Repeal the 17th!

About ten years ago, then Senator Zell Miller introduced legislation to repeal the 17th Amendment. At the time it was a new idea to me, and I was unprepared to take sides on it in spite of the endorsement of the idea by the one man in Washington I most respected. Here's what he said at the time.

[N]o matter who you send to Washington -- for the most part smart and decent people -- it is not going to change much.

The individuals are not so much at fault as the rotten and decaying foundation of what is no longer a republic.

It is the system that stinks. And it's only going to get worse because that perfect balance our brilliant Founding Fathers put in place in 1787 no longer exists.

Perhaps then the answer is a return to the original thinking of those wisest of all men, and how they intended for this government to function.

Federalism, for all practical purposes, has become to this generation of leaders some vague philosophy of the past that is dead, dead, dead. It isn't even on life support. That line on the monitor went flat sometime ago.

You see, the reformers of the early 1900's killed it dead and cremated the body when they allowed for the direct election of U.S. senators.

Up until then, U.S. senators were chosen by state legislatures, as Madison and Hamilton had so carefully crafted.

Direct elections of senators, as good as that sounds, allowed Washington's special interests to call the shots, whether it's filling judicial vacancies or issuing regulations.

The state governments aided in their own collective suicide by going along with the popular fad of the time.... As designed by that brilliant and very practical group of Founding Fathers, the two governments would be in competition with each other and neither could abuse or threaten the other.

The election of U.S. senators by the state legislatures was the linchpin that guaranteed the interests of the states would be protected.

Bill Whittle has a new piece on the subject, putting it in the context of the whole set of amendments that came out of the Progressive Era of American politics. The 16th was all about income taxes, to give the Federal government new wealth and power to act; the 18th about Prohibition, to give the Federal government new power to reach into the lives of every American and restrain their personal choice about what to drink with dinner. And the 17th, well...



It ends on a happy note. The 18th Amendment was repealed. Why not the other two?

Coitado de quem só pensa o mal

I just returned from a little vacation in Portugal and Spain. (And discovered that Google doesn't trust me to log into applications like Blogger or even the comments...it wanted to confirm with text messages I couldn't receive, or by my having set up code numbers I didn't know about before.) But this tale has waited centuries for you to hear it and is no worse for a week or two more.

We visited the National Palace of Sintra, in Portugal, supposedly the westernmost palace in Europe. It started as a Moorish fortress but passed to the kings of Portugal in the old, familiar way.

I particularly enjoyed the legend of the Magpie Chamber, whose ceiling is painted with over a hundred magpies:

Each of those magpies is carrying a rose in one claw, and a scroll in its beak that says Por Beme (“for the good”).

The legend is that Queen Philippa walked in on King João I of Portugal when he was kissing one of her ladies-in-waiting, and the flustered monarch stammered out the words “Por Bem”…as if to say, this was perfectly innocent; a kiss is just a kiss.

The queen accepted it, but talk went around, as talk will…and the story is that the king had the ceiling painted to spite the chatterboxes. Each magpie carries a red rose in its claw, as a symbol of the King’s loyalty to his queen (a daughter of John of Gaunt, and thus a member of the House of Lancaster ). And each carries a scroll in its beak reading POR BEM.

True or not, I liked the story because it reminded me of Edward III and the Knights of the Garter. Thus the title of my post, courtesy of Mrs. W. In Portuguese: “Poor of him who only thinks of evil.”

And if that “coitado” made you think it was something naughty, well, then, Honi soit qui mal y pense.

She Might Be Right About This One

CampusReform is calling attention to the writings of a feminist professor who wants to eliminate prison for women. The argument she's forwarding is better than the soundbite version of it, though. "Essentially, the case for closing women’s prisons is the same as the case for imprisoning fewer men. It is the case against the prison industrial complex and for community-based treatment where it works better than incarceration."

If you formalize what she is calling that essential argument, it sounds reasonable:

1) (Fact) The majority of offenders are nonviolent but poorly educated persons who have suffered abuse in their lives.

