I was even willing to let this confused blather slip by unaddressed:

America is not just a country but an idea, a great idea about opportunity for all and responsibility to your fellow man.

Bono is referring to some recent remarks by President Obama and trying, by definition futilely, to justify his absurd, outrageous and offensive winning of the Nobel Peace Prize. Whatever — generally speaking, I only value musicians' opinions when they're discussing music.

But a few minutes later I came across a blogpost praising some other thoughts about "America as an idea" — also in the context of a Nobel Prize:

[I]t is all too apparent that financial obligations associated with social entitlements intended to solve welfare problems and advance public welfare threaten the viability of basic monetary and financial institutions. In my judgment, American democracy is at risk. Why has a flood of crises inundated the United States of America and other democracies in the contemporary world?

Perhaps the answer is to be found in the superficial way we think about citizenship in democratic societies. How people conduct themselves as they directly relate to one another in the ordinary exigencies of life is much more fundamental to a democratic way of life than the principle of "one person, one vote, majority rule." Person-to-person, citizen-to-citizen relationships are what life in democratic society is all about. Democratic ways of life turn on self-organizing and self-governing capabilities rather than presuming that something called "the Government" governs.

That is Vincent Ostrom, husband of the co-winner of the Nobel Prize in economics, and written in 1997, long before the current "flood of crises" in American "basic monetary and financial institutions."

These two quotes — Bono and Ostrom — both verbatim, reminded me of another quote — well, misquote — that circles around libertarian cyberspace every so often.

Ostrom is basically re-stating that infamous faux quote repeatedly (and incorrectly) attributed to de Tocqueville, that "the American Republic will endure until the day Congress discovers that it can bribe the public with the public's money."

Stated differently:

"How people conduct themselves as they directly relate to one another in the ordinary exigencies of life is much more fundamental to a democratic way of life than the principle of 'one person, one vote, majority rule.'"

Which is to say that "America qua idea" (cf., Bono's op-ed) is less about raw democracy for its own sake, and more about freedom — freedom to own and control property, freedom of contract (including the freedom to refuse a contract, such as health insurance), freedom to decide one's own charitable giving (rather than to have it forced upon you via taxes and subsidies), freedom to experiment entrepreneurially, freedom to take risks (but not subsidized risks), etc.

Which, yes, includes the reciprocal freedoms: freedom to fail, freedom to regret one's choices, freedom to be gullible, freedom to be weak-willed. Etc.

All of which is fundamentally incompatible with unbridled democracy — which, one more time, is at the end of the day nothing more than mob rule. The fact that the mob — or Bono — may consider itself "well-intended" or "enlightened" is utterly irrelevant.

America is indeed an idea. Or at least it was. Once upon a time…

The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.

This is, of course, utter nonsense.

While it is true that corporations are "mere creatures of law," as John Marshall put it, it is also true that they are, at their core, nothing more than voluntary associations of free individuals (unlike, e.g., labor unions, which are also creatures of government — but unlike corporations are granted coercive powers over unwilling parties).

It is absurd in the extreme to suggest that two free individuals acting jointly can somehow have "less rights" than those two same free individuals would have acting individually.

Any voluntary association of free individuals must, by definition, have all the same rights as the free individuals comprising that association. To suggest otherwise is, of course, to trample the rights of the individuals — something the Times of course advocates practically every day of the week.

More:

The law also gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth.

First, a correction: corporations do not have "limited liability" — shareholders have limited liability, in exchange for limited power over the corporation (another bugaboo that keeps Times editors awake at night — see generally, "executive pay"). But what does this voluntary arrangement among shareholders have to do with their joint rights as free individuals? The limited liability canard is a total non sequitur.

And note the simplistic "Gilded Age robber baron" paranoia of "corporation as leviathan." Remember, these are same supposedly evil, profits-now-and-forever monstrosities that are almost completely owned by pension funds (including government- and union-managed pension funds), university and other non-profit endowments, and various other civic entities that must be deemed, according to the Times' kindergarten logic, greedy capitalist bastards.

Finally, recall that no matter how "privileged a position" a corporation may have, people always (or at least when government stays out of it) have an even more privileged position: the position of not having to do business with it. No matter how gargatuan General Electric, Microsoft, Wal-Mart, Kraft or Altria become, you can always (or at least when government stays out of it) say, "No thanks."

—

A post script to my minarchist comrades who, like our common liberal opponents, are leery of corporations and their supposed power: Never forget that the problem with corporate rent-seeking is the rent-seeking, not the corporation. Keep the focus on where it should be: on limiting the power of government to favor some groups over others. If politicians have nothing to offer, then nobody — including corporations — would try to buy them.

