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…

What I would prefer is to look at the relative magnitude of this man's achievements — relative to two other groups that also had, so to speak, a tremendous impact on human populations:

1. The Communists. Soviet and Chinese Communism both tried, at least ostensibly, to do precisely what Borlaug did: bring principles of systematized mass production to agriculture. The problem, however, was that Communism (and socialism and Marxism and …) requires as a key premise the denial of the very existence, let alone the value, of innovation in economic activity. To a Communist, a farm (or a factory) is no different from a forest or a river: it is a mere "resource," that always existed and needs no entrepreneurial skill to utilize.

To a Communist, the only way to increase agricultural output was "more of the same" — more tractors, more pesticides, more peasants, etc. The concept of utilizing more science, more thinking, was incomprehensible to Stalin and Mao. And when their "plans" and "leaps" not only failed to enhance agricultural yields, but actually reduced them (i.e., through mismanagement, pollution, etc.), they then turned to an alternative somewhat less incomprehensible to them: slaughter the people. A dead peasant consumes no food.

2. The Dogmatic Religions. Almost all the blood spilled in the history of humanity has been in God's name. One of the most insolent responses by the apologists of dogmatic religions, especially the Roman Catholic Church, is that yes, religions have an ignoble past — and even an ignoble present (the Vatican's neanderthal attitude toward women, the Mormon Church's soulless attitude toward gays, Islam's … well, everything about Islam) — but they strive to atone for their past sins. The Church does good works…

Good works? Compared to Borlaug? Religion's apologists dare make such a comparison? What is a stray missionary expedition, parochial school, hospital or adoption charity (all of which, we should recall, are to this day tainted with some cruel sin of their own) compared to feeding the entire world?

There is a certain irony to the fact that the old saying, "Give a man a fish / teach a man to fish…" is in fact not from any dogmatic religious text (though many if not most Christians ignorantly think it is). For had any great large religion actually embraced this concept (shall we start calling it the Borlaug Doctrine?), then they would not now have to squirm under the light of their blood-soaked past and vomit-soaked present and blather on about their puny little "good works."

—

A post script:

He insisted that governments pay poor farmers world prices for their grain. At the time, many developing nations — eager to supply cheap food to their urban citizens, who might otherwise rebel — required their farmers to sell into a government concession that paid them less than half of the world market price for their agricultural products. The result, predictably, was hoarding and underproduction.

As I have said many, many times: The only reason there are poor people in the world is because thugs with guns keep them poor.

Reason Magazine's 2000 interview with Borlaug here.

The "Baker v. Nelson" that Senator Chuck Grassley referred to, twice over two days, during the Sotomayor confirmation hearings was not the Minnesota decision itself: 291 Minn. 310, 191 N.W.2d 185 (1971). It was the subsequent one-paragraph dismissal of a pending federal appeal by the Supreme Court, 409 U.S. 810 (1972), "for want of a substantial federal question."

The precedential value of such a dismissal (a very rare move) can be, and is, debated in and of itself. The objective (i.e., non-bigot) consensus is that a "federal question dismissal" is only binding in regards to subject matter jurisdiction. And if federal courts lack jurisdiction over a state court case, then of course the underlying merits of that state court ruling remain binding. All that federal Baker v. Nelson says is that state Baker v. Nelson could not be appealed in federal courts given the specific facts of the case and the status of federal Fourteenth Amendment jurisprudence, as it stood in 1972. Nothing more.

But some legal analysts, and all anti-gay bigots, try to bootstrap that flowchart into a claim that federal Baker v. Nelson was then, or is now, somehow a sweeping, all-encompassing "decision on the merits" (i.e., of whether any gay marriage ban can ever be challenged in any federal court). It is not.

All federal Baker v. Nelson says is that, in 1972, same-sex marriage was not a "substantial federal question."

But of course, this is not 1972.

Any constitutional law scholar (or at least those not appearing before a Senate confirmation panel) who researches the issue (Sotomayor testified that she was unfamiliar with it) will tell you that Zablocki v. Redhail (1978), Romer v. Evans (1996) and Lawrence v. Texas (2003) — not to mention DOMA (1996) — have clearly and unambiguously rendered federal Baker v. Nelson a nullity. (State Baker v. Nelson is still perfectly good law — for now.)

Precedent is only precedent until it isn't anymore. Anti-gay discrimination generally, and same-sex marriage specifically, are now obviously "substantial federal questions," period. To suggest otherwise is self-abasing constitutional insolence.

