The View from Right Field

Michelle Obama

In response to criticisms of his wife for some of the things she has said while campaigning for him, Barack Obama has told Republicans (and others) to "lay off my wife." In Tuesday’s Chicago Sun-Times, Jesse Jackson, perhaps not surprisingly, agrees. Jonah Goldberg, in Thursday’s Chicago Tribune, disagrees, saying that if Senator Obama does not want people criticizing his wife, he might want to not have her out campaigning for him.

It is an interesting question. Certainly, some of the things Michelle Obama has said irritate me. I did not like her comments about her husband’s candidacy being the only time she has been proud of America since, in effect, about 1980. But, after thinking about it, maybe it’s just an example of spousal pride.

Actually, the comments that have probably annoyed me the most were her complaints about how long it took her and her husband to pay off their student loans. In my opinion, if you get to go to Princeton and Harvard Law, you shouldn’t complain about having to pay off loans. She didn’t have to go to Princeton. She could have gone to the University of Illinois or some other state school. That’s what I did so I could save money for law school. And if you go to an expensive law school, maybe that means you have to take a job where you make enough money to pay off your loans. It’s a choice.

However, in spite of my feelings about some of the things she is saying (and in spite of the fact I just criticized her myself), I think Jesse Jackson is right. Not for the reasons he gives, but I think he is right. Republicans ought to lay off Michelle Obama.

There are plenty of things to criticize Barack Obama about. We don’t need to criticize his wife. It’s a distraction, and it will bother enough people, because of the "leave my family out of it" thing, that it is not worth it. Attacking Michelle Obama will just get her, and her husband, sympathy they don’t deserve. Republicans are better off ignoring Michelle Obama – for their own benefit.

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Update [June 1, 2008]: Jonah Goldberg's column was in Thursday's Chicago Tribune, not Saturday's. This has been corrected.

The Age of Experience

This week’s Economist talks about John McCain’s age (he will be 72 in January of 2009), and says it is a legitimate issue. It would probably be better if Senator McCain were 64, like he was in 2000. But we have to take the candidates the way they are. Just like we can’t wish John McCain were eight years younger, we can’t wish Barack Obama was eight years older and had enough experience to be President. The candidates are what they are, and we have to choose between ones we have.

Are Courts Still the "Least Dangerous" Branch?

In the 78th Federalist Paper, Alexander Hamilton wrote this about the judiciary under the new, proposed Constitution:

"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."

Which goes to show that our Founding Fathers, smart as they were, were not always right. And which brings me to the recent decision by the California Supreme Court that same-sex couples have the right to be "married" under the California constitution.

Among the interesting things about this decision is how far it went, and what risks it took, to, in some ways, accomplish so very little. California already had, through its law establishing domestic partnerships, provided same-sex couples with all the state law rights and privileges that married people had, except the name. But the court found this, perhaps particularly this, was unconstitutional discrimination against same-sex couples.

What risks did it take, you ask? Let me explain by way of an example. In the 1970s and early 1980s, different paths were taken on two issues. In 1973, the Supreme Court, in Roe v. Wade, announced that abortions during the first six months of a woman’s pregnancy could not be prohibited. A woman had a constitutional right to an abortion.

Later that decade and early into the next, there was a battle royal over a proposed Equal Rights Amendment to the United States Constitution. While most of the arguments about the ERA related to matters like women in the military, some people opposed the ERA for a different reason: We were afraid that if the ERA were passed, equal rights would become an issue to be decided by the courts, instead of by the legislature and executive and the people who elected them to office.*

Thirty-some years on, abortion is as controversial today as it was in 1973, if not more so. Equal rights for women, though, is an issue that, to a large extent, has come, been accepted and gone on its way. We don’t fight over equal rights any more. Maybe around the edges, here and there, arguments pop up now and then. But nothing like abortion.

Now some of this difference is probably because the issues are different. Abortion and equal rights are not the same. But some of the difference is, I believe, a result in how the issues have been handled.