2) (Assumption) Offenders of this kind should be rehabilitated rather than destroyed or permanently removed from society.

3) (Fact) Prison is very expensive, involves significant harm to persons, and shows poor outcomes in rehabilitation.

4) (Fact) Community intervention centers show a much better rate of success at rehabilitation. ("The program coordinator has told me that 68 percent of the women who completed the program had no further involvement with the criminal justice system.")

5) (Conclusion) Therefore, for the class of nonviolent offenders, community intervention centers are better options than prisons.

I've marked as "facts" those assertions that can be empirically verified. Facts, for this purpose, are statements that could be true or false. If the facts she asserts are true, and you share the moral principle she is assuming in premise (2), the conclusion seems to follow.

You get to "no women should ever go to prison" only by the magic of clever headlines designed to draw eyes. However, it is true that this would largely eliminate women from prisons; there aren't that many women in prisons to start with, and she estimates this kind of program could remove 80% of those few.

I would argue that prisons are such a bad option that we should eliminate them generally, replacing them with a three-tiered system of financial, corporal and capital punishments. That would involve a significant expansion of capital punishment, though, to deal with the kind of un-reformable cases we currently pay vast fortunes to keep in prisons. Corporal punishment likewise is often a reasonable alternative: for example, English law in the 15th century held that rapists should be castrated or executed, understanding that the castration often was adequate. We tend to argue that corporal punishment is too great a violation of human dignity to employ, but the truth is that prison involves substantial informal capital punishment and ongoing violations of human dignity: exposure to rape and beatings, periodic strip searches by authorities, etc. If we are honest with ourselves about that, we see that we aren't choosing not to violate human dignity, but choosing between options that violate dignity. Of these, corporal punishment may often be the lesser violation.

Both the increase in capital punishment and the re-introduction of corporal punishment are very much against the current mood of the American people. I'm not expecting Congress to pass a law in the next few years pursuing this set of options; I just think, philosophically, that it's a better set of options. Prisons create people who are permanently unemployable and dangerous, and they require prison guards who are also at risk of significant moral harm from their duty to act in ways that violate human dignity in a regular and ongoing basis. We'd be better off if we could move towards a nation in which we did not have so many prisoners, nor so many prisons.

In the meanwhile, this professor's proposal might be a reasonable place to start.

UPDATE: The comment crew at Hot Air responds to the proposal 'America should stop putting women in jail for anything' with:

"+1. Front line combat duty instead."

We had to lie

Yeah, we lied and we played hide the ball, but that's what it took to get the bill passed, so what choice did we have?  And now, what, the Supreme Court is going to enforce the stuff that we wrote that way on purpose to induce people to misunderstand us?  How fair is that?

"This All Comes Down To Nine Words In The Law..."

"...where arguably the government was unclear."

So says Ezra Klein about the new dagger at the throat of Obamacare, either because of a lack of understanding or because that is what he has been asked to say.

Still, if you watch his video, at exactly the 1:00 mark you can see that the highlighted section goes on a little bit longer: something about "under 1311"? What's that all about?

There are three key sections of the bill: 1311 establishes state exchanges; 1321 establishes federal exchange; 1401 establishes premium assistance through subsidies. Sections 1311 and 1401 are tied together to show how to funnel subsidies through state exchanges. However, there is no parallel language to tie Section 1321 into a way to funnel subsidies through the federal exchange. Thus, the federal subsidy to states’ exchanges, according to Max Baucus one of the originators of the bill, was an incentive for states to comply with the law.

So, in other words, even if you wipe out the "established by a State" language -- the way SCOTUS decided to re-author the individual mandate as a tax -- you still have the problem that the Federal exchanges were not established under section 1311. Their legal authority to exist does not come from that section of the law. Thus, the law does not support their receiving Federal subsidies.

Now Klein has spoken to all manner of politicians who swear up and down that this was some sort of drafting error. All of us who remember the actual debate probably remember that this was an intentional plan to try to force the hands of the states.