On timely motion, the court must permit anyone to intervene who … claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
–Federal Rule of Civil Procedure 24

Some very misinformed gay bloggers are completely misunderstanding, and misreporting, the news that Lambda Legal, the ACLU and other major gay advocacy groups are petitioning to intervene in the controversial "Olson/Boies" lawsuit challenging Proposition 8 (Perry v. Schwarzenegger).

Box Turtle Bulletin:

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olsen [sic] and Boise [sic] oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

Towleroad:

The argument for the Johnny-come-lately LGBT groups butting out is more persuasive than just a me-first, knee-jerk reaction[.]
…
It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or — depending on your capacity for cynicism — are intentionally dragging down a suit from a rival group working for the same cause.

The Box Turtle Bulletin clip, besides misspelling both Olson's and Boies' names, is especially frustrating in its obliviousness. Are we really dealing with "four captains trying to pilot the ship" — or "two captains trying to take back the cockpit from a pair of drunken stewardesses"? I don't know.

What I do know is that if my interests are being represented, against my will and against my reasoned judgment, by parties I conclude are not well suited to do so, then I am surely entitled to act on my own behalf. Rule 24, and Lambda's actions, are deeply routed not only in law, but simple ethics and common sense.

But so what, right? Burn her anyway!

The following is the comment I left at Towleroad:

Anyone who thinks that Lambda Legal and the ACLU are "johnny come lately" groups is too hopelessly uninformed on the history of gay rights litigation to be taken seriously.

Meanwhile, intervention is a matter of right. If the potential intervenor (and the judge) believe that the litigation affects the intervenor and that the litigants are not likely to adequately represent the intervenor's interests or legal arguments, then it is wholly appropriate to allow the intervenors to represent their own interests. It's called "due process" — maybe you've heard of it?

Or are we suddenly opposed to allowing people to sue for their rights?

One more point: The term is "amicus curiae" — friend of the COURT. It says nothing about being a "friend of the plaintiff."

Maybe Olson & Boies will prevail. Maybe Lambda Legal is reaching the wrong conclusion and taking the wrong action. Entirely possible.

But any gay who questions Lambda's motives, their superior ability to strategize on gay rights litigation, or their proven track record, is just being insolent for the sake of insolence and is humiliating himself before the entire gay blogosphere.

—

Yes, I intend to blog about the Massachusetts DOMA lawsuit. For now, here's a tweet I posted:

I see one interesting point in the Mass DOMA complaint. The rest is gobbledygook that will likely be dismissed for lack of standing.

Stay tuned.

The courthouse in Jackson County should have to take town several copies of the Ten Commandments because they are an improper governmental endorsement of religion, a federal lawsuit argues.

The lawsuit by the American Civil Liberties Union of Kentucky and a county resident, Eugene Phillips Jr., seeks a ruling that nine copies of the biblical laws on the courthouse walls in McKee are unconstitutional. It also seeks an injunction ordering the county to take down the copies.

The lawsuit is the latest fight over copies of the Ten Commandments in government buildings in Kentucky, which has been a key battleground on the issue.

Maybe they just don't have phones in Appalachia. Or newspapers. Or literacy. Because if anyone in charge of running courthouses in Kentucky would bother to talk to anyone else in charge of running courthouses in Kentucky, then they would learn that you can't paper the walls with nine — count 'em, nine — Decalogues by themselves. McCreary County v. ACLU, 545 U.S. 844 (2005).

What you can do is dilute and debase the religion you claim to celebrate by insisting that the Ten Commandments aren't "religious" at all, but merely one among a collection of "important historical symbols and figures." "Historical" (i.e., not "religious"), "important" — but no more important than Hammurabi's Code or Magna Carta (understandable, given the pesky fact that only four Commandments have anything remotely resembling an analogue to secular law). Van Orden v. Perry, 545 U.S. 677 (2005).

It never ceases to amaze me how incapable theocrats are of recognizing the inherent contradiction behind their relentless quest to turn courthouses (and schools and … ) into churches. By stripping the Ten Commandments of its uniqueness, the theocrats actually hurt their own cause (i.e., the erosion of the Wall of Separation). Better a Decalogue be deemed puny enough for a courthouse rather than too sacred for a courthouse?

That, in their view, somehow advances Christianity?

