The Election: What Does Obama Want? What Do I Want?

I want the Republicans to take the House, since I view divided government as a good thing—the less the government does, ceteris paribus, the less damage it does. I am less sure of my desires with regard to the Senate. Are we better off with House and Senate fighting each other or both of them fighting the administration?

Obama's (hypothetical) preferences are more interesting. Everyone takes it for granted that he wants the Democrats to do as well as possible, and it may well be true. On the other hand ... .

Suppose he believes that most of the things that are going badly now, most notably the unemployment rate and the deficit, will still be going badly two years from now. If the Democrats retain control Congress there will be nobody but the Democrats to blame, which could have negative consequences for an incumbent running for reelection. If, on the other hand, the Republicans control one or both houses ... .

Returning to my preferences, there is one more factor. The better the Republicans do, the more emphatic the public rejection of Obama's policies. Since most of the policies in question—stimulus, bailout, Obamacare, and cap-and-trade—strike me as bad ones, that would be good. It would make it less likely that later politicians will repeat what I view as his mistakes.

Constitutional Chaos

I recently read a paper by a colleague discussing the lawsuits currently being pursued by various states against the new health care rules. His conclusion was that some of the arguments made by the states were legitimate and that there was a real possibility that one or more of them would convince a majority of the Court.

One of the lines of argument he covered struck me as raising some broader issues. The new rules require states to expand medicaid coverage in expensive ways. The states argue that this amounts to commandeering them, compelling states to implement, and pay for, policies imposed on them by the federal government.

The other side argues that there is no compulsion. Medicaid is a program run by the states, although largely paid for by the federal government, and any state unhappy with the new rules is free to abolish its medicaid program—and, of course, stop receiving federal dollars to pay for it. The states respond that that is not a real alternative, both because many of their citizens are now dependent on the program and because the amount of money involved comes to a sizable fraction of the total state budget. My colleague's view is that the states are unlikely to win on this one, since past cases have made it clear that the federal government can get states to do things—impose a 55 mile per hour speed limit, for instance—by threatening to reduce or eliminate federal subsidies if they don't.

Which raises the following question ... . Suppose the federal government wants to force the states to do something which, according to the Supreme Court, is not within its power—for instance to ban firearms within 1000 feet of a school (United States v. Lopez —but see this Wikipedia article for complications). It does so by creating an income surtax calculated to bring in fifty billion dollars a year, and announces that the money will be used to help states with their budget difficulties—but only states that have passed the ban. To make the logic of what it is doing even clearer, it adds a second condition—states that accept the new money must use it to give every citizen a credit on his state taxes equal to the amount of the surtax.

Aside from some extra paperwork, the law has no effect on states that agree to pass the ban, but acts as a steep fine on states that do not. My colleague's opinion was that such a law—absent the final step, which hadn't occurred to me when I put the question to him—would be found constitutional. There is no constitutional requirement that federal expenditures be allocated fairly among the states, whatever that might mean.

There is a requirement with regard to allocating taxation—Article I Section 2 ("Representative and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers ..."). Later amendments changed the details, but I believe it would still be found unconstitutional for the federal government to announce a tax that would be collected only from some states but not others—not, for instance, from states that had passed regulations the federal government wanted them to pass. So the federal government can evade constraints on its power over the states by targeted expenditures but not by targeted taxes.

When the Constitution was written, that may have been sufficient. So long as all expenditure was for "the common Defense and general Welfare," targeting would not be an issue—although no doubt, in practice, ways were found of promoting the welfare of some people more than others.

My conclusion is that the destruction of one part of the original Constitutional scheme resulted in the indirect destruction of a different part. Once it is accepted that Congress has an almost unrestricted power to tax as much money as it wants to be spent in whatever way it likes, it becomes impossible in practice to restrict its ability to make states do things. All it has to do is take enough money away from their citizens and offer to return it if, and only if, the states are suitably obedient to Congressional commands.

What Defines a Sham Marriage?

A recent story on Fox News concerns a Lebanese man convicted of entering into a sham marriage with an American citizen in order to get permission to stay in the U.S. What made the story newsworthy was that the woman was later an aide to Senator Harry Reid. There is no clear evidence that Reid knew about the case until recently, when the story broke—at which point the aide apparently quit or was fired. I expect that his opponent in the current election will argue either that he knew, that he should have known, or that hiring someone who would do such a thing is evidence of poor judgment. Very likely Reid's people are now combing through the public records in search of some similar misdeed by an employee of the other side, assuming they don't already have evidence of one in stock and ready.