Leave that aside, though. Pretend the words "established by the States" aren't present. Grant them their rewrite of the entire highlighted section of the law -- the 'nine words.'

Section 1311 isn't what authorizes these other exchanges to exist. Thus, if this 'all comes down to nine words,' we should win on the merits. You can take the nine words back, and it won't make any difference.

Overtreatment

Even without a concerted effort to promote screening, thyroid cancer incidence in the United States is up threefold since 1975. To reverse this trend, we need to actively discourage early thyroid cancer detection.

Sometimes early diagnosis just means treating people who would have been fine, and for whom the risks of treatment are greater than the risks of the "disease."

Employer mandates

The Washington Examiner is sorting through what it might mean if the Supreme Court enforces the letter of the ObamaCare law and disallows federal subsidies in states that refused to set up their own insurance exchanges.  Some consequences are fairly obvious, but this is one I hadn't thought about:

The (currently delayed) requirement for larger businesses to purchase insurance for their workers or pay penalties is triggered in cases in which at least one employee obtains government subsidies to purchase insurance. In states where subsidies cannot be distributed, the penalties won't apply. Therefore, a ruling against the government could set up a scenario in which businesses want to flock to states with federal exchanges as a way of getting around the employer mandate.

Mandate for moats

RedState is not feeling conciliatory:

Republicans ran this year on very little of substance. Their brand ID is still very underwater with the American public. There is no program right now that the American public is clamoring for the Republicans to undertake with one exception: they hate what President Obama is doing and they want Republicans to stop it. Exit poll after exit poll last night showed that the single most important thing in the minds of the voters this year was the looming shadow of death Obama cast on all his Democrat allies.

If voters really wanted people who would work closely with Obama and other Democrats to “get things done,” they would have just voted for more Democrats. After all, virtually every elected Democrat has “worked with” Obama (in the sense of doing exactly everything he asked) for the last six solid years. Say what you want about the information level of the average voter, but absolutely no one was confused into thinking that they were replacing a Democrat with a Republican in the hopes that the Republican would be more friendly to the Democrat agenda.

Friday Night AMV

Seems appropriate, given the elections this week.

Common ground

There are Republicans--even conservatives!--with agendas, even if they're not in the leadership.  Mike Lee is a coherent kind of guy:

We should find common ground that advances our agenda, rather than let the idea of common ground substitute for our agenda.

. . . In 2015, this “low-hanging fruit” we’ll hear about will be items like corporate tax reform, Obamacare’s medical device tax, patent reform, and perhaps the Keystone XL pipeline approval.

. . . Insofar as the pent-up K Street agenda includes good ideas, then by all means let’s pass those pieces by huge margins and send them to the president. But a new Republican majority must also make clear that our support for free enterprise cuts both ways—we’re pro-free market, not simply pro-business. To prove that point, we must target the crony capitalist policies that rig our economy for large corporations and special interests at the expense of everyone else—especially small and new businesses.

. . . Republicans should seek common ground between conservative principles and the interests and needs of the general public, not just between Washington Republicans and Washington Democrats. And the search for that genuinely common ground will point to a lot of low-hanging fruit too, even when it comes to the proper relationship between government and business. We could pass legislation winding down the Export-Import Bank or the Overseas Private Investment Corporation. We could—and really, must—eliminate the taxpayer bailouts for big insurance companies in Obamacare’s “risk corridors” program. Or we could start to break up taxpayer subsidies for the energy industry or large agribusinesses.

Anti-cronyism legislation is win-win for the GOP. It is good policy, restoring growth and fairness to an economy that Big Government and Big Business have rigged against the little guy. And it’s even better politics, standing up for the middle class while pinning hypocritical Democrats between their egalitarian talking points and their elitist agenda.

Wymyn of color

I was told, as Cassandra so often says, that there would be no math in this election.

