Federal v State powers

The Founding Fathers spent a lot of time debating how Federal and State powers should be divided up.  Originally, most power was left to the states, with very little given to the national government.  This had so many problems that they got together again in a Constitutional Convention and created the balance that we current follow (with some adjustments along the way in Constitutional Amendments and Supreme Court interpretations).  I am not sure most people realize how important this distinction is.

I’ll start with a very controversial topic to illustrate.  Some people think abortion should be legal.  Some people think it should be banned.  I am not going to get into that debate exactly.  Instead, I will ask who should make the law, the federal government or the state governments?  There can only be one answer to that question.  Obviously, you can’t have the feds making it legal and a state or two making it illegal (or vice versa).  So there are actually four possible opinions.  I believe it should be legal and the law should be at the federal level.  I believe it should be legal and the law should be at the state level.  I believe it should be illegal and the law should be at the federal level.  I believe it should be illegal and the law should be at the state level.  One of these dichotomies is an ethical/moral decision about abortion and the other one is about what the Constitution says about federal and state powers.  So if someone is pro-choice, and the Constitution puts this power in the states, they should support each state making it legal and the feds staying out of the decision.   Same thing if someone is pro-life. 

I used abortion as my first example to get your attention, but this really comes up all the time.  Right now there is a case where Rhode Island doesn’t believe in the death penalty but the federal government does.  So the governor is refusing extradition of a murderer to the federal authorities.  The way this case will be decided is not whether the death penalty is right or wrong.  It is whether the decision should be made at the state level or at the federal level.

We see the same thing in Romneycare v Obamacare.  Is it possible for the two systems to be very similar and have one be right and one be wrong (as Romney claims)?  Yes.  If the Constitution says that this kind of law should be made at the state level, then Romney may be right that is was OK for Massachusetts to pass his version but it is not OK for Congress to pass one nationally.  It’s not about whether the plan is good or not, it’s at what level the law should be made. 

In general, I like when powers are left at the state level because it allows different states to try different things and whichever one works best can be copied by all the other states.  But sometimes it is just not efficient to have different laws in different states, such as interstate commerce or defense or monetary policy.   And sometimes it involves a basic value that should be decided nationally, such as civil rights. But my point today is that we sometimes forget that this is a critical part of the question, and in fact is the part that has to be asked first.

Where are the GOP candidates on the debt ceiling???

I was listening to some conservative economists on the radio and they were voicing their disappointment that none of the GOP presidential candidates have said diddly squat about what they think should be done about the debt ceiling.  Bachman doesn’t want the debt ceiling raised at all, showing her ignorance of economic reality.  None of them have said what they think SHOULD be done.  So much for leadership.  How am I supposed to decide if there is a viable alternative to Obama if I don’t know what they will do? I guess they are trying to be the anonymous GOP candidate that is the only one beating Obama in the polls.

Lots of free speech issues in the news

All of these stories are from this week's news.  For summaries, check out Michael Smerconish's web site.

Where does free speech end?

• Should Facebook ban Holocaust deniers from the site?  FB has the right as a private organization to ban them, but the government doesn’t have the authority to make a law forcing them to.  Should they?  I think the harm of banning is worse than the benefits of filtering the hate.
• A father created a blog ripping on his ex-wife.  During the custody hearing regarding their son, the judge does not have the right to prevent him from creating the blog (which is free speech), but she can use it in part in determining his fitness as a father in custody decision.  It does provide insight into his maturity.  In this particular case, she went a little overboard.
• A teacher created a blog describing her students in vulgar language.  The government does not have the right to prevent her from blogging, but can use it in determining her ability to be an effective teacher.  It does provide insight into her maturity and leadership.
• Should Facebook allow anonymous posting?: FB has the right as a private organization to ban anonymity, but the government doesn’t have the authority to make a law forcing them to. Should they?  Thinking about politics, anonymity is a powerful tool.  But with bullying it can be a force for evil.  What about if FB has the ability to find out who anonymous posters are, but only uses it in certain situations, like court order.  Not for HR professionals doing a hiring search.  But what about situations like Egypt?
• Should a cross be allowed at the 9/11 memorial:  This is more freedom of religion then freedom of speech, but similar.  Is the cross like the ten commandments in the Kentucky courthouse that the Supreme Court said was more historical than religious and therefore allowed?  Or is it like the town sponsored Christmas crèche, which was determined to promote one religion over others and therefore illegal for public money to be spent on it?  What if the 9/11 memorial is privately owned and managed?  Does it matter that the cross was from the actual World Trade Center rubble? Does that make it historical rather than religious?
• Red plastic testicles hanging from the rearview mirror of a woman's truck: Is this obscene?  The cops gave her a $450 ticket.  Is this as bad as the photos on strip club billboards?  Is it free speech? Is it obscene?

Whats wrong with the government - a debate

I heard a great debate last night on whether the two-party system is making America ungovernable.  The debaters were Arianna Huffington (liberal) and David Brooks (conservative) saying that it is a problem and P.J. O’Rourke (a conservative libertarian) and Zev Chafets  (a reporter from Israel, which currently has 14 parties) saying it is a good system.

Arianna Huffington had a point that I had never thought of before but that I found very intriguing.  She said that social media has given younger people political outlets that are separated from the operation of government.  So the energy and ideas that young people usually bring in to energize political parties is now energizing flash mobs and Facebook groups.  So the parties are being run by old fogies who are set in their ways.  Grover Norquist gets all the GOP nominees to sign the no tax increase pledge and democrats are beholden to old interests in big labor.  I have enough to say about these trends for another blog post later.  But the consequence of this is that only the established interests and lobbies have any power in DC anymore and they have co-opted the legislative and regulatory processes. 

