As I had said all through the great gay marriage tsunami of years past: States have no "rights." Only individuals have rights. States have powers — powers that they can and do abuse. The question of how social issues, especially gay marriage, will impact the Tea Party movement, is not only unanswered but has been insolently ignored by both those inside and outside the movement. That ends now. (And, as the race to make "yeah, but…" seem non-hypocritical begins, I think it will not end well for the Tea Partiers.

The silence continues to deafen:

While many conservative organizations immediately decried a federal judge's decision last week to invalidate the federal ban on recognizing gay marriages, tea party groups have been conspicuously silent on the issue.

The silence is by design, activists with the loosely affiliated movement said, because it is held together by an exclusive focus on fiscal matters and its avoidance of divisive social issues such as abortion and gay marriage. Privately, though, many said they back the decision because it emphasizes the legal philosophy of states' rights.

No rights. Powers. Abuse. Etc.

"I do think it's a state's right," said Phillip Dennis, Texas state coordinator for the Tea Party Patriots. The group does not take a position on social issues, he said, but personally, "I believe that if the people in Massachusetts want gay people to get married, then they should allow it, just as people in Utah do not support abortion. They should have the right to vote against that."

Everett Wilkinson, state director for the Florida Tea Party Patriots, agreed: "On the issue [of gay marriage] itself, we have no stance, but any time a state's rights or powers are encouraged over the federal government, it is a good thing."

What kind of party (or movement or whatever), especially one that claims to be radically transforming the political landscape at the most basic constitutional and philosophical levels, "does not take a position on social issues"? Setting priorities is one thing; fingers-in-ears la-la-la chanting is something else entirely.

Keep in mind that this phenomenon is not an inconsistent message within the movement, comparable to Dixiecrats or Rockefeller Republicans. It's a perfectly consistent absence of a message. Indeed, it appears some Tea Partiers actually conflate the two and boast that "the lack of a message is the message" (or: "I'm as mad as hell, and I'm not gonna think about this anymore!!!") Again, good luck "radically transforming the political landscape at the most basic constitutional and philosophical levels" with that.

This vapid tunnel vision is, of course, to be expected, since the Tea Party's positions (again, is the plural "positions" even appropriate?) are based on no true theory of law or politics. The Tenth Amendment argument upon which the Tea Party now relies was a total afterthought, a means to an end, an excuse.

This is exactly why libertarians should avoid the Tea Party, at least for now. Libertarianism is a philosophy (with an associated school of jurisprudence and a theory of constitutional interpretation that consists of more than, "Tenth Amendment – Fuck Yeah!").

Libertarianism is a philosophy that, hopefully, can be and is applied consistently across all or most policy issues. It is, contrary to the kindergarten screeches of some, more than a loose collection of "conservatives who want to smoke pot." Compare and contrast that to the Tea Party, a loose collection of "conservatives who sorta kinda think that the Tenth Amendment sorta kinda means something, sometimes."

Incidentally, another reason that libertarians should avoid the Tea Party, just like they should have avoided the vulgar anti-gay bigot Ron Paul, was that even if the Tea Partiers do think that the Tenth Amendment sorta kinda means something, sometimes, there is no evidence whatsoever that they think the Fourteenth Amendment ever means anything. No rights. Powers. Abuse. Etc.

More thoughts at gaypolitics.com.

This is the one more apropos to Saint Patrick's Day:

Enjoy the day…

Previously:
–In Honor of St. Patrick's Day
–On My New-Found Appreciation for Irish Dirt

ITEM: T. Boone Pickens has abandoned his efforts to persuade the nation (i.e., its politicians) to erect massive new wind farms and to convert most vehicles to compressed natural gas. Pickens' plan was in reality a shameless self-serving exercise in rent-seeking, as I chronicled here.

ITEM: A business owner in Wisconsin saw both his free speech and property rights violated after sheriff's deputies entered his premises and forcibly removed his upside-down American flag. The sheriff's rationalization? "It is illegal to cause a disruption." One of many previous posts here.

ITEM: A state judge in New Jersey has ruled that the state's journalist shield law does not apply to bloggers. In a derisive "pajamas clad" style insult, the judge averred:

Courts are now being faced with the task of evaluating a virtually limitless number of people who claim to be "reporting" on issues, but who are, many times, doing little more than shouting from atop a digital soapbox.

