Freespace

Justice Baxter’s dissent in the Marriage Cases

Justice Baxter’s dissenting opinion in today’s Marriage Cases is convincing on most of the major points in the case, although there are some parts that I think unnecessarily go too far. The big issues here are 1) nomenclature—can the state denominate same-sex relationships by a different name than “marriage”; 2) strict scrutiny—are homosexuals entitled to the same level of equal protection scrutiny as racial minorities? On both of these, Justice Baxter’s opinion is logically stronger than the majority opinion.

The California Supreme Court did not “legalize same-sex marriage”

You’re going to hear in the news that the California Supreme Court today “legalized same-sex marriage” or “struck down the state’s ban on same-sex marriage.” As is always the case when the media report about law cases, that is not the whole story, or even a particularly helpful way of characterizing the story.

What the California Supreme Court did was to declare that the state may not confine use of the word “marriage” to opposite-sex couples while denominating same-sex couples as “civil unions” or “domestic partnerships.” California already extended all of the benefits of marriage to same-sex couples under its civil union laws. The only issue here was whether the state could refuse to call those unions “marriages.” The case was about semantics (which is not to say it was unimportant; semantics are 9/10ths of the law). The Court found that refusing to extend the word “marriage” to same-sex couples was demeaning and therefore discriminatory and therefore a violation of the state Constitution. But it did not declare that the state must extend any substantive guarantees that it was not already extending. I explain in more detail here.

A look at The Marriage Cases

The opinions of the justices of the California Supreme Court in the Marriage Cases take up some 170 pages, but the bottom line is that by a 4-3 decision, the Court finds it unconstitutional (under the state Constitution) to establish a civil-union mechanism for homosexuals which provides the same substantive protections as the marriage law that prevails for heterosexuals, and yet to call it by a different name than marriage.

More Obama theocracy appeal

I've asked before how secular liberals can support Barack Obama, given his blatant pitches to religious groups and his long-standing connections to very extreme religious leaders. How about this? Christian Broadcasting News reporter David Brody comments, "Remember (Gov.) Mike Huckabee’s supposed subliminal cross in his Christmas campaign ad? Well, Obama campaign ditches the subliminal and goes for the in your face cross.” (c/o)

Still waiting for an answer from my secular liberal friends....

My Wikipedia contribution

I've drafted a Wikipedia page about Charles V. Stuart, the delegate to the California Constitutional Convention of 1878, about whom I wrote here. The article still needs a little work but at least it gives Stuart some deserved recognition.

My appearance on Pacesetters

I'll be appearing (by phone, unfortunately) in a Prop. 98 debate on KTLA channel 5's show Pacesetters, airing Sunday, June 1, at 6 a.m.

Tom McClintock for Congress

This will be of interest only to my thousands of readers in El Dorado County, California, but if you’re like me, you’ve been blown away by the nastiness of the campaign against Tom McClintock. His opponent, Doug Ose, has now taken to accusing McClintock of voting against benefits for veterans—the commercial even has an almost self-parodying line, “how does he sleep at night?” It’s laughable in its demagoguery.

The fact is that Tom McClintock is a man of integrity with a passion for freedom and our constitutional traditions. I’ve rarely met a political leader more sincerely devoted to the principles of liberty and respectful, not only of soldiers, but of the political leaders who have fought for our freedom in the past. The man quotes Jefferson and Lincoln off the top of his head, for crying out loud—and actually understands what they mean. How a man as sincerely devoted to the promises of freedom and opportunity could stay sane in the legislature of California is beyond me, but he has done a masterful job of it and has earned the respect of every Republican in California as a result. In fact, he’s earned the respect of many Democrats, too, who may not agree with him but recognize him as a principled and serious believer in the principles of Goldwater and Reagan.

