The future of evolution and perspectives on the mind

How's that for a ponderous sounding title? Actually, it is exactly the type of title a 19th or early 20th century philosopher or scientist might choose that would get me racing to amazon.com.

I was thinking about evolution this week. Really the future of evolution. Two very specific issues, in particular. One concerns Lamarck and Darwin. Despite all the controversy it has always caused, when I was growing up, we were taught a very little bit about Darwin or evolution in High School. When I say a little bit, I mean almost nothing (although I paid such little attention and did not take any advanced classes – so, maybe there was more than I remember). Just phrases like survival of the fittest - not Darwin’s phrase, in fact - and the general notions. One of those notions included deriding a predecessor to Darwin, Jean-Baptise Lamarck, for his theory that it was possible to inherit characteristics acquired during a living thing’s life.

Lamarck was hardly an idiot, though through the fortunes of the intellectual world, is often ridiculed in such a way. What he really argued not surprisingly differs in a number of regards from what we are taught, but I don’t even want to get into that. In terms of biology, it is sometimes said that he offered the first complete or comprehensive theory of evolution that included change in species over time and adaptation to external conditions. But, coming a generation before Darwin, some see him as more of a philosopher than a scientist, whereas Darwin was more so of the latter. If you read Darwin with any care (not that I recommend reading his main scientific works directly), he certainly owes – admittedly so - something to Lamarck. Besides, despite what you were taught in school, Darwin also actually accepted the idea of the inheritance of acquired characteristics, and tried to develop a theory of how it might occur. This is well known if you read anything serious about them and I leave it to your own studies or whim.

But while hardly well known, Lamarck’s idea about inheriting acquired traits (which was systematized by him, but widely believed at the time he wrote) is sort of coming back into vogue and serious geneticists think he might turn out to be quite right. If they are right, in the long run, this theory might end up in the future having a far greater impact on human development than the random mutation which we commonly associate with evolution, thanks to future technology.

There is even a name for this (which name actually preceded practical knowledge of modern dna technicques and other developments) called epigenetics, deriving from two Greek words still fairly well know from their continued scientific usage. Genetics obviously concerns beginnings (as in Genesis) and epi- is a Greek preposition, then often the first part of a compound, as now it always is for us, which has to do with proximity of one thing to another - like one thing being “on,” “over,” or “against” another thing. In scientific terms we mostly use it to mean “outer” or “over,” with epidermis for the outer skin probably being the most well known usage. So – epigenetics would refer to outer genetics, that is, any development in the genome other than changes in the dna sequence (if that means nothing to you, just google dna wiki or the like or you could even google epigenetics). There are a lot of names for the techniques and circumstances that might unintentionally or intentionally lead to a change unrelated to the sequence or arrangement of the nucleotides (or genetic code). One thing, for example, is obesity, which apparently has an affect on the "expression" of a gene. But, the “outer” aspect can be intentional as well. As I never tire of saying, this isn’t Wikipedia, and I just want to discuss some related ideas, not the technical scientific aspects.

Since Lamarck and Darwin, of course, we now know about dna and how traits are passed on. It is still certainly arguable whether even adding dna to the explanation is sufficient to explain or prove evolution, and I will leave it here that I think the modern theory of evolution is still the most likely explanation and also seems to me consistent with what we know about the universe in general.

Our technology grows by leaps and bounds. In 2010 Craig Ventner’s team managed to create its own code based on the four nucleotides making up dna to put watermarks in an existing species that is now inherited with each successive generation. It is somewhat amazing that its website address, names and many other things are imbedded in its own genetic code and is inherited by this self-replicating bacteria. One can argue that this is creating synthetic life or not, but it is still a fantastic development and shows how far we have come. If you know anything about science, you know that first steps are followed by others, and that just as we went from flying on balloons in the 1700s to airplanes in the 1900s and then even faster to rocket powered flights to the moon and then out of the solar system, Ventner’s development will grow along with developments in cloning and the like.

Humans, of course, have been long familiar with domestication and with what are arguably superficial changes in plants and animals. It is one thing to mate dogs so that we can develop new breeds. My current favorite dog, the Leonberger, was created in the mid-19^th century from a Newfoundland and a predecessor of the St. Bernard known as a Barry, and perhaps also the Pyrenean Mountain Dog. Remarkably, and I mention this as an aside only, all Leonberger’s alive today can be traced to only eight that survived the two world wars.

