Update no.452

Update from the Heartland

No.452

9.8.10 – 15.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- The Labor Department and BP agreed upon a record US$50.6M fine for the company’s failure to fix safety hazards cited at its Texas City, Texas, oil refinery after a 2005 explosion that killed 15 workers. The government continues discussions with BP to resolve more than US$30M in additional fines proposed for subsequent alleged violations at the Texas City facility.

The blooming public debate regarding the value and viability of the United States Marine Corps in the national security process offers us an opportunity.
“Gates Orders A Review Of Marines' Role – Defense chief aims to define Corps' future amid fears it's become another ground force.”
by David S. Cloud
Los Angeles Times
Published: August 13, 2010; Pg. 6
I find it interesting that the civilian leadership chooses to employ the three Marine division and air wings as conventional ground / air forces, and then wonders why we need a second land army. Perhaps Gates & his staff are considering whether the United States needs a rapidly deployable expeditionary force capability. While the DoD staff considers future of the Marine Corps, they are also considering significant cuts in defense spending, to include elimination of Joint Forces Command and reduction of contractors.

No one has asked me for an opinion regarding the Ground Zero mosque kerfuffle, so I shall keep my powder dry.

In last week’s Update [451], I noted United States District Court Judge Vaughn R. Walker’s ruling in the case of Perry v. Schwarzenegger [USDC CA(ND) no. C 09-2292 VRW (2010)]. My review took most of 10 days after the decision, but I finally got through the 138 pages. In May 2008, the California Supreme Court decided six related, non-heterosexual marriage cases – In re Marriage Cases [CA SC S147999 (2008)] [336]. As a result, concerned residents filed the necessary documents to present Proposition 8 to the voters the following November, which passed by 52% and amended the state constitution to restrict marriage to one man and one woman. Affected residents challenged the referendum to the state supreme court – Strauss v. Horton [CA SC S168047 (2009)] [389]; the court validated the Proposition 8 initiative as compliant with the state’s constitution and laws. Two California, non-heterosexual couples – Kristin Perry & Sandra Stier, and Jeffrey Zarrillo & Paul Katami – filed suit in Federal court, claiming Proposition 8 violated their rights to equal protection under the law and due process. The constitutional law odd couple of Ted Olsen and Dave Bois argued the case for the plaintiffs. We have debated the legal dimension of this issue through a variety of state and Federal courts for a decade. Judge Walker cited and analyzed the law quite well. He repeatedly stated from various Supreme Court cases that tradition or moral disapproval of a suspect class of citizens without a compelling state interest is not sufficient to sustain a law violating the constitutional rights of other citizens. However, the element of the Perry ruling that was the most stark and intriguing came in Judge Walker’s supporting observation. He noted, “With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, the government defendants refused to take a position on the merits of plaintiffs’ claims and declined to defend Proposition 8.” Judge Walker further observed, “Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents’ evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” Judge Walker went into meticulous detail to chronicle his observations. Beyond the prima facie law involved, the court record suggests to me that the proponents of Proposition 8, without the assistance of the state, chose to put up a rather lame defense, as if intentionally seeking to lose, so they would be in the appealee position for the inevitable appeals. As Judge Walker points out in graphic detail, there are multitudinous holes in the Proponents’ argument. I cannot possibly illuminate them all, however, I shall point to a few. Proponents, along with many other citizens, claim that a male-female, monogamous, married couple is the ideal for child rearing. My first reaction was, oh really! I could cite an endless list of examples where that notion is clearly and emphatically NOT TRUE, and yet, the State has done little to intervene on behalf of the children. Five decades ago, the precept would not have been disputed, but 2010 is not 1960. Judge Walker also noted the doctrine of coverture, which dictated that when a man and woman married, the woman lost her legal identity and became the property of her husband. The days of coverture are long gone, and the notion of “traditional” marriage should have passed at the same time. Another hard point of the Proponents’ claim lays on the existence of domestic partnership in California. Domestic partnership is essentially an exclusive scheme for non-heterosexual couples, since the arrangement is not available in California to heterosexual couples until one person is over 60 years of age, i.e., marriage is for heterosexuals, domestic partnership is for non-heterosexuals – separate but “equal.” Separate but equal has be debunked and abandoned for nearly six decades. Another odd observation, in their suit, the Plaintiffs claim the county clerks denied their application for a marriage license because applicants were the same gender; how did they know? Did they inspect genitalia? Were the applicants just being honest regarding their gender? One more tangent observation, one side or the other likes to attach the adjective “activist” to judges who rule against their respective position, i.e., an activist judge is one that does not agree with the speaker. Any social system taken to an extreme – dictatorship to communism – cannot be stable for people who value freedom. To take the Prop H8 homophobic claims to the extreme, public acceptance of homosexuality will contaminate our youth, causing them to become homosexual; then, if all marriages become homosexual, then no marriages would produce children. Any children produced would be accomplished by other means beyond biological procreation within a stable marriage (family unit). Clearly, the extreme, if it were even possible, would not be sustainable or even stable. Thus, the societal threshold of tolerance exists somewhere short of the extreme. As a society, we must rethink how we define marriage, family, child rearing, parental responsibility & accountability. When all is said and done, I suspect we may find that homosexuals are more committed to their family relationship than many heterosexuals. We may also find ourselves closer to the desired stable family unit for which we advocate for raising good, productive, law-abiding, peace-loving, “healthy, successful and well-adjusted” children. It is time to give all citizens the respect and freedom they deserve.