Of course, I’m not a Republican, and I disagree strongly with McClintock on some things. I think he’s completely wrong on gay marriage—he would support legal prohibitions of this fundamental right. I wish he were better regarding drugs—he supports medical marijuana, which is good, but doesn’t go far enough. He describes himself as “pro-life” although it is not clear if he would try to fo farther than eliminating the most extreme forms of a woman’s fundamental right to an abortion.

But McClintock is one of only three or four members of the California legislature that acted to protect property rights against eminent domain abuses. He has long been the only member of the legislature to speak honestly about the state’s budget problems. Long before Schwarzenegger was “surprised” by the size of the state’s debt, McClintock was warning of looming financial problems, the problem of pension obligations, and fraudulent bookkeeping by Democrats in the legislature. And he had the best ideas for fixing those problems. He has consistently opposed tax increases and welfare boondoggles. He is a hardworking, honest, and decent candidate who would make an unusually effective member of Congress.

Is initiative reform of eminent domain desirable?

A commenter at the Volokh Conspiracy writes, “I think this shows again the dangers of the proposition system: the all-or-nothing approach to legislative language. Why not allow a legislature debate and revise/amend the details of a bill this complicated?”

I, too, am deeply suspicious of the initiative system, but the bottom line in the case of eminent domain reform is that legislatures in general, and the California legislature in particular, have shown virtually no interest in protecting people from eminent domain abuse. Despite an overwhelming nationwide outcry about the Kelo decision, and almost unanimous, bipartisan support for some form of protection against the abuse of eminent domain, very few states have enacted realistic protections for property owners. By far, most legislatures have chosen instead to adopt meaningless reforms that do nothing to protect homeowners, but are intended to fool voters into thinking something has been done. Texas, for example, which enacted a law that forbids the taking of property for “private use”—even though that is already illegal even under Kelo—and which then allows takings for transfer to private developers so long as the property is “blighted.” “Blight,” of course, is then legally defined to encompass virtually any property that government officials feel like pointing at.

Why this failure? Prof. Somin and I have written that it is due to ignorance on the part of voters (understandable, given the technical complexity of eminent domain laws) and to the powerful rent seeking effects that are to be expected when government is in the real estate business.

What, then, of the initiatives? In fact, in last year’s elections, we saw powerful new protections for property rights in several states via initiatives. None of these initiatives had the sort of “blight” loopholes and other language that would handicap their effectiveness. These initiatives applied strong new protections for property rights.

It’s frustrating that people should have to resort to the initiative process, a process that has so many shortcomings. The primary shortcoming is the petition requirement, which prohibits an initiative from being placed on the ballot without enormous sums being spent on first collecting signatures. This means that for an initiative to qualify, it must pay back the investors—which deters a great many worthwhile initiatives, encourages frivolous initiatives, and clouds legitimate initiatives with aspersions of wrongdoing that they don’t deserve (as is the case with Proposition 98).

Because apartment owners suffer from the violation of their property rights, they contributed to the signature gathering effort for Prop. 98. And as a result, the opposition can act like demagogues and scream “evil greedy landlords are behind Prop. 98!” It’s childish nonsense, but it’s predictable, given the incentive structure created by the initiative system.

Yet I see no realistic alternative to the initiative system in California. This state’s government is simply broken at a very deep, very fundamental level. Its legislature is unable to legislate. Its governor is unable to govern. (I think the judiciary does a better job, but even it is hopelessly overloaded.) As a result, basic elements of government that no reasonable person could legitimately oppose—like non-partisan redistricting, or a third lane on the 5—cannot get enacted, but everyone’s petty, private, pet project gets fully funded at the taxpayer’s expense. The people of California are resorting to the initiative system in this case as in many other cases because they have to. California is in need of serious structural reform.

Dan Walters has some—as always enlightening—thoughts on the initiative system here.

Ed McMahon drunk

A friend passed along this brilliant clip from Johnny Carson, with Ed McMahon absolutely smashed. I miss Johnny so much, I think I could cry.

