Asking the Wrong Question

Yesterday, I posted about Roy Moore and Alabama’s resistance to same-sex marriage, and a commenter took the federal courts to task, asserting that they’d exceeded their authority by invalidating “the will of the people.”

The evidence of over-reach? Nowhere does the Constitution talk about same-sex marriage.

This is an argument that makes my head explode, because it betrays one of the most fundamental misunderstandings of our legal system.

Of course there’s nothing in the Constitution about same-sex marriage. There’s nothing in it about any kind of marriage. Or about the right to travel, or practice a profession, or numerous other rights it protects. That’s because the Constitution is not the source of our rights.

The Founders were persuaded by Enlightenment philosophers like Hobbes and Locke that humans are born with “natural rights.” We have those rights by virtue of being human (or, if you are religious, because we were “endowed” with them by a creator). The job of government, according to Hobbes, was to protect those natural rights and our individual liberty; Locke agreed, writing that government needed to be limited so that state power would not be used to infringe our natural rights and liberties.

The Bill of Rights doesn’t grant rights; it limits government. Even when that government is expressing “the will of the people”–or as the Founder’s might have put it, the “passions of the majority.”

If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.

Triumphant declarations that you read the text of the Constitution and didn’t find a “right”  to same-sex marriage simply tells the world that you are profoundly ignorant of the purpose of our Constitution and the theory of government upon which it was based.

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Alabama: Why Judges Shouldn’t Be Elected

He’s baaack!

Roy Moore, the infamous “Ten Commandments” theocrat, is serving a second stint as Alabama’s chief justice. Moore was first elected to that position in 2000, but was removed after refusing to move a Ten Commandments monument he had installed at the entrance to the courthouse. Carved into a five ton boulder. In a July 2003 ruling, the appeals court compared Moore’s actions to the

“position taken by those southern governors who attempted to defy federal court orders during an earlier era,” citing the actions of former governors Ross Barnett of Mississippi and George C. Wallace of Alabama in trying to block campus integration and protest marches during the height of the civil rights movement.

“Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” the appeals court wrote.

In November 2003, the state ethics panel unanimously voted to remove Moore from the bench. He was reelected in 2012, narrowly defeating a candidate who didn’t join the race until August after Democrats disqualified their original candidate. (What was that old saying?–you can’t beat something with nothing.) When it became apparent that he’d won, he told supporters

“Go home with the knowledge that we are going to stand for the acknowledgment of God.”

Now, Moore has told the state’s probate judges–who evidently issue marriage licenses in Alabama– to ignore a federal judge’s ruling that same-sex marriages could proceed, and a majority of them have been complying.

Interestingly, Alabama does not require probate judges to have any sort of legal education. It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections.

The U.S. Constitution made federal judges independent precisely in order to avoid this sort of assault on the rule of law. Congress and the Executive Branch are supposed to answer to the voters; courts of law are supposed to answer to the Constitution.

In best-case scenarios, judicial elections give rise to the appearance of impropriety– did campaign contributions influence the administration of justice? In the worst-case scenarios, judicial elections give you a Roy Moore.

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My, My! I Think I Hit a Sore Spot

Yesterday, I pointed to a very bipartisan problem: the under-representation of women candidates slated to run for Indianapolis City-County Council (not helped by the “dumping” by each party of an incumbent female). Several commenters–all, I should note, men–protested via twitter that gender had nothing to do with the slating decisions.

As I responded to one of them, I’m sure that’s true–consciously. Neither party deliberately slighted women candidates, or intentionally applied different standards to male and female incumbents.

The key word is “intentional.”

In 1990, Wellesley College professor Peggy McIntosh wrote an essay about White Privilege, in which she observed that whites in the U.S. are taught to see racism only in individual acts of meanness, not in invisible systems conferring dominance on any particular group.

Men also tend to be unaware of their own privileges as men. See “The Male Privilege Checklist” for a rundown of unconscious assumptions that are true for men but not women.

A few of the 45 items on that checklist are particularly relevant here:

If I seek political office, my relationship with my children, or who I hire to take care of them, will probably not be scrutinized by the press.

Chances are my elected representatives are mostly people of my own sex. The more prestigious and powerful the elected position, the more likely this is to be true.

I can be loud with no fear of being called a shrew. I can be aggressive with no fear of being called a bitch.

