Marriage

For those of you who'd like to read the decision instead of the commentary. The ruling is that no state may prohibit same-sex marriages; as a natural consequence, each state must recognize same-sex marriages authorized by other states. The right to same-sex marriages is ruled a fundamental right, with which (under the 14th amendment) the states cannot interfere without due process of law. (The Fifth Amendment places the equivalent restriction on the federal government.)

I would call it a privacy-penumbra case, squarely in line with Griswold v. Connecticut, which forbad the state to interfere in a married couple's decision to use contraception.  That is, it seems to be based less on identity politics than on limiting the government's right to interfere in intensely private intimate relations--but maybe that's just the part of the reasoning that resonates best with me.  Bear in mind also that it is a restriction on state power, not a prohibition of individual discrimination, which is a creature of statute.  That is a controversy that will continue to rage, especially since this decision neither expressed nor disavowed a First Amendment ground for refusing to participate in a wedding ceremony that violates one's religious convictions.  The Court did say that religious institutions have a first amendment right to advocate against same sex marriage. Roberts is leery of protections that are limited to advocacy: "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses." What will happen, he wonders, "when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples"?  Alito echoed these concerns, but mostly in terms of a fear of branding opponents as bigots unless they confined their opposition to private whispers.

Roberts read aloud a dissent in which he appeared to welcome gay marriage but deplore the decision to get there by judicial fiat rather than democratic process. (Those of us with memories extending beyond 24 hours may be amused by this comment from Justice Roberts: "But this Court is not a legislature.") In contrast, the majority opinion stated "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right." Roberts also makes the slippery-slope argument: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."

Scalia read aloud a dissent that was dripping with contempt for the legal reasoning of the majority:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Thomas balked at including homosexuality within "life, liberty, or property," and scoffed at the sloppy grafting of due-process on equal-protection jurisprudence by means of the dreaded "synergy."

A Month of Disasters for the Infidels

Coordinated attacks in France, Kuwait, and Tunisia. The attacks combined with a propaganda statement calling for a month of disaster for infidels seems to recognize the burgeoning US/Iran alliance that our administration is intending to leave as its major foreign policy legacy. The most deadly attack was on a Shi'ite mosque in Kuwait, but the attack in France was on an American-owned chemical plant, where at least one person was decapitated. The attempt to destroy the plant did not succeed. I would like to know more about how they planned to destroy it: chemical plants could be destroyed in ways that cause much greater damage than simply shutting down the equipment.

The world keeps insistently knocking at the door.

The Queen's Guard

"His gun is jammed," the observer states, suggesting that the misunderstanding of the situation here was even greater than it appears.

One wonders how long this beloved British tradition of having the guards ignore tourist antics (to the point of being laid hands on) will continue. The guard is a symbol of the Queen's authority, and a symbol of the state. In the age of terrorism, that makes them a target for those wanting to send a symbolic message of their own. The guard here was righteous and correct in his response.

Rule of law

OK, I'll talk about the words even if the concept of meaning has taken a small beating this week.

You know, if they'd said "state exchanges," I could see the argument for ambiguity. That might mean either "an exchange operating in a state" or "an exchange established by a state, as opposed to one established by the feds." How anyone can think "exchange established by a state" is ambiguous in a statute that involves both kinds is really beyond me, particular with evidence that the whole point was to give states an irresistible incentive to set up their own exchanges and not dump the task onto the feds. The states' refusal to set up their own exchanges became a conceivable choice only after the S. Ct. struck down the Medicaid penalty as too coercive, which is the main reason the remaining law now strikes many people as "internally contradictory." That is, it always was a little bizarre that state exchanges would be denied subsidies, but no one paid much attention because they could barely entertain the notion that it would ever happen--and it never would have happened, in all likelihood, until Justice Roberts re-wrote the ACA the first time.

The only way to read "exchange established by a state" as "exchange established by anyone you like" is to demand a certain result and twist the words and standards as necessary. Which is pretty much what the majority opinion announced it was doing: it said the plaintiffs' interpretation was right, but going along with it would be too inconvenient.  So the trial court said the language was unambiguous and meant what the White House said. The appellate court said it was ambiguous but meant what the White House said. The Supreme Court said the most obvious reading was that it meant the opposite of what the White House said, but it would be re-interpreted that way anyway because we wish Congress had written something different or at least had employed competent draftsmen.

