Happy Roe v. Wade Day

Today is the day when pro-lifers nash their teeth in anguish over the 1973 Roe v. Wade decision, and when pro-choicers gnash their teeth in anguish over the fact that pro-lifers haven’t yet acquiesced to the Supreme Court’s ruling.

But I find the abortion debate particularly unenlightening. It consist of little more than two sides iteratively reciting a very limited set of very familiar arguments. There are no arguments pro or con which are less than 25 years old, yet each side continues to ritualistically invoke them as though mere repetition alone can change minds. My perspective is that neither side can convince the other because both side’s arguments have real power. Each has announced their own set of legitimate interests, but neither side has ever successfully rebutted the other side’s claim of legitimate interests, nor successfully demonstrated that their interests should always trump the other’s interests.

I want to examine the issue from a different perspective; a biological history perspective. I make no claim that this perspective will resolve the debate, but I believe both sides would benefit–intellectually, and perhaps morally, but not necessarily politically–from looking at abortion in this way. This is a bit long, as the biological argument requires quite a bit of setup, but if you’re game, please click the “continue reading” button.

The biological history perspective requires that we recognize abortion as a form of infanticide. Pro-lifers, of course, agree, but only because they see the term as having political power. Pro-choicers object, but only for the same reason. But as I repeat to my methods class daily, we are engaging in analysis here, not advocacy.

The historical fact is that infanticide has been practiced, with varying degrees of frequency and approval, in all cultures throughout history. For various reasons, mothers–and sometimes fathers–find the destruction of an infant to be in their own best interest. From a biological perspective, this is an interesting question because it means the destruction of their own genetic heritage, so it seems that evolution would tend to eliminate people with a tendency to do that, and favor those who are so attached to the concept of having children that they would never, under any circumstances, eliminate one of their own. The latter, after all, would leave more children, so their child-loving genes should, over time, come to dominate the population, while the child-killing parent’s genes should gradually diminish and disappear.

But that seemingly logical argument is superficial. It’s not simply quantity that matters evolutionarily, but quality. There are two approaches to reproductive success, the r and k strategies. The r strategy is to have very large numbers of offspring, but to put minimal parental investment into them. Sea turtles, for example, lay between 50 and 200 eggs (depending on the species) every few years, but after burying them in a sandy nest, leave them behind. Most of the babies are eaten shortly after hatching, but some survive to reproductive age. The k strategy is to have few offspring, but invest heavily in them. Orang-utans, for example, normally have one child at a time, which stays with the mother until sexual maturity at 6-7 years of age, during which time the mother will have no other offspring.

Human behavior is, compared to many species, very plastic, but it is nonetheless biologically based. We lack the reproductive capacity to be sea turtles, so we are clearly more toward the k end of the reproductive continuum, but even so there is great variability in human reproduction. In pre-technological agricultural societies, it was not uncommon for a woman to bear up to a dozen children (although rare for all of them to reach adulthood). In hunter-gatherer societies the average was considerably lower, and in contemporary western industrial societies the number is–from a historical perspective–shockingly low. In the EU, the average woman reportedly has only 1.5 children.

The lesson from this is that natural selection can favor having fewer children. The key to whether it is evolutionarily successful lies in understanding the life history of the parent. Orangutans live in different environments and have different social structures than sea turtles, so a different reproductive strategy is evolutionarily appropriate. Shifting our focus from a comparison between species, we can also compare individuals within a species. The specific life history of a particular human female may dictate having fewer, rather than more, children as the best reproductive strategy. If having fewer children gives them a better chance of surviving to reproductive age than does having more children, then the greatest expected value comes from having fewer children.

For example, if a mother has ten children, each of whom has a .01 chance of surviving to adulthood, her expected value is 10*.02 = 0.2. If she has only one child, which has a .3 chance of living to adulthood, her expected value is .3. Basic cost-benefit analysis tells us to take the highest expected value, so in this case having one child gives a better chance of passing one’s genes into future generations than having 10.

If a mother wants to limit her number of children, then she must sometimes make choices about whether to keep a particular child. Historically, and cross-culturally, women tend to commit infanticide under conditions that match up with the preceding logic, such as a) when a child is defective, b) when a child is born too soon after a previous child, c) when the father is unlikely to invest in the child (suspicion of adultery, for example, or actual absence), or d) when the mother is young and unprepared to raise a child. Supporting this argument is consistent evidence that the overwhelming majority of child killings occur in the first year of life. It’s as though children pass through an evaluation period during which parents decide whether they are a good vehicle for parental investment or not. (Although the empirical data tends not to differentiate within the first year, anecdotal data suggests that most of those first-year killings take place within the first few weeks or even days. It is likely that this evaluation period is quite brief, and the great majority of infants closing in on their first birthday are likely to enjoy many more.)

Obviously it would be even better for those mothers if they didn’t have to carry those to-be-discarded infants to full term. In the pre-technological era, however, means of abortion were rare and dangerous, limiting the rational use of this option. Today, however, abortion–while not without risk–is safer than pregnancy and childbirth, at least when performed before the third trimester. So women who, at least in a different time and place in history, would have committed infanticide now rationally choose to move the act forward to an early moment, limiting the overall cost of the undesired pregnancy.

Operating on the assumption that infanticide will occur–that social rules and norms can only reduce its frequency to some degree, but not eliminate it–we can see abortion (again, at least early term abortion) as a more human method of infanticide. In that respect, at least, abortion should be quietly celebrated.