It is, of course, a totally different thing to create a new breed entirely, or new organs, or dramatic changes like giving them wings. But, while I was not fooled a bit by the hoax in the 1970s that a dog-cat was created (a “dat” – The New York Times and many others bought it completely), I could be fooled now. That’s because it is entirely possible that in my lifetime (I’m guessing somewhere between 1 and 50 years) we will get that far.

Once the bar is truly broken on creating new species or dramatically altering them, it is not unlikely that manmade changes will quite quickly dwarf normal evolutionary method as the most normal method of change. It will not be merely tinting our eyes or increasing our height. The possibilities are daunting to think about.

Yet all this is not really even the topic I wanted to discuss. It is just the assumption that this will happen, and relatively soon historically speaking, upon which I base the philosophical question I want to ask.

If man learns to manipulate species, including his own, is that or is that not really a change in the manner of evolution?

On the one hand, you might argue that synthetic changes to dna such that new creations are made, are those outside of nature. Someday we might even be able to turn them on and off at will.

But, on the other hand, you might also argue that the taking man outside of nature because of his unique ability to manipulate tools (shared by a few other creatures like chimps, elephants, some birds and even some ants) but nature itself – electricity, magnetism, atomic energy even fire and the motor, is a gross metaphysical error (if you aren’t into philosophy, metaphysics is the part of philosophy dedicated to the nature of reality or you might say nature itself; ontology is considered a branch of metaphysics, but pretty much subsumes the category except for theology.)   

I have always tended towards the second belief. There has often been a tendency among scientists even to see human technology as somehow outside nature (even if when questioned closely, they might deny it - many write as if it is so, just as many who should know better write as if evolution is controlled by an organism's purpose). Surely human technology, a product of the human mind and our language ability is, on our planet at least, a unique and wonderful thing. But, I cannot fathom how it can be argued that it is outside of nature anymore than a monkey’s prehensile tail or elephant's trunk (forget the hyrax) is outside of nature because no other species does it. Our technology still comes from our mind, made of matter and impelled by energy. If is a product of our mind, inarguably nature, how can we say that technology is not natural and evolutionary changes that may result from it would be somehow outside of nature?

All which brings me to the second and final question. I just finished saying “If is a product of our mind, inarguably nature . . .” but the truth is, despite our causal mention of the mind in everything from casual discussions – “what’s on your mind” – to hyper technical scientific experiments, there has never been philosophical consensus on whether the mind even exists as a “thing” or, at least, whether there is any connection between it and the external world. To enter this discussion is a dangerous thing, because you could write a book on it if so inclined merely describing the views of different western or eastern philosophers. Longwinded though I can be, I have no such pretensions.

But, take a revered philosopher like Spinoza, undoubtedly in the pantheon of “great” western philosophers (though, having tinkered occasionally with Spinoza since college, I have always remained tentative about accepting his views) may have been dead wrong in claiming that the mind cannot affect the material world, nor the material world it. Here’s a similar quote from Charles Sherrington’s Man on his Nature 1940): “Mind, the anything perception can compass, goes therefore in our spatial world more ghostly than a ghost. Invisible, intangible, it is a thing not even of outline; it is not a ‘thing’. it remains without sensual confirmation and remains without it forever.” And, the great physicist, Edwin Schrӧdinger, from whom I first got on this topic about a dozen years ago, wrote on the mind: “For the subject, if anything, is the thing that senses or thinks. Sensations and thoughts do not belong to the ‘world of energy’, they cannot produce any change in this world of energy as we know from Spinoza and Sir Charles Sherrington.

Schrӧdinger was of the opinion that mind and the material world were all one, being deeply influenced by eastern thought. I won’t even go into the big picture – whether all is one or as Spinoza would have it, all a form of the substance and a thought of God, but ask instead – really, you think that sensations and thoughts do not belong to the world of energy? That it must take itself out of the material world in order to comprehend it?