Of course, we have a plethora of related opinions that are part of the public debate.

As Judge Walker issued his ruling in Perry, he stayed the execution of his order for one week to allow for Proposition 8 Proponents to appeal. Before the end of the stay, the judge extended the appeal to this coming Wednesday, 18.August, after which date, if no appeal has been filed, California will be free to begin issuing marriage licenses to non-heterosexual couples, again.

“Governor wants gay marriages to resume”
by Kevin Yamamura and Susan Ferriss
Sacramento Bee
Published: Saturday, August 7, 2010
http://www.mcclatchydc.com/2010/08/07/98803/schwarzenegger-let-gay-marriages.html
The governor joined the plaintiffs in requesting the judge not extend his stay and reinstate issuance of state marriage licenses to non-heterosexual couples. The state attorney general also joined the governor for the plaintiffs. The twists & turns continue to unfold.

The opinion of conflict in this simple issue:
“The Marriage Ideal”
by Ross Douthat
New York Times
Published: August 8, 2010
http://www.nytimes.com/2010/08/09/opinion/09douthat.html?_r=1&th&emc=th

One sure hot-button for me has always been sanctimonious, self-righteous, holier-than-thou individuals who derive comfort from condemning the freedom of choice other citizen exercise toward their “Life, Liberty and pursuit of Happiness.”
“Judges accelerating moral decay”
by Cal Thomas
Wichita Eagle
Posted on Wed, Aug. 11, 2010
http://www.kansas.com/2010/08/11/1441873/cal-thomas-judges-accelerating.html
Dear ol’ Cal wrote, “The decision by a single federal judge to strike down the will of 7 million Californians — tradition dating back millennia (not to mention biblical commands, which the judge decided, in his capacity as a false god, to also invalidate) —is judicial vigilantism equal to Roe v. Wade.” Dear ol’ Cal espouses classic “I know what’s best for everyone else” syndrome. He loves to claim “moral decay” for everyone else who does not make choices of which he approves. Like all the rest of us, he is entitled to his opinion and to use his bully-pulpit to espouse his opinion. My objection rests upon his implication that morals can only be supported, defended and protected by the law. He is wrong in the worst possible way – the antithesis of freedom.

“Gay Marriage: Leave It to the Voters – I support it as a policy matter, but having the courts mandate it promises trauma of the sort that followed Roe v. Wade.”
by John Yoo
Wall Street Journal
Published: August 12, 2010
http://online.wsj.com/article/SB10001424052748704164904575421223725915454.html?mod=djemEditorialPage_h
What happens when a majority of voters are perfectly comfortable denying constitutional rights to a minority?