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General Sources:
Trivers, Robert. “Parental Investment and Sexual Selection,” in Trivers, Social Evolution (1985).

Daly, Martin, and Margo Wilson. “Killing Kinfolks,” in Daly and Wilson, Homicide (1988).

Scrimshaw, Susan C. M. “Infanticide in Human Populations: Societal and Individual Concerns,” in Glenn Hausfater and Sarah Hrdy, Infanticide: Comparative and Evolutionary Perspectives (1984).

Everybody Just Slow Down and Take a Deep Breath

A Republican has won Ted Kennedy's Senate seat! And a breathless media is desperate to enlighten us as to what it means.

A commentator on NPR said this means the American public is telling Washington D.C. that they're not focusing on the right issues. Funny, I didn't realize the American public as a whole got to vote in Massachusetts elections.

Others are claiming it represents a big shift in Massachusetts politics. Of course four of the last five governors of Massachusetts have been Republicans,* so another Republican winning a state-wide race is in itself no more newsworthy than a dog-bites-man story.

The media and the political junkies who hang on their every word love to discern national meaning in single local elections. But as another famous Massachusetts pol, Tip O'Neill, once said, "All politics is local."

The Democrats' Mythical Supermajority

Massachusetts holds an election today to fill the late Ted Kennedy's position. The media are breathlessly reminding us how important this election is, as a Republican victory will kill the Democrats' "filibuster-proof" majority in the Senate. The media, as usual, are missing the real story.

At this point it may be difficult to remember the Democrats’ glee at gaining supermajorities in both the House and Senate. The House is a majority dominated institution, so having 59% of the seats there meant the Democrats could confidently allow a few defections and still steamroll a unified opposition. And with 60 being the magic number for imposing cloture and ending a filibuster in the Senate, all eyes were on the disputed Minnesota Senate race, which would determine whether the Democrats reached that paradisiacal plateau. And, oh, the joy when Al “Saturday Night Live” Franken was declared the victor. But now it is all coming to little, despite Republican’s alligator tears about the alleged onslaught of enslaving legislation being passed by Congress.

Some Democrats I know were looking back to the great civil rights and “Great Society” victories of the Lyndon Johnson administration as proof of what great things a Democratic president united with an overwhelmingly Democratic Congress can accomplish. In the 88^th Congress, when the 1964 Civil Rights Act was passed, the Democrats controlled 59% of the seats (they had 259 then, to 257 now). In the next Congress, when the 1965 Voting Rights Act was passed, they had 295 seats—67%! * The Democrats’ Senate advantage was even greater: in the 88^th Congress they controlled 66 seats, which increased to 68 seats after the ’64 election.** Clearly they were an unstoppable machine, and their strength seems to lend support to my one friend’s claim that the Dems need to rebuild their old New Deal coalition if they want to dominate once again.

But such a simplistic analysis overlook too much. Primarily it overlooks the fact that the South back then was still almost solidly Democratic, but very right wing. Strom Thurmond, one of the first major Southern politician to switch parties, only jumped to the Republicans in ’64. This dominance of the South by conservative Democrats—the infamous boll weevils—explains why the Voting Rights act received a larger share of the Republican vote in Congress than it did of the Democratic vote. 63% of Democrats voted for it, while 80% of Republicans did. Among Southern Democrats the vote was only for and 87 against—93% opposition. (The handful of Southern Republicans were even worse—10-0 against.) In contrast, 94% of Northern Democrats and 85% of Northern Republicans voted for it.***

The only way the Democrats could rebuild the New Deal coalition is to bring southern conservatives back into the party—something they have neither any chance nor any desire of doing.

But that helps us recognize the main problem in their push for a congressional supermajority, which is that they can only achieve it with the help of conservatives. The public has not made a major swing to the left, so the gains made by the Democrats were seats picked up either by more conservative party members or lucky liberals in conservative districts who can only hope to hold onto their seats by not straying too far from their constituency’s base beliefs. In other words, they party is hamstrung by the very members who swell their numbers to “unstoppable” status.

The only way the Democrats in the House can use their supermajority is to compromise to the point where their members representing conservative districts can safely come on board. And in the Senate it is even worse, as a single member can drop his drawers and make the whole party leadership kiss his naked ass to get his vote. Dare I say the Democrats might be better off without Al Franken’s seat? Because then they would not have the false hope of control, and would—paradoxically perhaps—have greater liberty to ignore Joe Lieberman.

Little evidence is needed beyond what looks to be the final shape of the health care bill. There’s not a liberal Democrat alive who—1 year ago—said, “I think it would be a great victory if we passed a bill requiring every American to buy health insurance,” but that’s what they’re reduced to now.

And by focusing on getting their whole party in line, the Democrats have opened themselves up to the charge that they’re just pushing through legislation on their own—high-handedly ignoring any interest in compromising with the other side. This is, of course, a stupid charge. No majority party has any duty to consult the minority, and of course the Republicans would do no different were they in the Democrats’ position.*** But even a stupid criticism can be effective, particularly when a crucial number of the votes that propelled the Democrats to their supermajority status came from solidly middle-of-the-road voters and even some who are more likely—as a general tendency—to vote Republican. Remember that all politics is local, so in normally Republican districts in which Democrats won (like mine), the swing voters that tipped the balance were voting for and against particular people or particular policies; they were not voting for wholesale Democratic dominance.