I don’t think we can say this anymore, nor credibly question that the mind is a thing, even if we can't hold it in our hand. We can't hold language in our hand, but cannot deny its reality or force either. MRI technology, and even more so functional MRI ("f-mri") machines show scientists day after day the processes of the mind working in an incredibly complicated but slowly understandable fashion. No doubt the mind is nothing without a body, but I am prepared to feel confident that it is mostly the brain, and differentiated from the all other minds and to a large degree the rest of the material world. More, technology has progressed to the point where we people can now, with the aid of transmitters, move electrical devices in the form of computer cursors. It is indeed part of the world of energy, if there was ever any doubt. Sure, you can say – it is the device which is doing so and I say, no, it is the device which is the tool, like a spoon is device that brings food to our mouth, but the hand, and ultimately the mind which controls it. Likewise, it is the mind which controls and wills these devices – brain computer interface systems - to move the cursors. They’ve even trained monkeys to do it.

I admit a simplification of the mind-body question – believe me, for my sake as well as yours – but I think this one question – as old as the Upanishads,  is overstated, despite the fact that as with lawyers, philosophers can always through language and fine points, find a way to distinguish.

Still an attorney by training, let me sum up. Modern science, which maybe we could define as a philosophical tool or process to test other aspects of philosophy, can settle or pop holes in long argued discussions, despite what many reknowned philosophers might think. Like history - philosophy is a discussion without end, and no doubt, good arguments can be raised against mine. Go right ahead. 

I'd be wise to expect a pretty big “so what” here, as it is a pretty normal reaction to philosophy. Either you like philosophy or you don’t, and I do, but admittedly, it is pretty easy for most individuals to go through life from dawn to dusk and cradle to grave without so much as a thought directed to it. Yet,  I will argue another day that philosophy is more productive of collective human happiness than anything else outside of random fortune.

Calling all moderates

In response to my last post, my arch-buddy and nemesis, Bear, who formerly blogged on blogspot as incorrect-bear (where, I might add, I was unduly solicitious and supportive as a commenter) again bashed my post over its head. He wrote: "You know sometimes in your attacks on partisanship you make it sound as though you are are the only non-partisan moderate in the world. 'The whole world is crazy but you and me and I'm beginnning to have my doubts about you' kind of thing. Not all people with opinions are blindly partisan. . . ." You can look back a week for his whole comment, which somehow referenced Casey at the bat.

I replied last week that (correcting here one embarrassing spelling error): "No, I don't think that at all. I know lots of non-partisans, but partisans may be a majority, and I do know a lot, although there are different levels. Even if they are not a majority, their noise level dominates the media and most issues. I am virulently anti-partisan. Again, not anti-ideology, but anti-partisan. In all the articles I have read about Roberts, I have not read one single description or defense of why he decided the way he did - not one. That says something."

Now, I admit, there was a little passive aggressiveness in this as Bear can't stomach my political posts. The last thing he wants is another one. Nevertheless, some people actually do like them (though don't ask me for a long list) and I mostly write these to entertain myself, and, to actually get to talk about things that interest me, which doesn't always happen with conscious audiences in non-virtual real life.

Let me first add to my comment. No, Iago, I do not think I'm the only political moderate at all. In fact, I know a number of moderates. Voltaire in mind, I will define my terms before I explain why I write about this stuff so much.

Firstly, what I don't mean by "moderate." I do not mean independent. The two are frequently paired (okay) and confused (not okay). There is a difference in my mind even if they are often found together in the same person and also both relative terms, as are liberal and conservative. An independent is someone who is not in general lockstep with a political party (like Democrat, Republican) or ideological movement (like conservative, liberal, etc.). It neither means that I have no values, ideals, positions or the like, nor that I am not not to the "right" or "left" of someone who is so connected on any particular issues. For example, I have friends, conservative who in almost every possible way, who are pro-choice, and although I couldn't describe myself as either classicly pro-life or pro-choice (both sides would probably claim I was of the other mindset), I am more against it than they are. Often when discussing someone else's politics with them, I am told that they tell me that they can't be liberal or conservative, because they believe X or Y, which is not a typically conservative or liberal position. Few people are 100% either. I know pro-choice conservatives and I myself was a military hawk when a liberal back in the 70s and 80s.  I go by a general feeling of their opinions known to me.

