Thursday, November 17, 2016

For the Electoral College

One good way to lose the Presidential race is to piss off the Jewish vote in Florida.  That alone should be enough for any Jew with a sense of history to care about the Electoral College.  But we're not all Jewish, so here are some less parochial thoughts.

Losers too often blame the rules.  In recent history, liberal voters have outnumbered conservative voters.  In some instances, the Democrat candidate for President has received more popular votes than the Republican but lost the election.  Liberals like Barbara Boxer are now claiming that this is a bad thing per se.  But the Electoral College is meant to produce just that result from time to time.  Why else have it?  Consequently, when the losing candidate receives more votes than the winner, the Electoral College is serving its purpose, not thwarting some "democratic" ideal.

Is a popular vote margin of 1 vote in 200 really worth all this fuss?  Even that margin is suspect.  The idea that someone "won" a contest that was not held is rhetorical hooey.  There is no popular vote.  No candidate campaigns for it, so no one can "win" it.  No one knows how the popular vote would have turned out if the candidates had actually campaigned for it.  Does anyone doubt that Mr. Trump could have picked up more votes in New York of California if those votes would have counted?  Until one maps out a strategy (and calculates the budget) to win a race for the popular vote, one cannot begin to form an opinion about whether the country would be better off holding such a race.

The Electoral College exists precisely because the founders believed that numbers aren't everything.  How many bills get through the House but fail in the Senate?  Should we abolish the Senate, too?  The Electoral College simply does for the executive branch what the Senate does for the legislative: it makes it less small-d democratic, which is to say more small-r republican.  That's why it's there.  (For Democrats who think raw democracy is such a great idea, I have two words: George McGovern,)

Anyway, Hillary's problem was not the Electoral College.  Hillary would have won her election if she had carried various permutations of Ohio, Pennsylvania, Michigan, and Wisconsin, all of which would have been within her grasp if she had appealed to the economic interests of farmers and working-class breadwinners.  She failed to do that, but she still got more votes nationwide.  If the popular vote were all that mattered, maybe a person could get elected President while (by?) telling important constituencies that they don't matter.  Is that really the kind of country we want to live in?

As the software guys say, the Electoral Collage is a feature, not a bug.  It did its job this time, and we may each be glad at some time or another when it does it again.  The rules were fine.  The losing player just failed to win by them.

Monday, October 17, 2016

I'm with her, sort-of


I am not a fan of Hillary Clinton.  She seems to me a good if misguided person.  She's a tad messianic for my taste, and she seems to worry more about victims than anyone else.  Compassion is good, but it's a luxury, and it ought not to be the organizing principle of our politics.  Also, like her husband, she is content to be accurate when truthful would be more to the point.  For example, one can be for a bill (with some minor amendments) or against that same bill (as it currently stands).  Leave out the parenthetical, and you are always telling "the truth" by Clintonian standards.  And so we have Hillary on TPP.  But, hey, that's politics, right?

The "trustworthiness" thing doesn't much bother me.  One of the great ironies of this election is that the people who oppose Hillary claim not to believe a word she says, but oppose her because they know she will do what she says she will do.  Do they doubt she will, as promised, appoint Justices to the Supreme Court who they think will shred the Constitution?  Hell, no.  They are sure she will do exactly that.  But they don't trust her in some unspecified respect, and that's the argument they want to make.  Only in America.

This election boils down to one simple question, first asked by Harry Callahan: Do you feel lucky, punk? Well, do you?  Because, if we elect Trump President, we will have to get very lucky.  I expect that I would like his Supreme Court more than hers.  I might like his tax plan more than hers, too.  His focus on jobs and defense appeals to me more than her obsession with weeding out every last vestige of unfairness in this worst of all possible worlds.

In other words, I wish there were a Republican running for the office.  Not any Republican - many of the guys Trump beat were mental and/or moral midgets.  But maybe if the GOP had run JEB or Kasich, we would have a choice.  But they didn't, and so we don't, and I, myself, don't feel lucky enough to put a narcissistic twelve-year-old in the White House.  The Trump Doctrine - "He started it" - lacks, shall we say, a certain nuance that our foreign policy needs.  "Yo' mama" is not a bargaining position on the world stage.