In his excellent short book Learning to Govern: An Institutional View of the 104^th Congress, political scientist Richard Fenno writes about the difficulty of “electoral interpretation,” determining what your party’s electoral victory actually meant, which determines what kind of leash the public is holding you on.

The period following an election is a critical time for every victorious political party. It is the time during which the winners decide for themselves what their victory meant and how it will shape their future activity. It is for them to interpret the election results; and it is their electoral interpretation that becomes the essential link between the business of campaigning and the business of governing. Everything that follows in the new Congress will be affected by the postelection interpretation of the winners. (p.5)

Fenno’s argument is that the Republicans in the House blew it after the 1994 election, interpreting a referendum on Clinton as a mandate for policy revolution. It’s tempting to say that Democrats have repeated this same mistake—turning a referendum on Bush into a mandate for major policy change. But I think the reality is different. I think the Democrats made little effort at electoral interpretation. Focusing solely on numbers, they determined that this was, at long last, their chance to achieve the health care reform that has eluded them for half a century. Given the nature of American politics, if they could just once get it in place, it would probably be stuck in place for good, despite Republican claims of creeping (or galloping) socialism, just like Social Security. But in ignoring electoral interpretation they may have misjudged the public’s stomach for a government takeover of a major economic sector—what might have seemed normal in the 1950s seems quite abnormal now. And in counting the numbers they may have forgotten to look at the voters behind those numbers. In short, they have something of a mythical majority, or at least a mythical supermajority.

It’s a lesson all political observers ought to learn. But undoubtedly, neither the pundits nor the politicians will.

* All House numbers are from http://clerk.house.gov/art_history/house_history/partyDiv.html.

** http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm.

***This is what makes claims, such as this one, claiming the Republicans should be credited with passing the Civil Rights Act, basically false. The only identifiable group in opposition were Southern conservatives, who today form the base of the Republican Party.

***I cannot pretend that the Democrats never engage in hypocrisy themselves, but it seems to me that the Republicans have an unequaled propensity for whining when their opponents do precisely what they themselves would do.

Is This Wrong?

I received the following email from a student (who will, of course, remain anonymous) recently.

hey professor,
i wont be in class today because i have a doctors appointment. i kno you said that if we're not in class then you dont care where we are but i just wanted to make sure that you didnt think that i dropped the class or something like that. see you tuesday.
thank you

And here is my response:

The next time you write an email to me, please make an effort to use proper punctuation and grammar. Consider the impression that you are sending to people when you write this way. It is acceptable between friends for casual communication, but it is not acceptable in business communications.

Is it wrong to reprimand an unsuspecting student this way? This is a frosh who's taking me for the first time, not an upper division student who knows me well, so this surely comes as a bolt out of the blue for him/her.

But in the past several years--and I literally mean just the last 3 or 4--this kind of email has become very common. I would not be surprised if the student sent it from his/her phone, which encourages all lower-case typing, but that's not necessarily the case. The IM style has infected regular email correspondence as well.

Let me note several things:

1. I don't think such a style is always inappropriate. As I noted in my response, it's fine for casual communication between friends.
2. I don't intend this as a "students these days" kind of criticism. Only a fool could doubt that students in my day would have done the same had we had this technology. (I'm not immune to the tendency to think that students are getting worse every year, but that's just a function of age. I don't think the data that I have, casual as they are, support such a claim at all.)
   
3. Despite left-wing criticisms of contemporary education as being just about creating good corporate citizens, the reality is that the vast majority of students I teach will end up in the business world in some capacity or other. Unless the norms of the business world change, communication-style will continue to matter, and styles that suggest (even if inaccurately) illiteracy will be detrimental to their success.

Given #3 as an assumption (I can't say for sure that it is true, as I am quite insulated from the business world), is it better that an 18 year receives a rude shock now, when the cost is purely psychic, or that a 22 year old receive that shock, when there is a financial cost in addition to the psychic one?

Or have I just become a cantankerous old bastard?

Property, and People Who Don't Get It

[Warning: A long riff on the concept of property from a political economy perspective, including yet another rebuff of natural rights theory, all for the purpose of critiquing some comments made on PL in the past few weeks. In other words, it's all for my own intellectual enjoyment; your mileage may vary. N.B. Heersink, I'm posting this here as well as at PL, so you may comment if you care to do so.]

While finishing my B.A., I got very interested in property rights. In my Marxism class I wrote a big paper comparing Marx, Hobbes, and Locke on property (and got dinged for (1) not supporting Marx as the greatest property rights theorist ever, and (2) calling Hobbes a liberal--I guess that's what happens when you have an actual Marxist for a teacher). For my first couple of year of grad school I continued that interest, reading everything I could on property, from the economics literature (really good stuff) to the the contemporary political philosophy literature (mostly rather shallow and ideological), to the legal literature (muddled, confused and ideological) to all the relevant Supreme Court cases (muddled but a source of continuing fascination). The most fascinating things I stumbled across were a chapter on property rights in the old testament prophets and an article on the development of property rights--in the absence of contract and law enforcement--in the California gold rush. I eventually realized that it would be just about impossible to make a decent scholarly career out of studying property, so I mostly set it aside. But I'm still geeky enough to get excited about property rights issues.

Let me clarify my position. As a libertarian, I'm very pro-property rights. But that doesn't mean anything unless we actually define what property rights are, and that's, I think, where most libertarians fall short. Being too much of a positivist in just about all ways, I don't have patience with the concept of a natural right to property. It smacks too much of that single-individual-alone-in-a-state-of-nature-mixing-his-labor nonsense. We're social animals. Our pre-human ancestors were social animals. So the proper place to begin analyzing things is with the unavoidable fact that every human is born into a web of social organization that predates him/her, and without which he/she would not exist and would not be fully human. Rights are social creations, for good or ill, and that includes property.