My post yesterday was about those “invisible systems conferring dominance” and the systemic (albeit largely unconscious) attitudes those systems foster. Most of the women who commented “got it.”  A number of the men, didn’t.

I rest my case.

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Where Have All the Women Gone??

Remember the folk song that began “Where have all the flowers gone?” Well, I want to know where all the women candidates have gone. My specific question is: where are the women candidates slated by the parties to run for the Indianapolis City-County Council?

There are 25 districts remaining since the Republicans in the General Assembly eliminated the 4 at-large seats held by Democrats.

The Republicans slated seven women. The Democrats slated only five.

As a mere girl, my math skills are understandably weak, but I believe women are over 50% of the voting public. The Republicans slated women for fewer than 30% of the seats; the Democrats–presumably the party of inclusion and women’s rights–slated women in only 20%.

Worse still, each party refused to slate an incumbent woman who’d been effective and hard-working, but difficult for party bosses to control; the Republicans unceremoniously dumped Christine Scales, who had angered her GOP cohorts by demonstrating independent judgment and a willingness to work across the aisle, and the Democrats decided that LeRoy Robinson–who no longer had an at-large seat and needed to “be taken care of”–should get priority over Angela Mansfield, who has ably represented District 1.

Both women had put the interests of their constituents above partisanship. (Isn’t that just like a woman?!)

Bless their little hearts, those girls didn’t listen to their manly betters, and they needed to be removed.

Message sent and received–and isn’t the bipartisanship of that message encouraging?

No wonder more women don’t run for office.

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Letter to the Next President

Don Kettl is a highly respected scholar of government and public management, and he has penned a very thoughtful article–I would say a “must read” article– for a recent issue of Washington Monthly.  In it, he pretends that the 2016 election is over and he’s advising the winner.

Titled “Ten Secret Truths About Government Incompetence,” he begins with the “secret truth” that government actually does a great many things with admirable competence, and works far better than most people think, sharing a long list of areas in which good government performance is taken for granted.

Kettl uses the list to warn the new President that good management will go unremarked, but screw-ups will be magnified.

He also points out that media and citizens alike fail to distinguish between embarrassing, but essentially minor, mistakes, and truly consequential ones:

You’ve benefited from the “Obama is incompetent” narrative. It increased the public’s appetite for getting you—and some fresh air—into Washington. But let’s be honest: you lucked out because of the media’s inability or unwillingness to notice, care about, or explain the difference between hugely consequential management screw-ups and only modestly consequential ones.

Failing to plan for the occupation of Iraq? Disbanding the Iraqi military? Putting inexperienced political cronies in charge of the Federal Emergency Management Agency and downsizing the agency prior to Hurricane Katrina? Now those were screw-ups—big, far-reaching, world-historic blunders that led directly to the deaths of thousands.

As Kettl says, compare that to the inept Obamacare website roll-out , where no one died, and the problems were soon fixed.

Of course, these were big stories—but they were mostly big political stories. The stumbles embarrassed the Obama administration, hinted at an underlying management problem in the administration (more on that shortly), and helped the Republicans weave a powerful campaign narrative. But the stories weren’t about big failures with huge consequences. They were about putting torpedoes below the political waterline.

Kettl also addressed one of my pet peeves: the notion that government should be “run like a business.” Addressing his mythical new President, he writes

You made the case in your campaign that government needs to learn from the best-run private companies. That’s an irresistible line that Republicans invented and Democrats—especially Obama—have come to champion. But, of course, you know that the private sector isn’t always a model of good management. Remember New Coke, Windows 8, the collapse of Chi-Chi’s restaurants, and shrapnel-filled airbags? That’s even before we get to the wholesale financial miscalculations and fraud that led to global economic collapse.

The private market has a big advantage over government: it can bury its bodies in balance sheets and deal with its failures by quietly turning out the lights and locking the doors.

The entire article is well worth reading, especially the section on outsourcing–the fact that most government work is no longer done by government, and how that fact complicates management and accountability. His reminder that so many of the problems we attribute to a President are really problems created by Congress is especially timely.

All in all, the article is an important corrective to the rampant, uninformed anti-government rhetoric meant to appeal to people who don’t have the foggiest notion what government is or does or how it functions.

It’s also reminder that We the People not only need government,  we need the civic skills to make it work properly.

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