With the decision in Roe v. Wade, the Supreme Court took the issue of abortion away from the legislatures and the people. Abortion became an issue of black and white. You were on one side or the other. There was no chance for a compromise here and an adjustment there. There was no opportunity to talk about the issue in the cneter.  There was no opportunity to come up with a policy that could be acceptable to a majority in the center.

On the other hand, once the Equal Rights Amendment failed, equal rights for women was left to the legislature and the executive. Instead of everything being black and white, there were "shades of gray" discussions. There were compromises, and as feelings changed, the compromises changed, too. And over the years, while we may not have come all the way, equal rights have pretty much been accomplished, and for the majority of Americans the debate is over.

Sadly, that is not what happened with abortion. And now, with decisions like the one by the California Supreme Court, I fear the issue of same-sex marriage may go the way of abortion instead of the way of equal rights.

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* In 1977 I wrote an article on the Equal Rights Amendment that was published in Human Events. It was actually a fairly decent article, and the arguments I made against the ERA are, I think, still valid today on the issue of the proper roles of the judiciary on the one hand and the political branches of government, the legislature and the executive, on the other hand. It follows this post. 

The Equal Rights Amendment: A Legal Thicket"

(Note: This is an article I wrote about the proposed Equal Rights Amendment in 1977. It was published in the September 3, 1977 issue of Human Events. I would have just linked to the article, but the Human Events website does not seem to go back that far.)

The current debate over the Equal Rights Amendment is a failure because it is not considering the entire issue. Both proponents and opponents of the ERA argue only about whether "equal rights" is desirable. However, there is another question involved in the ERA. Even assuming "equal rights is a desired goal, is a constitutional amendment the way to accomplish it?

The failure to discuss this question is unfortunate because as Equal Rights Amendment involves both ends and means, and the problem in enforcing an Equal Rights Amendment are so great that they require the defeat of the ERA regardless of how one feels about the question of equal rights itself.

While Section Two of the ERA provides that "Congress shall have the power to enforce by appropriate legislation the provisions of this article," it is most unlikely that Congress with do anything in terms of enforcement. Therefore, if the ERA is ratified, the enforcement burden will fall on the courts.

As soon as the ERA is ratified, there will be innumerable lawsuits challenging all sorts of laws and practices as violating the new amendment. It is, therefore, very important to determine whether the courts are the appropriate instrument to decide what "equal rights’ means in everyday life.

In considering this question, it is important to realize that even the supporters of equal rights differ over what equal rights will mean in specific situations.

For example, in regard to public school athletics, does equal rights mean that boys and girls must be allowed (or required) to compete together, with only one coeducational team in each sport? Or is it permissible to have a boy’s team and a girl’s team as long as they are equally supported?

And what does equal support mean? In terms of finances, does it mean exactly the same amount of money must be spent for each sex, or can funds be divided up on a per-participant basis? And what about money received from gage admissions? Can it be used solely for the team that generates it, or must it too be allocated sexually?

In other words, the meaning of equal rights is not clear, even to its proponents. To reply to this by saying that the courts would have to enforce either an Equal Rights Amendment or an equal rights statute avoids the crucial question of what the courts are enforcing.

It is one thing to enforce a specific prohibition, such as a law requiring equal pay for equal work, and quite another to interpret and apply a broad rule that merely says "equality of rights under law shall not be denied or abridged by the United States or any state on account of sex."

There are two major reasons the courts should not be asked to interpret and apply an Equal Rights Amendment. First, the judiciary is institutionally ill-equipped to perform such a task. Second, because of the judiciary’s institutional inadequacies, an attempt by the courts to interpret and apply the ERA will result in both severe criticism of the courts (regardless of who "wins" the individual cases) and decreased respect for the fairness of the judicial process.