The concept of property itself requires a social context. What would it mean to be alone in a state of nature, to pick up some apples, and to yell to the socially empty spaces around me, "This is my property!"? I've got the apples and there's nobody to challenge my control over them--what does the concept of property rights add to that? Now assume there is someone else there--just one person--and they take the apples from me. Have they harmed me? Sure. Have they violated my rights? Again, it's hard to see what that would actually mean. Who do I turn to redress? God may punish the apple-taker with eternity in hell, but that hardly makes me whole. (And that's setting aside the questions of why mixing one's labor or being first-in-time create unconquerable rights, which, however much natural rights theorists may love them, remain logically problematic.)

Now that surely puts me at odds with most libertarians, but so be it. It's not that I dislike the concept of natural rights, it's that I just can't see any actual evidence that they exist. Demonstrate their reality to me, show me at what point in the evolutionary development of homo sapiens sapiens they came into being, and I'll accept them.

On the other hand, if by natural rights we accept the Kuznickian approach that they are things we seem to naturally have an instinct for, then I could probably accept property as a natural rights concept much more easily than most other natural rights claims. There doesn't seem to be a universal instinct for rights of conscience (sad to say), rights of political participation, etc. But there does seem to be a universal, or nearly so, instinct for property.

That brings me to my definition of property, which I cadged from, IIRC, a 1967 article by the great economist Harold Demsetz. (Looking back, I should have known at that point that I should dump law for economics, but it took a couple more years to figure that out, during which time I at least got a decent education in American constitutional law.) To paraphrase, since I don't have the article at home with me:

Property rights are socially sanctioned rights to use resources.

That apparently bland definition has great analytical power. First, it pushes us past material objects in two ways. One, it forces us to recognize that my car is not property: the socially agreed upon rights I have in the use of that car are property. After all, what good would it be to own a car if I had no use rights? No right to exclude others? No right to transfer ownership of it to another party? In casual speak, there's nothing wrong with talking about my car, house, or computer as property, but when we need to be analytical we have to get beyond that casual everyday speech. In other words, "property rights" is actually redundant--the property inheres in the rights. You think that's obvious? It wasn't to my po-mo con law prof, and if you take a survey, I think you'll find a lot of people who have a hard time wrapping their mind around the idea that the physical object itself is not property.

Second, it forces us to consider what we mean by resources, and it's easy to recognize that not all resources are material. This is where intellectual property rights come from. Some lefties like to sneer that there can't be a natural right to intellectual property because you can't hold it in your own grubby little hands and keep others from it. Once the idea is promulgated, all others can make use of it. I can stand on the front porch of my house with a shotgun and keep you out, but I can't stand on my idea with a shotgun and keep you from thinking it, repeating it, extending it to new applications, etc. For once the lefties are right. Or half-right. A claim to a natural right in an idea is, if not entirely silly, at least entirely pointless. But you can have a socially sanctioned right to exclusive use of that idea. It may not be easier to defend against thieves, but there's no inherent silliness in saying that the social group, in its incarnation as a political unit, recognizes that you alone have the right to use that idea.

And nearly everything can be a resource. What, can't have a property right in the air? Sure you can, here's your pollution permit. Can't have a property right in the human genome? Sure you can, nobody else is allowed to make use of that knowledge. That's not to say all potential grants of property are a good idea, just that they're possible, regardless of how immaterial the object of them is.

The word "use" also opens up analytical pathways. What is a use? We, in the U.S. at least, tend to think in absolutist terms when we consider property. "This is mine, by god, and nobody else can use it, nobody else can tell me how to use it, and I can use it in any goddam way I want!" My colleague DAR, living in Texas, may not be able to walk from his office to the drinking fountain without hearing that sentiment. But a cursory glance over the world of property rights quickly reveals that absolute use rights are almost never--perhaps simply never--actually granted. I can't use my house and/or yard as a shooting range (even if I keep all the bullets from exiting my property), I can't put a 300 foot high radio tower in my backyard, I can't operate a solid waste landfill, I can't grow marijuana, I can't use my car as a traveling billboard advertising child pornography, and if I don't keep it in decent repair I may not even have the right to operate it on a public roadway.

No one seriously believes that any and all use rights attach to any given resource. It's when too few use rights attach, when too many are denied, that we claim it's an illegitimate infringement on our "rights." But that's really an argument about reasonableness, not about the basic legitimacy of denying some of the innumerable imaginable use rights.

And that recognition that not all rights attach to a resource opens up vast possibilities for distinguishing among different use rights, and how they can be assigned. In fact the variations are theoretically endless. But allow me to deign to give infinite examples, and provide only a few.

• In my rights study I read about a South Pacific Island society whose primary means of subsistence was fishing. Canoes were the individual property of a single person, but if that person wasn't using his canoe that day, anyone else had use rights in it, which the owner could not forbid.
• Companies frequently buy naming rights to stadiums. They don't own the stadium, they don't necessarily get to enter the stadium, but they have a legally enforceable right to put their name on it. But that right normally is not perpetual; it's time limited. But that's not a property right, one of my grad school friends argued, that's just a contract. Exactly, contracts frequently transfer control over particular uses of particular resources, but the property right is real. It's socially recognized and enforceable. As long as Lucas Oil has the property right in the name of a certain football stadium in Indianapolis, Pennzoil is excluded from that right, even if the stadium owner would like to give that right to them.