[I]f you're on that no-fly list, your access to the right to bear arms is cancelled, because you're not part of the American family; you don't deserve that right. There is no right for you if you're on that terrorist list[.]

That was Rahm Emanuel back in 2007. You can watch the video here.

That stupid, un-American and downright evil statement had been (quite properly) dismissed and forgotten, along with most of Emanuel's hyper-partisan, Rovian blather.

Unfortunately, there are plenty of other hyper-partisan, Rovian blatherers:

Citing a "terror gap," Sen. Frank Lautenberg (D-N.J.) … introduced legislation yesterday to give the U.S. attorney general authority to stop the sale of guns or explosives to terrorists.

Just one problem: Lautenberg's proposal does not concern "terrorists," but people on the no-fly list.

Some are quick to point out that the no-fly list (now over one million names and rising) is teeming with false positives — including children, generals and several members of Congress.

True that. But one must go further and ask why there are so many false positives on the list. As I noted elsewhere:

False positives aren't even the issue — true positives are just as problematic.

Suppose for the sake of argument that the no-fly list is constitutional, reasonable and inoffensive to libertarian sensibilities (big assumption, I know).

What Emanuel proposes here is that the (hypothetically appropriate) denial of a privilege (i.e., non-right), without traditional notions of due process (notice and a hearing before a neutral magistrate), be used to bootstrap to the denial of a full-fledged constitutional right (the Second Amendment right to bear arms).

This the Fifth Amendment simply does not allow. Not even close.

Keep this important point in mind as the hyper-partisan Rovian blather continues: This is not a Second Amendment issue — it is a Fifth Amendment issue. Anyone who supports the Lautenberg bill opposes the Fifth Amendment. The Second Amendment is entirely ancillary.

(Lautenberg, fully aware that his proposal is unconstitutional, nevertheless pretends that his plan comports with due process because anyone on the no-fly list can challenge the denial of her Second Amendment rights after the fact. This would be akin to saying that a couple convicted for violating an unconstitutional sodomy statute aren't denied their rights, because they are still entitled to appeal to have the conviction overturned after the fact. That's absurd, of course: Being forced to sue for rights wrongly denied you under an obviously unconstitutional law is still a due process violation. There is, in essence, a right not to have to sue for your rights.)

So I ask again: what happened to that new civil libertarian paradise that Obama and the hyper-liberal Congress were going to usher in?

It's probably in that same alternate reality where DOMA and DADT have already been repealed.

Previously:
–Think Twice Before Ordering a Special Meal
–"Secure Flight" Revisited
–CAPPS II Successor Unveiled
–CAPPS Capsized

Contrast the commendable ruling in Safford with the outrageous decision in Morse v. Frederick, in which the Court held that an adult student, not enrolled in school that day and not on school grounds, essentially has no First Amendment rights, because — "OMG drugs!"

What I found disappointing in the decision, however, was the total failure to critically review the claim that there was any legal basis to search the 13-year old girl at all — let alone by strip search.

The only basis for school officials to suspect Redding was because a fellow student — already caught with contraband "OMG drugs" (i.e., ibuprofen), therefore already in trouble, and with a prior disciplinary record that surely negates any credibility she might have, fingers a classmate ("they must be hers").

How is that "probable cause" to conduct any search, let alone a strip search? How does a busted delinquent trying to dig herself out of a disciplinary hole satisfy the "totality of the circumstances" test of Illinois v. Gates?

(Recall also that Gates lays down the criminal standard for basing probable cause on an unreliable witness. Safford was not a criminal case, but only a "school policy" case. If the police could not have strip-searched Redding based only on a non-credible fellow student's account, then how could school officials possibly do so?)

The Court got it exactly right in its recognition that "strip searches ought to be different." What it got wrong is its refusal to recognize that "school searches ought not be different."

Finally, another tweet of mine:

Thomas, whom the stupid wing of the libertarian movement adore for some reason, again opines that children have no rights in school. kthxbye

In loco parentis might — might — not be an insane educational policy if — if — school were voluntary.

But to compel government-run, or at least government-regulated, education (i.e., to negate parental control), and then turn around and suggest, as Thomas does, that schools should be allowed to exercise full parental control, is so overtly self-contradictory that it is hardly surprising that no other Justice even bothers to respond to it.