This doesn't surprise anyone about the liberal judges or even Kennedy. Many of us hoped that Roberts's bizarre "it's a tax/it's a floor wax" approach the last time around was an aberration, but now we see it wasn't, at least not when the stakes are high.

A commenter I appreciate at Megan McArdle's site has been asking people for months now to provide her with an example of improved language that would make "exchange established by a state" unambiguous, if your purpose was to make it clear that exchanges established by the feds would not be eligible for subsidies.  She never gets any takers.  The most frequent response amounts to "Huh?"

There's been a lot of yelling back and forth about U.S. v. Gore and Heller and Citizens United and whether rightwingers are really consistent about precision of language. I won't for one instant try to argue that you can resolve constitutional disputes without dealing with flexibility and ambiguity in the use of language, especially centuries-old language with a long history and a complicated context. But King v. Burwell was a statutory interpretation case. That's a special animal, where we have precise and useful tools for deciding when the judicial branch should intrude on the legislative branch's prerogatives. The rule is: first the language has to be ambiguous, and only then can you consider the drafters' intent.  That's not just my personal opinion of the rule; it's the formulation of the rule confirmed by the majority opinion in King. v. Burwell.  If the language is not ambiguous, but the law still stinks and is unworkable, you send it back to Congress for fixing.  If Congress has changed its mind in the meantime, tough.

In this case, I personally would have found the drafters' intent a slam-dunk once Gruber shot his mouth off, but let's assume he was lying when he first shot his mouth off and not when he retracted all his previous statements. The fact is, we shouldn't be looking at intent at all, because the argument that the language in question is ambiguous is laughable. Yes, it's "only five words in a 2,000-page bill," but they happen to be the only five words in 2,000 pages that bear directly on the point in dispute. Very, very disappointing, even for someone with no illusions about the Supreme Court consisting of saintly and courageous geniuses.

Ho Chi Minh Posters Are Still On Sale on Ebay

They are. And Che, of course.

Polls on the Flag

We've heard a lot about what the media, business, and political classes think about the flag issue. What we haven't heard about is what the people of South Carolina think. The last time this issue was decided it was done by a deeply contentious debate in which both sides argued their positions forcefully, and when compromise was finally reached they locked it in with a guarantee that it would only be altered if there was a 2/3rds majority vote in favor.

It looks like we're close to that.

Am I right that this is the first major poll taken since the beginning of Flagmania last week?... The crosstabs unfortunately don’t break down the numbers by region and race. It’s useful to know what white Americans and black Americans think, and it’s useful to know what southerners think compared to people from other regions. But there’s no way to tell how white southerners differ from black southerners on this subject, apart from a tidbit that YouGov discloses in its summary: White southerners continue to tilt heavily in favor of seeing the flag as a symbol of southern pride rather than racism, 53/20. Among black Americans generally (not just southerners), the split on the same question is … 3/70.

I don't know what a 'major poll' is, but there's another one more focused on South Carolina that's posted in the last day.

Sixty percent of likely voters surveyed by Rassmussen Reports said the flag should not be displayed at the South Carolina capitol, while 21 percent said it should. Eighteen percent are undecided.... A plurality of Republican voters (46 percent) said the flag should not fly at the statehouse, and a majority (76 percent) of Democrats agree. Although the majority of likely voters agree the flag should not fly there, they are split on whether it is a symbol of Southern heritage (43 percent) or hatred (39 percent).... Party lines also correlate with differing interpretations of what the Confederate flag represents. A majority of Republicans (64 percent) said it represents Southern heritage, while a majority of Democrats (57 percent) said it is a symbol of hatred.

That sounds like an adequate apology for the Republican majority legislature to go ahead with it. It's a complete concession by one side of the old debate, however: not a new compromise, but a surrender of the position. I hope this is received as I am sure it is intended: as a gift of something precious to the conceding side, intended to show honor and respect for the victims of the recent shooting, and to their community which has responded so gracefully.