• My po-mo law prof scoffed at my notion that she didn't have a property right in her office. She equated property with legal title. But she had very specific, albeit limited, use rights. No one else was allowed to use that office. The professor down the hall couldn't store his books there, or even just sit in there and think, without her permission. The department couldn't turn her out of the office without providing a certain compensation--i.e., another office. True, the university actually "owned" the office, had legal title to it, and so her rights always had a tentative quality to them, but that doesn't violate the concept--it fits right into it.


• The Iroquois had private hunting preserves. Only the owner could hunt on the land. But all others had an easement to cross it in order to reach their own hunting lands.
• A very lousy, but popular, book on American political thought claims that the Iroquois didn't have private property, because they lived in communal houses. Not so. They lived in extended-family houses, an intermediate point between private and wholly communal property. And although I don't know factually, I'd have no qualms betting that within each house each person had their particular space.
• In some places, coalmine owners have the right to cause surface subsidence by taking out enough coal that the ground above slumps. Property owners above do not have a right to not have their land subside due to someone else's activity. But the coalmine owners normally do not have the right to cause the ground to actually cave in. The surface property owner has the right to not have the ground actually drop out from under them.
• In Japan, some cities have granted sunlight rights. If I receive sunlight in my window, I have a right to keep receiving it, and if you want to build next door you can't block my access to sunlight.

These examples should make it clear that resources can be divvied up in any imaginable way, and the corresponding rights divvied out in any imaginable way.

Which brings us to two readers who don't get it. The first is a now-banned commentor, D.S. Heersink who, on his own blog, objects to my colleague DAR's claim that "this blog is our property (Well, actually it is Mr. Kuznicki’s property...). Mr. Heersink seems to believe that there can be no property rights in the internet. Obviously that doesn't stand up to scrutiny. The internet is a resource, or more accurately, a set of resources, and somebodies own the various resources that make up the internet, so obviously its theoretically possible for somebody to own it, the whole shebang. We'd just have to agree as a society (presumably a global society, in this case) that we were granting all rights in the internet to, oh, let's say, me. Or, perhaps Bill Gates is actually rich enough to actually buy up all the rights to the internet? Sure he'd have to convince the federal government to sell whatever it is they own as internet infrastructure (you can see how little I know about what the internet is actually constituted of), but if it helps pay down the debt, perhaps they'd bite. Probably not, but what would happen is not theoretically interesting, only what could happen.

But more specifically, since nobody at PL actually claimed to own the internet (a slight exaggeration on Mr. Heersink's part), but only to own a particular blog, we can actually research whether the claim that Jason Kuznicki owns this blog is true. There's a little thing called whois.net, in which you can look up the registrants of domain names. The registrant pays a fee for a domain name, and then they have the property right in the use of that domain. Turns out, Jason Kuznicki does own the rights to the domain, positiveliberty.com. Who knew?! He does not have absolute rights in the domain. He can lose them if he fails to continue to pay a registration fee, in which case they effectively become abandoned property, like walking away from your house and not paying the property taxes anymore. And he can't use them to solicit contract killers or to advertise weapons-grade plutonium for sale, but that's par for the course with our socially recognized resource use rights. I own a couple of domains, too. You can look them up: ipsinet.org and jhanley.net. There's my name as the registrant, which means the property right in those domains belongs to me. So there.

The other recent comment was by Collin Brendemuehl, who throughout the linked thread seemed to assume that private property was an absolute right that one could not surrender. He simply could not seem to come to grips with the idea that a property owner could in fact sign away some of his rights contractually. But let's go back to the stadium naming example. The Indiana Stadium and Convention Building Authority (ISCBA, a state agency)owns the title to Lucas Oil stadium has signed away the right to name it. It can't, legally rip down the Lucas Oil Stadium sign, and put up one that sys ISCBA stadium. It can't sell me the right to climb up there and hang a sign saying, "James Hanley Stadium," because it signed away the right to control the name for a period of 20 years. After 20 years, the right reverts back to them. Of course they could also have signed away that right in perpetuity, but I'm sure they would have asked for a lot more than the $122 million Lucas Oil paid for a 20 year right. That's about $6 million a year, which indicates it's a pretty valuable right. But I'd bet they didn't get an absolute right--I suspect they'd have had to pay a lot more for an unlimited right to give it any name they want whenever they want, for example, putting up a new sign before the next Colts-Patriots game renaming it "Tom Brady Sucks Stadium," then changing it next week to the "Drop Trou Stadium." (Presumably, while that right would cost more, it would be less valuable to a potential purchaser, so while theoretically possible, we're unlikely ever to get the pleasure of seeing this happen.)

That's all to say that a proper understanding of what property rights are clears up the confusion about whether a church can in fact sign away its rights to discriminate among users of its property. It sure can. Heck, a church could sign a contract with a strip club allowing the club to have live nude dancing in the sanctuary during Sunday evening service. Or selling naming rights to the Anton LeVay Fan Club, so they can put up a big sign saying the "Anton LeVay Church of Satan Church of God in Christ." I'm not trying to offend, although I am trying to shock, because sometimes shock is the shock of recognition, that sense of, "Oh my god, that is possible, even though it's heinous!" As much as any of these signings away of rights would violate the church owners' religious beliefs, none of them would violate their rights. There's a reason why churches don't do these things, even if they could use the money, but they could do them.