And, it's a fair question to ask - does it really matter what they are? Not really individually, but it does matter if too many people are conservatives or liberals.

What "moderate" actually means is a little harder. Deciding whether you are a moderate, or someone else is one is a feeling, like when the friend I call "Eddie" in these hallowed pages calls me a luddite. I actually do have a cell phone and a computer, and spend an awful lot of time on the internet and blogging. But, to him, who hardly ever looks up from facebook or every new app or gadget, I'm a luddite, because I don't like plasma tv's (I do not like seeing imperfections) and sold my free nook. Ironically, he, who has at times called himself a communist and once told me that Ralph Nader was too conservative, has also described himself as a modertate. By that I presume he either meant that although he believed in a relatively coercive big government, but didn't want them to actually kill anyone, or that he had a mild manner when discussing politics (which, being a very nice guy, he actually does).

Let me piss off Bear even more by "self-referencing," which he also detests (I don't know why - it is a blog about what I think). On August 28, 2011, I wrote:

"When I say 'moderate,' I do not mean that I see every issue in an equally balanced way or that every issue has two or more equally valuable views. It is a temperament. I mean that I am more than willing to try to understand the perspective of those I disagree with without disparaging them, questioning their character or even thinking them ugly. I believe, in fact, that all of the presidents in my lifetime, for all of their faults and all of their mistakes, meant the best for America, viewed from their own perspective. That doesn’t mean that they weren’t as biased as the rest of us, and willing to prevaricate and take steps to fulfill their own predilections.

It is this lack of moderation, I believe, which is both the cause and the effect of the biggest obstacles to the critical reasoning or analysis that would allow more rational thought to stem off many of the solvable problems that face us. It is the biggest obstacle to peace between members of a society and societies. The opposite of a moderate is a militant and what was known before the Civil War as a Fire-eater. It is necessary for the attitude we call “tolerance,” accepting others we consider different from us or whom we significantly disagree with. It is also a gateway temperament to learning, particularly things that might change or modify our opinion. As an old Chinese proverb held it - The value of a cup is in its emptiness (although my boyhood hero, Bruce Lee, disagreed)."

Biggest obstacles? Bigger than the argument over health care? Bigger than who will be president? Yes. Suppose, for example, that who you want to be president wins and that a majority of congress wants to put in your health care plan. And suppose, whether you are right or left, you are willing to make X changes to the plan to make the other side feel good. Could your president do anything that you wanted him/her to do? Could the healthcare plan get passed congress?

Probably not, at least not with a hell of a fight. Because even the most moderate plan is going to be attacked by the other side as extreme. I can't quote this John Adams comment enough:

“While all other Sciences have advanced, that of Government is at a stand; little better understood; little better practiced now then 3 or 4 thousand Years ago. What is the Reason? I say Parties and Factions will not suffer, or permit Improvements to be made. As soon as one Man hints at an Improvement his rival opposes it. No sooner has one Party discovered or invented an Amerlioration of the Condition of Man or the order of Society, than the opposite Party, belies it, misconstrues it, misrepresents it, ridicules it, insults it, and persecutes it . . . .”

He could have double underlined "I say Parties and Factions will not suffer, or permit Improvements to be made . . ." and it would not do it justice. And, by parties and factions, I mean the extremists in parties and factions. Worse, in these parties and factions, you are quite often judged by your peers as to how extreme you are willing to be. It's the reason that all of the eight debators up on the platform during the Republican debates earlier this year had to raise their hand and claim that they would not raise taxes even if - even if - there were ten times the amount in spending reductions to counter it.

The congress we have is not controlled totally by either liberals or conservatives, Democrats or Republicans individually. But it is controlled by the two parties and ideologies collectively, and they will no more share the stage with independents or moderates than they will willingly share presidential debate platforms with third party candidates. You can't speak, at least not meaningfully, you can't get committee assignments, you can't do almost anything without one of the parties being your mentor. And, in order to get that, you have to caucus with one of them, even if you are an independent. The two parties control the rules that congress operates under (per the constitution), and have set it up so that the work done on committees is also totally controlled by them.

