I read today in the New York Times online that the Senate will soon (again) take up the subject of tort reform (specifically malpractice reform), and I want to offer a suggestion I’ve been making to whomever would listen – which has, it turns out so far, been no one – for several years. Please consider this when the issue again comes before Congress for debate.
Because of the way the last few presidential elections have turned out calls for abolishing the Electoral College have once again become popular. Unfortunately in the discussion of the Electoral College I rarely, if ever, hear a proper defense of the institution or of its historical reasons for being.
Even if those justices are right that the law as written is probably neither fair nor what Congress really intended, why does it not frighten ‘liberals’ to hand the authority to make that determination — and to re-write the law — to five appointed officials (a court majority) with lifetime tenure? Wouldn’t we all be better served if the Court instead pointed out the contradiction in the law to our elected representatives in Congress and allowed the legislative process to address it? Isn’t that how democratic government is supposed to work?
And if it did, wouldn’t the prospect of new Supreme Court appointments be a lot less terrifying for those on the losing side of the election — whichever side that might be?
The ruling required no novel legal theories or new constructions — no “activism” (as opposed to “action”) — regarding either statute or constitution; rather it was a perfect model of the traditional role of jurisprudence and separation of powers: to uphold the rule of law by holding the executive to the a priori terms of its text. It was, in fact, anti-”activist” in the best conservative tradition: the court, which we all suspect is sympathetic to the cause of gay-marriage, nevertheless declined to re-interpret the law or to allow an exception to it in the name of achieving the desired outcome.
And what is the reporters’ and editors’ responsibility in these cases? They want background information to help them know and judge the truth; does that not also give them a responsibility equal to that of the government to protect that information until it is no longer sensitive?
If this only mattered for screening on airliners it would probably amount to no more than an inconvenience and a small incremental danger to a few passengers. But it seems to represent a more general trend: increased control and centralized security measures superseding distributed security measures; more trust in authorities to keep everyone safe and less trust in individuals to shoulder some responsibility (and to be allowed the tools to implement that responsibility) for their own security – security in the broadest sense, including not only personal safety but financial, social, and interpersonal security as well. It is consistent with much of modern political and social practice: we will cede our responsibility along with our freedom to some authority, which will promise in return to keep us safe and happy.
But the biggest downside to a national ID card is that once it was in place, and in order to make the best use of it for fighting terrorism, it would be irresistible that it be transformed from something that is only practically mandatory (like the drivers license and the Social Security card – in theory you could arrange your life to live without them) into something that is legally mandatory, not merely if you want to board a plane or to handle dynamite but simply because you exist. And then, once governments and government agencies across the spectrum know that everyone must have one, it is only practical that they demand you present it for every interaction with government – for your own protection of course, just to ensure we know who we’re dealing with. And how about when you are acting suspiciously in the street? In fact, why don’t we just make it mandatory that you carry it with you at all times, and show it on demand to any government official?
During the last presidential campaign John Kerry scored populist points castigating “greedy corporations” who avoided paying their “fare share” of taxes by “sheltering” their profits in foreign countries. In an era of corporate downsizing and record budget deficits that topic resonated with many people, and the charges were repeated widely before disappearing under the weight of other criticism more easily tied directly to George Bush. But before they disappeared The Boston Globe ran a piece by Stephen Glain on the topic in their business section. I sincerely believe there is a lot of questionable – or downright dishonest – stuff going on behind the corporate veil in support of avoiding taxes. But I also believe that a business reporter should consider the possibility that some practices characterized by populist politicians as malfeasance may actually have a rational and legitimate basis in business principles – and that a reporter writing a story on the topic should at least talk to some people in business who are using those practices before writing the story about them.
If a state chooses to live up to the more modern understanding of its obligation to fairness and equality under the law by creating a gender-neutral form of civil union, that is certainly just and arguably wise. If a same-sex couple, having been properly joined by such a state-sanctioned civil union, chooses to call themselves “married” some may contradict them but no one can or should stop them. If a church chooses to sanctify their union and call it “marriage” in the eyes of God, that is their right. If members of their community choose to honor the union with the same designation, then the communal sense of marriage will begin to evolve. If enough people in enough communities defer to the new usage then the traditional concept of marriage will begin to lose its name and, our ability to conceptualize it thereby undermined, will slowly fade from our cultural memory, just as gayness did decades ago. And we will be culturally poorer for that even as we are culturally more inclusive.
But that is a transformation that should be decided individual by individual in a cultural dialog over years or generations, in which some are free to preserve the old concepts and others to embrace the new until the weight of cultural consensus removes the last holdouts – or never does. It is not a transformation that should be enforced by political power.
Periodically in discussing issues surrounding nuclear non-proliferation someone – typically but not always someone from some Islamic country – will assert that we have no right to deny the likes of Saddam Hussein or the Iranian Ayatollahs access to nuclear weapons – that such a demand amounts to imperialism, that it interferes with the self-determination of their peoples and usurps their legitimate sovereignty. Inevitably the need for nuclear weapons in the hands of such countries is rationalized by the need to “counter the threat” from Israeli nuclear weapons or from our own. And inevitably attempts to limit the number of nuclear nations in the world are classified as arrogance, the presumption that only members of the nuclear club are sophisticated and moral enough to be trusted with such power.
There is some validity to the issue of the usurpation of sovereignty – although if we wish to be so solicitous of sovereignty we really should have a debate over what constitutes legitimate sovereignty in the modern era of human rights and ascendant democracy. But where nuclear weapons are concerned basic survival, not sovereignty, is really the most fundamental consideration. And if our desire that Saddam Hussein and Kim Jong Il not have nuclear weapons represents a presumption that they are not sophisticated and moral enough to be trusted with such capabilities, that presumption is not arrogant but prudent.