Banhammer

You may have seen Ed Driscoll making fun of a movement to question what liberals will ban next, given the week's successes. Upworthy responds with a list of fast food places you 'aren't allowed' to eat at any more, along with explanations of why not.

Papa John's -- because their founder was critical of the ACA. Sonic -- because they don't pay minimum wage, leaving their wait staff to rely on tips. Wendy's -- which actually pays above minimum wage, but not enough above, and they don't allow tips. Chick-Fil-A! "OMIGOD, you guys, you can absolutely never, ever, ever eat at Chick-fil-A."

If we can't drive people who disagree with us politically into abject economic poverty -- so that they can be forced into line, by having to choose between starving and making themselves subject to the corporate discipline of a responsible company like Walmart (wait! When did Walmart stop being the enemy of everything good? This is really new, right? But Hillary Clinton has an important attachment to it in her past, so...) -- if we can't do that, how will we ever achieve justice?

"A Shot to the Heart"

An Army Ranger responds to Charleston, with reflections also on the loss of friends in the wars.

A Flag That Should Definitely Be Changed

England selects a banner for its Women's World Cup team.

Totally inappropriate content warning, but it's seriously an official banner.

Overturning Revolutions

In keeping with the discussion around Tex's post, a story from Russia:

Vladimir Putin 'wants' to reinstate the Russian royal family and move them into an ancient palace once occupied by the last Tsar Nicholas II.

The move proposed by Vladimir Petrov, a law maker from Putin's party, has prompted speculation that it has the Russian leader's direct approval.... The legislator has written letters to the heirs of the Romanov dynasty, which ruled the country for two centuries before the abdication of last Tsar Nicholas II ahead of two revolutions in 1917.... Petrov has written to Grand Duchess Maria Vladimirovna and Prince Dimitri Romanovich urging them to return to Russia to become symbols of national culture in order to "revive the spiritual power of Russian people".

The leaked letter read: "Throughout the history of its reign, the Imperial dynasty of the Romanovs was one of the pillars of Russia's sovereignty."

The country now "goes through a difficult process of restoring the country's greatness and returning its global influence" and "members of the Romanov House cannot stay aloof from the processes taking place in Russia now at such an important historical moment".

Since this whole 'revolution against royalty' thing is so associated with disaster, I suppose it makes a kind of sense. The Soviet disaster was far worse than any of ours, and from the Russian perspective, that's the high point of subsequent history. Perhaps they'll adopt the old Russian flag, which is better looking than their French-Revolution-inspired tricolor.

Millstones

The worst thing about slavery was, well, slavery.  A distant second bad thing was that in the mid-19th century, Americans with deep convictions about dual sovereignty and limitations on federal power picked slavery as the ideal test case.  As a result, the lesson generations of Americans took from their struggle was that, if you give some people too much sovereignty, they'll use it to perpetuate horrifying schemes like slavery, thus undermining their supposed allegiance to the concept of freedom. Ergo, maybe this freedom experiment has gone too far.

One of the best ways to lose your freedom is to abuse it.  It's never a natural or foregone conclusion.  As Walter Hudson said today,

Therefore, when I look at the Confederate battle flag as a black libertarian, I see tragedy for all parties concerned. I see the history of racism and human indignity which motivates the current debate. But I also see the loss of state sovereignty which compromised the Founding Fathers vision for republican government. To the extent people choose to fly the Confederate flag in honor of that latter heritage, I can’t fault them.

That said, let’s be clear why state sovereignty was lost. It was lost because the southern states delegitimized it.

No running for the shadows

One of the things I like most about Wisconsin Gov. Scott Walker is that he doesn't let media cycles spook him off of the stands he's taken on principle.  This week he signed two new gunowner-rights bills into law.

Supreme Court upholds Obamacare subsidies

With Roberts and Kennedy joining the majority, 6-3.

Update:  Scalia calls it "SCOTUScare."

The opinion is here.  I could read it, but if words don't mean anything, why bother?