The gross petulance and stubborness of the two parties is best seen in each house by the change in the positions of the two groups every time there is a switch in power. When the other party takes over in the Senate, immediately they switch their positions on the propiety of using the filibuster to delay or stop legislation. In the House, it is the propiety of using the a "closed rule," that is, whether amendments will be allowed, that they will automatically switch positions on. And, they do this most of the time without any shame.

We need more moderates in congress (let alone the presidency). Let me give you an example why. One of the few things that most Americans agree on with that most controversial of subjects, abortion, is that partial birth abortion is wrong. In fact, most people feel this quite strongly, many even that it is an abomination. Since congress and the Supreme Court seem to believe that it is okay for congress to legislate about abortion, you would think that congress could craft a law where it would be completely illegal to do it (not just a certain procedure). They don't. The reason. Pro-choice advocates believe it will be used against them to further the idea that abortion can be banned. Pro-life advocates beleive it will be used against them to further the idea that some abortion is acceptable (other than partial birth). This, of course, is idiotic, but it is a result of extremists running our own representative nut house.

Here's another example. What are we to make of the Fast & Furious scandal. The scheme was stupid - no one denies that. And covering up is as natural to partisans as saying "like" every 15 seconds is to teenagers, whether pols have reason to do so or not. Certainly there is a possibility of a federal agent was killed with one of the guns that "walked," but it is far from clear that this was the gun used or that if not that one, they would not have used another. Of course, since when do gun advocates believe that guns kill people. I thought people killed people. On the other hand, Holder (of whom I am no great fan) and the administration may be covering up like madmen. The use of executive  privilege seems extraordinary in this circumstance, certainly since Watergate. But, just as with the assistant U.S. attorney scandal in the Gonzalez Justice Department, where the Bush administration just waited out their problems with Rove and Meirs, this administration may be able to do it too. But, all that aside, the real problem is the partisanship and the knee jerk reactions such that (virtually) all conservatives will believe there is some vast and horrible conspiracy (such as the Clintons' supposed murder of Vince Foster) and most liberals will be certain that this is just election year games (although some Democratic congress members did vote to hold Holder in contempt).

Or as another example, as if we need one, the revelation by the New York Times today that both candidates are requiring the news' media to allow them to revise all statements if they want to get access. Why is there no public outrage? - because public outrage only amounts to anything if the situation is so extreme that the public on both sides demands action (e.g., Nixon's resignation). Of course, this pales in comparison to the fact that, as usual, they are both in full demonization mode as Uncle Sam drives the bus off the evalovin' cliff.

One last one, just for fun. To avoid the debt crisis last year, congress decided on automatic cuts if a super-committee could not agree on them and bring it to congress for a vote. Once you saw who the parties put on the committee, it was a foregone conclusion that nothing would come of it. At least, for me it was foregone.

To get more moderates in congress, we need them to be candidates, and to be candidates, they will have to win primaries. And, who controls primaries with their passion and power. Not moderates, but extremists. While it is true that at least in the Republican Party, the last two candidates have been relatively moderate (McCain and Romney), they have both been pushed by the hardliners on the right to take positions that I for one do not believe they really hold on social issues. The other candidates (and it easily could have been Santorum if Gingrich had just given in) took positions which were every bit as partisan and extreme as those they accuse Obama of having. In fact, it is inconceivable that McCain or Romney would have succeeded at all if they did not at least give lip service to some issues where there is at least a de facto litmus test. Romney, who most conservatives consider at best a moderate (if not outright liberal), had to call himself "severely conservative."  On the left, the last two candidates have been deemed among the most liberal members of the Senate (Kerry and Obama), if not the absolute most liberal, according to their voting records.

I spend too much time commenting online in debate forums with partisans to think that they are the least bit reasonable. So many commenters just make the personal attack as their default argument and have a litany of automatic responses that just don't make much sense, which they have been trained by partisans in the media to make. It is one thing to say - "You are a liberal/You are a conservative" and another (wrong) thing to say "X is true/false because you are a conservative/liberal." The first is labeling, and can be true, false or a little of each. The second is always illogical.  You can reason with partisans all you like and you won't get anywhere. I bother to do it mostly to express myself, because I get some pleasure in that, but also to give hope and comfort to other moderates who write there (as I get from them). Commenters on blogs and websites don't have political power themselves, but they vote, and other people get strength and listen to them rave. In a sense, blog commenting is a microcosm of the partisan problem, which is essentially the political expression of argumentum ad hominem. There is nothing wrong with pushing for more rational debate in this world. It actually does get us somewhere eventually, even when we all disagree.

