Archive for February, 2012

THE LIBERTY FIREWALL

Tuesday, February 28th, 2012

Corruption and Consequences

The Language of Liberty Debased

Analysis

Also posted on The Policy Think Site at http://jaygaskill.com/LibertyFirewall.htm

By

Jay B Gaskill

Attorney at Law

Our crippling national debt is but one symptom of a long-standing corruption of language and ideas.  I believe that it is the root cause of our “rights-as-a-perk” mindset.

COMPARE and CONTRAST –

July 4, 1776 (America)

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

[=]

August 26, 1789 (France) [Key Excerpts]

Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen:

Articles:

Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.

A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.

Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.

WITH THIS —

1755  – Code of Nature “Sacred and Fundamental Laws” by the French communist, Morelly

Nothing in society will belong to anyone Nothing in society will belong to anyone, either as a personal possession or as capital goods, except the things for which the person has immediate use, for either his needs, his pleasures, or his daily work.

Every citizen will be a public man, sustained by, supported by, and occupied at the public expense.

Every citizen will make his particular contribution to the activities of the community according to his capacity, his talent and his age; it is on this basis that his duties will be determined, in conformity with the distributive laws

[=]

January 11, 1944 – Address by President Franklin D. Roosevelt

We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

THE SLIDE

The slide to fiscal dysfunction started with the political corruption of language. The foundational terminology of liberty and rights was misappropriated early and often, and we’ve been paying the price ever since.

Here is how it took place.

Every political promise to grant material benefits to one politically favored group will impose a material cost on those who are not so favored.  And whenever such proposals have been implemented, a “me too” political dynamic has emerged in which an increasingly large number of voters are moved to demand “their fair share” of benefits.

To make the medicine go down, to assuage the guilt of those who were given unearned benefits, and to promote the guilt of those who opposed awarding such benefits with public funds, politicians quickly learned to appropriate language from the liberation traditions.  Thus every benefit was redefined as a form of “reparations” or as a “basic human right,” and the voices who opposed appropriating public funds for such benefits were pilloried as stingy, mean-spirited – even slandered as racists, sexists or worse.

This proved to be a very effective rhetorical trick. As a result, the system has perversely generated a growth industry in “net-plus” recipients, the voting block that pay less into government than its members get out.  “Net-plus” beneficiaries have grown by leaps and bounds because the real costs of providing promised benefits were never evenly shared. After all, it was hardly in the political interests of their proponents to tax everyone uniformly.

Flash forward to the early 21st century: The feedback loop that gave us “net-plus” recipients has begun to dominate the modern political process.  The growth spurt has gone farther in some countries (like Greece), but the political power of “net-plus” voters is rampant among the advanced Western countries.

The USA is very close to a tipping point. About half of all Americans do not pay income taxes but receive government subsidized benefits of some kind.  Most of the rest of the American taxpayers receive some federal benefits.  This is a bad bargain for almost everyone, including most of the “net-plus” group, because government bureaucracies are incapable of supple efficiency, no matter the high purpose, no matter the good will.  But the dependent beneficiaries are unwilling to rock the boat.

I need to make a critical distinction here. Some benefits are temporarily enjoyed by a few people at any one time but in the aggregate such benefits are reasonably crafted to serve general public purposes – they sustain functions necessary for the healthy operation of the overall system that we depend on to sustain liberty against predators.  Police, fire protection, the justice system, roads and civic education are among these.  There is another important category, the so-called safety net, which may or may not be administered in a way to promote the healthy functioning of the overall system.  …More on the “net” problem in a moment.

Over time, this “net-plus” constituency feedback loop tends to mutate into a “global parasite” dynamic, even a self-destructive feeding frenzy. If you doubt the aptness of these metaphors, I suspect you haven’t fully studied the fall of the pre-Nazi Weimar Republic in Germany or the collapse of democracy in the banana republics of South America in the 20th century.

THE BREAKING POINT

There is a limit-point to any such dysfunctional process. It is a fracture moment in which the body politic as a whole either turns back from the abyss, or cedes effective control of the whole game to the global parasite feedback loop. In the second scenario, a benefits-administrating bureaucratic state emerges.  Heel clicking obedience, suppression of dissent, rationing and despair follow.

