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By Gregory Taggart, December 31, 2012 12:40 pm

Is “Giv{ing] Up on the Constitution” on your list of resolutions for 2013? It’s on Louis Michael Seidman’s.

I get his point, and I disagree with it. I like that the Constitution has been a drag on powerful presidents, finger-in-the-wind senators, a sometimes capricious judiciary, and an often fired-up citizenry. It had its flaws in the past, has others even now, but the Constitution also has mechanisms to correct those problems. It’s also worth mentioning that the Constitution has little or no bearing on much of what passes for law nowadays. In other words, not every legal issue is a constitutional issue.

In any case, to Professor Seidman, I’d respond with the words of Robert Bolt–through the mouth of Sir Thomas Moore–in his play A Man For All Seasons:

More [to his soon-to-be son-in-law William Roper]: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down (and you’re just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Even Mr. Seidman acknowledges some good things in our Constitution: free speech, equal protection, things like that. He’d like to keep them. And so would I. But how secure would those rights be without a Constitution? Not very, I worry. They’re under attack even now. Fish in a barrel they’d be if we amended the Constitution out of existence.

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By Gregory Taggart, December 13, 2012 11:39 am

First the good news:

Aspirin is a wonder drug, one that virtually all men over 45 and woman over 55 should take to keep the arteries clear and cancer at bay. So says Dr. David Agus, a professor at USC’s medical school, in an Op-ed in today’s New York Times.

Many high-quality research studies have confirmed that the use of aspirin substantially reduces the risk of cardiovascular disease. Indeed, the evidence for this is so abundant and clear that, in 2009, the United States Preventive Services Task Force strongly recommended that men ages 45 to 79, and women ages 55 to 79, take a low-dose aspirin pill daily, with the exception for those who are already at higher risk for gastrointestinal bleeding or who have certain other health issues. (As an anticoagulant, aspirin can increase the risk of bleeding — a serious and potentially deadly issue for some people.)

New reports about aspirin’s benefits in cancer prevention are just as convincing. In 2011, British researchers, analyzing data from some 25,000 patients in eight long-term studies, found that a small, 75-milligram dose of aspirin taken daily for at least five years reduced the risk of dying from common cancers by 21 percent.

Dr. Agus is so excited about aspirin that he argues, “why not make it public policy to encourage middle-aged people to use aspirin?”

Which leads me to the bad news:

Dr. Agus apparently can see no end to such policy initiatives, at least when his money is at risk because of someone else’s bad health practices:

[W]hen does regulating a person’s habits in the name of good health become our moral and social duty? The answer, I suggest, is a two-parter: first, when the scientific data clearly and overwhelmingly demonstrate that one behavior or another can substantially reduce — or, conversely, raise — a person’s risk of disease; and second, when all of us are stuck paying for one another’s medical bills (which is what we do now, by way of Medicare, Medicaid and other taxpayer-financed health care programs).

Now, who can’t see the benefits of everybody eating better, exercising more, and so on? I can. But I can also see a problem here: one man carrying out his duty can easily become another man’s oppressor. And a woman with one finger on the pulse of America and the power to call out the nannys when that pulse rate increases, is likely a woman with too much power.

In Oral Arguments for the recent Obamacare case, Justice Scalia asked Solicitor General Verrilli whether if the government could mandate that we buy health insurance, it could also mandate that we eat broccoli. Supporters of Obamacare laughed at the idea. As James Stewart wrote in The New York Times, in an article titled “Broccoli Mandates and the Commerce Clause,”

The Supreme Court itself has said: “The principal and basic limit on the federal commerce power is that inherent in all Congressional action — the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the states will not be promulgated.” And absurd bills like a broccoli mandate are likely to fail other constitutional tests. (emphasis supplied)

All I can say in response to that is, “Mr. Stewart, meet Dr. Agus.”

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By Gregory Taggart, August 2, 2012 1:19 pm

In Wednesday’s New York Times, Jared Diamond, author of Guns, Germs, and Steel, takes Governor Romney to task for misrepresenting the thesis of his book in the Governor’s speech in Israel. He goes so far as to “doubt whether Mr. Romney read” his book. In my view, Diamond’s NYT op-ed is an uncharitable hit piece masquerading as indignant criticism. That’s not to say that Romney was completely accurate in his discussion of Diamond’s book. It is to say that Romney got the thesis–as stated by Diamond in the NYT–essentially right; that his mention of iron ore, though a bit off base, captured the essence of what Diamond said about iron in his book; and that judging by Romney’s discussion of Diamond’s book in his own book, No Apology, Romney has read Guns, Germs, and Steel.