Voters and education

What the midterms tell us about education policy:

[C]onservatives . . . ought not be afraid of school reform. Three GOP governors were hammered [before the election] for having supposedly cut education spending. Now, you need to be a forensic accountant to determine the truth of such claims (e.g., Do increased contributions to teacher pensions count? How does one score 2011 stimulus dollars? Is the measure total spending or per-pupil spending?). In any event, two of the embattled candidates — Rick Scott in Florida and Sam Brownback in Kansas — went on to triumph despite fierce union attacks. Tom Corbett lost in Pennsylvania, but he had plenty of other troubles and was left for dead months ago.

In fact, while 20 of 35 Republican gubernatorial candidates touted increased K–12 spending as part of their platform, it’s not clear that voters are convinced that more spending is the ticket to better schools. In Harry Reid’s Nevada, a ballot measure to boost school spending by raising corporate taxes went down to a crushing defeat. A year ago, a billion-dollar spending plan for schools crashed and burned in similarly purple Colorado. And deep-blue Washington state rejected an initiative to decrease class size by hiring more teachers.

Meanwhile, the results should encourage conservatives ready to fight for principled reform. Scott Walker won for the third time in four years in purple Wisconsin in the face of relentless union opposition for daring to curtail collective bargaining, tackle public pensions, and promote school choice. Rick Snyder in Michigan won with a similar résumé, and John Kasich roared to victory in Ohio after having fought similar fights. These are all industrial Midwest swing states where conservatives can find themselves inclined to step gently. Oh, and Thom Tillis, speaker of the North Carolina house, was targeted by a flood of negative ads for his role in the state’s hugely controversial move to eliminate teacher tenure and stop paying teachers for advanced degrees. For all that, Tillis still managed to oust favorite Kay Hagan.

Three Years Off

Otherwise, a surprisingly solid prediction.

This revelation comes days after Rear Adm. Brian Losey, head of NSWC, and Force Master Chief Michael Magaraci issued a reminder to special warfare sailors to stay out of the limelight when it comes to their service.

“At Naval Special Warfare’s core is the SEAL ethos,” according to the letter, which was obtained by Navy Times. “A critical tenant of our ethos is ‘I do not advertise the nature of my work, nor seek recognition for my actions.’ Our ethos is a life-long commitment and obligation, both in and out of the service. Violators of our ethos are neither teammates in good standing, nor teammates who represent Naval Special Warfare.”

We all love the Navy SEALs (see esp. comment four), seriously... but there's a reason we get jokes like this.

Negativism

Don't sell negativism short.

Even yesterday, in victory and in concession speeches, candidates of both parties told us that dysfunction was the biggest problem in DC.

Where exactly have Republicans suffered? After endless analysis of the Kentucky Senate race, Mitch McConnell, the architect of obstructionist strategy in the Senate, won re-election easily. The reality is that Republicans have been generously rewarded from their tenacity in stopping post-Obamacare progressive policy. Since 2010, the Republicans have pulled together a historic string of victories—with scores of seats changing hands in the House. If anything, what we learned is that politicians are far more likely to be penalized by the electorate for passing unworkable and overreaching legislation than they are stopping it.

Mitch's Iron Fist

"Iron Fist" and "Mitch McConnell" are not ideas closely linked in my consciousness.  I had no idea that the reason hundreds of House bills have gone to die in the Senate over the last few years was that McConnell exercised his ruthless and unbridled control as Minority Leader; I just stupidly assumed it was because Harry Reid, as Majority Leader, refused to let them come up for a vote.  Now I guess Reid will have his own opportunity to exercise an Iron Fist in the incredibly powerful role of Minority Leader, assuming that his (remaining) colleagues don't have enough sense to vote him out of that position.

Another thing I didn't know was that President Obama "pivoted to the right" after his 2010 shellacking.   His aides assure us he's not planning to do that again, though.  Fair enough.  We can only expect so much from the man.  Tom Brokaw is already wondering on what issues the new Republican majority will cave, since that's apparently the first thing one expects of a party that wins a wave election--certainly nothing that could be expected of people whose agenda was just decisively repudiated.  Personally, I hope the Senate sends the President a bunch of backed-up bills to veto until his pen runs out of ink.  Let him own a few positions for a change instead of whining that he can't understand the Republican "agenda."

