[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.] You can also say, as Ed Whelan does , that this is a victory for the proponents of Proposition 8, but I have always agreed with Patrick that “[t]here is more at stake here than gay marriage.” Frankly, we think so similarly on this that I suspect that if we both wrote independently on the issue that we would both say almost exactly the same things. I can go through the minutiae, but the essence of the issue was this. In California, laws can be passed and constitutional amendments can be ratified by referendum. The essential question before the California Supreme Court was who had the right to defend such a law or amendment when challenged in court. The opponents of Proposition 8 wanted to say that only the governor and/or the attorney general had the right to defend it. And in this case, neither one was willing to do so. Indeed, when he was Attorney General, Jerry Brown argued that Proposition 8 was unlawful under the State and Federal Constitutions. But if you step back for a moment, you realize how insidious the argument is. Whatever you think about referendums (I am personally wary of them), the animating idea behind them is that you can’t trust the pinheads in government to fully represent your interests, and thus “we the people” should be able to take matters into our own hands and change the law or the Constitution not only without the consent of any elected official, but over their objections as well. But if only the governor or attorney general can defend the law in court, that grants to those politicians a very real veto power over the law; because if they refuse to defend it, then it is very likely to be struck down. It is very easy to win a ball game when the other side doesn’t field a team. So the very spirit of the idea of changing the law by referendum is violated if there is no one there to defend that law in court. So it is very gratifying that the California Supreme Court agreed with that thinking. From their introduction to the opinion : In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8 ) that added a section to the California Constitution providing that ―[o]nly marriage between a man and a woman is valid or recognized in California‖ (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent‘s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials‘ discretionary governmental decisions while in office… The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself. …because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voterapproved initiative measure in order ―to guard the people‘s right to exercise initiative power… or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state‘s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people‘s behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure‘s defense. In this manner, the official proponents‘ general ability to appear and defend the state‘s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process. So the upshot of all of this is that this increases the chances that there will now be a fight in the Ninth Circuit over the validity of Proposition 8; a fair fight, where both sides are represented by people who want to win. The Ninth Circuit still has to decide whether this state-based standing is sufficient for federal purposes, but I am cautiously optimistic that they will rule this way—or if not, they will be corrected by the (U.S.) Supreme Court. I believe this means that now we will have a fair fight. May the side with the best arguments win. I will also note that this is an example of what I was saying about liberal judicial thinking. This is the exact same court that has tried very hard by activist rulings to make gay marriage legal in California. But they correctly recognized that there were larger issues at stake and that the next time it might be their ox that is gored. Today the proponents get to defend an amendment banning gay marriage, but the next time it might be an amendment imposing pollution controls, or whatever they might like as an issue. It is not that they don’t have a liberal agenda, but that it doesn’t allow them to be so unprincipled that they would harm the referendum process in the pursuit of a narrow policy goal. That is the essential difference between judicial liberalism and political liberalism and that is why there is not a single dissent from this decision. [Posted and authored by Aaron Worthing.]