Before we begin, let’s remember the context of Romney’s speech. He was speaking at a fund-raiser in Israel. He spoke about a variety of issues for around 20 minutes. I’ve not been able to find a copy of the speech–if one exists–but judging by something he said, I’d guess the speech was an off-the-cuff recitation of his stump speech, tailored to his audience (more below). What it was not was a book review of Diamond’s book. What it was not was a point-by-point discussion of Diamond’s thesis. And that’s important.

Here’s the relevant part of Romney’s speech, as quoted by Diamond:

[Diamond] basically says the physical characteristics of the land account for the differences in the success of the people that live there. There is iron ore on the land and so forth. (emphasis mine)

Note, the words “and so forth.” That’s the little throwaway that tells me Romney was speaking off the cuff and without notes. Note also that he summarizes Diamond’s book in about 30 words–hardly a full discussion.

According to Garance Franke-Ruta at the Atlantic, Romney goes on to say,

And you look at Israel and you say you have a hard time suggesting that all of the natural resources on the land could account for all the accomplishment of the people here. And likewise other nations that are next door to each other have very similar, in some cases, geographic elements.

That’s it. As far as I can tell, that’s all that Romney said that relates to Diamond’s book other than the next paragraph where Romney mentions David Landes’s Wealth and Poverty of Nations, which I’m not going to discuss here because my interest is in Diamond’s criticism.

Now, here’s how Diamond characterizes his own book:

My focus was mostly on biological features, like plant and animal species, and among physical characteristics, the ones I mentioned were continents’ sizes and shapes and relative isolation. I said nothing about iron ore, which is so widespread that its distribution has had little effect on the different successes of different peoples. (emphasis mine)

In fact, he did say something about iron ore, on page 246, where he writes,

[Ancient peoples] gradually learned . . . to work available pure soft metals such as copper and gold, then to extract metals from ores, and finally to work hard metals such as bronze and iron. (emphasis mine)

and on page 259, where he continues,

One reason why technology tends to catalyze itself is that advances depend upon previous mastery of simpler problems. For example, Stone Age farmers did not proceed directly to extracting and working iron, which requires high-temperature furnaces. Instead, iron ore metallurgy grew out of thousands of years of human experience with natural outcrops of pure metals soft enough to be hammered into shape without heat (copper and gold). It also grew out of thousands of years of development of simple furnaces to make pottery, and then to extract copper ores and work copper alloys (bronzes) that do not require as high temperatures as does iron. In both the Fertile Crescent and China, iron objects became common only after about 2,000 years of experience of bronze metallurgy. New World societies had just begun making bronze artifacts and had not yet started making iron ones at the time when the arrival of Europeans truncated the New World’s independent trajectory. (emphasis mine)

Diamond goes on to say that what Romney said was not new because he apparently got it wrong in his book No Apology as well. Here’s the relevant passage from that book, again according to Garance Franke-Ruta of The Atlantic:

In his best-selling book Guns, Germs, and Steel, Jared Diamond notes that long ago, the availability of minerals like iron ore meant that some nations could fashion weapons and conquer their neighbors while others without those minerals could not. The complex geography of germs and disease could cripple the economy of one nation while opening new possibilities for another. A nation’s rivers, mountains, and deserts dramtically shaped the transportation network essential for trade and economic development. For scholars like Diamond and many others, the relative differences between nations and people are largely the result of these kinds of inherent natural features. To a degree, there is truth in that perspective, but it simply doesn’t fully account for the great differences between nations and civilizations.

Diamond is right that in both in his speech and in his book, Romney does imply that iron ore was unevenly distributed around the world, when in fact what was not widespread was the ability to turn iron ore into steel. A different disparity, but a disparity nonetheless, and apparently an important one, given that Diamond points out in his book that the Europeans “truncated the New World’s independent trajectory.” Why? Because “New World societies had . . . not yet started making iron [artifacts]” when the Europeans arrived. Isn’t that essentially the point Romney was making in No Apology, that some had iron weapons when others did not? The only difference is Diamond attributed the relative circumstances to metallurgy; Romney mistakenly attributed them to the uneven distribution of iron ore.