Hijabs

For what it's worth, I heard a version of this argument from a Human Terrain Team social scientist who happened to be female. She put on a hijab to go out and talk to Muslim women in Iraq. What most surprised her, she told me, was the way in which it stopped soldiers from treating her as a sexual being. It's a strange fact, since it's just a piece of cloth, but for whatever reason covering the hair and head somehow disconnected the sex drive even in young soldiers long deployed at war and forbidden other avenues of sexual relief.

So maybe there's something to it. Perhaps a symbol, under the right circumstances, doesn't have to mean what we ordinarily expect it to mean. Perhaps a lot has to do, as she says, with the choice of the person who wields it.

In any case, the social scientist I knew kind of liked the effect. She didn't wear it otherwise, probably because everyone would have thought it a bit weird. But she did like the effect it had on the young soldiers around her.

To Speak Like A Man

Jim Webb, though a Southerner and a man whose family has strong Confederate roots, adopted a modest and respectful posture in his comment on the flag matters. William Kristol, himself a Lincoln and Sherman man -- a very decent guy and a serious thinker, whom I met in Jerusalem and who might even have been thinking of our conversation in his limited defense today -- found Webb's comment to be refreshingly adult. He mentions Lincoln's second inaugural: "With malice toward none, with charity for all." I notice Webb did not undertake a vigorous defense of the flag, nor call for it to remain in place. Rather, he calls for calm, reflection, and mutual understanding. Allahpundit says it is enough to disqualify him, should he be serious about running for the Democratic nomination. Hopefully not. It is welcome, sober, and proper. The resolution of the disposition of the flag can be discussed in time, he seems to say: what matters now is to be respectful, to remember our brotherhood.

Perhaps not by accident he also published a short story today, which comes out of his time in Vietnam. It begins with a child asking his grandfather a question on the way to church. It's a question only a child should ask: did you ever kill a man?

“We’ll talk about it on the lake.” He attempted a joke. “I grew up with Ernest Hemingway. And Hemingway said you aren’t supposed to feel bad about it.”

“Who is Ernest Hemingway?”

“Some writer who never killed anybody. Except himself.”

The discussion in the story quickly turns philosophical, which suggests a ground for Webb's -- and Lincoln's -- call for an absence of malice and a focus on charity. It is a seriousness of mind entirely refreshing at the present hour. It reminds me, once again, of why I often wish for veterans of proven valor more often to seek public office.

Liberty By Law

In the run-up to my sister's wedding and the trip around it, I somehow allowed it to slip my mind that we were passing the 800th anniversary of the Magna Carta.

But, to give it its full name, Magna Carta Libertatum (my italics - I don't think they had 'em back then) gets it the right way round. It was in some respects a happy accident. In 1215, a bunch of chippy barons were getting fed up with King John. In those days, in such circumstances, the malcontents would usually replace the sovereign with a pliable prince who'd be more attentive to their grievances. But, having no such prince to hand, the barons were forced to be more inventive, and so they wound up replacing the King with an idea, and the most important idea of all - that even the King is subject to the law.

On this 800th anniversary, that's a lesson worth re-learning. Restraints on state power are increasingly unfashionable among the heirs to Magna Carta: in America, King Barack decides when he wakes up of a morning what clauses of ObamaCare or US immigration law he's willing to observe or waive according to royal whim; his heir, Queen Hillary, operates on the principle that laws are for the other 300 million Americans, not her. In the birthplace of Magna Carta, a few miles from that meadow at Runnymede, David Cameron's constabulary leans on newsagents to cough up the names and addresses of troublesome citizens who've committed the crime of purchasing Charlie Hebdo.

The symbolism was almost too perfect when Mr Cameron went on TV with David Letterman, and was obliged to admit that he had no idea what the words "Magna Carta" meant. Magna Carta Libertatum: The Great Charter of Liberties.

Taxation Without Representation

Just as the House called a vote on Fast Track authority as the Charleston shooting became the focus of everyone's attention, it cleared the Senate's procedural barriers while no one is looking. We still don't know what it is our elected leaders are giving the President authority to do, but the last real chance to stop it (whatever it is) will be the up or down vote on the treaty. However, because of the Fast Track authority, that will be a simple majority vote -- not the two-thirds majority normally required to approve a major treaty.