I believe that we have arrived at that breaking point. {See The 2012 Index of Dependence on government, published by the Heritage Foundation – http://www.heritage.org/research/reports/2012/02/2012-index-of-dependence-on-government.}

The dysfunctional feedback loop was facilitated – I am making the case here that it was initiated– by the corruption of the basic terminology of liberty.  It is like corrupting the core operating system, the root software of everything else.

The original concept of “the rights of man” was of rights that operated as bulwarks, and against the power of the state.  That singular idea has constituted the core operating system of free civilizations everywhere. It is based on the truly radical notion that there exists a body of rights that are given to humanity by God – or given to humanity by virtue of the very wiring of the universe.  In either analysis (secular or religious) rights thus conferred cannot be something a mere government could ever have the legitimate authority to give or to withhold. By their very character, such rights are to be asserted and enjoyed by individuals without impairing the exercise of the same rights by others.  I enjoy my right to life, liberty and the pursuit of happiness in the context where others may enjoy the same.  But I enforce my faux right to “a chicken in every pot” and a “house for every family” at the expense of the right to liberty and the pursuit of happiness of those who are made to pay for my chicken, pot and house.

Over the last 90 years, various political leaders have exploited the global parasite dynamic whenever it has benefitted them.  They began by generating a brand new entitlement-rhetoric. Their agenda was to redefine rights as benefits that the state is “morally” obligated to confer, even when so doing would necessarily infringe of rights of others in the original and true sense of the term.

An involuntary taking (whether or not under color of a putatively legitimate authority) of the honestly earned and accumulated money or property of one group of citizens for the politically expedient purpose of giving it others who have no legitimate claim to it (except as a politically manufactured “entitlement”) is a prima facie violation of the rights of those who are forced to give up their property.  Even strict advocates of limited government accept the need for a “safety net.”  But the situation is much like inviting a profligate, impecunious uncle into your home and giving him access to your credit cards and bank accounts.  In politics, generosity rarely goes unexploited.

THE SAFETY NET PARADOX

The safety net paradox is easily described, but difficult to repair. Unemployment benefits, Social Security, Medicare, Medicaid, federally guaranteed underfunded retirement accounts, aid to dependent children, food stamps, the public/private law suit causes of action authorized by the ADA, the EEOC, the EPA, among other agencies, federal subsidies for the disabled and displaced, public money for failed banks, failed companies and failed pensions…are just the most obvious elements of the entitlement system.  A complete list of the Christmas-tree add-ons would fill an urban phone book.  Think of the essentially kleptocratic structure of a scheme that taxes the income of a nurse, school teacher, painter, carpenter, or police officer to subsidize the college education of an illegal immigrant or the electric car purchase of a Wall Street investment banker.  The publically-funded benefits awarded to the illegals and the bankers are not “rights” in the original, true sense of the term.

All of these programs collectively burden (and ultimately are funded by) the “golden goose” economy, the privately supported profit-making commercial sector – that ever shrinking, ever weaker Ultimate Source of government revenues. When governments decree that benefits must be paid, then they must be paid for, and the implications for the economic survival of the system as a whole are dire.

A safety net that is allowed to sink the entire boat is no longer a safety net; it is a drag net.

The misappropriated language of rights, led to entitlements, which then led to non-discretionary spending.  But non-discretionary spending has outstripped revenue and will continue to do so until the golden geese die or are enslaved or we establish systemic, rational benefit limits.

The pull-back-from-the-cliff discussion begins with a hard freeze in additional benefits.  Think of the parasite-host relationships.  Then it quickly moves to an honest assessment of the system’s capacity to endure and thrive at various aggregate burden levels.  Just how many units of blood can the host lose every month and survive?

Unless and until we recover the notion of truly limited benefits, the safety net becomes a trap, and we become the harvested fish, bled geese or…you pick the metaphor.

Every American enjoys the right to retain the fruits of his or her honestly acquired earnings, however modest or great, unless they are taken, via due process in a lawsuit of by a legitimate general levy for well-established general purposes.  The entitlement interests of a group that some politicians choose to “allocate” part of our earnings to pay for is not a “right” unless one chooses to pervert the term.  We should never concede the legitimacy of anything but original sense of the term “rights”, nor accede to its corruption by the political class.

A FINAL CAUTION

The US constitution assumes that rights are God-given by incorporating, sub silencio, the language and context of the Declaration of Independence, “…endowed by their creator…”

Our constitution is a unique foundational document in the history of the world because of its enumeration of limited powers of the state, its organizational separation of those powers, and in the implicit external sourcing of the enumerated rights – as well as many not enumerated.