“A biased ruling on gay marriage in California – U.S. District Chief Judge Vaughn R. Walker should have recused himself, but he had a legal and political statement he wanted to make.”
by Tim Wildmon
Los Angeles Times
Published: August 13, 2010
http://www.latimes.com/news/opinion/commentary/la-oe-wildmon-gay-marriage-20100813,0,1854572.story
I suspect Wildmon has not read Judge Walker’s ruling.

At the end of the day in this gargantuan public debate, the solution is actually quite simple – respect your neighbor and other citizens, and their freedom of choice, as you would expect them to respect your choices. It is truly that simple! We must stop trying to impose our moral values on all citizens through the law. We have a responsibility to define acceptable public behavior and conduct; we do not have a right to decide how other citizens are to live their private lives. I yield my time.

News from the economic front:
-- The U.S. trade deficit grew to US$49.90B in June – a 21-month high. U.S. exports contracted 1.3% in June from a month earlier, while imports increased 3.1%. The trade gap with China expanded to US$26.15B in June -- the widest level since October 2008.
-- U.S. retail sales rose 0.4% in July, the first increase in three months, based largely on higher sales of automobiles and gasoline. The rest of the economy remains sluggish.
-- U.S. consumer prices rose a seasonally adjusted 0.3% in July. The underlying inflation rate barely ticked up. The core consumer prices, which remove volatile energy and food prices, rose by just 0.1%.
-- The euro-zone economy grew at the fastest pace in four years in the second quarter, driven by an unexpectedly strong surge in Germany. The combined EU GDP grew 1% from the first quarter, marking the strongest quarterly expansion since the second quarter of 2006. Germany's economy grew 2.2% between April and June, the fastest quarterly rate since reunification in 1990 and far stronger than economists' expectations.
-- The People’s Republic of China reported its 2010Q2 GDP at US$1.339T, surpassing Japan at US$1.288T, as the world's second-largest economy. China remains on track to top Japan in full-year GDP, an unprecedented position for a still-developing country.

The Blago Scandal [365]:
-- Jurors in the Blago corruption trial told the judge they’ve reached agreement on just 2 of the 24 counts. Jury deliberations resume Monday morning.

Comments and contributions from Update no.451:
Comment to the Blog:
“I find it amusing, if a bit frustrating, that you seem to think it possible to have an objective debate of the value versus risk of deep-water oil drilling. Tens of billions of dollars are at stake, both for the oil companies and for those who stand to lose in future accidents. No truly objective parties can be heard in such an environment.
“Most of these legal issues are far beyond my expertise. I will, however, state that (a) I see no further value in the Electoral College system now that a relatively accurate and verifiable tally of popular votes is possible, and (b) that can be changed by a Constitutional amendment. My assumption is that the changes in state laws are an effort to build momentum for that very difficult endeavor.”
My reply to the Blog:
It is my nature to seek solutions to problems. I enjoy the process in my professional life as well as my private life. The deepwater drilling issue may well be intractable as you suggest . . . due to the mega-money involved. I have not arrived at that state, just yet. To me, deepwater drilling is an engineering challenge. I am not ready to write off the technology or techniques involved until we have evidence that the process is beyond our engineering capability. This may have been a simple accident. This may have been a tragic series of human errors and bad judgments. We need all the facts on the table in the public view, and then we can judge the process.
You are not alone in your willingness to abandon the Electoral College, as you will note in other comments coming in from last week’s Update [451]. Elimination of the Electoral College would take a constitutional amendment, which by design is not an easy process. More likely, states will elect to negate the Electoral College as they have done in Maryland and soon Massachusetts. The Electoral College was created for many reasons, not least of which was to protect the sovereignty of each state. If a state chooses to abdicate its sovereignty, that is entirely the choice of the state legislature . . . and hopefully the will of the residents of that state. States are becoming less and less relevant entities – this is just one more step on that path.
. . . round two:
“My comment was not intended to condemn deepwater drilling wholesale. Indeed, preliminary indications are that the process probably would have worked had the procedures been followed as written. My point is simply that the processes of determining liability for the present disaster and changing or regulating the process for future operating will be conducted by human beings. Given the amounts of money involved, the odds of that process being as objective as a computer simulation or as relatively objective as one of my college classes are slim.
“At this point, the Electoral College discussion can be seen as States' rights versus popular vote. It's not really as simple as that, but those issues will probably dominate the discussion. I will watch this one with somewhat less passion than, for example, civil rights or environmental discussions.”
. . . my reply to round two:
My apologies for misinterpreting your words. You are, of course, quite correct; money corrupts, and the more money involved, the more difficult it will be to find objectivity and resistance to corruption. Thus, it is essential that government be involved, but even that is no guarantee, as we have seen with MMS.
I remain vigilant on many issues, which is why I noted the Massachusetts initiative.