What struck me about the case was not the political element but the question of what, for purposes of immigration, makes a marriage a sham. Married couples usually live together, usually sleep together, usually share income and meals. But none of those is a defining characteristic of marriage. If a couple goes through the usual legal formalities, what more do they have to do in order that their marriage count as real?

It's a serious issue in the context of immigration. Eighty years ago, when marriage was a more serious and divorce a more difficult matter and the reputation for female virginity a significant asset on the marriage market, marrying someone you didn't love or plan to live with was a costly way of getting him or her permission to immigrate, although I expect it occasionally happened. In our current society, those costs are a great deal less. Permitting anyone married to a U.S. citizen to live in the U.S., perhaps to become a citizen, looks like a yawning gap in the barriers that the U.S. puts up against would-be immigrants. But how, given the difficulty of defining what makes a marriage real, can that gap be closed?

Apparently the INS has an answer to that question. Anyone know what it is?

Separation of Church and State or Public Schools: Pick One

A commenter on my previous post asks what the content of a creationist course would be, readings from the book of Genesis or merely bad science, and adds that "teaching Marxist ideas of 'laws of history' is peddling a form of religious pseudo-science. Some of the environmental dogma being taught in schools is also on par with this stuff."

This suggests a more general point—is the existence of a public school system consistent with a serious commitment to the separation of church and state?

I think the answer is that it is not. While teaching a fundamentalist version of the origin of life is indeed taking a side in a religious dispute, teaching a conventional account of biology and geology is is also taking a side in that dispute, just the opposite side. I do not see how I can honestly tell a fundamentalist that it is a violation of the separation of church and state to teach children that his religious beliefs are true but not a violation to teach children that they are false.

The conventional view is, in this case, the one I believe is true. But then, if they were teaching creationism, they would be taking the side he believes is true. So what purports to be separation of church and state ends up as the opposite—the state supporting a particular view of religious questions. That comes pretty close to the established church that the First Amendment explicitly forbids.

Of course, these are not only religious questions, they are also scientific questions. But then, most religious questions are also scientific, or historical, or philosophical, questions. If the rule is that the state can teach whatever it believes is true provided that here is some basis for that belief other than religion, that leaves the state free to teach the truth or falsity of pretty nearly every religion. The doctrine of separation of church and state then becomes the doctrine that one can only teach the truth, which sounds fine as rhetoric but has some practical difficulties in a world where different people have different views of what the truth is.

So far, I have considered a case where the school teaches what I believe is true. In the real world there is no such limitation, as the quoted comment with which I started this suggests. When schools teach children that they have an obligation to take care of Mother Earth they are teaching religion, whether or not they put it in an explicitly religious form; religions are not limited to beliefs about gods. And I find it hard to draw any sharp line between religions and secular ideologies such as Marxism or libertarianism.

Eliminate all content that is in a broad sense religious and there is nothing left. Even eliminate all content that is religious in a narrow sense, where that includes claims that religions are false as well as claims that they are true, and there is not a whole lot left.

In practice, the application of separation of church and state in the American public schools usually comes down to not teaching what most of those concerned see as something that one would believe only for religious reasons. A century or more ago, that mostly meant that teaching Christianity was fine, since practically everyone took it for granted that Christianity was true. Today, insofar as matters are decided at the local level, it means that teaching things that the locals almost all agree with are fine—which can be Christian fundamentalism in some places and environmentalism and left-wing politics in others.

Problems arise when there is a conflict either between local and national views or between the views of the local parents and the views of the teachers and/or administrators running the schools. It is only at that point that what one group sees as obvious truth gets attacked by another as teaching religion.

The Constitution and the Separation of Church and State

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Christine O'Donnell has been widely mocked for expressing doubt as to the presence in the Constitution of separation of church and state. As you can see from the First Amendment, quoted in full above, she is correct and her critics are mistaken. Not only do the words not appear in the Constitution, the idea does not appear either. Establishment of religion was a well understood concept; it meant an official state church, supported by government money. England had had such an arrangement since at least the sixteenth century and still does. So, currently, do Denmark, Norway, and Iceland (all Lutheran), as well as lots of Muslim countries. When the First Amendment was passed, Connecticut and Massachusetts had established churches.

Teaching creationism in the public schools—not a burning issue in those pre-Darwin and pre-public school days—is not an establishment of religion. Nor is having the government contract with religious groups to do things it wants done. The modern concept of the separation of church and state, based on a phrase used by Jefferson, is a creation of the courts that goes well beyond the language of the First Amendment. For details, see this post by Jim Lindgren, who teaches law at Northwestern.