Furthermore, Romney–especially in his book–briefly covers the same ground Diamond does in his NYT summary of his book’s focus. As someone who has read neither Romney’s speech nor Diamond’s book in their entirety, I ask anybody to explain to me how Romney’s brief discussion of Diamond’s book is so far off base as to warrant an op-ed response in the New York Times. Then tell me if you think Romney has read Diamond’s book.

UPDATE: Given that Diamond forgot that he did discuss iron ore in his book, isn’t it only fair to give Romney some slack for forgetting that the it was metallurgy that was not widely distributed across the earth rather than iron ore?

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By Gregory Taggart, June 11, 2012 12:54 pm

In The New York Times today, Adam Liptak writes about the 2010 Citizens United decision and a challenge presented by a recent Montana Supreme Court case that challenges that decision–contrary to the Constitution’s Supremacy Clause, but hey, nothing to see here.

In his write up, Liptak says the following:

In that same statement, Justice Ginsburg said the United States Supreme Court should now use the Montana case to weigh what the nation has learned since January 2010, when Citizens United overturned two precedents and allowed unlimited campaign spending by corporations and unions. The new case represented, she wrote, “an opportunity to consider whether, in light of the huge sums deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

What’s so hard about getting the bolded part right? What Liptak writes is misleading and could lead the unwary–all Times readers?–to think corporations can now give unlimited amounts of money to their favorite candidates. The bolded part is all the more misleading given that it’s followed by Justice Ginsburg’s quote that the large sums could “buy candidates’ allegiance,” again, giving the impression that the money will flow directly to the candidate.

What’s missing? The word “independent.” According to Citizens United, corporations and unions can make unlimited “idependent expenditures,” which Justice Kennedy says “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Thus, no money flows directly into a candidate’s pockets (and if it did, both candidate and corporation/union would be in trouble). And thus, the words “unlimited campaign spending” are misleading.

Note well that I’m not a Pollyanna. I realize that coordination could take place behind closed doors–subject, of course, to behing discovered. But that’s another post for another day. Today, I’m just pointing out the Liptak fudged. And that’s no good either.

UPDATE: By the way, it’s worth pointing out that according to former federal judge, now law Professor Michael McConnell, writing in The Wall Street Journal:

In a sense, Citizens United did have an important effect on the Wisconsin election. But the effect was almost exactly the opposite of what many pundits imply.

Labor unions poured money into the state to recall Mr. Walker. According to the Center for Public Integrity, the NEA (National Education Association), the nation’s largest teachers union, spent at least $1 million. Its smaller union rival, the AFT (American Federation of Teachers), spent an additional $350,000. Two other unions, the SEIU (Service Employees International Union, which has more than one million government workers) and Afscme (American Federation of State, County and Municipal Employees), spent another $2 million. Little or none of these independent expenditures endorsing a candidate would have been legal under federal law before Citizens United.

By contrast, the large spenders on behalf of Mr. Walker were mostly individuals. According to the Center for Public Integrity, these included Diane Hendricks, Wisconsin’s wealthiest businesswoman, who spent over half a million dollars on his behalf; Bob J. Perry, a Texas home builder, who spent almost half a million; and well-known political contributors such as casino operator Sheldon Adelson and former Amway CEO Dick DeVos, who kicked in a quarter-million dollars each. Businessman David Koch gave $1 million to the Republic Governors Association, which spent $4 million on the Wisconsin race.

These donations have nothing to do with Citizens United. Individuals have been free to make unlimited independent expenditures in support of candidates since the Supreme Court case of Buckley v. Valeo (1976).

I have seen no published reports of any corporate expenditures on behalf of Mr. Walker, though presumably the $500,000 Chamber of Commerce contribution to the Republican Governors Association fund came largely from corporate sources. Several groups also ran issue ads that presumably benefited Mr. Walker; these groups are not required to disclose their donors and may have received corporate contributions. Corporations and unions could run issue ads before Citizens United, as long as they did not clearly refer to a candidate.

For the most part, though, Mr. Walker’s direct, big-ticket support came from sources that have been lawful for decades.

His opponent, Milwaukee Mayor Tom Barrett, got his support primarily from labor unions, whose participation was legitimized by Citizens United. Without that decision so demonized by the political left, Mr. Barrett would have been at even more of a financial disadvantage.