Another contribution:
“I say marriage is marriage, thus available to any and all of adult age.
“We will be dealing with the long term effects of the oil spill for perhaps a generation or two.
“I reserve judgment on Elena Kagan's confirmation.
“Polzzi got screwed, whether or not he was found to have porn in his possession. Example We have laws about drugs which include "possession with intent to distribute" as opposed to simple possession. Penalties for the former are more severe.”
My response:
Unfortunately, we are a long way from equality in marriage as well as many other aspects of civil life.
Yes, likewise, I think we will be dealing with the consequences of the DH oil spill for generations.
Concur . . . it will take time to see what kind of justice Kagan becomes.
Polizzi got screwed big time. As I tried to point out, he is one more example of how we have violated one of the most fundamental precepts of the law – innocent until proven guilty beyond a reasonable doubt. For reasons I know not and thus certainly do not understand, sex laws entail far greater punishment, and in the case of sex laws involving children (<18yo), we appear to be quite content inflicting serious punishment on just the allegation of sex crimes involving children. Sex crimes involving children appear to be highly prone to the simple accusation, kind of like a young girl with light skin pigmentation making a false accusation of rape against a boy with dark skin pigmentation in the Jim Crow South. Rage without facts or justice – just an accusation.

A series of comments to the Blog:
“State-by-state winner-take-all laws to award electoral college votes were eventually enacted by 48 states AFTER the Founding Fathers wrote the Constitution.
“The Founding Fathers only said in the U.S. Constitution about presidential elections (only after debating among 60 ballots for choosing a method): ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .’ The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as ‘plenary’ and ‘exclusive.’
“Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.
“In 1789, in the nation's first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
“In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
“There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
“The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.
“As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states. Maine and Nebraska currently award electoral votes by congressional district -- a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.
“The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.”
My reply to the Blog:
As you note, the Electoral process (i.e., Electoral College) was established by Article II, § 1 of the U.S. Constitution. As I implied but did not explicitly state, Maryland and Massachusetts are acting completely within their authority regarding how their respective electors are defined and instructed to act. My only point was, in doing so, those states abdicate their sovereignty to the national popular vote count by a simple majority of 1 vote. That is their right to choose. I simply believe such a scheme to be unwise and myopic.
Also as you note, when the Constitution was written and ratified, only male landed citizens could or were even expected to vote. This Grand Republic has continued its metamorphosis toward realization of the Founding principles – that ALL men (read every adult citizen) are created equal . . . and they are entitled to their specific and unique freedom of choice regarding their “Life, Liberty and pursuit of Happiness.” We still have a way to go on that journey of change, but the principles remain valid. Among the changes affected so far: we no longer consider “men” to be only males with light skin pigmentation, primarily of European descent, and owning real property; every adult citizen regardless of the social factors (age, gender, race, ethnicity, religion, political affiliation, sexual orientation, marital status or disability) is entitled to vote.
The common “winner-take-all” allocation of electors was decided by individual state legislatures for many reasons, not lease of which was to allow the choices of the state’s citizens to be given maximum leverage, i.e., the big state / little state conundrum. We see the deleterious effects of the phenomenon in contemporary presidential elections. Candidates rarely pay any attention to the small (low populous) states; they just don’t count. By abandoning the “winner-take-all” electoral process, states lose the last vestiges of their influence on national elections. I live and vote in a small state. I struggle to make my voice / vote heard. I am not willing to diminish that likelihood (or rather un-likelihood) farther.
