Category: Ranting

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.

Just vote on it, already

Sen. Arlen Specter is a genius. How else to describe such brilliant words defending our nation’s immediate need to alter the Constitution in word and spirit to protect the flag:

“I think it’s important to focus on the basic fact that the text of the First Amendment, the text of the Constitution, the text of the Bill of Rights is not involved,” Specter argued.

I don’t understand that, so I can only assume he knows more than me. Thank God he’s a United States Senator. Mere mortals who can’t understand what he said shouldn’t be allowed to disagree. Imagine the damage that could cause.

Of course, I am also thankful for Sen. Orrin Hatch.

“They say that flag burning is a rare occurrence; it is not that rare,” he told the chamber. An aide hoisted a large blue poster detailing 17 incidents of flag desecration over three years. Hatch, citing “an ongoing offense against common decency,” read them all. “That’s just mentioning some that we know of; there’s a lot more than that, I’m sure,” he said.

That is 5.67 flag burnings per year, or 0.0000000189 for every man, woman, and child in America. Don’t worry, I’m doing my part being pissed off. And holy crap, am I ever offended by flag burnings that nobody knows about. Sweet Hell, I won’t be able to sleep tonight.

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.

Soap and alcohol will prevent herpes

Forgive my indulgence once more. I’d intended to bypass circumcision stories for a bit, since I’ve hammered away at the subject recently. My intention was sincere, but reality sometimes intercedes with something so absurd that commentary must follow:

… [New York State Health] Commissioner Antonia Novello, in pink suit and gold jewelry, and a sea of men with long beards, black suits and hats signed a new protocol Monday that attempts to respect both an ultra-Orthodox Jewish ritual and public health concerns.
…

“To be able to represent the religious freedom and the public health — it might not be the most perfect protocol in the world, but before this, we had nothing,” Novello said.

I don’t believe the public health commissioner’s job is to represent religious freedom. Of course, I should say “freedom”, since any solution that allows circumcision infringes the boy’s religious freedom. Also, there isn’t really a protocol better than nothing, as you’ll soon see.

The protocols are aimed at preventing the spread of herpes through the practice of metzizah b’peh, in which the circumcision wound is ritually cleaned by sucking out the blood and spitting it out.

The policies stem from seven cases of neonatal herpes connected to the ritual. They included one child who suffered severe brain injury from the virus and another who died.

What’s Commissioner Novello’s job description? How many cases of neonatal herpes connected to the ritual are necessary to step past the fear of challenging a practice that has no place in a modern society? It’s not seven, as we now know. So, how many?

The new state guidelines require mohels, or anyone performing metzizah b’peh, to sanitize their hands like a surgeon, removing all jewelry, cleaning their nails under running water and washing their hands for up to six minutes with antimicrobial soap or an alcohol-based hand scrub.

The person performing metzizah b’peh also must clean his mouth with a sterile alcohol wipe and, no more than five minutes before it, rinse for at least 30 seconds with a mouthwash that contains 25 percent alcohol.

The circumcised area must be covered with antibiotic ointment and sterile gauze after the procedure.

When Listerine is a necessary supply for the person performing surgery, it’s clear that something is fundamentally wrong with anyone who endorses (or in the case of Commissioner Novello, allows) this circumcision ritual’s continuance. It’s not reasonable for someone to slice a child’s boy’s genitals and suck the blood from the wound. Modern medicine matters. The right of the infant male to keep an adult’s mouth away from his genitals matters. The parents get their ceremony, and no one in government risks stating the obvious offending a religious group, but that does not mean everything is rainbows and ice cream. The circumcised boy may trade his foreskin for an infectious disease.

In addition to the rabbinical policies, the state Health Department also added neonatal herpes to the list of diseases health care workers are required to report to state officials.

In adults, herpes is common — almost 80 percent carry the oral form of the disease, according to the state Health Department. It is far less common, and potentially more dangerous, in children and babies.

If a baby who underwent metzizah b’peh does contract herpes, the mohel, the infant’s parents and health care workers will be tested. If the mohel has the same viral strain as the baby, the mohel will be barred from conducting any future circumcisions.

Allow me to recap… The new neonatal herpes infection will be reported. I’m sure the infected boy(s) will be happy being a statistic. No word on what that statistic accomplishes. It doesn’t matter, though, because almost 80% of adults have oral herpes, so the boy will probably get it anyway. No harm done. But at least the mohel will be barred from infecting any infants in the future. Preventing it before the first infection of an innocent child boy doesn’t count as a public health concern, apparently. What kind of compromise keeps the obscene act, yet does nothing to require the circumciser to prove he does not carry the disease?