More:

[Judge-Executive William O.] Smith said he had not seen a copy of the lawsuit but that most county residents would support keeping the Ten Commandments displayed in the courthouse.

Exactly the point — to anyone who understands the First and Fourteenth Amendments (which this "Judge-Executive" clearly does not). The First Amendment was designed precisely to frustrate "most" people (i.e., the majoritarian mob) and to protect the rest of us — all the way to Eugene Phillips Jr. — even if he is only "one negative person."

(Via Religion Clause.)

Previously:
–On the Dixie County Decalogue
–"Jesus Judge" Does a George Wallace Impersonation
–Activist Legislators: Better Five Wasteful Monuments Go Up…
–"One Negative Person"
–B.A.T. Archives: One Nation, Under A Generic Monotheistic Deity
–What Part of "Establishment" is Unclear?
–CRS Recommendation: The Law of Church and State

The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India's Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution.

So this is clearly an "end of the beginning" situation rather than a "beginning of the end" (not even the U.S. can claim that status).

Meanwhile, let's not lose sight of how this landmark (if local) decision is serving to unite and inspire the entire nation of India — in religiously commanded hatred and bigotry:

"This Western culture cannot be permitted in our country," said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.
…
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India's deeply held traditions.

"We are totally against such a practice as it is not our tradition or culture," said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.

In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, "at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable."

Progress? That's a relative concept.

"I like your Christ. I do not like your Christians. They are so unlike your Christ."
–Mohandas Gandhi

The case is Naz Foundation v. Government of NCT of Delhi (PDF – 105 pages).

Previously:
–Global Christians Race to the Bottom on Gay Bigotry
–Naked Bigotry Update: Pope Urges Anglicans to Reject Gays

But most important, what ensures survival in a zombie story are the progressive ideals of common cause and collective action. A small group of people from varying backgrounds are thrust together and find that they can transcend their differences of age, race, and gender (the typical band of survivors is a veritable United Nations of cultural diversity). They come to understand that if they're going to get out of this with their brains kept securely housed in their skulls and not travelling down some zombie's gullet, they've got to act as though they're all in it together. Surviving the tide of zombies requires community and mutual responsibility. What could be more progressive than that?

To which a libertarian replies:

The politics tend to lean left, but zombie entertainment approaches a level of discontent more elemental than mere anti-capitalism or shopping mall burlesque. Apocalyptic and piously disdainful of the carnal realities of human life, zombie cinema is a shocking, uproarious meditation on the nature of death—on what, if anything, we owe to the dead.

To which I replied:

What a Randroid would say, not entirely incorrectly, is that zombie movies celebrate reason over mysticism. Ever read Rand's West Point commencement address with its brief "science fiction" introduction?

Besides the obvious anti-religion backdrop required in any zombie movie, the people who survive are invariably the ones who think, reflect, reason and act. The ones who just sit, hope –and eventually scream — are the ones who perish.

A better question would be why so many of these movies have anti-Romanticist endings these days (i.e., the protagonists perish in the end anyway).

"Cloverfield" comes to mind, as does "Alien 3," "The Happening," "Invasion of the Body Snatchers" (1978 version), as well as the cut-away endings of the video games "Dead Space" and "F.E.A.R."

Leaving an opening for a sequel is one thing, but there's something disturbing and unfortunate about the popularity of gratuitous, existentialist, "it was all for nothing" endings in zombie and apocalyptic fiction.

I've also noted, but off-blog I think, the no-mere-coincidence that George Lucas made droids (i.e., not people) the main target of mass destruction in I-II-III at about the same time that Peter Jackson did the same with orcs (i.e., not people) in LOTR. Easier to justify the violence that way.

Another important trend to watch is the ratio of "government caused this" scenarios (e.g., "Day of the Triffids," "Colossus: The Forbin Project," "TDTESS v1.0") to "capitalism caused this" scenarios (e.g., "Jurassic Park," "Poltergeist," "Mad Max," "Waterworld," "TDTESS v2.0").

Previously:
–Klaatu's Externalities, Then and Now

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

We all knew the likely outcome after oral arguments. We all knew the absurdity of such a monumental question being decided on downright silly parlor debates about "amendments" versus "revisions."

We all knew what wasn't at stake: The all-important finding that sexual orientation is a suspect class entitled to heightened scrutiny still stands in California (and now in Iowa as well). And the "separate but equal" domestic partnership option will remain available to future same-sex couples in California.