The case is Safford Unified School District #1 v. Redding, No. 08–479 (June 25, 2009) (PDF – 44 pages).

Previously:
–Linkfest: Two "School as Prison" Anecdotes
–Linkfest: Supreme Court Roundup

—

Regarding Ricci v. DeStefano, yet another tweet:

It's a funky day indeed when I agree wholeheartedly with Justice Scalia. Not since Kyllo perhaps.

The Court resolved the reverse discrimination case under Title VII of the Civil Rights Act of 1964, rather than under the Equal Protection Clause. Which is to say that the Court ignored the pesky fact that Title VII, as invoked in this case at least, is patently unconstitutional.

As Justice Scalia put it:

The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.

The best "peace" would of course be to acknowledge the plain language of the Fourteenth Amendment and concede that overt reverse racial discrimination in the name of eliminating (real or imagined) covert racial discrimination is — ahem — racial discrimination and therefore proscribed under the Equal Protection Clause. Disparate impact can never be the justification for disparate treatment — it's downright Kafkaesque. Two statutory wrongs do not make a constitutional right.

Finally, this was too long for me to tweet, so I had to post it to my Facebook instead:

Ginsburg's claim that there was no discrimination, because "everybody's score was equally discarded" is as disgraceful and disgusting as saying that there is no anti-gay marriage discrimination, since gays can equally marry someone of the opposite gender. Absolutely outrageous. Shame on her.

More on that today from George Will.

The case is Ricci v. DeStefano, No. 07–1428 (June 29, 2009) (PDF – 93 pages)

Previously:
–No Gender Left Behind

I once countered, in a throwaway post, that even government-run lotteries are technically an affront to liberty because a government-run lottery would crowd out private lotteries. People who want to go into the lottery business have a natural right to do so without having to compete with the government.

Guess I shouldn't have thrown that post away after all:

In a White House news conference, Mr. Obama dismissed as "not logical" the suggestion that a public plan, which is intended to create more competition and therefore act as a brake on the rise of health insurance costs, would undermine the private insurance market.
…
He brushed aside concerns that a government plan would drive private insurers out of business.

"If private insurers say that the marketplace provides the best quality health care, if they tell us that they're offering a good deal, then why is it that the government — which they say can't run anything — suddenly is going to drive them out of business?" Mr. Obama said. "That's not logical."

Not logical?

The federal government is, by definition, exempt from federal business taxes. (Is it "logical" to speak of the government taxing itself?)

The federal government can, and often does, exempt itself from most federal (and all state) business regulations.

The federal government can, and often does, acquire property (e.g., for office buildings) via eminent domain, wherever it likes, for whatever price it chooses to pay.

And, most importantly, the federal government can, and often always does, run operating deficits ad infinitum via its unique ability to borrow unimaginable sums of money, at uniquely favorable terms.

But, according to the president, to suggest, despite all this, that a government-run health care insurance option would not cripple — perhaps outright destroy — the private companies trying to compete with it is "not logical"?

President Obama is either a liar or an idiot. And he's not an idiot.

(Via F.E.E. Blog.)

ITEM:

The 2010 Templeton Fellowships will be awarded for the best essay on the topic:

"Everyone wants to live at the expense of the state. They forget the state wants to live at the expense of everyone."
–Frederic Bastiat (1801–1850)

Assuming Bastiat is correct, what ideas or reforms could be developed that would make people better aware that government wants to live at their expense?

For those 35 and younger only. More info here.

—

ITEM:

[International Policy Network's] Bastiat Prize for Journalism was inspired by the 19th-century French philosopher and journalist Frédéric Bastiat.

The prize was developed to encourage and reward writers whose published works promote the institutions of a free society: limited government, rule of law brokered by an independent judiciary, protection of private property, free markets, free speech, and sound science.

There are prizes for both "journalism" and "online journalism." Unfortunately, the deadline is June 30. Those with already-published blogposts might be interested, however.

—

ITEM:

[The Foundation for Economic Education] invites writers to address the following:

The conventional wisdom says the 1999-2006 residential real estate "bubble" in the U.S. and the subsequent collapse of global financial markets were caused by a failure of the free market. What’s wrong with that assertion?

Essays must be no more than 2,000 words. Surely a blogger can (and should) win this one!

1. Because it is an affront to our longstanding aversion toward double jeopardy, "punishes thought" and further erodes what little federalism-style checks and balances still exist in American governmental policy today.