The sex-talk on the bus is bad, but it confirms things we already know about the man, most notably that his reason for seeking power is to abuse it.  Why go to all the trouble of becoming famous if it won't get you laid?  Listen to him tell Howard Stern what he "gets away with," or Billy Bush what "they let you do."  It's all of a piece: the opportunity to ignore the rules.  Another irony there, as the knock on the Clintons is that they don't think the rules apply to them.  The Clintons think so because they are better than us; Trump thinks so because he's "a star."  Different brands of American exceptionalism.

And then there's the Russian hacks.  These have the moral status of Dr. Mengele's experiments.  It is unethical to pay them any attention.  Our ethics-free "journalists" say the contents are newsworthy - an argument that could be made for Dr. M's findings, too - but reporters are hardly arbiters of what's in the best interests of the country.

The issue is not legality.  I understand that publishing stolen documents is an essential function of a watchful media.  But the Podesta hacks are not just "stolen."  They are stolen by our geopolitical enemy and are being dribbled out by that enemy (or its co-conspirators at the "apolitical" Wikileaks) in order to do us harm.  Anyone, including any journalist, who recklessly does anything to make the Russians glad they hacked Podesta's emails is a traitor to the United States.  There are good reasons why such treachery cannot be criminalized, but there is no reason why it cannot be condemned in the strongest terms.  Shame on them, every last fucking one of them.

The self-styled conservative patriots on the right should be the first to take this position.  Maybe next time, when it's their secrets being stolen.  Because make no mistakes about it: only Putin's personal animus toward HRC and anticipation of an amateur fan-boy in the White House makes the Dems' stuff attractive to him.  When and if sanity returns to the USA, the GOP will again be the party of hawks, and it will then become the target of hacks.  Then will the right wing rise up against "the media" for giving the Russians just what they want.  One can only imagine what the Democrats will do then, i.e., when they stop laughing.

Did I mention "Feh"?

Saturday, August 6, 2016

Friday, July 29, 2016

A Man without a Party

Having watched both conventions, I am in a foul mood.  The media pokes fun at the dearth of black faces at the RNC, but one can name the white men who made it to the DNC stage.  We have become the two Americas that the politicians decry.  One is angry, straight, and white, and the other is smug and not those things.  The damage is worse on the Right, but that's to be expected.  Dysfunction is the demagogue's stock in trade.  Hillary has the wrong priorities, but, except for the glee she showed in taxing the rich, she is for advancing the downtrodden, while Trump wants to "take back" the ground where the downtrodden no longer fear to tread.

Serious conservatives are feeling especially impotent, unable to support "their" party's nominee, and unwilling to be associated with the views of the other.  The fecklessness of conservative politicians is mind-boggling.  It's like Warren Buffett says about how low tide shows you who's swimming naked. The Trump tsunami has revealed which Republicans are thinkers and which are posturers.  Speakers Ryan and Gingrich have come off particularly badly.  They have claimed to be philosophical conservatives, whether or not also fierce partisans.  But one cannot be a serious conservative and not bend every fiber to defeat Herr Trump.  One cannot be a patriot and sit still for his ascendance.  His rise is, in every sense of the word but one, "Unamerican."  That one sense is the one invoked by H.L. Mencken's observation that no one ever went broke underestimating the intelligence of the American public.  Trump has lived that sad truth, and now he is running on it.

I am loathe to catalog my misgivings about Mrs. Clinton for fear they might be seen as reasons to vote against her this November.  I don't really care much about the "dishonesty."  Neither she nor her lying husband were thieves to any important extent, and both have sought to do in office what they said they would do.  Like oppose TPP, at least until it is called something else.  I don't doubt that Hillary will try to keep her campaign promises.  To the contrary, it's the promises I don't like.

She told the convention that she is not there to get rid of the Second Amendment.  Then she said that she is there to get rid of the First.  I can't wait to see how her proposed amendment to overturn Citizens United distinguishes between corporations that publish newspapers with editorials in them and corporations that merely purport to do that to get around some ridiculous distinction between them.  Citizens United was rightly decided, as Bernie Sanders and Donald Trump have proved.  Trump has been immune to PAC attacks, and Bernie raised tons of money at $27 a clip, without a PAC.  Big money couldn't get JEB out of the starting blocks.  Yet Democrats, as the party of the poor, pretend that there is a point and a hope of getting it out of politics.  Shame on her.

