligent people understand that our enemies must be taken seriously. The anti-bigotry of soft expectations, as the case may be.

As such, I find the second sentence in that excerpt more informative. Every bit of the Constitution protects against theoretical future abuses. That civilization had thousands of years to grasp how dangerous government can be when given power, our Constitution is designed to safeguard us from such future excesses. The founders knew that waiting to protect the people from abuses until after the abuse will only encourage abuse. Hence, the Constitution. And the First Amendment.

More thoughts at A Stitch in Haste.

Will his face be on the dollars he saves us?

President Bush wants a line-item veto. Never mind that he claims to want it to weed out wasteful spending, none of which has been so egregious (in his mind) to force his veto pen into action since taking office, despite threats to the contrary. Also, the Constitution, and previous Supreme Court rulings, suggest that it’s not an option. The executive veto power is all or nothing. The Constitution apparently means little this decade, though, so it might be helpful to analyze the “problem”:

“A line-item veto would allow the president to remove wasteful spending from a bill while preserving the rest of the legislation,” Bush said in his weekly radio address.

Or he could suggest that Congress send him bills with a narrow focus, rather than omnibus spending bills without any sense of constraint. Or he could veto bills, and attach a Post-It note saying “remove this spending and send it back”. That might work.

“A line-item veto would reduce the incentive for Congress to spend wastefully because when lawmakers know their pet projects will be held up to public scrutiny, they will be less likely to suggest them in the first place,” Bush said.

Or Congress could read the full text of the bills it passes. Or he could read it when it hits his desk, veto the bill, and publicly call the lawmakers who sneak pork into the bills he’s asked to sign on their waste.

“I call on the Senate to show a bipartisan commitment to fiscal discipline by passing the line-item veto so we can work together to cut wasteful spending, reduce the deficit, and save money for American taxpayers,” Bush said.

A commitment to fiscal discipline would mean not proposing such spending waste in the Congress, and definitely not passing such bills. But the Congress hasn’t shown such commitment, nor has President Bush tried to impose it. Instead, he now asks for the power to say “no”, like any good father would. This will work how? Instead of trying to extend his nanny powers beyond the Constitution’s current boundaries, President Bush could lead. He could exercise the power he already has in a prudent manner, without asking for more.

With almost 5½ years of evidence to the contrary, I’m not optimistic.

I can read your lip service

I don’t know which passage to laugh at more:

For the past 15 years, progressive free-market politicians have offered an appealing mantra …

After reading a new oxymoron such as “progressive free-market politicians,” I knew I didn’t need to read on for any serious discussion of capitalism. The usual drivel about how the author supports capitalism, but every fair person understands that it’s not perfect and needs a little help, is sure to follow. I’ve heard it before and I know it’s still code for more government intrusion. It’s never possible that government interference in capitalism is causing the problems. Never.

The other laughable part is that supposedly logical conclusion.

Historically, voters turn away from conservative free-market politicians after they conclude that capitalism needs help in living up to its commitment to create widely shared abundance. After World War II, voters in rich countries entered a social democratic bargain in which capitalism became the bedrock of the economy but was tempered by a large public sector and a unionized industrial sector that provided social insurance, education, pensions and health care.

Capitalism has a commitment to create “widely shared abundance”, which conservative free-market politicians ignore. Setting aside government interference as a cause, if you don’t get some of that guarantee of widely shared, for whatever reason (luck, laziness, …), progressive free market politicians will hand you some widely redistributed. In this view, how can anything be a tempered bedrock, especially when adding so many socialist guarantees?

I’d continue, but uncontrollable laughter makes typing impossible.

Reverse engineering will be disastrous

Michael Kinsley is a smart man, which is why it’s so stunning to read drivel about empathy in his recent editorial on healthcare.

What is the most ridiculous thing about the American health care system? Is it that 45 million Americans don’t have health insurance? That is the most embarrassing thing, but it’s not beyond all rational explanation. It’s a failure of empathy. We — the majority of Americans who are lucky enough to be covered — apparently don’t care enough to do something about the minority who aren’t.

As a blanket statement, that’s bad enough. That’s liberal nonsense thrown out to lead to the inevitable conclusion that the government must provide healthcare. And if you disagree, you hate poor people. Or something stupid along that line, which the rest of the editorial virtually assumes without actually saying it.