Let me first consider the institutional or structural obstacles that would hinder the courts in the interpretation and application of an Equal Rights Amendment:

A. Lawsuits are a very poor vehicle for answering the type of question here, i.e., what "equal rights" mans in specific situations. A court is limited to making decisions based on the facts presented to it by the litigants. Such a limitation on information can greatly affect the final decision, and if the court tires to get around this limitation by seeking out information on its own, its decisions may be based on information not tested in the crucible of adversarial inquiry.

B. Judicial decisions are basically limited to yes-or-no answers. Courts are hard-pressed to answer questioning shades of gray. A court cannot search for a compromise between competing interests, giving a little from here and taking a little from there. A court can deal with only the specific issue before it, and this forces it into a straightjacket of decisional inflexibility.

(It might be argued that the court operates under similar limitations in interpreting, for example, the 1st Amendment guarantee of freedom of the press. The comparison is not entirely apt, however. In freedom of the press cases, a court only has to determine if a specific law or regulation violates the 1st Amendment. I would have much less difficulty with the ERA if the courts would only be asked to uphold or invalidate specific laws and regulations.)

(However, much of the litigation under the ERA will be seeking affirmative, remedial relief, in addition to the voiding of specific laws and regulations. This kind of affirmative, remedial relief is not involved in freedom of the press case, and it is the seeking of such relief which causes the major problems with judicial enforcement of an Equal Rights Amendment.)

C. Not only are courts generally limited to a yes-or-no result, but also their decisions are limited by the necessity that they be able to enforce the. This means that the courts need to have jurisdiction over a person or agency in order to issue an effective order and that a decision must be such that it is easy to tell if it is being obeyed or not.

A court cannot order something be done it is has no way of ensuring that its order will be carried out. This results in decisions that are rigid and simplistic, such as the kind of meat-axe decisions common in school desegregation cases. The legislature, however, by setting up numerous standards and by considering the whole problem at once, can draw fine lines and make counterbalancing trade-offs, things which a court cannot do.

D. Also, the courts are somewhat isolated from society as a whole. Normally this is desirable because justice should be set apart from the ebbs and flows of everyday political life. But in regard to unsettled questions of first priority, such as the meaning of an Equal Rights Amendment, it is important that the people be involved in the decision-making process. In such cases, judicial isolation can lead to solutions which look good in legal briefs but just do not work in real life.

Even more important then the courts’ institutional inability to interpret and apply an Equal Rights Amendment, however, is the second objection noted above. The courts should not be forced to interpret the ERA because of the damage such a task would do to the courts themselves.

I worry about the effect of the ERA on the courts because of all the braches of government, the judiciary is perhaps the most fragile. In our system it is not fatal if the people become disenchanted with the legislature or executive. They can be replaced at the next election. And in any case, it is expected that they will "play politics" with the issues. This is not, however, true of the courts.

Judges are not easily replaced. Judicial decisions cannot usually be changed at the next election. And, most importantly, people expect a higher level of integrity and fairness from the courts than from the legislature and executive. In sum, if we ask the courts to answer tough, "political"-type questions which should be answered by the legislature and executive, we are playing with fire.

It is important to realize that the meaning of equal rights is a "political" question. It is such because the answer to it will have broad social effects. They will affect jobs and earning abilities, families, and the structure of society in general. When a question has such broad implications, the people should not be limited to just approving or disapproving a broad generality. They should be able to participate, either directly or through their elected representatives, in solving the specific issues involved.

In fact, some supporters of the ERA will argue that one of the reasons they want a constitutional amendments that the legislatures will not pass the necessary to ensure equal rights, apparently because of their members’ political fears. If this is true, it is another reason to oppose the ERA. The courts should not be forced to do what legislators do not have the political courage to do.

The controversy over school busing is a good example of what can happen when the courts try to answer a difficult, essentially political question.

Because of institutional limitations, the courts have been unable to utilize the vast range of enforcement mechanisms that are available to the other braches of government, the use of which would have made busing unnecessary.