Interesting. (Emphasis supplied)

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By Gregory Taggart, March 6, 2012 9:52 am

Well, in light of the immediately preceding post, this is pretty amazing: New York Times columnist has written about Romney’s dog on the car roof story over 50 times.

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By Gregory Taggart, January 31, 2012 9:35 am

So, on the day of the Florida Primary, the New York Times decided to scare the bejiggers out of the voters with a piece titled, What is it About Mormons?, which followed close on the heels of yesterday’s Washington Post op-ed piece, A Mormon church in need of reform. Can the nation’s other great papers be far behind?

The first question that comes to the mind of this Mormon is whether the rest of the reporting in these two papers is so ill-informed and/or bitter as these pieces are. And then other questions: Why today? Is it a coincidence that the Times piece came out today, the day of the Florida Primary? Why Sally Denton? Yes, she wrote a very bad book about a very bad event–a tragedy–in Mormon history, but it was a very bad, even a lousy, book, so why her? (By the way, if you’re interested in knowing how bad her book is go here and follow the links to the reviews by people who actually do know something about the Mountain Meadows Massacre.) And the really big question, why not have a Times reporter write the story? I’m assuming that the paper of record holds its actual reporters to a higher standard than it does the hacks it let write this piece (Maffly-Kip and Reiss excepted). Or put another way, do these women appreciate playing the role of the puppets in this show?

I’m not going to try and respond to either piece here. I will, however, refer the reader to sites that give a more accurate picture of Mormonism, starting with the Church’s two official sites, then the leading scholarly site and the most prominent apologetics site. All of them give a clearer picture of Mormonism than do either of these two pieces–again the Reiss and Maffly offerings excepted. Finally, here is my own guide to anti-Mormon writing, a response to Martha Nibley Beck’s horrible little tome of a few years ago, a response that deals with many of the same defects you’ll find in the Times and Post pieces.

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By Gregory Taggart, March 28, 2011 11:56 am

Two major dailies–one in the U.S., one in Brazil–report on Joseph Lelyveld’s new biography of Mahatma Gandhi. In the U.S., The New York Times’s headline for the story reads

How Gandhi Became Gandhi

In Brazil, the Jornal do Brasil is a bit more provacative–just a bit:

Mahatma Gandhi seria bissexual, diz biografia (Mahatma Gandhi was bisexual, says biography)

I wonder which story attracted more readers?

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By Gregory Taggart, February 25, 2011 9:09 am

Paul Krugman is at it again. In a piece titled Shock Doctrine, U.S.A., he sees all sorts of connections between what’s happening in Madison and what happened in Baghdad in 2003. And of course, there’s the obligatory reference to Bush. Can’t have a Governor Scott Walker walking around without a Bush stamped on his forehead like a scarlet letter. That mission accomplished, he takes off in a way that only an op-ed writer cum Nobel laureate can–a laureate with no sense of irony.

Referencing Naomi Klein’s best-selling book “The Shock Doctrine,” he argues that Paul Bremer’s push for privatization in Iraq

was part of a broader pattern. From Chile in the 1970s onward, [Klein] suggested, right-wing ideologues have exploited crises to push through an agenda that has nothing to do with resolving those crises, and everything to do with imposing their vision of a harsher, more unequal, less democratic society.

Ahem, comments by the newly elected Mayor of Chicago come to mind, but that doesn’t count, I suppose, because his and his boss’s multi-trillion dollar exploitation of a crises imposed a vision of a less harsh (for some), more equal (for some), more democratic (for some) society. But I digress.

Krugman continues,

In recent weeks, Madison has been the scene of large demonstrations against the governor’s budget bill, which would deny collective-bargaining rights to public-sector workers. Gov. Scott Walker claims that he needs to pass his bill to deal with the state’s fiscal problems. But his attack on unions has nothing to do with the budget. In fact, those unions have already indicated their willingness to make substantial financial concessions — an offer the governor has rejected.

What he means by the attack on unions having nothing to do with the budget is that . . . hell, I have no idea what he means. If collective bargaining has no impact on Wisconsin’s budget, then union members have been getting screwed by their leaders for a long, long time.

He continues,

What’s happening in Wisconsin is, instead, a power grab — an attempt to exploit the fiscal crisis to destroy the last major counterweight to the political power of corporations and the wealthy.