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Breaking: The California Supreme Court Has Vindicated the Referendum Process
A man won my heart this week and helped to save my soul. Just when I was in danger of losing hope in humanity, being dragged through the dregs of aberrant, predatory behavior in the Penn State saga, this gent taught me that it is possible to preserve decency. His name is James “Jim” Durant and I salute him today. Folks like him made America great and I only pray we can find enough of his kind to sustain us in the future. The story from Penn State is a horror show, a menagerie, a bizarrerie, a grotesquerie, but it has been encapsulated in a supremely readable form by the recorder of Grand Jury proceedings in Pennsylvania. There are a lot of gritty details which need not concern us, but we need to recognize the key elements of the corruption which reigned here for much too long. The football programs at the major universities are always treasured by students, alumni and the residents of the nearby towns and cities. This is much more true of those colleges where a degree of competitive success has been consistently achieved over a period of years. These include schools like Ohio State, Nebraska, Alabama, Louisiana State (LSU) and Penn State. The latter school always provided fodder for punsters, who were wont to say that the players are roughnecks who might otherwise belong in the state pen. As it turns out, it is the school administration which may convene its next session in a prison cell. It was they, ostensibly purveyors of instruction, who wreaked destruction upon impressionable children. Some sinned by commission, some by omission, some by looking away, some by looking past, some to satisfy their appetites and some to protect their positions. The legendary presence in the Penn State locker room is Coach Joseph Paterno, known as Joe Pa, today an octogenarian after six decades on the job. Many of his disciples went on to succeed at professional football but many more went on to succeed in other walks of life. Ask any one of them and they will tell you that the lessons of passion and discipline they learned from the coach was integral to their development of strong character. Joe had a sidekick named Sandusky, who was long heralded as the potential successor to the old man. In 1998, a complaint was filed with the Campus Police accusing Sandusky of pedophilia. In 1999, he was relieved of his duties. They tell us, do the powers that were, that the second event was not precipitated by the first, that they did not believe the complaint to have involved actual intercourse with 10-year-old boys, merely inappropriate familiarity in the shower stalls. The Grand Jury says they are lying and indicts them as perjurers. These administrators knew all along that Sandusky had been witnessed in the act by a very reliable graduate assistant coach. They knew that this man was using the panache of his access to the mythos of the Penn State team to lure young boys, under the pretense of mentoring them, into being physically violated and morally compromised. Their cowardice and their addiction to privilege led these administrators, from the College President on down, to exercise their oversight with a blind eye. Reading the Grand Jury report brought me to tears, to heartache and to a weighty pall of hopelessness. Here were all these people who were looked up to by the society, who lived their daily lives amid the trappings of fame and wealth, who cloaked themselves in the mantles of education and philanthropy, who were given the chance to lead BIGGER lives than their peers. Instead they chose to be small, to be servants of impulse, governed by whim and appetite and sensation, eschewing nobility and achievement and transcendence. But just as I was ready to “abandon hope, ye who enter here” the Grand Jury report, in its very last pages, introduced me to Jim Durant. A simple, solid American, a veteran of the Korean War, who went to clean the shower room and saw an evil middle-aged man having sex with a 10-year-old boy. He became so distraught, the report says, that the rest of the custodial staff feared he would have a heart attack on the spot. Here is what he said: “I was in the Korean War, I saw people with their bodies blown up dying all around me… but I never saw something this bad in all my life.” You see, my friends, Jim Durant is a real teacher and we should be proud if we can earn a degree in his school. This is how a human being should think and act, and this is what it ought to mean to be an American. The hard knocks in his life, the devastation of war, the demanding work ethic of less-skilled labor, did not cost him his innocence. He still knows evil when he sees it and he cannot be deterred. He is the hero of Penn State.
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Decent Exposure
The Occupy Wall Street protesters think government has become corrupt. While that’s possible, it’s not the main reason why government spending fails. Rather, it fails because bureaucrats have no method to distinguish a wasteful expenditure from a valuable one. In the market, profits and losses direct producers to invest only in those projects that create value — for them and for society. Profits and losses are measured by prices, to which actors in the market must react. Without these signals, bureaucrats must invent phony, artificial criteria that attempt to mimic this market feedback. They invariably fail.