Also, the courts have been unable to bring all of the interested parties together and to solve the problem by compromising a number of related issues all at once. Instead, the judicial process has produced a winner and a loser, and the courts have been viciously, even violently, attacked. The result has been greatly decreased respect for the courts land for the judicial process.

Equal rights is an important and emotional issue. It should be solved either by or under the supervision of the political branches of government, the legislature and executive. If the courts are required to interpret and apply an Equal Rights Amendment, the judiciary will become the target of those who are unhappy with what equal rights means in their lives. The result will be reduced respect for the fairness of the courts and for the fairness of our system as a whole.

That is why I am against the ratification of the Equal Rights Amendment.

Maybe It’s Too Bad China Doesn’t Have More Wal-Marts

The Chicago Tribune reported Saturday that “China’s central government [had] ordered its wealthier provinces and cities to give immediate financial and technical aid to communities devastated by last week's earthquake.”  The article continued:

 

“[M]any victims appear to be waiting, and relying, on the central government to take care of their needs.

 

In interviews inside refugee camps, hospitals and tents outside their damaged homes, local residents said they were counting on authorities to provide them new housing, cover their medical bills, offer loans to rebuild businesses and help them get new jobs.

 

"We hold big hopes that the government will solve our problems," said Wang Yanjiang, 74, who has been living in a tent in Mianzhu Stadium since his family's apartment in nearby Hanwang collapsed. …

 

‘On the one hand, the central government's swift reaction and rescue efforts won more support from the public and improved the government's reputation among ordinary people,’ said Hu Xingdou, professor of economics at Beijing Institute of Technology. ‘On the other hand, this showed that China is still a largely government-driven and controlled society.’”

 

Hopefully, the Chinese government’s response will be better than the response of FEMA to Hurricane Katrina or, for that matter, the responses of the state and local governments in Louisiana.  While FEMA’s incompetence got most of the publicity, the actions, or lack thereof, of state and local governments in Louisiana weren’t any better.

 

In fact, some of the quickest and most effective responses to Katrina came from a source that is not available to the Chinese: American private business.  Companies like Wal-Mart, Home Depot and others saw what was coming and started to get ready before Katrina even hit.  Then when Katrina did hit, they were ready to do what American business does best:  meet needs quickly.  But this time they were not doing it to make money; they were doing it to help people.*

 

It looks like a lot of the Chinese people are counting on the government to help them.  Actually, it’s too bad they don’t have more Wal-Marts and Home Depots; they would probably be less disappointed.

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* See “Private FEMA,” The Wall Street Journal, September 8, 2005

Update [5/27/08 - 9:15 a.m.]: Corrected typographical error and adjusted spacing and font.

A Memorial Day Thank You

On this Memorial Day let me do something I never did when I had the chance to do it in person: Let me thank my father for serving in the U.S. Army to protect our country during World War II, and let me thank my mother for living without him while he did it.

Myanmar Again

Another comment about Myanmar (f/k/a Burma). When the cyclone hit and the ruling dictatorship refused outside help, some people and even some governments started talking about using force to deliver aid to the Myanmar people – even if it had to be done against the will of the Myanmar government. Mind boggling.

It took months to plan the invasion of Iraq (which I think most people would agree did not turn out all that well, at least in part because of poor planning). So now people really think we can invade Myanmar on a week’s notice to deliver aid? Such comments are just silly.

So what can we do? At first I thought The Wall Street Journal (May 10, 2008) had a good idea when it suggested Myanmar be kicked out of the United Nations. We can’t force the leaders of Myanmar to take aid, but that doesn’t mean we have to let such people belong to the UN. But then I started thinking about who a majority of the United Nations might try to kick out next. After all, back in the 1970s, the UN General Assembly declared Zionism to be "a form of racism".

It is sad to have to say, but the United Nations is, in many ways, not a responsible organization. It is sad because if it was responsible, it could be used for all kinds of good purposes. But it isn’t, and we can’t pretend that it is.