This means that rights emanate from a supreme authority external to and beyond that of the state – even a democratic one – such that a government does not confer them and therefore cannot take them away. That line is worth defending with everything we can muster.

A final caution: The corruption of language and thinking continues apace. Permit just one illustration. In the US, the federal government has crossed an important line by “bailing out” financial institutions and car manufacturers, while Europe is bailing out whole countries.

The single most misused term in these endeavors is “firewall.”  The concept of a firewall is clear enough.  It is a structural barrier sufficient to contain a conflagration to the original site.  In finance this would mean that a failing institution protected by a firewall could be allowed to collapse and the consequences would be contained to its owners and their employees.  The general notion is that with risk goes both reward and failure – neither of which is to be involuntarily shared with others.

But the bailout mindset automatically spreads the consequences of any potentially isolated failure to the general fisc – we share in these failures by subsidizing them, by absorbing the weaknesses that caused the failure.  The Europeans have gone so far as to describe funds allocated to bail out Greek financial institutions (whose credit worthiness has tanked) as a firewall. But the integration of the European economy has already breached the firewall of sovereignty.  The bailout funds are more like a water truck inventory – in this instance one that is wholly inadequate to contain the blaze.

Eternal vigilance is the price we pay for liberty.”  (Thomas Jefferson 1817)

Whenever, through a relaxation of vigilance, we cede to the enemies of freedom the very distinctions and language on which a system of liberties is founded and supported, we are ceding the game without a fight.

In a time of grave threat to liberty, Winston Churchill said,

“We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and if, which I do not for a moment believe, this island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God’s good time, the new world, with all its power and might, steps forth to the rescue and the liberation of the old.”

The bureaucratic state has crept through England and Europe, like a suffocating web, and it greatly entangles us as well.  The lines between free and un-free have blurred because we have allowed them to blur.

Yet, we are the new world.  And our latest struggle for freedom has just begun. Recall Jefferson’s admonition and one thing more: language is liberty’s firewall.

JBG

Copyright © 2012 by Jay B Gaskill, Attorney at Law

First published on the Policy Think Site and the Dot 2 dot Blog

Forwards and links are welcome and encouraged. For everything else, contact the author – law@jaygaskill.com

THE SEARCH FOR THERAPEUTIC CONSERVATISM

Monday, February 20th, 2012

THE SEARCH FOR

THERAPEUTIC CONSERVATISM

Political Analysis

By

Jay B Gaskill

This article is Copyright © 2012 by Jay B Gaskill, Attorney at Law. Forwards, links and quoted excerpts (with attribution) are always welcome and encouraged.  For all other permissions and comments, please contact the author via email at law@jaygaskill.com.

Also posted on The Policy Think Site at – http://jaygaskill.com/TherapeuticConservatism.htm

In the election of 2008 we elected a Therapist in Chief.  It felt good for a while.  It was like hiring a New Age shrink for a loved one in distress.

[I first floated this notion in a YouTube peroration just before Mr. Obama’s election. It’s still there at – http://www.youtube.com/watch?v=UprPIBzc_DM .]

Unfortunately the patient really needed a good oncologist.  The first hint that we had engaged the wrong physician came almost immediately when President Obama prescribed shock therapy for the moribund, post-bubble economy.  The inapt medical metaphor was revealing.  The patient did not recover from the stimulus because shock treatment does not cure cancer.

Ronald Reagan succeeded because he espoused conservatism 2.0.  And he did so with charm, clarity and persistence. His success was possible because the old fashioned liberalism of JFK and Scoop Jackson (I am still a liberal in that sense) had degraded into liberalism 2.0, a version that retained the “’make the world a better place” ideal, but was drugged down, saturated with the New Age hippy culture, drained of the love of country, family and the value of hard work.  Millions of patriotic working Americans rejected liberalism 2.0 in favor of conservatism 2.0. Reagan conservatism succeeded because it captured the key elements of old fashioned liberalism.

Flash forward to today – we now are living with liberalism 3.0, the jaded, politically corrupt version of liberalism 2.0 in which the New Age elements are muted, and disturbing new elements have been added, like addiction and evasion of responsibility (fiscal irresponsibility coupled with entitlement-driven vote buying).

David Brooks has referred to this an excessive rent-seeker problem.

“Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.