I have previously shouted from atop my digital soapbox that journalism is in fact not a true "profession," but merely an occupation, and therefore deserves no special treatment under so-called "shield laws." The First Amendment is all the protection anyone needs, whether in pajamas or otherwise.

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A reminder that you can follow me on Twitter and Facebook.

ITEM: The California Supreme Court will release its opinion regarding a challenge to Proposition 8 on Tuesday morning. Archive of previous marriage posts here.

ITEM: Speaking of California and the courts, state Attorney General Jerry Brown has petitioned the United States Supreme Court to reinstate his state's overturned ban (first noted here) on the sale of "violent" video games to minors. The petition is frivolous, as every single attempt to pass such laws has (quite correctly) failed in the courts.

ITEM: Speaking of frivolous lawsuits, a judge is considering dismissing one by Donald Trump, in which he claims he has been defamed by a biographer who insists that Trump is not a "billionaire" but merely a "millionaire." Previous post here.

ITEM: Speaking of lowered estimates of worth, the Pension Benefit Guaranty Corporation has announced that its financial condition has deteriorated sharply and now faces a deficit of over $33 billion. A taxpayer bailout is inevitable, despite longstanding insistence that the entity is self-funding (i.e., until it isn't anymore). Previous update, with background links, here.

ITEM: Documents obtained under the Freedom of Information Act now irrefutably prove that the Treasury Department forced financial firms to accept taxpayer money. The funds are now being used as an excuse to exercise control over the firms, which have been libelously portrayed as having "asked" for government bailouts. Previous post here.

ITEM: The Social Security and Medicare Trustees released their annual report on the financial condition of the two entitlement programs. As was universally expected, the key date of when Social Security will go into deficit (at which point the so-called "trust fund" will irrefutably be exposed as a worthless accounting gimmick) accelerated from 2017 to 2016 (i.e., just in time for President Obama to leave office). Flagship post here.

ITEM: An intermediate appeals court in Florida has ruled that the state's ban on adoption by gay couples does not extend to denying recognition to such adoptions conferred by other states. The result is (or ought be) uncontroversial, since adoption (unlike marriage) is a judicial decree and is therefore unambiguously entitled to full faith & credit. Previous post on Florida adoption here; see also this post about Oklahoma bigots' monstrous (and failed) attempt to nullify out-of-state adoption by gays. (Embry v. Ryan, 2009 Westlaw 1311599 (Fla. 2nd District Ct. App., May 13, 2009).

ITEM: Meanwhile, the Wisconsin Supreme Court has agreed to hear a challenge to that state's bigot amendment on so-called "dual question" grounds (i.e., that "banning marriage" and "banning civil unions" are in fact two separate questions that were improperly combined into one proposition). Previous post here.

ITEM: A bill has been introduced in Congress to guarantee up to seven "paid" sick days for all employees. I explained in this post on "paid" vacation why there is no such thing as "paid" time off.

ITEM: The European Union has levied a $1.45 billion fine against Intel "for using strong-arm sales tactics in the computer chip market." How one can "strong-arm" a customer in a voluntary transaction remains unanswered. I have long chronicled the EU's similarly obscene extortion campaigns against Microsoft and Apple — one example here.

ITEM: Work has been halted on the new presidential helicopter, which even President Obama said was unnecessary and costly. I noted in a recent Questions post that the project seemed to be "too pork to fail." Some in Congress are still threatening to force the project on the president.

ITEM: Meanwhile, President Obama has selected New York City Health Commissioner Thomas Frieden to lead the Centers for Disease Control. As I have chronicled over the years, Frieden has a quite expansive view of the meaning of "disease" and government's (anti-business, anti-property, anti-privacy) role in combating it. Examples include Friden's campaigns for smoking bans, trans fat bans, taxpayer-funded condoms, and compulsory tracking of persons with diabetes.

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PERSONAL UPDATE: In case you hadn't noticed, I recently relocated from New York City to Glendale, Arizona. (Yes, I know the skyline banner is still displayed. Working on it.) The triple whammy of moving, settling into the Arizona business I purchased, and having to sell my Manhattan apartment have forced this hiatus upon me. But as this post demonstrates, the hiatus is winding down, and I hope to be blogging at my old pace in the next week or two. In the meantime, there's always Twitter.

ITEM: Another police tasering of a child in a school setting. This time: a 13-year old girl. The officer's excuse? "[She] is not a normal-sized 13-year-old child. She is 5'4" weighing 185 pounds and very strong." This comes less than a month after taser-wielding police killed a 15-year old boy. Flagship post here; most recent post here.