Hillary wants to pay for her job-creating infrastructure work.  Generally, paying for stimulus is oxymoronic, with an emphasis on the moronic.  How can you create jobs by taking spending money out of people's pockets?  All else equal, when we raise revenue to pay for increased spending, we penalize the private sector exactly as much as we benefit the public sector.  Where's the gain?  The answer, of course, is that the object of the tax is not to pay for anything; it is to get payback from those who have done so well.  It is redistribution masquerading as fiscal responsibility.  It probably will create jobs to the extent that it moves money out of financial assets and into infrastructure. But it's really just class warfare.

Here's what she said:
Wall Street, corporations, and the super-rich are going to start paying their fair share of taxes.
Not because we resent success. Because when more than 90% of the gains have gone to the top 1%, that's where the money is.
Yeah, right.  Are we to believe that one's "fair share" of taxes is determined by whether one is where the money is?  But that we don't resent success?  (Like I said, she lies.)  Still, if the result is a better infrastructure and less income inequality, we will probably be better off than with neither of those results.

My own preference would be to borrow and print money to pay for the infrastructure work and redistribute wealth via a guaranteed basic income, also funded by printed money.  That's not to say the carried interest rule is a good thing, or that a higher tax rate on very high incomes would be a bad thing.  But not to raise revenue to pay for an improved national capital base.  The users can pay for that over time by using it to make things for the owners of the dollars printed to build it.  Future generations never pay in money; they always pay in outputs.  That is what self-styled fiscal conservatives always miss.

And then there's equal pay for women.  We have Title VII, and we have the Equal Pay Act.  The only thing left is the bureaucrat's delight called "comparable worth."  Yucch.  Don't get me started.  There is nothing left to be done on that front that is worth doing.  Hillary's motto is this:  "Give a woman a sou, and she eats for a day.  Teach her to sue, and she'll eat for a lifetime."   Maybe learning to negotiate would be more to the point.  There's really no there there, but the opportunity to pander to someone who is not white, male, and straight should not go to waste.

I guess we can blame it all on Nixon's southern strategy.  The GOP became the party of white trash when there were enough rednecks to win an election.  It is still the party of white trash, but there aren't enough to win an election, one hopes.  So the Democrats have naturally become the party of everybody else, including some ridiculous people on the left.  But somehow, the Democrats have abandoned the working stiff in the midwest.  They pay lip service to him, and they send Joe Biden to Scranton to mollify him, but they did not feature him in Philadelphia.  Where was the head of any major union?  I say this with no particular pro-union sentiment, just an observer of our polarized politics.  The party of the left doesn't need no stinkin' white men, so it isn't going to do anything to get their vote.  That could be a problem come November.

In general, the Philly convention was an exercise in bad triage.  Most of the preaching was to the converted, with one night targeted to an audience that included the non-disadvantaged.  Too little too late by my lights.  I think there were more votes to be gained than lost by courting the middle.  But that's just me, wishing there were a party for patriots who aren't angry.

(I'm not going to say anything about Trump beyond that his ascendance scares me as much as the possibility of his being President.  To paraphrase Dr. Johnson on women preaching, the remarkable thing is not that he is running well but that he is running at all.  What kind of people vote for that kind of person?  Sadly, Americans.)

Monday, June 6, 2016

I Don't Care Whether Trump is a Racist

I think racism is a terrible thing.  I rise to defend its boundaries so that the charge continues to mean something.

So, yes, I do care whether Trump is a racist, but I haven't seen anything to suggest that racism is even close to his biggest failing.  Yet the people who get outraged for a living have allowed their favorite bugbear to crowd out all of the things about Trump that are really scary, once again cheapening the "racist" label by slapping it on anyone they don't like just because they think it will stick.

Two "big" incidents happened last week that have driven the offenderati nuts.  First, Trump complained that the judge hearing the Trump U. case is biased against him because he's "Mexican."  (The Judge is a Mexican American, born in Indiana.)  Imagine that you are a skinhead accused of blowing up a synagogue, and you draw a Jewish judge.  Would you really have to be antisemitic to worry that releasing you on a technicality would come a little harder to this judge than some other?  Would you not protest the assignment?