“This is the disease that corrodes government at all times and in all places. As George F Will (↓) wrote – as government grows, interest groups accumulate, seeking to capture its power and money.

David Brooks in the New York Times (Where are the Liberals?) http://www.nytimes.com/2012/01/10/opinion/brooks-where-are-the-liberals.html?ref=davidbrooks

“The left’s centuries-old mission is to increase social harmony by decreasing antagonisms arising from disparities of wealth — to decrease inequality by increasing government’s redistributive activities.

“Such government constantly expands under the unending, indeed intensifying, pressures to correct what it disapproves of — the distribution of wealth produced by consensual market activities. But as government presumes to dictate the correct distribution of social rewards, the maelstrom of contemporary politics demonstrates that social strife, not solidarity, is generated by government transfer payments to preferred groups.”

George Will in the Washington Post (The Redistribution Behemoth)

http://www.washingtonpost.com/opinions/government-the-redistributionist-behemoth/2012/01/05/gIQAFqqpfP_story.html

In my last column in this space (http://jaygaskill.com/3T.htm), I concluded with this caution, addressed to my fellow thinking conservatives –

“At the end of the day this presidential election is going turn on an intangible trio of elements:  “The Three T’sTrauma, Trust and Turnaround.  The electorate has been traumatized.  The American people are willing to make a midstream course correction only for leadership they can trust, and only for a turnaround they can believe in.”

In that same piece, I asserted that there are five broad conservative themes that most American voters, most of the time actually support:

  1. a tough-minded approach to law and order, national security and terrorism;
  2. a high level of concern about excessive federal debt and borrowing;
  3. a less generous approach to entitlements and social justice issues;
  4. a more generous approach to the problems and concerns of private business enterprises; and –
  5. -a broadband distrust of federal governmental agencies, bureaus and bureaucrats as out of touch, unelected elites with too much power and time on their hands.

The same polls consistently show that a supermajority of Americans think the country is headed in the “wrong direction”. I am persuaded by the totality of the evidence that this is because American voters do understand that we need a turnaround in each of these five areas.  This is consistent with other polling in which a large plurality of Americans self-describe as “conservative” (Gallop Poll 2009, 40% of Americans interviewed in national Gallup Poll surveys describe their political views as conservative, 35% as moderate, and 21% as liberal // Rasmussen Poll 2012 42% are fiscal conservatives, 11% liberal on money issues).

A shared sense that America needs a change in direction is not a demand for a counterrevolution.  Most Americans distrust radical change, partly because they have been burned enough by the political class to suspect grandiose promises, and partly because we are an innately cautious people. We are a center-right electorate that has been traumatized.  We do need to change physicians; we require new treatment modalities that a government hobbled by liberalism 3.0 cannot or will not agree to.

But we are bruised, betrayed and mistrustful.  Mr. Obama lost the coalition that swept him into office.  [In case you have not yet read it, take a close look at the penetrating analysis by Noemie Emery, still archived at – http://www.weeklystandard.com/articles/overrated_594676.html.]

A new governing coalition has yet to form.

The next move is up to the realistic, thinking conservatives.  What will conservatism 3.0 look like? Who will carry the water?

JBG

Some related articles by Jay B Gaskill

The American Creative Surge http://jaygaskill.com/ACS2011.pdf

The American Creed http://jaygaskill.com/AmericanCreed2010.pdf

The American Bubble http://jaygaskill.com/AmericanBubble.htm

Living in the Ayn Rand Universe http://jaygaskill.com/InTheAynRandUniverse.htm

The Three “T’s” of the 2012 Presidential Election

Friday, February 17th, 2012

The Three “T’s” of the 2012 Presidential Election

Political Analysis

By

Jay B Gaskill

[As also posted on The Policy Think Site — http://jaygaskill.com/3T.htm]

A message to all thinking conservatives:  It is time to wake up our colleagues and friends; time to leave our fantasy-bubbles and smell the coffee; time to address reality while we have the opportunity to make a practical difference in America’s future. This requires us to take three steps together: (1) break the bubble; (2) understand what we are seeing; (3) seize the most realistic open path to the great American recovery.

Here’s what waking up from a conservative bubble is like.

Oh, oh…we are not surrounded by like-minded conservatives. Just because many people are uncomfortable with President Obama does not mean they are comfortable with people who think like a typical conservative.