ITEM: The White House has announced that it plans to knowingly breach its fiduciary duty to taxpayers by purchasing 17,600 "green" vehicles from Detroit automakers. The General Services Administration doesn't actually need the cars (though it will scrap older but still perfectly functioning cars in a classic case of the Broken Window Fallacy). Rather, the administration openly concedes that the sole purpose of the $285 million pork-barrel program is "supporting auto demand during this period of restructuring in the industry." Previous post here; full archive here. (Via Blagnet.)

ITEM: A major new study of the federal restriction of over-the counter pseudoephedrine (a/k/a "the war on sniffles") has concluded that the program, meant to curb methamphetamine production, has been a complete failure. (PDF – 45 pages. Via Marginal Revolution.)

ITEM: A reminder that Friday, April 17th is the annual Day of Silence, in which gay and gay-friendly students peacefully protest bullying and discrimination by refusing to speak in class. Previous post here; see also here.

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PERSONAL UPDATE: Hiatus re-commences this week. Expect little or no blogging. But be sure to follow me on Twitter.

ITEM: The civilized world is, for some bizarre reason, surprised to learn that the new Sharia government in Pakistan's Swat Valley promptly commenced doing what Sharia governments always do: engage in barbarian bloodlust. In this instance: brutally flogging a 17-year old girl (AP video here; viewer discretion advised). One of many Sharia-related posts here.

ITEM: The Obama Justice Department is facing some internal disputes over the bill working its way through Congress that would give the District of Columbia full representation in the House. In a move reminiscent of John Yoo, Attorney General Holder essentially told his staff to disregard and bury a memo concluding that the bill is unconstitutional — which of course it is.

ITEM: The recession has, unsurprisingly, triggered a serious deterioration of Social Security's financial condition. The next trustees report will almost certainly reveal that the program will run deficits earlier, perhaps much earlier, that the long-reported 2017 estimate — at which time the so-called "Social Security Trust Fund" will be irrefutably exposed as the accounting fiction that it is.

ITEM: New York State's highest court has agreed to hear an appeal by anti-gay bigots challenging lower court decisions holding that the state must recognize gay marriages from other jurisdictions even though New York itself does not sanction same-sex marriage. While calling the lawsuit "frivolous" might be unfair, it is in fact longstanding policy in New York to grant such (nominally inconsistent) recognition (e.g., for common law marriages, cousin marriages, age of consent issues, etc.).

ITEM: A 15-year old boy in Michigan died after being tasered by police, who initially defended the act because the boy" attempted to fight the officers." If the boy was unarmed, then the use of the taser was almost certainly inappropriate. An investigation is underway. Flagship post here.

ITEM: A federal district judge has ruled that adding "under God" to the Texas Pledge of Allegiance (which is recited in Texas schools) is not a violation of the Establishment Clause. The judge cited precedent suggesting that "under God" is sufficiently non-specific to survive First Amendment scrutiny, as well as the fact that students can opt out of the recitation. Flagship post here; see also here.

ITEM: The New York City Council has extended rent regulation for another three years. To do so, the Council had to formally declare a "housing emergency" — the "emergency" has existed for sixty years now.

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REMINDER: Substantive blogging will continue to be light for the next few weeks. But I still Twitter up a storm!

The California Supreme Court will uphold Proposition 8, the ban on same-sex marriage passed by the state's voters in November. It is a decision that progressives ought to welcome.
…
[T]he court's rationale will almost certainly strengthen a fundamental tenet of the progressive movement: the right of ordinary citizens to maintain authority over their state constitutions.
…
State courts stand at the intersection where constitutional law meets direct democracy. Indeed, the progressive movement engineered the traffic pattern. … But every state constitutional court must acknowledge that in a system that preserves the right of citizens to amend their constitutions, a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people.

But for the repeated use of the word "progressive," one could easily suspect that the piece was written by Kenneth Starr. The worldview undergirding the piece is essentially indistinguishable from Starr's arguments before the California Supreme Court defending Proposition 8.

In fact, the piece was written by Jeff Amestoy, former chief justice of the Vermont Supreme Court and author of Baker v. Vermont, the 1999 opinion that led to the nation's first civil union statute. (More on Vermont in Part Two.)