But why? Only the most cold-hearted individual wants to see people without the means to purchase healthcare live a lower-quality life (or die) because of his situation. It’s reasonable to assume that government might not be the solution, though. Mr. Kinsley seems to understand that with this paragraph:

… There is a real moral dilemma here about what happens after you have defined and achieved the goal of decent care for everybody. In fact, this issue more than anything is what tripped up Hillary Clinton back in the early ’90s. Her health care reform plan purposely made it difficult — not impossible, but difficult — for people to go outside the system to get a higher standard of care. The reason is obvious: If a superior level of care is available, the care being guaranteed to everybody is inferior. In other words, you are rationing — denying people useful, if not vital, health care to save money. Worse, you are letting people buy their way out of the rationing if they can afford it — the way affluent young men were allowed to buy their way out of the Civil War draft.

Pretty much. We need only look at the state of public housing in most communities. This is a public good, supposedly, and the government can do it best, supposedly. So why have so many people chosen to not pursue expansion of public housing to include any and all people? Is it possible that those who can afford to buy their way out of that deal have shown exactly what they want? I see no vote for rationing, other than those votes coming from the policy wonks hell-bent on imposing a centrally-planned, socialist healthcare system. In other words, I can’t comprehend Mr. Kinsley following that paragraph with this one:

At the moment we don’t guarantee anyone any level of health care, so this moral dilemma can be saved for another day. And in the end, the answer will have to be that of course the standard of care the government promises everybody will not be based on the principle of “money is no object” and of course people will be allowed to do better for themselves if they wish. What sense would there be in telling people that they can spend their money on anything they want except their own health?

I don’t recall reading of a national healthcare initiative passing Congress, so I hope it’s too early to be saying “the answer” and “government promises” in the same sentence. And Mr. Kinsley’s right, there is no sense in telling people they can spend their money on anything they want except their own health. Yet, with a presumption of government-provided care, you’re telling me that I have to spend my money, through taxes, on everyone’s health. Smoking bans and trans fat hysteria and soda restrictions are bad enough. The health police will be a nightmare once the public coffers must pay for the consequences of an individual’s decision, for which he will never again be responsible. Bottom line: don’t start with the solution (government) and work back to the problem (non-universal coverage risk-protection). Work with methodology (principles) instead.

But what is most ridiculous [ed. note: isn’t it a failure of empathy?] about the current American health care system is that we have no idea, very often, whether even the most expensive treatments do any good. Business Week had a cover story last month touting what is called “evidence-based” medicine: that is, basing treatments on whether they work. You might say, “As opposed to what?” The article has some tendentious, newsmagazinish statistics about how most medical treatments (two-thirds? three-quarters?) are based on hunch or habit or a doctor’s finances or anything except solid evidence that they actually are good for patients.

Based on the primary pseudo-medical topic I write about, you know where I stand on this. Changing to government-provided healthcare will not change people’s attitude on this. (Disclaimer: children’s rights, and all that) If an individual must pay for what’s done to him, he’s more likely to question the treatment in search of alternatives. And if he doesn’t? It’s his money.

This thinking deserves a permanent majority?

I’ve yet to read any of John Stuart Mill’s works, although I intend to tackle them in the future. As such, I can’t cite examples to refute anything in this hack piece from Friday’s Opinion Journal. No matter. The absurdity of Roger Scruton’s argument is sufficient to attack itself. After a perfectly reasonable opening, which provides biographical details of John Stuart Mill’s life, Mr. Scruton continues with this background on counter-arguments against utilitarianism:

According to Mill’s argument, that way of thinking has everything upside down. The law does not exist to uphold majority morality against the individual, but to protect the individual against tyranny–including the “tyranny of the majority.” Of course, if the exercise of individual freedom threatens harm to others, it is legitimate to curtail it–for in such circumstances one person’s gain in freedom is another person’s loss of it. But when there is no proof of harm to another, the law must protect the individual’s right to act and speak as he chooses.

Pretty much. I don’t see how anyone in America could disagree with such a view of individual freedom. The Constitution virtually guarantees as much, accept that it’s been interpreted into near-worthlessness by partisan ideologues more intent on imposing their vision of proper than preserving liberty. I don’t care for that approach, although America is still the best deal going.

This principle has a profound significance: It is saying that the purpose of law is not to uphold the will of the majority, or to impose the will of the sovereign, but to protect the will of the individual. It is the legal expression of the “sovereignty of the individual.” The problem lies in the concept of harm. How can I prove that one person’s action does not harm another? How can I prove, for example, that other people are not harmed by my public criticism of their religious beliefs–beliefs on which they depend for their peace of mind and emotional stability? How can I prove that consensual sex between two adults leaves the rest of us unaffected, when so much of life’s meaning seems to rest on the assumption of shared sexual norms? These questions are as significant for us as they were for Mill; the difference is that radical Islam has now replaced Scottish puritanism as the enemy of liberal values.