This is not unique. On the Iran deal, Congress managed to work the system out so that a mere one-third of either chamber will suffice to approve whatever the President signs. Yet what little we have heard about this deal indicates that it involves a surrender of major sections of American sovereignty to foreign institutions over which voters have no control. It is taxation without representation, in other words: a betrayal of the very last, and very first, principle for which our Revolution was fought.

Everyone wants more ‘global cooperation’ but no one wants to let Big Pharma stamp out generic drugs or let Big Tobacco tell us how they’ll label their products. And no one wants some secretive global tribunal telling a state legislature how to govern. If there’s an easier case to make, I’ve never seen it. You may ask why every Democrat in Congress doesn’t make it, but we’ve gone over that. Whether they’re in thrall to their donors, their consultants, their leaders or their ambitions, whoever or whatever holds them back, they just can’t do it.

The Republicans, on the other hand, have been full-throttle in support of this, with the honorable exception of Jeff Sessions from Alabama. 'Whether they're in thrall to their donors, their consultants, their leaders or their ambitions,' the Republican party has worked harder than anyone except the President to betray the Founders and surrender American sovereignty to foreign courts.

The last vote will doubtless also occur as a surprise rush during a crisis that attracts Americans' attention elsewhere. We need to spread the word and make sure people's attention is focused on this issue, and that they are ready to deal with it at whatever black midnight it is rushed to the floor. This vote will be the last chance.

Against the Iran Deal

A surprising unity of opinion, from the right to the left, is that the Iran deal is dangerous. It offers us nothing in return for offering them everything they wanted, including cutting edge nuclear technology.

What a legacy this would leave.

Apotheosis

Death to the General Lee.

It's a beautiful sentiment. We'll just kill the whole damn thing.



Funny thing about this particular aspect. The Dukes of Hazzard was never about the issues of race. It did have a tie back to the postwar Southern mythology, though. Boss Hogg was an emblem for those Democrats, especially like Joseph Emerson Brown, who screwed up the war politically and then profited off its aftermath by aligning themselves with the northern banks ("carpetbaggers") who turned the South into a colonial economy. Enforcing a destructive cotton monoculture, they reduced free farmers into sharecroppers or tenet farmers, and extracted wealth to New York in a manner exactly similar to the colonial economics afflicting much of Latin America at the time. It also destroyed the soil, as cotton is a hugely destructive crop if farmed year after year without a break. But you had to farm it, year after year, to get the loans they would otherwise not offer.

It's not for no reason that Alabama is the home to the only statue ever raised in praise of an insect. The boll weevil did what no human could do in sixty years: it broke the back of cotton monoculture and all its allied evils. It was the beginning of a new birth, after sixty years of incredibly punishing descent into poverty at the hands of the colonial masters.

Once that sort of story was important to the left, but they have forgotten.



Anticolonialism is still a major feature of the same left that is driving this particular moment. They don't see the irony here because they don't know enough about the history to see it. Yet the Duke Boys were far more an expression of authentic American anti-colonialism than ever of racism or -- good Lord -- of "treason."

UPDATE: James Taranto, of all people:

"It does feel a bit like the collapse of Eastern European communism in 1989, although one doesn’t want to overstate the analogy."

Indeed, one wouldn't want to do that.

The Russian Bear and... Texas??

Politico has a strange story. I suppose it's a trick worthy of an old-school KGB guy like Putin to stoke secessionist feeling in an enemy nation, but it's a little surprising to find that anyone in Texas would go along with it once it was openly Russian support they were receiving.

Nor is Texas the lone region for which Russia has cast secessionist support since the Crimean seizure. Venice, Scotland, Catalonia—the Russian media have voiced fervent support for secession in all these Western allies. (Of course, Moscow’s mantra—secession for thee, but not for me—means you’d be hard-pressed to find any Russian official offering support for Siberian, Tatar, or Chechen independence.) “Since the destabilization of the West is on Russia’s agenda, they may try to reach out to the U.S. separatists,” Anton Shekhovtsov, a researcher on Moscow’s links to far-right movements in Europe, told me. Russia wants a “deepening of social divisions in the American society, destabilizing the internal political life.”

Good news! That seems to be right at the top of our own agenda.