Trump has pissed off a lot of Mexican Americans, and now he worries that a Mexican American will have some bias in his personal case.  Seems a fair concern, or, to be more precise, to the extent it is not a fair concern, the error has nothing to do with "racism."  On the contrary, Trump is making an assumption not about "Mexicans," but about anyone with an ethnic identity.  He may be wrong about the extent to which ethnic loyalties (not ethnicity itself) affects one's behavior, but his argument is universalist, not racist.  He is addressing a human foible, not accusing a particular group of inferiority or depravity.

Trump is not saying, as the professionally aghast would have us believe he is saying, that Mexican Americans are not qualified to be judges.  But, unable to hang him on his actual position, they hang him on one they wish he held, relying for validation on his (and his surrogates') inarticulateness, and the fears of Republican pols that they will be tarred for offering any defense of Trump whatsoever.  Mitch McConnell is a perfect example.  When Chuck Todd asked him on Meet the Press whether Trump's statement on the judge was racist, the senator simply said that he disagreed with the statement.  He did not allow that it was racist, nor did he deny that it was racist.  He could not afford to take either position, because intellectual honesty (aka truth) is the first casualty in political warfare.

But there's really no there there.  In attacking Judge Curiel, Trump was speaking as a litigant, not as a presidential candidate.  Trump is an egoist to whom only his own outcome matters.  He wants to win the lawsuit, and he does not care if he has to intimidate a judge to do it.  As far as he is concerned, that's what litigants do, if they can.  On Face the Nation, John Dickerson asked Trump whether we don't have a tradition of not asking where a judge's parents came from.  Trump answered, "I'm not talking about tradition, I'm talking about common sense, OK?"  The fairest translation of that statement into functional communication is "Save the civics lesson.  I'm trying to win a lawsuit here, OK?"

Trump doesn't get that Presidential candidates don't have the privilege to say such things.  His private interests should already be beyond his personal attention, and yet for no one in history has the political been so personal. In Trump's view, l'etat c'est lui.  And that's what's so scary about the judge thing.

Which brings me to the other event that has heads exploding.  Trump pointed out a black attendee at one of his rallies, (mistakenly) identifying him as a supporter, and saying "Look at my African-American over here.  Aren't you the greatest?"  For the insensitivity of using "my" with respect to a black man, Trump is labeled a "racist" by anyone with a microphone.  That would not include the guy he was pointing to.  He was surprised.  But it would include pundit Ron Fournier, who appeared to be quoting Trump when he said on Meet the Press "There's my African-American. I hope he--
I hope he behaves himself."  But Trump didn't say that.  Fuornier made the second sentence up, interrupted only by Andrea Mitchell chiming in half-way through with "Incredible!"

Again, context is everything.  To Trump, everyone in his crowd is "his" supporter; his man, his woman, his hispanic, his black, his...whatever.  "My" is how he views the world.  Insensitive? Sure.  But racist?  Hitler's smiling in his grave thinking "Well, if that's all it takes to be called a racist, I can live with that."

Trump's mapping to Hitler is more about the beer hall than the death camp.  Trump has a Hitleresque disregard for institutions and traditions.  He has an agenda and followers.  For him, all the rest is commentary.  Actually, I think he is more Putin than Hitler, a strong man who will restore our national pride and keep us safe from whatever we fear by ignoring those niceties that we  don't really feel deep down inside do us any good.  ("I'm not talking about tradition. I'm talking about common sense, OK?")  How many Americans really understand the privilege against self-incrimination?  Many Americans believe that the Fifth Amendment, and the First, are, for the most part, a refuge for scoundrels.  These people want a leader, not a presider.

The balance between the aggrieved middle and the philosophical eggheads is more fragile than we like to think.  The cooler heads have to prevail.  But when hotheads speak for the cooler heads, as they have on this bogus "racism" claim, they damage the label and give Trump's supporters proof that the MSM is as their champion says they are - sanctimonious, self-righteous, and full of crap.  This is a teachable moment, one in which we should be talking about a unique instance of a presidential candidate trying to intimidate a Federal judge.  Instead, it's just another day at PCU.  And that pisses me off.  Oh, well, that's what blogs are for, right?