2. Because it includes sexual orientation.

So as "you #1" (i.e., my fellow libertarians) sally forth into the blogosphere to argue against ENDA, be careful to remember that the "enemy of your enemy" may well be a James Dobson or Pat Robertson, and does not really share your libertarian views on — well, anything other than opposing ENDA.

And as "you #2" (i.e., my fellow gay activists) sally forth into the blogosphere to argue for ENDA, be careful to remember that the "friend of your enemy" may well not be a James Dobson or Pat Robertson and does not really share their bigoted views on — well, anything other than opposing ENDA.

I, meanwhile, already split that baby in the posts below.

Previously:
–A Gay-On-Gay Hate Crime?
–On the ENDA-T Conundrum
–On Religious Bigots' New-Found (Faux) Libertarianism

—

On a somewhat related note, let's also recall that the correct reason to oppose the Obama administration's plan to try to have the Census Bureau count same-sex marriages is not because gay marriages shouldn't be counted, but because no marriages should be counted.

The sole legitimate function of the Census is to enumerate people (i.e., who lives where) for two and only two purposes: the allocation of House seats and presidential Electors. There is nothing in Article I, Section 2 about counting marriages — or occupations, incomes, refrigerators or anything else. Such privacy-eroding inquiries by the Census are extra-constitutional at best and downright unconstitutional at worst.

Previously:
–Big Census is Watching (and Betraying) You

Faith organizations and individuals who view homosexuality as sinful and refuse to provide services to gay people are losing a growing number of legal battles that they say are costing them their religious freedom.

The lawsuits have resulted from states and communities that have banned discrimination based on sexual orientation. Those laws have created a clash between the right to be free from discrimination and the right to freedom of religion, religious groups said, with faith losing. They point to what they say are ominous recent examples:

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.
…
"People seem to say that if you enter the world of commerce, you lose all your First Amendment rights" to free exercise of religion, said Jordan Lorence, senior counsel at the Alliance Defense Fund, a Christian legal organization that has represented several businesses. "They … have become nothing more than vending machines, and the government can dictate the conditions under which they dispense their goods and services."

This is, of course, a decidedly libertarian argument. In Libertopia, all interactions, or at least all those involving competent adults, are strictly voluntary. There would be what the law calls "economic substantive due process," in the same way (and for the same reasons) that there is "privacy substantive due process" (e.g., Roe v. Wade, Lawrence v. Texas).

This is where libertarians tend to get into trouble. When confronted by non-libertarians with charges such as, "you oppose the Civil Rights Act" or "you believe in the right to be a racist business owner," we basically have to plead "guilty."

Of course, we also have the affirmative defense of asymptotic irrelevance. In Libertopia, there wouldn't be a Civil Rights Act because there wouldn't need to be a Civil Rights Act. Recall that Libertopia would be a capitalist society — and capitalism is always the first best weapon against bigotry. If you're a "greedy" businessperson, then you'll gladly buy from blacks, sell to Jews and hire gays. And if you don't, then you will suffer the punitive damages of competition — which far exceed those that could be imposed by any court of law.

So yes, on a strictly superficial level, libertarians would generally agree with the aforementioned laments by the bigots and theocrats. Point conceded.

But consider: What if the aforementioned litany of horribles had not been exclusively about gays?

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph an interracial couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a Jew about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a disabled patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to foreign students.

Most hard-core libertarians would be unfazed in their support of economic substantive due process and its requisite toleration of such private discrimination in most of these scenarios. In fact, I would wager that libertarians as a group would be more likely to defend all the bigots than the bigots themselves would be ("Blacks are Christians; our problem is with Jews." "Jews are white; our problem is with blacks." Etc.)

The "victimized" Christian bigots are of course not making a thorough, comprehensive (i.e., truly libertarian) demand for full entrepreneurial freedom of contract — and its reciprocal "right to refuse service to anyone." All they want to do is discriminate against gays. Not "anyone and everyone." Just gays.

Which is precisely why they should not be allowed to do so. As I have blogged previously: Whether or not you approve of bans on private discrimination is not the point — we are not debating the creation of Libertopia.

The point is instead whether, given that we already have such laws, are we going to craft and apply those laws consistently, logically and equitably — or are we going to short-circuit the entire raison d'être of such laws by allowing the majoritarian mob to fashion carve-outs for the very same insular minorities who are most in need of such laws?

If the religious bigots really want to invoke libertarian arguments to legitimize their bigotry, then they better be prepared to be judged by real libertarians about the entire spectrum of libertarian issues — including separation of church and state.

Think they'll go for it?