But, how will we get more moderates in congress if moderates do not push and advocate for them - and say and write even in little way that moderation is all right, that you don't have to be a conservative or a liberal - that they don't own all the arguments - that you don't have to be one or the other? We won't. It will take a ground swell someday, when the conservative and liberal power mongers push us to the brink of the cliff, to elect moderates independents into office. Okay, moderate independents who lean libertarian. You know, people who believe what I do.

So, yes, Virginia Bear, I am going to keep writing about partisanship, which, however much it is part of human nature, I believe can be tempered by reason, just like as a culture we've gotten past such things as killing each other over religion, or the worst aspects of racism. But not because I'm the only one in the world. Nor for a second do I think everyone who disagrees with me is partisan. Course not, silly. I may think they are wrong, but not always partisan.

Okay, let me have it.

Partisanship and the Justice

Was Justice Roberts’ joining with his liberal brethren in the healthcare case a decision born of political ambition or political courage? Conservative partisans have leaped upon Justice Roberts for writing the majority opinion, finding the requirement that adults either purchase or have healthcare or pay a sum to the IRS to be a constitutional tax, yet, at the same time, finding that it is not a “tax” for purposes of the Anti-Injunction Act which would have prevented any suit until a tax was paid (not until 2014).

Even if I am the only one in America who disagrees with him but still wants to defend him, I will do so gladly, because much more than many a wrong decision that a judge can make, I deplore the reflexes of partisanship shared by both sides of the ideological spectrum which are dominated by character assassination and demonization, whenever someone makes what they believe is a principled decision not in accord with their usual fellows of like mind. 

Many conservatives believe that his decision stems from ulterior motives to impress liberal journalists, or increase respect for the court, or his lack of character in seeking to be more important.  I have myself occasionally wondered if Roberts was ever discouraged that his court was so dominated by Justice Kennedy’s swing vote and if he might desire to somehow make himself more relevant. But Roberts, whose intelligence no one doubts, had to know that his decision would make him no one’s hero, but a large target for conservative partisans. He’s just not dumb enough to think that they would love him for his independence. Sure enough, he’s been attacked relentlessly. Just as examples, Michael Gerson wrote that his decision “was an act of judicial arrogance.” Pat Buchanan wrote that he “does not want Anthony Kennedy, the swing justice, to be making history, while he is seen as a predictable conservative vote.” Byron York wrote that he “wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.” There are many more.

Personally, I admire it when a politician or a judge makes a decision that goes against his or her own political side, even if I think they are mistaken. Going against their own side takes courage because they know their friends are going to be ever so mad at them; madder than they'd even be at their actual political opponents. And, it may be true that Justice Roberts changed his mind while considering the case, as reported by a CBS reporter (on the word of two witnesses from within the court itself - justices?). But, a justice changing their mind is hardly rare. Besides, when has anyone ever cared that someone else changes their mind when they now are in agreement with them?

For many partisans on the left or right (and that includes many if not most of my good friends and family) not “going against the family” seems more important than most anything else. Almost anytime one of their clan goes along with the “enemy,” they attribute it to some character flaw or nefarious desire. Liberals did it with Lieberman, conservatives with McCain, both of whom acted out of principle. Both sides have alternatively raged against Specter, who completely changed sides twice for political advantage. I can't say I admire him for his purely political act, but I did enjoy it, as the harm that partisan politicians do is far worse than anyone who merely changes sides. If you are partisan, and reading this, you probably disagree. You think it is only the other guys who do that and that your team was genuinely stabbed in the back. In fact, you might even disagree that you are partisan - you are just right about the other side being evil. But, that is why you are partisan. Your glasses are either red or blue colored.