The Deep Dishonesty of Prop. 99

Proposition 99’s backers—that is almost entirely government groups who love eminent domain—are running an enormously dishonest commercial arguing that Prop. 99 is the “only” way to get “real” eminent domain reform, and smearing the alternative Proposition 98. I have rarely seen such brazen misinformation.

The fact is that Prop. 99 would not protect anyone in California from eminent domain abuse. It would not apply at all to small businesses, which are the most common victims of eminent domain. It would not protect people living in apartments at all. It would not protect farms, or churches. It would only protect “owner occupied residences.” And in fact, it would not even protect them, because the small print in the initiative eliminates such protections in almost every case of eminent domain abuse—click here for an explanation.

Proposition 98, by contrast, would prohibit the government from taking away small businesses, apartment buildings, farms, churches, and homes, and giving the land to private developers. If you are outraged about Kelo v. New London and the abuse of eminent domain, the only genuine protection is Proposition 98. It was written, not by evil greedy landlords, but by the Howard Jarvis Taxpayers Association, for decades the strongest defender of California’s homeowners.

Prop. 99, on the other hand, was drafted by the League of California Cities, a group made up of city bureaucrats who are hoping to use their initiative to derail any attempt to protect property rights in California. Do not be fooled by their cynical scheme.

What about rent control? One charge routinely leveled at Prop. 98 is that it would hurt the poor by eliminating rent control. But here are the facts:

1) Rent control is already illegal in most California cities. Under laws passed a decade ago, California cities are not allowed to adopt new rent control laws in almost any case.

2) Prop. 98 would not eliminate rent control for any person who is currently living in rent controlled property. It would phase out rent control only when people leave their apartments. It does not allow landlords to evict people for paying low rents. It does not allow landlords to raise rents for people living there. Prop. 98 would not throw people out on the street at all. That is nothing but a lie being spread by Prop. 99’s backers to again fool people into voting against eminent domain protections.

3) Rent control is a bad idea that hurts the poor and actually drives up the cost of housing—and it violates property rights. If you make it illegal to charge what something is worth, businesses are going to provide less of it. Rent control laws create housing shortages by deterring people from putting places up for rent. They also lead to poor maintenance because landlords don’t find it worthwhile to maintain their property since they can’t get what the property is worth.  That is why rent control is already illegal in most of California. Worst of all, rent control violates property rights by forbidding landowners from charging what they want for their land. You can’t say you believe in your property rights, but not in the property rights of “the rich” or “evil landlords.”

4) Even if you think rent control should be retained, Prop. 98 is the only proposition that protects property rights from eminent domain abuse—you would be better off voting for it and then later going back and repealing the rent control sections if you think they are bad.

Prop. 98 is being attacked by government bureaucrats and their supporters who want to fool Californians into voting against eminent domain protections. It’s absolutely sickening, and voters should not fall for it.

If you think Kelo v. New London went too far, and if you think eminent domain abuse must be eliminated you should vote yes on Proposition 98 and no on Prop. 99.

Herschensohn on McCain

My friend Bruce Herschensohn has a discussion on YouTube about why he supports John McCain. It's a bit outdated, and I'm not sure I agree with him, but when Bruce talks, I always listen. (Part 1 / Part 2).

Separated at birth?

Jason Castro and Towlie?

Friday art

The Dog by Goya

Not distant enough

Tom Palmer calls Ron Paul "the better man" for having "distanced himself" from the racist comments in his old newsletters. But the racism was not the only, or even the most objectionable, problem with Paul. In fact, heinous as they were, those comments were largely distractions from the more substantive problems with Paul's pseudo-libertarianism: his belief in allowing states to violate individual rights with impunity, his belief in a national prohibition of abortion (despite his federalism) his hostility to gay rights and sexual privacy rights in general, and so forth. It is these factors that make Paul such a poor spokesman for libertarianism, and we would do ourselves a disservice if we were to overlook them in light of the racist newsletters.