Previously:
–On the ENDA-T Conundrum
–eHarmony, eCommerce and eBigotry
–Separation of Ice Cream Parlor and State?

Just a few highlights:

• Even this court felt compelled to address the increasingly muddied conflation (most notably in California, obviously) of "mob rule" with "the will of the people" —

  Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it. While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. [Internal quotations omitted.]

  Perhaps, but that merely reinforces the importance of always keeping the proper sequence of the analysis in mind. A governmental action is not "right" simply because "the people" did it. The legitimacy, or illegitimacy, of governmental action exists independently of how that action came about. The government, or "the people," can do legitimate things unconstitutionally, and can do illegitimate things constitutionally. The two sets of actions — "legitimate" and "constitutional" — may have a very large intersection, but they are not identical.

• The court explicitly held that "discrimination based on sexual orientation" is not "discrimination based on gender" (e.g., "a woman can marry me but a man can't…"). That argument, though repeatedly tried, simply never works — even in friendly forums. It's probably time to retire it.
• As I tweeted while reading the opinion: Did the bigots really suggest that gay marriage bans are in fact not true "sexual orientation discrimination" because, technically, two straight men could not get married either? Have they really become that pathetic?
• As I noted repeatedly during the California drama, the net outcome in Iowa should not eclipse another all-important victory in the opinion: that sexual orientation is a suspect class subject to intermediate scrutiny. Even under the worst-case scenario in California, that high court's earlier ruling that gays are a suspect class will remain good law and will make any attempt to discriminate against gays impossible in that state without a constitutional amendment (i.e., like Proposition 8).
  
  Now Iowa has also found that any anti-gay laws, and not just this marriage ban, must be subjected to heightened scrutiny. This long quest to get a jurisdiction — any jurisdiction — to declare sexual orientation a suspect class has not only been achieved, but may even be snowballing.

  [Note: Recall that California does not have "intermediate scrutiny," but only "strict scrutiny." Iowa, meanwhile, specifically noted that it was not saying that sexual orientation discrimination does not warrant strict scrutiny, because "intermediate scrutiny" was sufficient to strike down the marriage ban. The Iowa court may someday find cause to apply strict scrutiny to future anti-gay laws, but intermediate-level scrutiny is itself a monumental victory that, like In Re Marriage Cases, can be cited as persuasive authority in future litigation in all gay rights matters, not just same-sex marriage. One cannot understate the importance of suspect class status, regardless of what the California Supreme Court ends up doing with Prop 8.]

• Ironically, the Iowa court conceded:
  
  

  Although a small number of state legislatures have approved civil unions for gay and lesbian people without judicial intervention, no legislature has secured the right to civil marriage for gay and lesbian people without court order. [Emphasis in original.]

  Going back to the bigots, isn't it astonishing how adeptly they can, with a (literally) straight face, point to the plethora of bigot amendments as proof of "overwhelming" opposition to full marriage equality while simulataneously insisting that gays are not politically powerless because they enjoy an anti-discrimination law here and there and civil unions or domestic partnerships in a jurisdiction or two? (More on Vermont below.)

• While I fully appreciate the basis for keeping these lawsuits grounded in state constitutional law (i.e., to avoid federal appeals), I still wish these courts would cite more often to the core holding of Romer v. Evans (i.e., that mere animus toward an insular minority is never a legitimate governmental interest). The Iowa Supreme Court said as much:
  

  Thus, the use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage. This approach is, of course, an empty analysis.

  Stated differently: Bigotry for the sake of bigotry is not a legitimate function of government. But if the campaign for full equality is ever to jump to federal courts, then people are going to have to start acknowledging that Romer was in fact written and is in fact still good law.

• On the other hand, it was wonderful to finally see a state supreme court dismiss, summarily and almost indignantly, the argument that marriage bans are justified by the "procreation" or "kids do best with…" arguments, and to do so based on the double-edged sword of simultaneous overinclusiveness (why ban gays who have no intention of ever having kids from getting married?) and underinclusiveness (why not ban bad straight parents from getting married?). Only New York and Washington States' high courts bought into that nonsense; hopefully no more courts will.
• Finally, the court stated the obvious: Civil unions — "separate but equal" — are inherently unequal and therefore an absurd, offensive and unacceptable compromise. Are you listening, New Jersey Supreme Court?

The case is Varnum v. Brien, No. 07–1499 (Supr. Ct. Iowa, April 3, 2009) (PDF – 69 pages).

Lambda Legal's press release here. More thoughts from Hunter of Justice, Con Law Prof Blog.