In the Mount Laurel case, the Ocean Grove Camp Meeting Association went after the money. There's nothing wrong with that. In fact the whole thing seems like it had been a pretty good deal for all involved, for a long time. They saved some money on their property taxes, and who can criticize them for that? (This wasn't a render unto Caesar issue, they paid all the taxes they were legally obliged to pay.) And the public got use of a property that otherwise might have been off-limits to them. I'm sure that at the time the church made the deal no one was thinking about the possibility of a gay marriage, so it would be wrong even to say that they were naive. But sometimes circumstances change, and contractual conditions remain the same. As I said on that post, buyer's remorse is not a religious liberty argument. But any mention of religious liberty is, in this case, beside the point. Ocean Grove Camp Meeting Association has a valuable resource, and they divvied up the rights in such a way that they sold someone else the right to determine that access had to be non-discriminatory. In the end, it's actually just a rather boring and commonplace case about property rights and contracts. Without the irrelevant religious overtones, it'd be a real yawner. And in its substance, it is.

Die, Lance Armstrong, Die

Figuratively, that is.

I've been a Lance Armstrong fan, enthusiastically cheering him on in le Tour for years. But this is too much. At the beginning of the Tour he talked as though Astana was Alberto Contador's team, and he, Lance, was just a dometique. Now he says, "I'm a 7 time winner, why shouldn't it be my team?"

Lance won the Tour 7 times by building a team of riders who all knew that their job was to help him win--they all had to subordinate their own goals to his. If he had chosen to do so again for his comeback, I would have no criticism. Instead, he joined a team that already had a lead rider (two potential ones, counting Levi Leipheimer) and is trying to take it over. That's just bad behavior.

And a team with three lead riders doesn't have enough domestiques to support them. There's a good chance Lance is doing nothing more than destroying Contador's or Leipheimer's chances to win without giving himself a chance.

Given just how astonishingly good Armstrong is--at his best he was not just better than everyone else, but incomparably better, like Lebron James playing DII basketball--it would not be surprising if he did win again despite what he's doing to his team. But having stabbed Alberto Contador in the back, it won't be an honorable victory this time.

My Theory of Government in a Nutshell

"Two and a half. And you can get a shot of whiskey for 15 cents."

That's me in the orange shirt as "Whit," in Steinbeck's Of Mice and Men, playing euchre and talking about whorehouses. In real life I do play euchre and drink whiskey--the rest is acting.

Obama Isn't a Citizen!

OK, I'm going to try an experiment. I want to see how many wingnuts I can attract by commenting on the claim that Obama is not a natural born citizen, and I'd rather sully my personal blog than the one I share with other (decent) folks. So let me begin by saying, you'd have to be dumber than Paris Hilton's handbag to believe that Barack Obama is not a natural born U.S. citizen.

There are two essential claims:

• Obama is not a natural born citizen because he was born in Kenya, not Hawaii.


• If Obama was born in Hawaii, he lost his citizenship when he lived in Indonesia as a child.

Several lawsuits have been filed, none of them succesful so far, but the legal battle is not yet over. One lawsuit was filed by a lawyer named Phillip Berg, a former Pennsylvania Deputy Attorney General and Hillary supporter who hasn't yet recovered from the shock of having his favorite candidate get her ass handed to her by that uppity nigra.

This case was dismissed by the U.S. District Court for the Eastern District of Pennsylvania for lack of standing, not a surprising result. For those who know nothing about law, and that includes the tens of thousands of asshats who signed this petition, you actually have to be an injured party to bring a lawsuit, simply being a concerned citizen isn't enough to give you standing (unless Congress has statutorily authorized citizen suits). A funny thing happened before the dismissal, though. On October 21 Berg put out a press release titled Obama & DNC admit all allegations in Berg v. Obama. His claim is that Obama's failure to respond in a timely manner to Berg's allegations means Obama "admitted" their veracity, and therefore "Obama must immediately withdraw his candidacy for President" (emphasis added). The "facts" that Obama allegedly admitted are too many to enumerate here, but include:

• I am a Kenya "natural born" citizen.
• My father, Barrack Hussein Obama, Sr. admitted Paternity of me.
• I am a citizen of Indonesia.
• I am proud of my Kenya heritage.
• I am an attorney who specializes in Constitutional Law.
• I went by the name Barry Soetero in Indonesia,
• I went to a Judge in Hawaii to have my name changed.

But Obama did not admit any of this (although I suppose he would agree that his father admitted paternity, that he's proud of his Kenyan heritage--no bar to being president, Reagan was proud of his Irish heritage--and that as a law prof he specialized in Constitutional law, again, no bar to being president). Instead, on September 24, Obama filed a motion to dismiss this frivolous case--almost a full month before Berg made his claim of Obama's failure to respond. And Obama won his motion to dismiss, meaning he did not have to answer Berg's claims, and consequently--as a legal fact--admitted nothing. (Nevertheless, Berg keeps that fraudulent page up on his website.)

Berg followed up with an emergency appeal to the U.S. Supreme Court in which he asked for an injunction to stay the presidential election. This is a bit hard to believe, but Berg trumpets it himself, right here. At this point it is hard to avoid suspecting Berg is either just an inveterate attention-seeker or someone who truly has developed a mental problem, as surely nobody in their right mind could actually believe the Supreme Court would seriously consider enjoining the presidential election. And indeed Berg's motion was denied. Because this was an emergency appeal, similar in form to the emergency appeal of a convict about to be executed, for whom there is literally no tomorrow, Berg did not appeal to the full Supreme Court, which generally moves very slowly on appeals, but to a single justice, in this case Justice Souter.