I'll give Mitch ("Iron Fist") McConnell credit for one thing:  his crack at today's press conference that Dodd-Frank is just "ObamaCare for banks."

Virtue Loses its Loveliness

Irving Kristol wrote a piece I'm only just getting around to reading today, which he published in the 1970s at the flowering of the Baby Boomers' rejection of Western Civilization. It's a very interesting criticism, especially of the problems of equality and inequality. I couldn't agree more with the conclusion.

Our dissidents today may think they are exceedingly progressive; but no one who puts greater emphasis on "the quality of life" than on "mere" material enrichment can properly be placed in that category. For the idea of progress in the modern era has always signified that the quality of life would inevitably be improved by material enrichment. To doubt this is to doubt the political metaphysics of modernity and to start the long trek back to pre-modern political philosophy -- Plato, Aristotle, Thomas Aquinas, Hooker, Calvin, etc. It seems to me this trip is quite necessary.

Why? Read it and find out. It's not that long, and it's worth consideration.

The Brutal Fate of the Gang of Eight

So will the lesson be that amnesty is not something the American people support, or that it is necessary to do it through executive action rather than having legislators endanger themselves by voting on it?

Science and Faith

If you read the debates on the nature of space and motion between Leibniz and Newton's student Clarke, you'll find that much of it is explicitly theology. To talk about the world in theological terms may sound like an absurd thing, certain to lead to bad thinking; in fact, we still return to those debates today because the theology is helpful in thinking through the logical issues about the structure of reality that they and we are still debating.

Noah Berlatsky writes that this unity can be seen elsewhere:

The pop culture account of science is, as Lipking, a Northwestern University emeritus professor of English, notes, one of continuous advancement and ever-clearer sight—or, alternately, one of ever-encroaching spiritual death, as cold technology alienates us from our true selves. But both narratives of progress and those of apocalypse erase the extent to which the scientific revolution was fired by religious fervor. Galileo, forced to recant his heliocentrism by the Church, nobly refused “to be swayed by myths or orthodoxies,” and boldly declared, “Nevertheless it moves.” Except, there’s no record that he said that; the rejection of myths and orthodoxies is itself a myth—one of the founding stories of modernity’s science code.

Along the same lines, Descartes’ famous mental experiment, in which he stripped the world down to what can be rationally known, was, it turns out, inspired by a series of vivid dreams, in which, Descartes believed, God had called him to a great work. Kepler introduced his epochal Third Law explaining planetary motion by declaring, “It is my pleasure to yield to inspired frenzy, it is my pleasure to taunt mortal men with the candid acknowledgement that I am stealing the golden vessels of the Egyptians to build a tabernacle to my God.”

Great moments in campaigning

One of the worst political sound bites ever:

Exacerbating matters was Obama’s Oct. 2 speech in Chicago, in which he handed every Republican admaker fresh material that fit perfectly with their message: “I am not on the ballot this fall. . . . But make no mistake — these policies are on the ballot, every single one of them.”

The New York Times (and some of you guys) won't see this as a wave, but the numbers are telling: Republicans picked up at least seven Senate seats, a number that probably will grow to nine seats after the dust settles in Alaska and Louisiana. (Democrats picked up six Senate seats in 2002 and eight in 1986.) Republicans gained 12 or maybe 13 House seats, leaving them in the largest majority since 1928. Democrats held on by the skin of their teeth to hotly contested Governors' seats in Connecticut and Colorado, and picked up Pennsylvania in a predictable landslide, but lost everything else, including Florida, Wisconsin, and even Maryland, Massachusetts, and Illinois. Republicans won every race they were expected to have any chance of winning, in addition to a solid handful no one would have expected, while generating nail-biters that came out of the blue, like the governor's race in Virginia and the Senate race in New Hampshire.

Repudiation