And so, what are we left with. Unfortunately, not much. All we can do is publicize the situation, declare the leaders of Myanmar to be morally unfit, and be ready to give aid if and when we can be sure the aid will actually get to those who need it.

"Disaster Fatigue" Or Just Plain Smart?

This article in yesterday’s Washington Post talked about the small amounts of money that have contributed by Americans for relief efforts for the cyclone in Myanmar (f/k/a Burma). The article compares these amounts with the massive outpouring of contributions after the 2004 Indian Ocean tsunami or Hurricane Katrina. As to the reasons for the small amount on contributions:

"Experts attributed the downturn in giving to a medley of forces, including a domestic economy that has left many Americans with little disposable income, a distrust of disaster relief charities and geopolitical tensions."

I sometimes wonder what rock some of these experts are living under. It’s not a bad economy. Americans will contribute in bad times; it’s who we are. It’s not a distrust of disaster relief agencies; we’ll find somebody to give to. It’s not even, as suggested earlier in the article, that "the American people are going through ‘disaster fatigue’".

It’s actually very simple. People are not giving to relief efforts in Myanmar because they do not trust the Myanmar government to either let the money in or let it be used to actually help the people who need help.

There are lots of problems around the world. There is no sense giving money if it is going to be wasted (at best) or diverted to those who don’t need it (more likely).

Break

We are going to see our son graduate from the Creighton University this weekend. After that, some other things are coming up, so it will probably be a couple of weeks before I can get back to posting. Until then: Let's go Cubs!

Barack Obama and Bill Ayers

Barack Obama and Weather Underground member William G. Ayers. Is there anything there? Does it matter? Senator Obama says it doesn’t. In his debate with Hillary Clinton on April 16, Senator Obama said this about the Bill Ayers connection:

"This is a guy who lives in my neighborhood, who's a professor of English in Chicago, who I know and who I have not received some official endorsement from. He's not somebody who I exchange ideas from on a regular basis.

And the notion that somehow as a consequence of me knowing somebody who engaged in detestable acts 40 years ago when I was 8 years old, somehow reflects on me and my values, doesn't make much sense, George [i.e., George Stephanopolous]."

Here is what Senator Obama said about Ayers on FOX News Sunday on April 27:

"Now, Mr. Ayres [sic] is a 60 plus year old individual who lives in my neighborhood, who did something that I deplore 40 years ago when I was six or seven years old. By the time I met him, he was a professor of education at the University of Illinois.

We served on a board together that had Republicans, bankers, lawyers, focused on education, who worked for Mayor Daley. Mayor Daley, the same Mayor Daley probably who when he was a state attorney prosecuted Mr. Ayres’s wife for those activities, I (INAUDIBLE) the point is that to somehow suggest that in any way I endorse his deplorable acts 40 years ago, because I serve on a board with him."

A few thoughts. First, how does a private citizen "officially endorse" you? I’m not sure. That sounds like something you say when you can’t think of anything good to say.

Senator Obama says he shouldn’t be associated with what Bill Ayers was doing 40 years ago because he was only eight years old at the time and he doesn’t endorse "the detestable acts" that Ayers did back then. I wasn’t eight years old in the late 60s and early 1970s. I was in my early 20’s, and I remember what the Weather Underground was doing. They were setting bombs. They were blowing up buildings. They were trying to kill people.

Bill Ayers tries to downplay this last part, about trying to kill people, saying that the only people the Weather Underground ever killed were some of their own members. (Three Weather Underground members were killed in an explosion in a Greenwich Village townhouse while they were trying to build bombs – to kill people). It’s nice story, but John Murtaugh doesn’t appreciate it. You see, in 1970, John Murtaugh was nine years old when the Weather Underground set off three bombs outside his house. The Weather Underground was trying to kill his father, a New York judge who was presiding over a trial of Black Panther Party members accused of plotting to bomb sites in New York.