More thoughts on Shine A Light

Having thought about it more, I think what's great about Shine A Light is that Martin Scorcese manages to tell a story at the same time that he covers the concert, and the story is a subtle, insightful commentary on Mick Jagger's art and of modern rock music in general. The theme is the sophisticated planning and care that goes into building the Rolling Stones' image of Dionysian spontaneity. The film begins with Jagger carefully examining the concert set, and his meticulous planning of the set list, while listening to Chopin in his hotel room. Scorcese, meanwhile, manufactures a seeming spontaneity of his own: Jagger supposedly hides the set list from him until the last possible minute, but in fact every second of the concert is covered and choreographed.

Perhaps the most telling moment in the film is one in which Keith Richards sings a line into a microphone next to Jagger, and then sings the next line as well. It is immediately clear that he was not supposed to sing the second line, and may not even know the words, as Jagger shoots him a lightning-flash glare and moves to almost literally push Richards away from the mike. It's over in a heartbeat, but it is completely clear that Jagger will not let the chaos diverge from his itinerary. This impression is buttressed by the interview segments which make clear just what a driven, careful businessman and artist Jagger really is.

Scorsese mimics the carefully sculpted facade of spontaneity by putting himself in front of the camera at various scenes (most notably at the very end) as if he is juggling crises in trying to get the movie filmed, when in reality the entire production is very precisely scripted to appear unplanned. But that is just what the Rolling Stones and the music industry are really about. Thus the final result is an entertaining and cleverly self-conscious movie in which Jagger's skills are allowed to shine. It is the exact opposite of Gimme Shelter.

World's longest burning lightbulb

107 years of continuous light.

Sympathy for The Devil

I went to see the new Rolling Stones movie, Shine A Light, with Erin last weekend. It's fantastic--cheaper and better than an actual concert, actually. And it really made me respect Mick Jagger a lot more. What a brilliant artist. I particularly enjoyed the clip from a 1972 interview with Dick Cavett, in which Cavett asks Jagger if he could see himself still performing at the age of 60, and Jagger, without an instant's hesitation, answers "yeah, easily, yeah..."

Not to mention which, "Sympathy for The Devil" must be among the greatest rock songs ever.

Update: Blackpool, England, has repealed its 44 year old ban on the Stones.

Mildred Loving, R.I.P.

Mildred Loving, of Loving v. Virginia fame, has died. Her legacy should be honored by all who are shocked that in the United States of America, the state could aspire to reach into the bedroom and dictate to us whom we may love, and how, and when, and why--and that some Americans could applaud such a thing. That serpent that whispers into the ears of some people, tempting them with the opportunity to control the choices that others may make--whether it be sexual privacy, or the choice to ingest a substance, or the right to build a home or the right of economic choice--that serpent still stings us, and perhaps always will. But Mildred Loving did her part; she took a stand, and bruised that serpent's head. (c/o)

Friday art

The New Novel by Winslow Homer

Some time ago, I thought it would be nice to collect artworks of people reading. I just discovered this one last week. If anyone out there knows particularly good ones, let me know.

Plagiarism and character

Virginia Postrel writes, "As an offense against other scholars and writers, plagiarism is a sign of bad character. But, more important for the public sphere, it's a sign that you don't care about your readers." I wonder if it isn't also something else: an embarrassing lack of self-confidence in the writer. How hard is it, really, to just cite your sources, or to quote a source outright? If there's a passage in someone else's work that catches your fancy, why not either rephrase it in your own words and drop a footnote, or put it in quotation marks? Plagiarists want so badly to take the credit for themselves, but why? It takes about three keystrokes to cite properly--and no reader would ever think, "Boy, this guy sure is dumb; he's read so widely that he just quotes these fascinating insights from other writers I've never heard of..." That's crazy. A well-placed citation or reference makes you look smarter as a writer. "As noted author Virginia Postrel has put it, 'somethingerother..." When you do that, you look better, not worse.