Most of the people we will casually meet over the course of a month were raised on some version of entitlement pablum. They have been fed by an educational and media information dispensary that has been the pet project of leftist propagandists for two full generations.  These good people inhabit a different bubble. [See “Political Liberalism as a Secular Religion”- http://jaygaskill.com/liberalismasreligion.htm .]

For them and too many others, conservatism is still a blatant caricature of 19th century robber barons and antediluvian social snobs.  Somehow the left-leaning elites get away with playing with billionaires, while “old fashioned” conservatives who consort with plumbing contractors and surgeons are insensitive plutocrats.  This is the legacy of 75 years of propaganda.  This is a stubborn mindset. This will frame the context of all efforts to restore America.

The fear of losing what people already have will be a powerful motivator in the 2012 elections.   Only some of the language and ideas that conservatives take for granted have real traction outside the bubble. Ideas can drive important changes in policies, but ideas themselves do not reassure.

Only competent, credible leaders can accomplish that.

Barry Goldwater could no more be elected today when he was buried by Lyndon Johnson in the watershed election of 1964.  But Ronald Reagan was no Barry Goldwater.  He was a charming thematic conservative with the most competent staff support enjoyed by any presidential candidate in the last 75 years, and he was the successful two term governor of the nation’s single most powerful state.  Reagan was a once-in-a-century gift to conservatives.  There is no GOP candidate in, on or near the field who can carry California this time around.

There is no Reagan.

The country is almost exactly where George W Bush and Al Gore were in 2000.  The red state, blue state split remains a hard, bright line that divides America almost exactly down the middle -through neighborhoods, communities, counties, states and regions.

Still.

But something has changed.  We are on the brink of national failure.  People are uneasy and insecure.  They voted for change last time and they are feeling disappointed.

But where the people take that disappointment is a crap-shoot. The incumbent occupant of 1600 Pennsylvania Avenue has a virtual lock on the core blue states – California, New York, and more, vs. Florida, Ohio and more.  But there is still a race afoot in blue territory.  What about that “generic” GOP opponent who has been leading Obama until the GOP primaries took front stage?  That candidate is the shadow of inchoate hope.  He or she appears briefly every few years, only to disappear behind a stage of real people, flesh and blood men and women with foibles and flaws.

Consider the overview of W’s victory in 2004.  It was won by Bush with 286 electoral votes to Gore’s 251.  But this time the incumbent is Barack Obama and the victory allocation will be different.  In 2004, Bush Jr. won Colorado, Indiana, New Mexico and Ohio, to name four key races. That time, Ralph Nader took votes from Gore. It was a post 911 reelection in which the incumbent Bush won the popular vote with 50.73%.

…And this time? The insurgent GOP nominee must win Colorado, Indiana, New Mexico and Ohio one more time, or find another 43 votes (9, 11, 5 & 18) without losing anything else that W previously won. This was just one set where two or more states may be in play. There are other equally nerve-wracking examples.

In the intervening years, whole families have relocated, and the Electoral College reflects that. Note these changes: Louisiana – down 1, Florida – up 2, Georgia – up 1, Illinois – down 1, Iowa – down 1, Louisiana – down 1, Massachusetts – down 1, Michigan – down 1, Missouri – down 1, New Jersey – down 1, New York – down 1,Ohio – down 2, Pennsylvania – down 1,Texas – up 4, & Utah – up 1. At best the demographic shift is a 3 vote advantage to the GOP.  Or it’s a wash. My point is that the professionals who are working on this election are paying close attention to changes this small.  They understand that it could be that close.

The bottom line is that conservatism needs to be sold all over again.  Reagan temporarily persuaded and won over a coalition that no longer exists.  He had the advantage of being a genial hard liner in the Cold War against Soviet Russia when a weak democrat was in place, having presided over a humiliation in the Middle East that put millions of Americans in gas station lines during rampant inflation.  Barak Obama has set policies in play that may well bring this country to a similar pass, but so far he has avoided responsibility for them because they are in the post 2012 future…or so he hopes.

A majority of Americans have only vague notions of what being a conservative means these days.  This is the case even though, on a handful of key issues, majorities of Americans are regularly counted by pollsters as conservative or leaning conservative.  These conservative issue groupings include:

  1. a tough-minded approach to law and order, national security and terrorism;
  2. a high level of concern about excessive federal debt and borrowing;
  3. a less generous approach to entitlements and social justice issues;
  4. a more generous approach to the problems and concerns of private business enterprises; and –
  5. -a broadband distrust of federal governmental agencies, bureaus and bureaucrats as out of touch, unelected elites with too much power and time on their hands.