. . . round two:
“The small states are the most disadvantaged group of states under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus.
“12 of the 13 smallest states (3-4 electoral votes) are almost invariably non-competitive, and ignored, in presidential elections. Six regularly vote Republican (Alaska, Idaho, Montana, Wyoming, North Dakota, and South Dakota), and six regularly vote Democratic (Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC) in presidential elections. So despite the fact that these 12 states together possess 40 electoral votes, because they are not closely divided battleground states, none of these 12 states get visits, advertising or polling or policy considerations by presidential candidates.
“These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has ‘only’ 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.
“In the 13 smallest states, the National Popular Vote bill already has been approved by eight state legislative chambers, including one house in Delaware and Maine and both houses in Hawaii, Rhode Island, and Vermont. It has been enacted by Hawaii.”
. . . my reply to round two:
I have no argument whatsoever with your observations; I believe you have accurately represented the facts and reality. The Electoral process was intended to give the smaller states some modicum of voice in the cacophony of populous political rancor. The choice of what to do with that voice was always, from the get-go, left to the individual state legislatures to decide how best to represent their residents. For many years, most chose the “all-or-nothing” approach, which maximizes whatever influence the state may have on the presidential election process; the common approach essentially makes the state an entity unto itself, id est, a sovereign unit. A legislature could have taken the path of simple proportional allocation, dividing the state’s electoral votes accordingly. Of course, the legislature can also chose to abdicate the state’s identity allocating all its electoral votes either proportionally or totally per the national popular vote. As you note, 3 electoral votes is still only 3 votes among 535. Such is life. Perhaps you are arguing that such small fractions of votes should not even bother. Perhaps, since I am only one vote among 100 million, I should not even bother. Article II, §1 was created for many reasons; some of those reasons are still valid today. Article II, §1, Clause 1 still states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Thus, you may advocate your legislature to abdicate its responsibility; I shall advocate my legislature to retain the state’s identity in our current winner-takes-all appointment of Electors.
. . . round three:
“A ‘republican’ form of government means that the voters do not make laws themselves but, instead, delegate the job to periodically elected officials (Congressmen, Senators, and the President). The United States has a ‘republican’ form of government regardless of whether popular votes for presidential electors are tallied at the state-level (as has been the case in 48 states) or at district-level (as has been the case in Maine and Nebraska) or at 50-state-level (as under the National Popular Vote bill).”
. . . my reply to round three:
I believe you have accurately represented a “republican” form of governance. I do believe the Electoral College is likewise representative of republican government. I still do not see the reasons or logic for abandoning the Article II, § 1 process, but I am always willing to listen, and I do enjoy a vigorous debate. In fact, the electoral process is republican, while direct national popular vote is democratic. As a side note, I believe we bear witness to one of the weaknesses of democracy in California. Republican governance has its weaknesses too, but all in all, I continue to believe it is the best form of governance.
. . . round four:
“Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, along district lines (as has been the case in Maine and Nebraska), or national lines.”
. . . my reply to round four:
In your context, I agree. Legislative power is neither enhanced nor diminished by Article II, § 1. As you have previously argued, small states are small states regardless of a particular legislature’s decision regarding allocation of Electoral votes. My argument is, a small state’s votes and identity are maximized (to whatever extent that may be) with respect to the presidential election by the current (common) winner-takes-all allocation process. To me, the Article II, § 1 is the most republican of the options presented so far.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)