We all knew that the activists would come charging out of the gate with their plans to get a repeal initiative on the ballot.

So are there any bangs to be crafted out of this field of whimpers? Perhaps:

–The very-oft-repeated refrain from the majority that "only" the word marriage was at stake, and that the "separate but equal" domestic partnership regime endures, seems to me obviously intended, with disdain and even hostility, for the bigots. One can almost see, emerging from the margins in faint font, "Okay, you win — for all the good it will do you…"

(Someone had a deliciously snarky suggestion yesterday: The California legislature could, consistent with Prop 8 and the decision, limit the words "marriage" and "married" to heterosexual couples but still enact a new status called "wedding" and "wedded" to gays. I'm sure Maggie Gallagher would have a conniption over that.)

–As time passes, it will become increasingly clear that the most tragicomic character in this farce was Jerry Brown, already a laughable and pitiful politics addict long before Prop 8. The court was merciless in its impatient dismissal of Brown's asinine "the constitution is unconstitutional" argument. The lopsided vote notwithstanding, one can only wonder how the case might have played out had Brown not tried to be — well, a politician — and simply toed the "revision not amendment" line. Idiot.

—

Most of the voluminous decision addresses the otherwise uncaptivating "amendment versus revision" question and is nowhere near quoteworthy. Two exceptions deserve highlighting, however:

First:

Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. [Emphasis added; internal citations omitted.]

This merely restates the California constitution itself:

All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require. [Emphasis added.]

As I noted previously, both passages confuse, horrifically, the words right and power.

It is true, as an axiom, that all political power resides in the people. It is true, as an axiom, that the mob always has the ability to behave like a mob. But these observations are mere matters of unambiguous fact. They are on a par with saying that a person with a gun has the ability to kill. That is a metaphysical statement, not an ethical one — and certainly not a political one.

But such statements, such factual observations, are totally orthogonal to the question of the legitimacy of what "the people" (nee "the mob") do.

Might does not make right. Neither does majority make right.

Second:

As we have observed in past cases, "The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's." The progressive movement, both in California and in other states, grew out of a widespread belief that "moneyed special interest groups controlled government, and that the people had no ability to break this control." … The initiative was viewed as one means of restoring the people's rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments. [Emphasis added.]

In their quest to abridge property rights and freedom of contract, the progressives — and their modern-day liberal heirs — inadvertently enabled the abridging of marriage rights and equal protection by a new category of nefarious "moneyed special interest groups" (i.e., the Mormon and Catholic churches). Go figure.

I, qua libertarian, can't help but feel just a little bit smug over that thought (though I would gladly have traded that emotion for a different outcome here).

The case is Strauss v. Horton, No. S168047 (Supr. Ct. Cal., May 26, 2009) (PDF – 185 pages)

—

Meanwhile:

Two of the nation's top litigators who opposed each other in the Bush v. Gore election challenge in 2000 have joined forces to seek federal court intervention in California's gay marriage controversy.

Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

Olson said today that he hopes the case will wind up before the U.S. Supreme Court.

The lawsuit seeks a preliminary injunction against California's Proposition 8 until the case is resolved.

The only way this becomes a federal case is by invoking Romer v. Evans — which of course is entirely on point and which, under any impartial reading, clearly requires that Prop 8 be invalidated.

But are ("activist") federal judges ready to acknowledge that Romer demands that all bigot amendments (and not just California's) be struck down? The smart money (e.g., Lambda Legal) says no. But Olson and Boies are no slouches either — or are they just hired guns, as Kenneth Starr was a hired gun for the bigots in this lawsuit?

Stay tuned…

Previously:
–On the [Original] California Gay Marriage Decision
–On the Petition to Overturn Proposition 8
–On the Brown Proposition 8 Brief
–Thoughts Going Into the California Oral Arguments

Two of the nation's top marriage equality litigators will lead a nationwide phone briefing on Tuesday, May 12th, to discuss current and upcoming developments in same sex marriage. The call is free and open to the public.

The discussion will be led by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders.

Jennifer Pizer served as co-counsel on the case that established the rights to equality for same-sex couples (In re Marriage Cases), and the subsequent challenge to Proposition 8, Strauss v. Horton. Mary Bonauto served as co-counsel in Baker v. State of Vermont, establishing that Vermont same-sex couples are entitled to all the benefits and protections of civil marriage.