Thursday, September 17, 2015

Donald Trump owns the time of possession statistic.

Donald Trump thinks it "unfair" that he got more talking time than anyone else at the GOP debate.
“A lot of them are friends of mine and they got no airtime last night,” Mr. Trump said “It was a little bit unfair to a lot of other people.”

Perhaps he does. Still, there is a reason why time of possession is such a closely watched statistic for NFL games: the team with the ball controls the game. In a debate, the guy talking controls the debate.

With 4,581 words spoken last night, Donald Trump had almost twice as much to say as Carly Fiorina, who spoke 2,694 words. So while Donald Trump might not have been as theatrically dominating as in Debate 1 (there was no Megyn Kelly setting him up for a devastating one-liner), he still owned the stage to a degree that has to have political pundits everywhere scratching their heads.

In the runup to the debate, CNN devoted 78% of their coverage to Donald Trump, commanding a whopping 580 minutes of coverage out of 747 minutes total.

According to Google Trends, Donald Trump topped all candidates in Google searches prior to the debate.

In media time before the debate, in viewer interest prior to the debate, and talking time during the debate, Donald Trump is beating all comers on time-of-possession.

Advantage: Donald Trump

Saturday, September 12, 2015

Is Kim Davis a latter-day Rosa Parks? I hope so.

One would have to be living on a desert island not to have some awareness of the legal fracas surrounding Rowan County Clerk Kim Davis, who chose to go to jail on a contempt of court charge rather than comply with the United States Supreme Court edict set forth in Obergefell v. Hodges (576 US ___(2015))  legalizing same sex marriages. For Ms. Davis, putting her name to a marriage license for two persons of the same sex was something her religious beliefs would not allow her to do in good conscience.  The courts ordered her to do so anyway, and she refused. And she was jailed on a contempt of court citation in response.

Those supporting her stance erupted in outrage. United States Senator and Republican Presidential Candidate Ted Cruz spoke out passionately on her behalf, declaring that it was unconscionable for the government to arrest a woman simply for "living according to her faith." Another GOP candidate, former Arkansas Governor Mike Huckabee, also took up her cause and worked to have her released, succeeding after she spent five days in jail.

Unsurprisingly, many of Ms. Davis' supporters compared her to civil rights icon Rosa Parks, whose refusal to give up her bus seat to a white man sparked the Montogomery Bus Boycott that heralded the onset of the Civil Rights Movement of the 1950s and 1960s. Equally unsurprisingly, many on the political left scoffed at such comparison.

Is Kim Davis a latter day Rosa Parks?

It is no slight to Rosa Parks to note that she stands chiefly as a symbol around which the Montgomery Bus Boycott could coalesce, In fact, a case could be made that the significance of her action stems from the sheer unpretentiousness with which she acted--her response to a threat from the bus driver to call the police was simply "You may do that". She was not seeking a confrontation, merely a bus ride. Nor was she at the vanguard of the Civil Rights Movement thereafter. Others, such as Dr. Martin Luther King, Jr., took her simple act of civil disobedience and launched a movement around it. Both in Montgomery, Alabama, and later in Detroit, Michigan, she was a quiet, even shy, unassuming woman, who chose to live quietly and largely away from the spotlight. As a result, Rosa Parks is remembered for the symbolism of that one act more than anything else.

By comparison, Kim Davis has been far more active, speaking at rallies opposing the Obergefell decision even prior to her incarceration--as well as having run for the elective office of County Clerk. 

However, in one key regard, there is a comparison to be made: Both Rosa Parks and Kim Davis engaged in an act of civil disobedience that other groups chose to leverage through lawsuits to correct a perceived in justice. Like Rosa Parks, Kim Davis is a symbol--of the First Amendment right to free religious expression to some, or a symbol of hatred, homophobia, and divisiveness to those who view same sex marriage as a fundamental right.

Thus we pose the question, is Kim Davis a latter day Rosa Parks?

Hopefully, she is--at least in this regard: my hope is for Kim Davis to become a symbol around which a movement can coalesce to reinvigorate a true Constitutional approach to jurisprudence, and a renewed respect for individual rights, both civil and fundamental, that the Constitution does protect quite forcefully.

In all of the controversy surrounding Kim Davis, one truth is made abundantly clear: Obergefell v Hodges is a horrendous ruling. It is horrendous not because same sex couples should not marry, or because homosexuals should not have certain rights available to heterosexuals, but because it is a disjointed and even contradictory ruling, with at best a specious link to the Fourteenth Amendment that serves as its Constitutional justification. Regardless of one's particular view on same sex marriage, the simple truth is that Obergefell is bad law.

At the beginning of his opinion, Justice Anthony Kennedy opines that "marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman." Further into his reasoning, he reverses himself, noting that "the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." Marriage is either a simple voluntary contract, as he first expresses, or it is a bond with deep religious (i.e., "spiritual") overtones; the two articulations are mutually exclusive.