But most of the time, most of these same conservative leaners are unwilling or unable to think in principles. As a result they remain far too susceptible to manipulation by the mainstream media. Most of these leaners consist of former Reagan democrats and independents, busy men and women who simply lack the time, energy and expertize to figure out who their true friends and enemies are.  In a single phrase, they are potential members of a center-right governing coalition without a leader.

Much of the current conservative angst and dyspepsia is the reverse mirror image of the pent up longings of the ideologically progressive, arch-left democrats who blew a major opportunity with Obama, Reid and Pelosi by falling into the “purity trap”.  The purity trap goes like this:

“We are right and eventually every one with a brain will figure that out.  So if we are just true enough to our beliefs, if we just present our philosophy in its naked form and act on it, what can go wrong?”

The answer to that question for the democrats was a sharp electoral blowback, followed by a failure of governance.

I suspect that a critical mass of weary and worried conservative voters are looking for a candy-covered ball bearing candidate, meaning a leader who is palatable on the outside, but tough steel just underneath. Let’s go with that metaphor for a moment.  Santorum is hard candy all the way through, but brittle; Gingrich is Halloween candy with a few razor blades sticking out; and Romney is candy on the outside with a “trust-me” core.  [No Romney endorsement is intended here, but I personally think there is more steel than chocolate in Romney’s makeup. I also strongly suspect that the Governor probably won’t be able to cross the likeability barrier until and unless he is elected and faces his first crisis.  FDR was similarly perceived as unapproachable, and earned his charisma the hard way.]

If the current pretend-recovery begins to fray and falter by midsummer, our incumbent wunderkind POTUS is probably electoral toast – unless the GOP alternative is seen as unsettling, unreassuring and unappealing.

This means that conservatism must be explained and sold in a credible way that is appealing, reassuring and realistically uplifting.  However – if the economy is plausibly on the mend, it also means that a considerably more difficult case must be made, to wit: that President Obama’s policies are poised to fail; that any seeming improvement is a small blip, what some call a “dead cat bounce.”  A direct, even fierce attack on the incumbent president’s credibility and competence is unavoidable in either scenario.

Meantime, Candidate Obama is hoping to hold all the feathers of his large left wing together, while trying to move rhetorically to the center – at least far enough to staunch the hemorrhage of independents.  When the main campaign reaches that final stage, any charges we are currently hearing that a particular GOP candidate is “not conservative enough” will no longer have any traction.

I believe that another, deeply psychological theme, will soon overshadow everything else.  I’m calling it the Three T’s – as I will soon explain.

Over the long haul, this race will come down to leadership and “followship”. No leader who stands at the head of a crowd of reluctant, tepid supporters can be successful in persuading others. Whether the GOP nominee is former Governor Mitt Romney, former Governor Jeb Bush or the Messiah, it’s going to take an army of enthusiastic followers, or there will surely be an army of “I told you so” mourners on Wednesday, November 7th.

At the end of the day this presidential election is going turn on an intangible trio of elements:

The Three T’sTrauma, Trust and Turnaround.

The electorate has been traumatized.  The American people are willing to make a midstream course correction only for leadership they can trust, and only for a turnaround they can believe in.

Exit bubble. Get involved. Stay tuned.

JBG

Copyright © 2012 by Jay B Gaskill, Attorney at Law

First published on The Policy Think Site and The Dot 2 Dot Blog

As always, links and forwards are welcome and encouraged.  For other permissions, queries and comments, contact the author at his office email – law@jaygaskill.com .

SAME GENDER MARRIAGE AND THE CALIFORNIA PROP 8 CASE

Wednesday, February 8th, 2012

SAME GENDER MARRIAGE AND THE CALIFORNIA PROP 8 CASEi

A Legal and Policy Analysis of Perry vs. Brown/Coleman vs. Brown –

10-16696, 10-16751, 11-17255

By

Jay B Gaskill

Attorney at Law

W hat are we to make of a panel of the recent 9th Circuit Court of Appeal decision upholding California’s judicially-created “gay marriage” right as against a vote of the general California electorate (in the now eponymous Proposition 8ii) to the contrary?

Is this an epic civil rights case or something else?