Pot to kettle and more. Where are the corporations and the wealthy in the drama in Madison? Last I checked, we were talking about public employee unions protesting against the state government, which gets its political power from average Joe Wisconsin.

And the power grab goes beyond union-busting. The bill in question is 144 pages long, and there are some extraordinary things hidden deep inside.

Only 144 pages long? Not over 1,000? And there are some extraordinary things hidden in there too? Really?

I’m out of time, but you get the idea. But if you don’t, let me take you to the 3rd from the last paragraph in Krugman’s piece, the paragraph where he trots some other allegedly evil doers out on to the stage, out from the shadows for all conspiracy theorists to see,

If this [the push for privatization of state-owned power plants] sounds to you like a perfect setup for cronyism and profiteering — remember those missing billions in Iraq? — you’re not alone. Indeed, there are enough suspicious minds out there that Koch Industries, owned by the billionaire brothers who are playing such a large role in Mr. Walker’s anti-union push, felt compelled to issue a denial that it’s interested in purchasing any of those power plants. Are you reassured?

And the left criticizes Glenn Beck. At least he apologizes occasionally.

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By Gregory Taggart, February 17, 2011 9:22 am

This almost needs no comment. The New York Times reports on the protests in Wisconsin over Governor Walker’s move to “sharply curtail the collective bargaining rights and slash benefits for most public sector workers in the state”:

The battle in Wisconsin, which some view as a precursor to similar fights in other states, was drawing attention around the country, including from Education Secretary Arne Duncan, who said he planned to talk to Mr. Walker by telephone on Thursday. “Where we’re fighting each other, where we’re divisive, where we’re demonizing or vilifying any group, including unions, I don’t think that helps us get where we need to go as a country,” Mr. Duncan told CNN on Thursday morning.

President Obama also weighed in during an interview Wednesday with a Wisconsin TV station, “I think it’s very important for us to understand that public employees, they’re our neighbors, they’re our friends. These are folks who are teachers and they’re firefighters and they’re social workers and they’re police officers.”

But, I guess, bankers and corporate executives are not.

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By Gregory Taggart, February 7, 2011 12:00 pm

Adam Liptak struggles to find a distinction between corporations in general and the so-called institutional media (which are usually corporations) in particular, in his piece on Citizens United and campaign finance reform. Of course, the is no distinction, or there shouldn’t be.

But that’s beside the point, the point at which the government lost the case. Liptak hints at it in his story when he writes,

Consider this telling exchange between Justice Samuel A. Alito Jr. and a lawyer for the Obama administration at the first of two arguments in Citizens United. The lawyer, Malcolm L. Stewart, said Congress had the power to regulate corporate speech about political candidates under the First Amendment.

“Most publishers are corporations,” Justice Alito said. “And a publisher that is a corporation could be prohibited from selling a book?”

It was a hypothetical question, but it cut to the core of the meaning of the press clause of the First Amendment. There was a lot of back and forth, and other justices jumped in. In the end, though, Mr. Stewart gave a candid answer.

“We could prohibit the publication of the book,” he said.

But Stewart was not talking about just any book with his answer. No, he was responding to a very specific question about a very specific kind of book.

I was out for a run and listening on my MP3 player to the exchange between Stewart and various Justices on this point (courtesy of the Oyez Project), and I remember saying to myself, “he [Stewart] just lost this case.” And this is where he lost it:

Justice Roberts: If it’s a 500-page book, and at the end it says, and so vote for X, the government could ban that?

Mr. Stewart: Well, if it says vote for X, it would be express advocacy and it would be covered by pre-existing Federal Election Campaign act provisions . . . we could prohibit the publication of the book using corporate treasury funds.

So, did you get that? One request that you vote for candidate X, at the end of a very long book, and zippo facto manulo, the government could ban that 500-page book published by a corporation under pre-Citizens United law, at least according to the government in the first oral argument. No wonder the Court ruled the way it did. No wonder, at least to me.

Liptak is right, however. The government backed away from that argument in reargument. Solicitor General Elena Kagan argued the case this time around, and she went nowhere near Stewart’s bold claim. But the damage was done, and in my view, the case had already been lost because, fortunately, five Justices couldn’t see their way clear to ban a 500-page book because of one pitch at the very end, a simple plea to “vote for X.”