Tuesday, April 19, 2016

More on Trump and Abortion

A friend wrote to me off-line, with permission to reprint:

"Couldn’t the state express an interest in regulating what health care providers do, apart from whether the patient requests the intervention?  I am thinking of assisted suicide, where physician care is regulated by the state, but I guess the same could be said of abortion.  A state could say abortion or assisted suicide is a procedure that we don’t want our physicians or nurses to provide, with no criminal conduct attached to the request, only to those who perform the procedure.  I am no fan of abortion controls, but would imagine the argument could be made.  Would be interested in your views."


The Rosetta Stone for such things, I think, is Griswold v. Connecticut. I like Justice Harlan's approach to that case best - I liked Justice Harlan's approach to MOST cases best - but Justice Douglas handled the issue at hand in the majority opinion:

"In a long series of cases, this Court has held that, where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose."

This issue is actually before the Court in Woman's Health v. Hellerstedt, which is sub judice right now.  That's the Texas case testing whether the restrictions put on places where abortions are performed are constitutional.  I think the state's arguments follow the line in my friend's comment.  Those arguments can certainly be made.  Whether they will stand up remains to be seen.

As regards the original post, however, I think the pro-life movement has a lot riding on the moral claim that abortion is murder, and while some may applaud anything that saves what they view as unborn lives, others will bridle righteously at the idea that the state has a rational interest in making the taking of such lives safe.  In passing such a law, the state appears to legitimize abortion itself.  Indeed, with the details unstated, the Texas legislature's position is indistinguishable from Bill Clinton's, viz., that abortion should be safe, legal, and rare.  A candidate who advances that argument is not a "true" pro-lifer.

Assisted suicide is a good template, except that the victim is also a co-conspirator.  No one is allowed to participate in an assisted suicide, and the state can argue, rationally (if not necessarily persuasively) that the opportunity to raise "assisted suicide" as a defense (think reasonable doubt) in a homicide case makes legalized assisted suicide unworkable.   I don't see an analog to that argument in the abortion scenario: the mother is available to testify, and Roe v. Wade has already determined that the (timely) aborted fetus is not the object of criminal conduct.  The state needs a rational reason not to allow a doctor to perform any particular procedure, and, under Griswold, where that procedure serves a fundamental right of the patient requesting it, which, under Roe v. Wade, an abortion in the first trimester does as a matter of law, the reason must be more than rational; it must be compelling. 

My friend's comment may point to the Hippocratic Oath and who gets to enforce it.  Do abortionists violate their pledge to "do no harm"?  (Hippocrates thought so, but things change.)  Can the state make adherence to the oath, as interpreted by the legislature, a condition of licensure?  Can it make adherence to the oath as interpreted by anyone other than the doctor and his patient (the fetal carrier) a condition of licensure?

But once again, how can harm be done without the co-conspirators being liable for doing such harm?  We cannot create a fiction that the abortion harms the mother in ways she does not understand, because that would require admitting that the abortion does not harm the life represented by the fetus, and once again, the pro-life linchpin is removed. 

Friday, April 1, 2016

Trump and the Pro-Life Underbelly

Donald Trump says he is pro-life, which is to say, anti-abortion.  (Who is against life?)  So, when asked whether, if abortion were illegal, a woman who has an abortion should be punished, he answered, in effect, yes, because it's hard to make something illegal and not punish those responsible for it.  This was a major gaffe, in political context.  Professional pro-lifery has tied itself in logical knots to avoid that very question, but, not being a member of the club, Mr. Trump answered it naively, in every sense of the word, thereby revealing that the pro-life movement has no philosophically consistent legal path to proscription.

I say this without taking the contrary position that abortion should be legal.  That's for another day.  Nor am I saying that, if abortion were illegal, the woman who requests the procedure should be punished.  But I am saying that the philosophical underpinning of the pro-life movement - abortion is "murder" - is untenable.  Rather, abortion raises subtle issues of what "criminalization" of an act means, of who has standing to deter and/or punish and/or demand compensation for the act.  Those issues are rarely presented in so riveting a setting.

The standard pro-life "argument" against prosecuting a woman who procures an abortion is that she is a "victim," too.  But a victim of what?  Certainly not homicide, as she is not dead, nor is any attempt made to kill her.  Not battery, as she has given permission to the touching.  Indeed, what possible "victimhood" can be attached legally that does not impinge on her rights as a free citizen to do with her body as she chooses?  In the ordinary case, where a woman who did not want to become pregnant seeks an abortion to "fix it," there is no reasonable interpretation of "victim" that fits any of our legal modalities.