Unless the US constitution is amended or radically reinterpreted, each state government has great latitude in fashioning its marriage and divorce laws. It follows from this view that it would be an improper extension of federal power , say, were the Congress to attempt to create radical uniformity among the states in alimony, family support, community property, duration of residence requirements, rules affecting child custody and the like.

Marriage is a civil institution in the US, a legal construct if you will that has been laid over the template of a preexisting religious institution of ancient provenance.

Unless the US constitution is amended or radically reinterpreted, each religious community enjoys complete freedom from federal interference with respect to the marriage issue, including what is or is not sacramental, what is or is not subject to official religious recognition and blessing. In the traditional religious sense, a marriage is a covenant between a man and a woman, wherein the term-of-art covenant is meant to convey the presence of divine sanction, a three way compact if you will. In general, the religious marriage compact is intended to create a family unit, one that contemplates dependent children, whether born into the marriage or adopted. Religious institutions do not, of themselves in this country, create legal obligations; their province is the realm moral obligations.

For most of our history, civil marriage laws have closely tracked our mainstream religious marriage traditions and norms. The advent of civil unions and child support obligation for the non-married represented a major divergence point.

There is no enforceable civil right to require the religious validation of one kind of marital relationship over another and no federal power in any event to do v ery much of anything about how the various states handle such issues.

As an individual, church-going judeo-Christian, I have no moral problem whatsoever with our brothers and sisters who are same-gender oriented. I would not deny those who are in committed, adult, same gender unions the enjoyment of the legal benefits and concomitant obligations that are available to and imposed on traditional married couples. Equal treatment of persons equally situated, on at least the matters that are germane to their situations, is fundamentally reasonable and proper… at least in my moral and legal universe.

But t he official title of such same gender, martial-style relationships is a different matter, not dissimilar to the “brand name” problems when a generic cola maker tries to appropriate Coke® or Pepsi® trademarks. The gay marriage® brand name controversy is manifestly not an epic civil rights struggle.

Now to the 9th Circuit Proposition decision. Note that this was a 2-1 decision by a three judge panel, not the entire 9th Circuit. It is unclear whether the case will now be referred to the entire 9th Circuit or left as its.

Like many other 9th circuit opinions, this decision is an outlier, almost certainly not to be followed by the other federal circuits. The linchpin of the 9th Circuit decision is whether the California Supreme Court properly located a “gay marriage approved” provision in the California State Constitution (by implication and inference) when no such language ever appeared there and when a clear majority of voters have twice declared the polar opposite. As it appears to this lawyer, whether the 9th Circuit decision is or is not upheld by SCOTUS will mean very little outside California. Unless the high court were to locate a “gay marriage approved” provision or a “gay marriage not approved” in the US constitution, other states will remain unaffected. But the Supreme Court will find neither a pro-gay marriage nor an anti-gay marriage provision in the US constitution, because it’s just not there – whether explicitly or by necessary legal implication.

Now to the policy and politics. As a general rule, highly charged social issues, such as gay marriage, parental notification of child pregnancies, and a host of other matters, are far better resolved on the local level via an emerging social consensus, rather than by a top down decrees that only represent a narrow consensus among certain elites. Proposition 8 passed in California with the help of a super-majority of African American voters, the very same who supported the candidacy of Barack Obama. In general, church going African Americans are liberal on a variety of public policy issues, but not on the social issues like “gay rights” that have enthralled certain elites.

This issue, like so many other divisive conflicts, need s to yield to the “hearts and minds” approach over the fullness of time. There are bigger fish to fry – the dire prospect of a nuclear conflict in the middle East, the possible meltdown of the European economic system, the real risk of a second US economic downturn, of food shortages, rampant inflation, even federal policy paralysis…. You get the picture.

The truly important issue of the day is not when the USA will reach a broad social consensus on the gay marriage issue any time soon, but whether there will be a USA still standing in any recognizable form for the next generations, gay or straight.

JBG

Copyright © 2012, by Jay B Gaskill First published on the Policy Think site and the dot 2 Dot blog. Links and forwards are encouraged. For everything else, contact the author – law@jaygaskill.com .

i

February 7, 2012. A federal appeals court strikes down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.

ii

November 4, 2008. California voters pass Proposition 8 — which amends the state Constitution to ban gay marriage — with about 52% of the vote. A 2000 ballot initiative banning gay marriage, Proposition 22, had passed with 61% of the vote.