David Brooks said that the problem with our system is that a politician’s party and values have become more important than governing.  So pols are unwilling to compromise at all and things have totally broken down.  He reminisced for the days when we had third parties bubbling up any time a major party broke down.  After all, the first two parties were the Hamiltonian Federalists and Jeffersonian Republicans.  These have little resemblance to the Obama/Pelosi/Reid Democrats or Romney/Boehner/McConnell Republicans.  And the Tea Party hardly counts as a third party.  He hopes for moderate independents to save the day.  He wants a middle-of-the-road coalition of blue dog democrats and moderate republicans to create a new party.  Maybe a permanent gang of six that turns into a gang of 20 or 30. 

PJ O’Rourke took the other side.  He said that we don’t really have a two party system, we have two different sources of fundraising.  To get elected, politicians still need to pander to the electorate just like they would if there were no parties or three parties. 

Seth Chavitz had a great perspective because of the challenges Israel has in governing through coalition.  There are so many problems with having 14 parties that 2 would be a blessing.  His basic message is that American democracy sucks, except compared to all of the other systems that are out there.  As someone who has followed Israeli politics for about 20 years, I have a hard time arguing with this line of reasoning.

An interesting question from the audience suggested that the problem was the size of government.  In Canada, there is one member of parliament for each 80,000 people.  In the U.S. it is one representative for 800,000 people – ten times as many.  But the panelists thought that having more reps would not be an improvement.  Should we break up into multiple countries and become the European Union?

Another audience question was about the speed of government.  Which is better, to have a political system that moves quickly (and perhaps too quickly) or one that moves slowly (and perhaps too slowly).  In most cases, too slow is better.  But it seems lately that we are making decisions that are good in the short term (the next election cycle) but bad in the long term (when many members will be out of Congress anyway).  This is perhaps the bigger problem than too fast or too slow.  Our system is too focused on short term solutions.

For another blog on this debate from someone who probably listened more carefully than I did, check this out.

The fourth estate

There is a famous quote from Thomas Jefferson during the founding period that given a choice between government or a free press, he would choose the free press every time.  Less well known is that 6 years into his presidency he said that it is better to have no press at all because someone who is completely ignorant is better informed than someone who reads the garbage in the papers.  Did the papers change significantly from 1788 to 1806 or did Thomas Jefferson have a different view/experience as president?  I suspect the latter.  As much as I decry the banality of today’s media, I suppose I would rather have Bill O’Reilly facing off against Keith Olberman every night than to have the limited controlled media in China or the terrorized semi-free press of many other countries.

Alternatives to Prison

I was reading an editorial in the Boston Globe where the author suggested that we could eliminate the overcrowded prison problem as well as save a lot of money by having alternatives to prison.  He suggested it should be the choice of the convicted person, but I am not convinced it has to be that way.  If it were decided by the court, then it may be a better deterrent because the person wouldn't know ahead of time which one he/she would get.

The author suggested flogging as the alternative (severe whipping).  He thought ten lashes would be the equivalent of ten years in prison.  I am not convinced of that either.  But there are many research methods used in the insurance industry that could be used to come up with an equivalent.  I have never been flogged, so I have no idea how painful it is or how long the pain lasts.  But I imagine ten lashes would be a lot less severe than 10 years in prison.

But however the details are worked out, I think it is a good idea.  Clearly, our prisons are overcrowded and we need to find some alternatives.  I there is going to be some number of lashes or waterboarding or whatever that would be the equivalent. 

What do you think?

history repeats itself after 150 years

There was an article in this month's Smithsonian (actually a book review) that had some info I had no idea about.  At the start of the U.S. (1861 for those of you who have forgotten 6th grade history) Civil War, England almost came in on the side of the south.  Their two main reasons sound very familiar today.  For one, the south produced 80% of the cotton used in England's mills.  They needed to protect that supply.  And if they came in on the side of the south, the good feelings would rub off into commerce.  Sound familiar with the U.S. and the Arab Spring re: oil??


Another reason was that a united North and South would be a much stronger rival to England than two separate countries.  Geopolitics led them to see a benefit in the South successfully seceding.  Also sound familiar with the U.S. and Middle East/North Africa? 

Apparently, Lincoln's Secretary of State William Steward subtly threatened a world war if England got involved.  Luckily, he was successful.  Otherwise . . . . . . who knows?

Thoughts for the Fourth of July

In honor of the Fourth of July, I have been doing some reading on the Founding Fathers. One thing jumped out at me this time because of its relevance today. The Founding Fathers, especially Jefferson, believed that good education was critical for an effective democracy. They wanted strong K-12 (free and for all citizens) and strong independent and diverse newspapers (for adult education). Only informed people could vote intelligently. Others would be “easily manipulated by demagogues” (Glenn Beck ring a bell??), and susceptible to conspiracy theories (Obama birthers perhaps). My immediate thought was that Thomas Jefferson is rolling over in his grave.

What have we done to education? No Child Left Behind has focused our schools on math and science. It is understandable that if federal money is available to support math and science, schools will cut civics and government education. And when we use multiple choice exams, it is also understandable that teachers will focus on teaching to the test and less on general skills like information literacy and critical thinking.

Then look at the newspaper industry. General newspapers are in decline. Many of us get our news from partisan sources on the left or right that agree with our own biases. The Founding Fathers expected that responsible citizens would read opinions of all kinds before coming to their own conclusions, especially on who to vote for. Do any of us do that today?

For an interesting read (or listen) on the subject, try this.

Am I being too cynical? Or does my previous post on happiness balance me out?