If the woman who has an abortion were a "victim," could she not sue for damages?  Could she not be the complainant in the criminal case against the doctor? "That's the bastard who performed the procedure I so desperately wanted and so willingly underwent and paid for!"  I understand the patriarchal, theological, condescending "poor girl didn't know that she was being victimized" argument, especially in the case of a minor who acts without her parents' permission - a whole 'nother can of worms - but if a woman of full age requests the procedure, calling her a "victim" is an insult to her autonomy as a human being.  It is nonsense, except insofar as everything we do can be chalked up to human frailty, so that every bad decision we make turns us into the legally defined "victims" of whoever might conceivably gain by the transaction.  Caveat emptrix.

Because the philosophical fiction that the woman is a victim won't work as a legal fiction, the only logically sound approach to criminalizing abortion is to argue that it is not a crime against the mother or the child but that it is a crime against the state, like polluting the drinking water.

The key distinction between such crimes against people and crimes against the state lies in the nature of the state's purpose in punishing these two types of crime.  In the case of a crime with an individual victim, the public punishment is meant to serve, among other things, as an adequate substitute for personal vengeance.  The perpetrator must be punished in a way that relieves the victim of the need to do more.  But how does that logic apply to the "crime" of abortion?  The people of whom the victim (the fetus) might be the natural object of affection are implicated in the crime.  Surely, they could not demand vengeance.  If there is no one to demand retribution for the child's death, the constraints on the legal response to the action are reduced.

Under the "abortion is murder" view, abortion and infanticide would be equivalent delicts.  Yet, absent special circumstances, I doubt there is a pro-lifer anywhere who thinks a mother who kills her living child is also a "victim."  How does the unborn nature of the child, allegedly irrelevant to the pro-life claim that life begins at conception, suddenly change the mother from killer to victim?   Griswold v. Connecticut involved a statute that did punish the user of contraception.  Thus, under the Griswold statute, the "mother" was a criminal, and under the laws against infanticide - i.e., the homicide laws - the mother is a criminal, but under pro-life dogma, the mother is a victim.  Only in America!

To sustain the pro-life result - abortion is illegal, but only the practitioners get punished - abortion has to be a separate and distinct affront to the good order of things, either as a form of moral pollution, or as an illegal assault on the continuation of the society through reproduction.  I am not saying that such an approach is permitted under our Constitution, only that logic allows only that approach without also making the mother (and her co-conspirators) criminals.

In China under the one-child policy, a disturbing trend arose in the survival rates for infants.  More boys than girls survived, because, if a Chinese family could have only one child, a male would more likely prove to be an asset.  Once could see, then, how the state would have an interest in the survival of baby girls qua future adult females in a stable society, such that, without considering the fetus a "victim," the performance of an abortion on a female fetus could be considered a crime against the public welfare, whereas "abortion" per se, might not be criminalized at all.  In that case, because the state's only interest is deterrence, and not vengeance, the choice of whom to punish is a matter of administrative convenience: one charges the person whose behavior can most easily be modified. 

A similar statist view could be taken of abortion generally.  Practical and moral arguments are available, so long as we don't look at the Constitution.  The practical argument against abortion is the same as the argument against contraception: the availability of contraception increases the likelihood of sex ands conception outside of marriage, matters in which the state might take an interest.  The moral argument is more subtle: a society that indulges the killing of unborn babies is coarsened by the indifference to life.  We might, therefore, outlaw abortion by punishing whomever punishing will most effectively deter from the act.  Either way, once the attention is turned on the reproductive aspects of the issue, and not the homicidal aspects of it, we can see our way clear to punishing only the doctor.

But once we turn our attention to the reproductive issues, we run headlong into Griswold and, of course, Roe v. Wade, a Solomonic solution that cuts the baby temporally in thirds.  Pro-life advocates have "officiially" decided not to fool with those cases by saying instead that abortion is murder because life begins at conception.  But then the mother et al. become complicit, so we have to make her a "victim," which becomes an excuse for leaving her out of the criminal statute even though it makes no damn sense and belies the "abortion is murder" claim on which the constitutionality of the proposed ban is based.  They are, so to speak, trying to be a little bit pregnant.  They should know better.