Moreover, if marriage is a bond with religious overtones--and all three Abrahamic religious faiths: Judaism, Christianity, and Islam accord religious significance to marriage--then it is ludicrous for a Supreme Court to rule without contemplating how the First Amendment proscriptions against laws respecting the establishment of a religion would apply. Justice Kennedy mentions the First Amendment exactly once, at the end of his reasoning, and then largely as an aside.

But what if marriage is not a bond with religious overtones?

Obergefell is still bad law, first and foremost for injecting religious overtones via Justice Kennedy's reasoning where none should apply, Moreover, the First Amendment also guarantees people a right to peaceably assemble--more broadly termed the right of free association. People may join together in such fashion as they wish, without interference from government, so long as they keep the peace.

With or without consideration of religion, "marriage" is and must be a First Amendment issue, not a Fourteenth Amendment one.

A key limitation to the language of the Fourteenth Amendment must be noted: it guarantees merely the equal application and equal protection of the law. The Fourteenth Amendment in and of itself cannot establish new rights. The Amendment which guarantees rights not otherwise enumerated within the Constitution is the Ninth Amendment, which Justice Kennedy ignores completely. If one therefore seeks to address the Constitutionality of marriage laws and eschews the First Amendment, the Ninth Amendment is still the vehicle by which a right not articulated within the Constitution can be defended. If there is no right of marriage protected by the First Amendment, or definable under the Ninth Amendment, there can be no right upon which the Fourteenth Amendment can operate.

Predicating an assertion of right on the Fourteenth Amendment without invoking one or more other Amendments or passages of the Constitution is irrational on its face.

Finally, Obergefell is contradictory in this regard as well: while it asserts marriage to be a fundamental right, it then endorses the existence of an entire corpus of laws curtailing that right, despite providing not a whit of substance to a supposition that such laws are themselves narrowly tailored and in furtherance of a valid compelling purpose.

What compelling purposes might the state have in regulating marriage? Justice Kennedy lists a set of benefits he attributes to marriage: "...taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules...." Intriguingly, however, none of these rights involve the issuance of a marriage license--the particular sticking point that landed Kim Davis in jail--but merely an acknowledgment by the state that a couple are married. It is worth noting these benefits are available even in the states that recognize a "common law" marriage for which there is no formal license issued. Based on his own listing of state-granted benefits to married couples, the state has an interest at most in recognizing a marriage, but that is hardly a justification of a need to regulate marriage. 

It should be immediately obvious that when a state has the power to issue a license, it has a corresponding capacity to at any time revoke that license. Obergefell reasserts and reaffirms the power of the state in exactly that fashion--and that is something I cannot envision sitting well with sames sex marriage advocates should the mood of the court turn against them in the future.

Obergefell v Hodges is bad law. That is the inescapable conclusion. It is bad law because it is bad reasoning. Because it is bad law it relegates either same sex couples or religious adherents to a discriminated class--and the Constitutional standard is no discrimination, period. Whatever defects one may argue existed in marriage law before Obergefell, such a schizophrenic ruling can hardly provide substantial and sustainable remedy. Had Justice Kennedy started with the Constitution, a moral, just, and defensible decision was very much within his grasp--for he himself delivered all the necessary particulars to rule against the issuance of all marriage licenses altogether; such a ruling would have eliminated in its entirety the question of same-sex marriage.

Obergefell v Hodges is bad law. By failing to read the Constitution much at all, let alone properly, Justice Kennedy supplanted his own personal predilections for the rule of law that is the Constitution. By failing to reach a Constitutionally rigorous and sound decision, Justice Kennedy elevated the rule of the Court over that of the Constitution. By doubling down on the power of states to issue and regulate marriage licenses, Justice Kennedy elevated the power of the State above the rights of the people, ironically even as he wrote an opinion purportedly celebrating those selfsame rights. 

Rosa Parks was a face and a symbol for the Montgomery Bus Boycott. She humanized issues mired in the mechanics of law and business policy. She became the focal point for people's anger at the injustices of a society that was drawn up to be "Separate but Equal.". By being that symbol, by consenting to be that human face, she gave immediacy and impetus to the Civil Rights Movement.

Such a symbol is needed once more. We need a face to humanize the dangers and challenges of judicial overreach, of judicial whimsy, of judicial tyranny. We need a focal point to stand against such injustice.  Obergefell needs to be overturned, not because same sex marriages are themselves wrong, but because the rationale Justice Kennedy used to legalize them is wrong, because it rests entirely on the whimsy of the judiciary and takes no substantive notice of the text or meaning of the Constitution, nor of the essence of what "fundamental rights" means. Obergefell needs to be overturned because it empowers the state at the expense of the people.

In defending her religious convictions Kim Davis defended the most fundamental right of all: liberty. Surely that is a right all Americans can agree needs defending to the utmost.