While cloaked in lofty rhetoric, Amestoy's piece is deeply disappointing — and deeply disturbing.

Disappointing, not only because it argues in favor of Prop 8. Not only because it ignores the fact that a popular vote generally does not reflect "the will of the majority," but merely a majority of those who can and do vote (which often turns out to be a puny minority — see this old post).

No, the piece is also disappointing because it shows yet again the timidity of judges who not only buy into the notion of "deference," either to legislatures or plebiscites, but who also refuse to entertain, indeed completely ignore, the counter-majoritarian difficulty and its relation to the notion of sovereign (i.e., "inalienable") individual rights.

It's quite simple, really: To insist that there is, at least asymptotically, an "ultimate constitutional authority of the people" is to say that the only true right is the right of the mob to be a mob. It is to disregard, recklessly, the entire history of the founding of this nation. It is, bottom line, to pretend that the Declaration of Independence was never written.

Amestoy's piece is also disturbing, and not just disappointing, in that his rationalization of unbridled majoritarianism is so unapologetically consequentialist. Sure, Amestoy acknowledges, direct democracy has resulted in bigot amendments in about half the states. But those will erode in time. And besides, look at how much "our side" (i.e., the progressive movement) has achieved with it. We've beaten reactionary conservatives more than they've beaten us. So if we predict that we can still keep beating them in issues beyond same-sex marriage, then why would we want to curtail direct democracy? Why limit mob rule today if we're likely to be the mob tomorrow?

There is one and only one modern, civilized, American theory of jurisprudence and statecraft: Respect for the structures and processes laid down in constitutions is a necessary — but not a sufficient — condition for the legitimacy of governmental action. The sufficient condition is instead respect for individual rights, including the individual right to equal protection under law.

The statement, "the will of the people must be obeyed" is an exogenous constraint, not a normative pronouncement. It is a fact, not a conclusion. It is, more often than not, something to be lamented — like mortality or the scarcity of resources. It is rarely something to be celebrated for its own sake.

A "bad" (i.e., rights-infringing) outcome derived from a "good" (i.e., democratic) process does not mean the outcome wasn't really all that bad, but rather that the process wasn't really all that good.

The legitimacy of a government must derive equally from what it does and from how it does it. One must not be allowed to trump the other.

(Part Two here.)

Previously:
–From the Archives: On Gays and Democracy

ITEM: Pakistan has reinstated Chief Justice Iftikhar Chaudhry, who was brazenly ousted by former dictator Pervez Musharraf. Chaudhry, along with several other Supreme Court justices, were poised to strike down Musharraf's declaration of "emergency powers." I blasted both Musharraf and the U.S.' embracing of him as a "trusted ally" back in 2007.

ITEM: The Fifth Circuit Court of Appeals has upheld a Texas law requiring a moment of silence at the start of the day in public schools. The court noted the legislature's (nominal) emphasis that the ritual was not intended exclusively, or even primarily, for prayer. Although I never blogged about this particular case, I have weighed in on similar laws and challenges here. Croft v. Perry, No. 08-10092 (5th Cir, March 16, 2009) (PDF – 23 pages).

ITEM: Three consumer-oriented businesses — Costco, Starbucks and Whole Foods — have proposed a compromise version of the controversial (and Orwellian-named) Employee Free Choice Act. The proposed alternative would leave portions of the bill intact, but would scrap so-called "card check." I explained the absurdity of card check here.

ITEM: Lambda Legal has announced that it will represent the authors of a book about Anna Nicole Smith that suggested Howard K. Stern is gay. Stern is suing the authors on the (archaic)theory that merely calling someone gay is per se defamation. Previous post here.

ITEM: Meanwhile, a major academic study has debunked the myth that gays as a demographic cohort enjoy above-average economic prosperity. Indeed, the study (PDF – 31 pages) shows that gays are, all else equal, more likely to live in poverty than similarly situated heterosexuals. I have repeatedly condemned such stereotypes, especially those repeatedly posited by one particular gay-owned, for-profit market research firm, Witeck-Combs. Flagship post here; see also here.

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PERSONAL UPDATE: Many of you have undoubtedly noticed that my substantive blogging has declined precipitously over the past two weeks. The reasons are good ones: I closed on a property with the proceeds from my severance check and am now putting the finishing touches on starting my new career (far far away from Wall Street). Unfortunately, blogging must remain at "little to none" for the next month or so. But I still Twitter up a storm!