Antonia Novello should be fired immediately.

“You made us do it” is bad government

The editors at Opinion Journal hate liberty. I can think of no other explanation to support this statement in today’s editorial on the now-failed marriage amendment:

We remain opposed to federal interference in this issue, believing that issues of family life and law are best settled in state legislatures.

As opposed to the individual’s home? Why? Given the manner in which state legislatures are dealing with this issue, do I trust them to err on the side of individual rights? Of course not. Anyone who doubts that need only look at the mess that Virginia is trying to pass this November.

States have also devised a range of policies for civil partnerships or other legal rights for gay couples. These innovations reflect the reality that most Americans oppose extending the term “marriage” to gays but are open to other legal arrangements.

The marriage debate demonstrates nothing more than naked majoritarianism. The Constitution does not work that way. Denying rights at the state level because the solution is federalist is still a denial of rights. Why should a gay couple care if their oppressor is the United States Congress or the Virginia General Assembly? Either offer the same marriage benefits to every individual or extract marriage from civil government. No individual should have the right to determine, through government, which rights another individual is allowed to possess. He possesses them from birth. The government can only secure or infringe.

Wedge politics is the best we can do?

Part of me is beginning to root for this travesty:

President Bush will promote a constitutional amendment banning gay marriage on Monday, the eve of a scheduled Senate vote on the cause that is dear to his conservative backers.

I haven’t changed my opposition to the proposed amendment. It would still be a stain on the Constitution. It would still require, which it would eventually receive, another amendment to repeal it. The process would be long, tedious, and divisive. It’s the antithesis of the American experiment in limited government.

But it could have positive benefits. In the eye of history, its supporters will be seen as the bigoted, anti-liberty meddlers they are. And the amendment, and its future repeal, would be a lesson for future generations in how to truly preserve the rights of all citizens. Of course, we still haven’t learned from the 18th and 21st Amendments.

Never mind. The proposed amendment must die a public death. Again.

He’s teaching me to change my instincts… or at least ignore them.

James Taranto, writing in Opinion Journal’s Best of the Web Today column, points to an article titled “Questions Raised About Kerry War Record”.

When John Kerry* ran for president, he offered one compelling qualification for the world’s highest office: He was a hero of the Vietnam War. True, America lost that war–but it was in spite of, rather than because of, Kerry’s battlefield efforts.

Timely, as opposed to partisan, this information enhances my trust that the only liar in Washington operates in the Senate chambers because he couldn’t win the presidency. Oh, and that the New York Times is biased. Shocking.

What’s most important, though, is the context of that all-powerful asterisk. It holds the key to relentless wit and insight. All included must bow before the “gotcha”.

* At least he served in Vietnam, unlike Harry Pelosi and Nancy Reid!

The same could be said about two important Republicans. But cheap partisan victories are vital to our national conversation. And only liberals in the media are biased.

Update: Kip at A Stitch in Haste dissected Mr. Taranto’s imbecilic attack on libertarianism, which appeared further down in yesterday’s Best of the Web Today. I’m glad he pointed it out, as I stopped reading the rest of Mr. Taranto’s nonsense after the John Kerry story.

How to win friends alienate fans and influence people

If there ever existed proof that government-imposed monopolies harm customers, the current cage match between Comcast, Peter Angelos, the Washington Nationals, and MASN is the shining example. (It also touches on a stupid business practice by Major League Baseball.) Comcast refuses to carry MASN, which has television broadcast rights to the Washington Nationals. I have no problem with the business decision by Comcast, though I despise it as a customer. Not because I want to watch the Nationals. I don’t, except when they’re playing the Phillies. The Nationals are currently in Philadelphia for a three-game series, of which all three games will be blacked out for all non-MASN outlets.

Last night, for example, Major League Baseball would not allow INHD to broadcast the game to my cable system, nor did it allow MLB Extra Innings to broadcast the game to me. It’s important to note that I’ve paid MLB for the games, yet they funnel me to MASN. This is where the problem culminates. Without MASN, I missed the game.

This could be easily resolved by Comcast or Major League Baseball putting customers first, but I’ve come to expect little from either. I tolerate Major League Baseball’s policy with my business only because I love the Phillies and watching the majority of their games not blacked out. I do write a letter every year, however. With Comcast, I only have the option to switch to satellite. That’s a fine form of competition, but it’s not feasible for my house and needs. The solution is simple, of course, but government won’t get out of the regulation business. Instead, I’m presented with idiotic symbolism:

Mayor Anthony A. Williams (D) [last week] signed into law a bill requiring Comcast, which is the District’s main cable provider, to begin broadcasting Washington Nationals games or face the possibility of losing its license to operate in the city.