—

As for Vermont: As I tweeted: Celebrate, to be sure, but remember also — It should never have needed to be put to vote in the first place. Gays, like any insular minority and indeed like any individual, should never have to feel grateful to the mob for not acting like a mob — just as we should not be expected to thank a thief for not robbing us. The notion that "all power comes from the people" is a axiomatic statement of fact, little different from "anyone with a gun can kill you." Metaphysics is not politics, and neither is it ethics.

The correct question is one of legitimacy. The truth that "all power comes from the people" does not nullify the additional truth that such power can be abused — no matter how couched in blather about "democracy" and the "will of the people" it may be. If a statute — or a constitution or even a court ruling — allows power to be misused, then the statute — or constitution or even court ruling — is illegitimate.

So again, celebrate Vermont — but remember what you're celebrating: not "legitimacy" but only the "absence of illegitimacy." Two very different concepts indeed.

And stay indignant and vocal about the ludicrous schizophrenias in New York and now D.C. (where gays can "be" married but cannot "get" married) and New Jersey ("separate but equal" civil union gobbledygook).

As George Bush has demonstrated, you can pretty much destroy an entire country and more than a quarter of the public will still insist you did an O.K. job.

The target of Collins' comparison is New York's accidental governor, David Paterson, who — thanks to his wide, broad and deep incompetence — is setting new records for "drops in approval ratings."

But Paterson is not the target of this blogpost:

Meanwhile, the 32 Democrats who control the [New York] State Senate by one vote have discovered that a party with a one-vote majority is exactly as good as its weakest, dumbest and most venal member. This in a group where one guy is about to stand trial for beating up his girlfriend and several others give the impression of being willing to trade their vote for a television someone handed them from the back of a stolen truck.

Gay New Yorkers could have told you that.

And not just gay New Yorkers. Gay Californians had the state legislature, the governor and the attorney general on their side. Oops, they forgot to check with the "weakest, dumbest and most venal" element of their governing process — bigot voters. Outcome: Not exactly as planned.

Or gay Vermonters. State legislature on their side. Oops, they forgot to check with the "weakest, dumbest and most venal" member of their governing process — a bigot governor. Outcome: Not exactly as planned.

Of course, this phenomenon of "weakest, dumbest and most venal" is non-partisan. Remember how Republicans briefly exhaled a sigh of relief upon learning that they still had a filibuster-enabling bloc in the Senate? Well, the three "weakest" members of the Republican caucus promptly put that wishful thinking in its place.

As for the Democrats in Congress (and remember, there are an awful lot of them now), they still can't come up with the votes to repeal DOMA or DADT. Why? Three reasons: weak, dumb, venal.

Or maybe not. Maybe to be weak is to be powerful and to be dumb is to be smart. (Since all politicians are by definition venal, we'll leave that one aside for the moment.) The least Democratic members of the New York State Senate essentially captured the entire legislative agenda. So did the three New England pseudo-Republicans in the U.S. Senate. And who could possibly forget Joe Lieberman?

Sometimes "weak as strong" goes Mobius Strip and becomes "weak as strong as weak as …" See, e.g., Arlen Specter, who is either the strongest weak Republican, or the weakest strong Republican, in the Senate. Or maybe he's not even a Republican anymore — hard to tell these days. But card check still hinges on his weak-strength/strong-weakness.

The idea of "weak as strong" even transcends the legislative branch. Recently, a silly woman wrote a silly book espousing a silly idea: That Supreme Court Justice Anthony Kennedy is a ("modest") libertarian. Um, no. The best way to describe Kennedy (or at least post-O'Connor Kennedy), as I have explained previously, is as the perennial chaser of the swing vote. Because on the Supreme Court, the swing vote — whether as "weakest conservative," "weakest liberal" or "weakest whatever" — is of course the strongest voice: the one who gets to write the controlling opinion.

Democracy fetishists (and their incestuous siblings, the political fetishists) tend to forget that "politics" is nothing more than "politicians" — all of whom seek, to the greatest extent possible, to maximize their own power, prestige and influence. If being (or acting) "weak, dumb and venal" works to that end, then few if any politicians will hesitate to do so.

Furthermore, a system that is rigged to pull both partisan extremes to the political center will inevitably maximize the power at the center. But what is "the center" but the weakest partisans? The system encourages weakness; the system rewards weakness. To be weak can be extraordinarily powerful.

So stop acting surprised when you see "weak, dumb and venal" politicians all around you casting "weak, dumb and venal" votes.

(Part One here.)