Seriously? Is it that hard to understand that the will of the majority or the sovereign can have awful consequences? Or that “harm” isn’t a difficult concept to understand, as pertaining to government’s role? Use the word physical, as should be readily apparent to even the most uninitiated seven-year-old, and the measure of when an individual is about to be (or has been) harmed is clear. Government intervention is not only expected, it becomes vital to a functioning society. That does not include such subjective actions as sexual norms. If one individual can’t stomach the sexual actions of another’s relationship, there is a problem. However, it belongs to the offended, not the offender.

The notion that sexual freedom is somehow analogous to radical Islam is beyond the realm or reason, and deserves to be ridiculed, if not ignored.

Taking “On Liberty” and [“The Principles of Political Economy”] together we find, in fact, a premonition of much that conservatives object to in the modern liberal worldview. The “harm” doctrine of “On Liberty” has been used again and again to subvert those aspects of law which are founded not in policy but in our inherited sense of the sacred and the prohibited. Hence this doctrine has made it impossible for the law to protect the core institutions of society, namely marriage and the family, from the sexual predators. Meanwhile, the statist morality of “Principles” has flowed into the moral vacuum, so that the very same law that refuses to intervene to protect children from pornography will insist that every aspect of our lives be governed by regulations that put the state in charge.

It should be painfully obvious by now that Mr. Scruton is uninterested in liberty, unless your liberty involves making the same choices he’d make. The law should protect marriage and the family from the sexual predators. That is the argument of a man uninterested in reason or intellectual discourse. That is the plea of a man consumed by fear of the unknown.

… to free oneself from moral norms is to surrender to the state. For only the state can manage the ensuing disaster.

Any guesses on who should decide the moral norms?

More thoughts from Andrew Sullivan

Banning the two “F” words

This morning, like every morning, I woke up to Howard Stern. Usually it’s a good way to ease into the day. A few laughs, a little banter, and pop culture references. It’s worth $12.95 per month. Usually.

This morning, I awoke to Stern discussing an article in yesterday’s New York Times by Nicholas Kristof. It’s titled “Killer Girl Scouts”. Lovely, huh? I couldn’t read the article because I don’t waste my money on Times Select, but the one sentence synopsis, “Beware of cute little girls bearing trans fats”, is enough to know I disagree.

Stern offered a summary, with commentary, on the article, and that’s what got me fired up today. From what he said, it’s the same argument that we’re getting fatter, the evil corporations don’t care, our government-financed health care is going bankrupt, and something needs to be done now. The article (apparently) includes an example from Denmark in which the government requires that trans fat be no greater than 2% of a food item. McDonald’s chicken nuggets in Denmark have .33 grams of trans fat, while the same chicken nuggets have 10+ grams of trans fat in America. Outrageous.

So maybe they are trying to kill us, right? The solution, according to Stern? You know what’s coming, don’t you? That’s right. Pass a law. Force companies to limit the trans fat in the food products they sell to us, the unwitting dolts who can’t make conscious, responsible decisions for ourselves. We shouldn’t stop financing health care with public funds to prevent the system from going bankrupt, that would be too obvious. We should outlaw bad food, instead. For a brief moment, I wanted to cancel my subscription.

Again, since it’s not clear, the free market can take care of this “problem”. If a person is responsible for his own health care costs, isn’t he more likely to take care of himself, by his own actions? And if not, why should we care? He’ll pay the higher costs. He can make that rational decision of which is more important, dollars or Thin Mints.

Stern’s next topic made this morning’s discussion especially frustrating. He launched into his commentary about the Senate voting to increase fines for “indecency” on public airwaves. His current stance is motivated by business interests, and I think, a little hope at exposing Congressional hypocrisy. He applauded the Senate’s action, even though he acknowledged that it’s an affront to the Constitution. The increased fines will only help satellite radio, of course.

I see the humor in that, but can’t stand the double standard for freedom that Stern’s dual positions represent. He accepts that the Constitution protects free speech from the whims of Congress, noting that the free market can handle what the public wants and needs. Satellite radio is sufficient proof, although that’s not an excuse to allow Congress to continue its election-year crusade to protect us all. Which is what it comes down to, isn’t it? Protecting us from ourselves.

We’re too sensitive to hear swearing on the radio, so Congress should protect us. We’re too irresponsible to eat our vegetables, so Congress should protect us. Both are symptoms of the same disease. Politicians take their direction from the few who are vocal enough to make their preferences known, regardless of the damage to liberty. Paternalism arrives marketed as leadership. And most of us decide where we stand on each individual issue by determining which we prefer. In Stern’s case, he hates healthy food and loves freedom of speech, regardless of the underlying principles.

Me, I think we should all be vegans, but I love liberty more.