Oddly, however, Souter's order also states that "The defendants are required to respond to the Writ of Certiorari by December first." I am unclear if that is simply pro forma--petitioner filed, so defendant automatically gets to do so to, if they so choose (and the "required" merely means, "must do so by December 1, if they bother") or if it means the case is still tentatively alive. It also says Berg may respond after Obama files his response, so the case doesn't quite sound dead to me, but while I've studied Constitutional Law, I've never dealt much with legal procedure. Assuming it is still open, Berg needs 4 justices to agree to hear the case, and so far he has "perhaps 1," a far cry from 4. Given that Obama has already met the basic legal requirement for demonstrating citizenship, presenting a certificate of live birth, it's likely the course will reject Berg's challenge is unlikely to succeed, unless Berg can produce evidence of Obama's birth certificate being faked, rather than just an allegation. In sum, the odds of Berg's case being heard by the Court is exceptionally slim.

If Berg's appeal of the case's dismissal is dealt with by the Court, and he wins, the Court could simply remand the case to the District Court for an expedited hearing, so a ruling in Berg's favor would not mean he won on the merits. However it would mean the Court thought both that he had standing and that the case had enough merit to proceed, neither of which is likely. My prediction is that Berg is dead in the water, and his case goes exactly nowhere from here.

The other case has more promise, because the plaintiff would, it appears, have standing. This is the case filed by perennial Christo-fascist Alan Keyes. Keyes was the candidate of the American Independent Party on the California ballot, and is asking that the California Secretary of State be enjoined from certifying the electoral results from the state until the factual dispute is resolved. Unlike Berg's suit, this one was filed in a state court, so it will be interesting to see how the Court rules on the issue of standing.

But ultimately it doesn't matter, except for determining how long this idiotic debate gets dragged out. The facts are clearly on Obama's side, and the most amazing thing is that those on the other side (a) actually believe the bullshit they're peddling, and (b) continue to believe it after the truth is pointed out to them. But they are true believers, convinced we're all the victims of a massive conspiracy, ernestly demonstrating the accuracy of Richard Hofstadter's claim that there is a distinct Paranoid Style" in American politics.

So if any of those asshats has made it this far, here's the facts. Here's why you're not just wrong, but why you're sad, deluded, imbecilic cretins.

• Obama was not born in Hawaii.

Barack Obama has produced evidence that he was born in Hawaii. you can see a photocopy of his birth certificatehere. Opponents make two claims about this. One is that the document is faked. But FactCheck.org had a representative personally handle and review the document. Their statement is:

...we can attest to the fact that it is real and three-dimensional and resides at the Obama headquarters in Chicago. We can assure readers that the certificate does bear a raised seal, and that it's stamped on the back by the Hawaii state registrar Alvin T. Onakes.

Of course the conspiracy theorists can continue to claim it's faked, but what can't you claim is faked? The point is that they have no evidence of fakery, just allegations, and allegations without evidence don't add up to shit. And when the defense actually does have evidence, then the conspiracy theorists are challening evidence by presenting no evidence--everyone who thinks that's a formula for winning a legal battle, please raise your tinfoil hat.

The other claim is that this certificate of live birth is not enough to prove Obama's citizenship because it's just the "short form," and the "long form," which includes additional information such as length and weight, is necessary. Again, this is a bullshit claim with no legal validity. As FactCheck.org correclty notes

The certificate has all the elements the State Department requires for proving citizenship to obtain a U.S. passport: "your full name, the full name of your parent(s), date and place of birth, sex, date the birth record was filed, and the seal or other certification of the official custodian of records.

Yes, the short form is satisfactory for convincing the U.S. State Department that you are a citizen. The last time I went to Canada, the U.S. border guard complained that I only had a driver's license, so how could he know I was really a U.S. citizen? He made it clear that I should get a passport so I could prove I was a citizen. Because I traveled to the Middle East this year, I finally got around to renewing my long-lapsed passport. What did the State Department ask me to provide? Just a certificate of live birth--the so-called "short form." I did, and they agreed that I had proved my citizenship by issuing my passport. So the claim that Obama somehow has to do more than is legally required, in order to meet the legal requirement, is a perverse non sequitur.

Of course it doesn't matter where on earth Obama was born. He could have been born in a Tijuana whorehouse or Moscow's Lubyanka prison and still have been a natural born citizen because his mother was a U.S. citizen. The basic rule is that if your parent (just one of them) was a U.S. citizen, you are probably a U.S. citizen. If you were born abroad, your parents could simply register you at the local U.S. embassy or consulate, not to gain you citizenship, but to ensure that the U.S. government is aware of it, so it's easier later on for you to demonstrate it. But even if your parent failed to register you, you can still apply to have your citizenship recognized. Not granted, mind you, but recognized, meaning it technically exists prior to the request for recognition, the government just may not be aware of it yet. (See U.S. Citizenship and Immigration Services.)

• Obama lost his citizenship when he lived in Indonesia/his step dad adopted him/his step dad registered him in an Indonesian school/his parents divorced/because he changed his name.