I do not know if Bill Ayers was in the Weather Underground cell that set off those bombs, but he was in the Weather Underground at that time. In an interview published in The New York Times on September 11, 2001 (bad timing from Ayers’s viewpoint), Ayers was quoted as saying: "I don’t regret setting bombs. I feel we didn’t do enough." When asked if he would do it again, Mr. Ayers said, "I don’t want to discount the possibility."

Some people have commented on the fact that Ayers and Senator Obama both served on the board of the Woods Fund for a period back in the 1990s. I’m not going to complain about that. The Woods Fund might have been the kind of a group that Senator Obama felt he wanted to help even though there were other people on the board that he did not care for. I have been in groups where I didn’t particularly like a few people in the group, but I stayed because it was a good group.

On the other hand, when it comes to the Chicago Annenberg Challenge, the story is a little different. The Chicago Annenberg Challenge was part of an attempt to reform the Chicago public schools. Here the Ayers-Obama connection is a little closer. Ayers co-wrote the initial grant proposal for the Challenge and, on his own website, lists himself as a co-founder of the group. Barack Obama was the Chair of the Chicago Annenberg Challenge Fund in its early years.

In 1995, when Obama was starting his first campaign for the Illinois State Senate, his predecessor introduced Obama as her preferred successor in a meeting in Hyde Park – in Bill Ayers’ house. (See here.) To me, that is a problem. Obama shouldn’t have been using somebody’s house to start his political campaign unless he knew something about them and felt comfortable with them. Even if Obama didn’t know them, somebody did. Clearly, Bill Ayers’s house was considered an acceptable place to start a state Senate campaign. The political activists, the liberal Democrats, in Barack Obama’s neighborhood apparently felt at home in Bill Ayers’s house.

Some commentators have claimed that the criticisms of Senator Obama becaue of his connections with Bill Ayers are "McCarthyism." I am sure they would say that about my comments. Well, I don’t think they are. Let me explain.

Barack Obama has a more limited public record than John McCain. He even has a more limited public record than Hillary Clinton. That makes it harder to judge him. With John McCain, we don’t need to look at his associates to know who John McCain is or what he is all about. John McCain was elected to the U.S. House of Representatives in 1982 and to the United States Senate in 1986. That’s over 25 years in Congress. There is a huge public record to tell us about John McCain. Senator Clinton has only been in the United States Senate since 2000, but that is twice as long as Senator Obama. Also, half the time Senator Obama has been in the Senate, he has been running for President, so he doesn’t really have a Senate record of much more than two years.

Therefore, in Senator Obama’s case, we need to learn about him in ways other than his public record; we need to check other sources. One of those ways to do this is by seeing who he associates with, by seeing what kind of community he comes from and feels comfortable in. Well, Bill Ayers is part of Barack Obama’s community. Barack Obama’s political career started at Bill Ayers’ house. It’s pretty clear the people in Barack Obama’s community feel that Bill Ayers fits into their community. Bill Ayers, with his unrepentant, bomb-setting, Weather Underground background, apparently fits in with the liberal Democrats in Chicago. That tells me something about the liberal Democrats in Chicago, and that tells me something about Barack Obama.

One of William F. Buckley, Jr.'s last published articles described his role in getting the John Birchers kicked out of the conservative movement. Buckley knew that who you associate with politically says something about who you are politically, and he didn’t want conservativism to be associated with those kinds of people.

I think the same test can be applied to Barack Obama. If liberal Democrats in Chicago think Bill Ayers, with his past and what he apparently still thinks today, fits into their community and what they are trying to do, then I think that says something about liberal Democrats from Chicago. And that is why I do not want Barack Obama, a liberal Democrat from Chicago, to be President.

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* Bill Ayers has written that between 1970 and 1974 the Weather Underground took responsibility for twelve bombings. (See here.)