In the latest blow to “consensus”, Dr. Ivar Giaever, a Nobel Laureate, has resigned from the American Physical Society over the group’s position on global warming. His resignation letter minces no words: Thank you for your letter inquiring about my membership. I did not renew it because I can not live with the statement below: “Emissions of greenhouse gases from human activities are changing the atmosphere in ways that affect the Earth’s climate. Greenhouse gases include carbon dioxide as well as methane, nitrous oxide and other gases. They are emitted from fossil fuel combustion and a range of industrial and agricultural processes. “ The evidence is incontrovertible : Global warming is occurring. If no mitigating actions are taken, significant disruptions in the Earth’s physical and ecological systems, social systems, security and human health are likely to occur. We must reduce emissions of greenhouse gases beginning now.” In the APS it is ok to discuss whether the mass of the proton changes over time and how a multi-universe behaves, but the evidence of global warming is incontrovertible ? The claim (how can you measure the average temperature of the whole earth for a whole year?) is that the temperature has changed from ~288.0 to ~288.8 degree Kelvin in about 150 years, which (if true) means to me is that the temperature has been amazingly stable, and both human health and happiness have definitely improved in this ‘warming’ period. That’s his emphasis, not mine. Dr. Giaever’s resignation doesn’t come out of the blue. Fox News reports that he was one of the cosigners of the 2009 letter to President Obama, along with over 100 other scientists, dissenting against the assertion of consensus . I wrote about the cult of consensus at RedState last year. The point of my post was that it is not only false to state that the case is closed on anthropogenic global warming, it was directly counter to the spirit of scientific inquiry to suppose that it would be, or even to suggest that consensus equals truth. In any other research field, such a claim would be considered preposterous, if not downright heretical. The news of Dr. Giaever’s resignation comes on the heels of another blow to the notion of “incontrovertible evidence” this past July. A study published in the journal Remote Sensing (PDF) highlights several discrepancies in previously relied-upon data. From the Tuscon Citizen : Data from NASA’s Terra satellite shows that when the climate warms, Earth’s atmosphere is apparently more efficient at releasing energy to space than models used to forecast climate change have been programmed to “believe.” The result is climate forecasts that are warming substantially faster than the atmosphere, says Dr. Roy Spencer, a principal research scientist in the Earth System Science Center at The University of Alabama in Huntsville. The previously unexplained differences between model-based forecasts of rapid global warming and meteorological data showing a slower rate of warming have been the source of often contentious debate and controversy for more than two decades. “The satellite observations suggest there is much more energy lost to space during and after warming than the climate models show,” Spencer said. “There is a huge discrepancy between the data and the forecasts that is especially big over the oceans.” Get that? Climate forecasts are warming “substantially faster” than the actual atmosphere. This is a significant problem for modeling. What does this add up to? Well for one thing, the evidence that there is a global scientific consensus that man is causing catastrophic climate change, and that we have accurately mapped, modeled, and predicted it, is incontrovertibly false. As I cataloged in my post last year , there are a number of discrepancies that are yet to be addressed. And as evidenced by Dr. Giaever’s resignation, there is clearly not a consensus, not that that should matter in the first place. We should respect Dr. Giaever for the courage to continue to ask questions, to demand rigor, to insist upon research, and above all, to stand with courage of conviction. We must all do the same. The drastic socioeconomic sacrifices the Al Gore crowd would have us endure, and the devastating fallout those sacrifices would entail, require it. Inasmuch as the greenies would have us believe that we must act NOW lest we see dire consequences, we must remain cautious, as rash actions could result in even more devastating outcomes. There is no consensus. The evidence is not incontrovertible. Of that much, and that much alone, can we be completely certain.
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Incontrovertible – I Do Not Think It Means What You Think It Means
Over a year ago, the president of the United Auto Workers, Bob King, announced a campaign to ‘shame’ foreign automakers with plants here in the U.S. into allowing his union to unionize them–the details of which would be released at a later point in time. Earlier this year, when King finally released his new manifesto on what he expected the automakers to agree to, it was met with well-deserved derision . The union was silent, though, when in June Bloomberg ran this headline: Hyundai Teaches UAW Best Factory Job Doesn’t Need a Union . However, in early August, knowing that his union’s future is looking bleak, King stated that the union was in “confidential” talks with the foreign automakers. “The vast majority of the assemblers here in the United States have at least agreed to confidential discussions,” UAW President Bob King said at an industry conference in Traverse City, Michigan. “We’ve had productive discussions. The last thing we want is confrontation.” This seemed to confirm the buzz that was created in July when it was reported that the UAW was talking to the Volkswagen AG’s works council and the German union IG Metal to launch an attempt at unionizing the employees at VW’s new Tennessee plant.
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Union Ain’t Wanted: The UAW’s Bad Week…