These claims are so spurious and confused that they make the prior claim look almost compelling. But this smacks of throwing in the kitchen sink, just to make sure no remotely conceivable allegation has been left out. Of course conceivable is not a synoym for plausible. The fact is, if Obama was born as a citizen--and the preponderance of the evidence (the legal standard he must meet if any of these cases are ever heard on the merits) says he was--he could not lose his citzenship before age 18. Very bluntly,

Parents cannot renounce U.S. citizenship on behalf of their minor children.

Don't believe it? That's what our government says. (See here.) So whether Obama's stepfather adopted him, took him to Indonesia, changed his name to Barry Soetoro, and gained Indonesian citizenship for him does not matter. It is common for children to hold dual citizenship. But obviously, by applying for a U.S. passport, Obama accepted his U.S. citizenship, and whether Indonesia recognizes his citizenship is moot--the U.S. doesn't really give a shit whether another country chooses to grant one of our citizens citizenship, we only care which citizenship that individual chooses.

But what is this business about divorce? Here's a snip from Berg's website.

The Docket shows when Stanley Ann Soetoro filed for divorce against Lolo Soetoro. The marriage is important because bases (sic) on the laws at the time, it affects Obama's citizenship and likely caused him to be an Indonesian citizen and no longer an American citizen. The divorce decree proves that the marriage existed.

Apparently Berg is asking the U.S. courts to rule on a matter of Indonesian law. But even assuming, as Berg seems to claim, that Obama's mother's divorce from Soetoro automatically caused the Indonesian government to grant young Barack Indonesian citizenship, the fact remains that the U.S. does not revoke citizenship of a minor just because another country grants that minor citizenship! Berg seems to claim that Obama's mother's divorce stripped her of parental rights by Indonesian law, and so he apparently wants the U.S. courts to enforce Indonesian law and rule that the birth mother, through divorce, lost parental rights over her son to his stepfather, and that the U.S. courts are bound by that Indonesian law.

As imbecilic as this is, the real problem isn't the legal cases. Obama will win those, because the case against him is utter bullshit, and is believe only by people with nothing but bullshit between their ears. The real problem is those demanding that Obama prove beyond a shadow of a doubt that he's an American citizen. They keep asking why he doesn't release a "real" copy of his birth certificate: OK, where is he supposed to release it to? You can't put a piece of paper on the web, you can only put up a scan, as he has done. And he has let real live people handle the real paper document. The truth, recognized by everyone with more than half a wit, is that not matter what documentatation Obama releases, they will still call it a forgery. Obama cannot win by acceding to their demands, because they will keep moving the goal post, as pathetic losers always do in their desperate attempt to keep the game going.

And Obama should not release any more documentation unless the courts require him to because these are just nuisance lawsuits, designed to intimidate and harass, and by giving his harassers even one bit of evidence without a court order he hands them victory. "We forced him to produce document X," they'll crow. And they'll follow that with endless claims for more documentation. It may seem reasonable to say, "If he has nothing to hide, why doesn't he produce them," but that's not a good response to frivolous claims. What if your neighbors came over and demanded to search your house for child porn? You'd be pissed off and tell them to go find a way to fuck themselves. And then they respond, "Well if you don't have anything to hide, why won't you let us in?" Isn't it clear where that kind of thinking leads? It is the end of liberty and the end of due process. The only proper response to such nuisance suits is to fight them with all one's vigor and to achieve an undisputed victory over the bastards filing them. The only victory is total victory.

So here's the deal, you pus-brained paranoiacs: You are the true enemies of America. This country is founded on democracy and the rule of law. You are undermining both of those right now, and that makes you an enemy of my country. That makes you my sworn enemy as well, because I have in fact taken an oath to defend my country and its Constitution against all enemies, foreign and domestic. I for one am sick of your bullshit, and especially your pretense at being "real America" while you relentlessly attack our Constitution's guarantees of freedom, equality, democracy, and the rule of law. So please shut the fuck up right now. About 7 years ago I demanded my money back from a benefit concert I went to because the person in charge felt the need to announce that "George Bush is not my president." I hated it when liberals did it, and I hate it just as much when you conservatives do it. Whether that person liked it or not, Bush was her president. And whether you like it or not, Obama is going to be your president. So shut up, grow up, and deal with it like adults, not like the whiny little bitches we all know you conservatives really are.

Update on the Mortgate Crisis

I have stated my tentative belief that the mortgage "crisis" isn't likely to have severe repercussions for the economy. The Independent Institute's Robert Higgs supports that argument with some real data (which my argument noticeably lacked), pointing out that there is plenty of credit still available in the U.S.

For example, commercial and industrial loans at all commercial banks were $1,503.6 billion as of June 1, 2008. This loan volume is almost 19 percent greater than it had been a year earlier, 34 percent greater than two years earlier, and 53 percent greater than three years earlier.

Or consider real estate loans at all commercial banks, which were $3,644.9 billion as of June 1, 2008. This loan volume is 5.5 percent greater than it had been a year earlier, 17 percent greater than two years ago, and 33 percent greater than three years ago.

Or consider total consumer credit outstanding, which was $2,586.3 billion as of June 30, 2008. This loan volume is 5.6 percent greater than it had been a year earlier, 10.9 percent greater than two years earlier, and 15.2 percent greater than three years earlier.

He also points out that interest rates are still low. Granted the Fed is trying to keep them that way, but I think if there had been a massive dryup of credit caused by failed banks, the Fed would have had to take much more drastic steps to keep loan rates low.

All in all, I'm not too worried about the future. Now if the housing market in my town would just warm up, so I could sell my other house...