The bill, which was passed unanimously by the D.C. Council earlier this month, says that unless the games are on the air beginning [last week], the District and Comcast must enter into negotiations to discuss the franchise agreement and explore ways of getting the games on the air.

So, rather than open the city to competition and allow the invisible hand to do the work of providing MASN, the City Council and mayor would prefer city residents (theoretically) be without cable television service completely. This is reasonable how, other than to prove that politicians want to be central planners masquerading as heroes? Remove legal barriers to entry and let the market decide; instead of just voicing an opinion, customers could then vote with their most powerful weapon possible. If the City Council and Mayor Williams did that, MASN would be on Comcast tonight.

And I’d get to watch the Phillies.

Should police ticket under-inflated tires?

I’ve already said I won’t vote for Sen. Clinton when if she runs for president in 2008, so this entry is really just piling on. However, it’s important to highlight examples of why she’s every other hack politician, except she had the good fortune to be First Lady before entering public office. She gets more acceptance than she should. Her new energy plan proves it.

Sen. Hillary Rodham Clinton (D-N.Y.) said yesterday that the United States should cut its consumption of foreign oil in half by 2025, and outlined a national strategy of tax incentives, an oil-profits tax and more funds for research aimed at spurring conservation and development of alternative sources of energy.
…

“Our present system of energy is weakening our national security, hurting our pocketbooks, violating our common values and threatening our children’s future,” Clinton said in a speech at the National Press Club. “Right now, instead of national security dictating our energy policy, our failed energy policy dictates our national security.”

How creative. She managed to include fear of death, poverty, and morality, with a nod to the children. Classy leadership. At least she’s learned her trade well, no matter how despicable its current tradesmen may be.

Clinton said she plans to introduce legislation to create a strategic energy fund, largely paid for by an excess profits tax on big oil companies, who she noted earned a combined $113 billion in profits last year.

She estimated that the profits tax and a repeal of other tax breaks for the oil industry could pump $50 billion into the energy fund over two years and pay for an array of tax incentives and for $9 billion in new research initiatives for wind, solar and other alternative energy resources. Oil companies could escape the tax if they reinvested profits into similar programs.

Theft, redistribution, and bribery are admirable public policy goals. And what will the good senator say to the investors whose stock portfolios get hammered because the major oil companies will no longer earn windfall average profits? Take one for the team, maybe? It’s for the children?

Or economic decline could be her goal. If we’re all a little bit poorer, we can’t afford so many vacations and wasteful trips in our gas guzzlers. (Don’t tell House Speaker Hastert.) Hence, we’ll use fewer barrels of oil. Conservation works, she’ll say. And we’ll all be thankful that she’s in charge.

Maybe, but it’ll be without my vote.

Hurricane season is fast approaching

When I saw that the FTC found no clear price gouging in the aftermath of Hurricane Katrina, I’d planned to discuss the report. Not only because he beat me to it, but because he’s 100% correct, I’ll point you to Kip’s analysis at A Stitch in Haste. He says everything I could’ve hoped to say about the report’s specifics. Read it.

Instead, I want to mention this brief passage with ominous warnings for the future.

A House measure passed earlier this month would raise penalties for price gouging and order the FTC to define the term. But the commission’s report yesterday said that a federal law on gouging could “run counter to consumers’ best interest.” The commission said price gouging “is neither a well-defined term of art in economics, nor does any federal statute identify price gouging as a legal violation.”

[FTC Commissioner Jon] Leibowitz said the FTC report showed that “price gouging is a phenomenon that is hard to nail down.” But he compared it to obscenity: “difficult to define in theory but easily recognized.”

The FCC’s enforcement of “indecency” isn’t the most promising path we can pursue. Perhaps we could try something more sane, say “if you don’t like the price, don’t buy the product”. How’s that sound? I like it because it leaves the power in the hands of the consumer instead of some central planner ruling through threat of official reprisal, with both financial and criminal penalties.

We’re going to pursue the latter, stupid path, of course, because Congress has so little brain power and leadership. What the people want (mob rule) can’t be wrong. Can it? Never, so I suggest we set up the price control board now rather than waiting until the next crisis. We’ll have more time to adjust, at least. And we can learn to live without all the nice essentials luxury items we’ve grown accustomed to having. Thanks.