That so many observers took it for granted that O'Donnell was demonstrating her ignorance rather than theirs is testimony to the power of that particular civic myth.

Wanted: A Taped Alarm Clock

I spent the weekend at a libertarian conference (libertopia). A common problem at such events is keeping to the schedule. A speaker goes overtime, the next speaker, having started late ends late, and the schedule gradually fades away. This one did better than most—I think there was only one day when talks ended up starting noticeably later than they should.

I have observed a similar problem at academic workshops, where a speaker is supposed to have a limited amount of time to present his paper, with the remaining time for questions and discussions. It is a particularly serious problem at Chicago style workshops, where the theory is that everyone in the audience has read the paper so the speaker does not have to read it to them; his fifteen or twenty minutes are supposed to be spent talking about his paper. The more often speakers end up breaking the rules and using most of the time to present the paper the less likely those attending are to bother reading it in advance. The fewer read it in advance, the greater the incentive for the speaker to spend the time presenting it instead of discussing it.

I have a techno-social solution. It consists of an alarm clock that can have multiple settings, and will ring at each for a fixed length of time, say five seconds. At the start of the conference day, it is set to ring when each speaker is supposed to be finished. Once it has been set, the mechanism for changing the setting is ceremonially (but temporarily) disabled, perhaps by putting a strip of tape over the relevant button, and the alarm clock is put next to the podium. Now schedule drift can happen only by an explicit decision to change the rules, not by a gradual erosion.

Historical Recreation: U.K. vs U.S.

I have been involved in historical recreation with the Society for Creative Anachronism for a very long time and have just had a very interesting online exchange with someone doing historical recreation in England, largely on the differences between how they do it and how we do it.

The central difference, so far as I can see, is that almost all U.K. recreation consists of performances for an audience, usually a paying audience. Almost all SCA recreation, and I think (although I might be mistaken) most U.S. recreation in other periods, most notably the U.S. Civil War, is done by and for the participants. An SCA tournament has an audience, but it is a medieval audience—an audience of participants dressed in some attempt at period clothing. The spectator at the tournament may also be one of the people cooking the evening's feast or, later, teaching renaissance dances.

One result that I found particularly striking, given my interests, was a very different attitude to medieval cooking. My correspondent assured me that medieval feasts were very expensive. A little online browsing, searching for "medieval feast" in .uk domains, confirmed that. So far as I could tell, the nearest thing to an authentic medieval feast available in the U.K., put on by a catering firm, costs 34 pounds/head in the least expensive version and a whopping 270 pounds per head in the fancy, seven course, version. A large part of that cost, of course, is for the labor of cooks and servers.

In contrast, I would expect an SCA feast, at least equally authentic, to be no more than ten dollars for the meal, plus perhaps another five or ten as a site fee to pay for the rental of the hall. The labor cost is zero, since the cooks and servers are themselves participants, doing it for fun—at most they might (or might not) get a free meal. My correspondent found that idea, along with the idea of musicians performing at the feast for free, almost unbelievable—in his view, anyone worth listening to would expect to be paid.

Another consequence of the difference is that, as best I can tell, English historical recreation is tied much more closely to the official educational system than similar activities in the U.S., with performances to some degree designed to fit into the standard curriculum. The recreation is subsidized by the state—on how large a scale I do not know. And at least some of the customers for the performances are state schools. Indeed at one point in the conversation, it seemed to me that my opposite number took "fitting into the official curriculum" as part of the definition of eduational, although when pressed on the point he denied it. What was clear was that he thought of "educational" as meaning "educating the audience," while I thought of the activity's primary educational role as educating the participants. Or perhaps, more precisely, encouraging them to educate themselves.

I am curious as to the consequences of these very different approaches. One striking contrast with the SCA is that the U.K. groups have quite a high level of required physical authenticity. The SCA, in contrast, has a minimal level of required authenticity—some attempt at pre-17th century garb. But while physical authenticity is not required, it is admired, and there is a lot of it at a high standard. My guess, and it is only a guess, is that our best armorers or costumers are at least as good as theirs. And it is worth noting that Civil War recreation in the U.S., at least by reputation, maintains a level of required authenticity comparable to the corresponding activities in the U.K.

I am also curious as to the reasons for the difference. Is it merely a matter of historical accident? Or is there some difference between cultures that makes Americans (and Canadians, Australians, New Zealanders, ...) more willing to put time and effort into something they are doing for the fun of it?

With luck, some readers of this blog will have experience with historical recreation and be able to provide additional information.