The idea that the “mandate” is constitutional under congress’s taxing power is hardly revolutionary, even if wrong. The court itself went so far as to hire an attorney to argue that the mandate was a tax as both sides had argued it wasn’t for their own litigation purposes (although the government said it both was and wasn’t a tax, depending on the issue). In fact, the Fourth Circuit had already ruled that the Anti-Injunction Act applied. Justice Roberts reasoned that since both the Affordable Care Act and the Anti-Injunction Act are creatures of congress, it can determine how the two interact, and that while it had the power to make this law under its taxing power, it did not intend the Anti-Injunction Act to apply when it did not call the mandate a “tax.” Justice Scalia’s dissent called this “judicial wizardry,” and I somewhat agree with him, but stop short of his use of “sophistry,” which implies intent to deceive.

Justice Roberts may have been wrong in his decision, but I trust that he meant to be right.  I seriously doubt hes will turn out to be the third coming of Justices Blackman or Souter, as has been suggested, and regularly join his colleagues on the left in hotly disputed cases. His old boss, the very conservative Chief Justice Rehnquist once wrote the opinion in a case that upheld Miranda, an interpretation that the right hates. He did so mostly because it had been around for a while and everyone, including the police, were used to it. Not much of a constitutional argument. At that point though, his credentials were so thoroughly vetted, no one bothered to suggest that he was not conservative enough. This decision probably came to early in Justice Roberts' career for that to happen. Ironically, though Justice Kennedy more often sides with the left, the right is so used to it, they don't often react with this kind of vindicativeness against him. Partisans are rarely fair. But, until now, Roberts has been seen as extremely conservative by the left and I expect he will again.

I did not agree with his decision and I don't like the Affordable Care Act for many reasons (as much because I believe it will have the opposite affect on healthcare costs than which are intended than for its unconstitutionality). It is hard for us to acknowledge, at least not without an effort, that someone might disagree with us for rational reasons. But after a little reflection, I have no problem believing he thought he was right. We might all reflect on times in our own lives we have been accused of making decisions for reasons other than what we claim, almost always by those who don’t like our decision. I don’t like it much and I doubt anyone does. If there is any lack of integrity, it is more likely to be found on the part of those who attack his character simply because they disagree with him on a case that is important to them, regardless of whether they are on the right or the left. Character assassination is the hallmark of partisanship. In the long run, that political reflex is more dangerous to us than a bad decision.

In my opinion, you could argue this was a tax or a penalty with some justification. But, judges have to make judgments and usually don't have the luxury of saying, I can't tell. If this was a tax, though, it was direct tax (which Justice Roberts denied for what I think faulty reasons). And, as such, it needs to be apportioned by state pursuant to Art. 1, Sec. 3 of the Constitution. It isn't and is therefore unconstitutional.  I agree with Justice Roberts and the other members of the usual conservative majority that the mandate to purchase insurance is too far to justify under even the expanded interpretation of the Commerce Clause, past even that of the controversial Wickard v. Filburn case. I would agree with Justice Thomas that the “affects interstate commerce” interpretation of the Commerce Clause should be thrown out, but we have a system of precedent and they are not likely to ever do that short of a Constitutional Convention that no one wants to see (if the other side gets to propose changes too).

Political update for July, 2012

You know, as much as I’ve grown to enjoy politics, something I hated with a passion as a young man, it is nice sometimes not to think about it during an election year for a while. I went away for just a day or so this past week, and then when I came back home this weekend, there was no power and no water due to a powerful storm on Friday night (both restored two days later, to my great relief) and, I’ve been packing. So, no computer, no tv, no news for about three to four days. And, I didn’t miss it at all. Turns out, there really was nothing much to miss on a quiet weekend.

But, some stuff did happen the past week in the Supreme Court that will have long term ramifications and which I find especially interesting. First, last Monday, the court decided the big immigration case out of Arizona (Arizona v. U.S.) and then Thursday morning, as I was getting read to leave to go away, they released the decision in the even bigger healthcare case (National Federation of Independent Businesses v. Sebelius, but aka, Healthcare/Obamacare/Affordable Care Act - case). By “bigger,” I mean according to the media and perhaps public opinion. But, politically, because Hispanics are deemed so important in the upcoming election, that decision will potentially have more immediate impact.

Immigration was arguably a draw, but I will give a slight win to the conservatives. Healthcare was a clear victory for liberals. I’m going to talk about the immigration case today, because I read it, and will write about the healthcare case shortly.

Most coverage of these cases are very political, with virtually no analysis – maybe one theme or holding about what happened. Thanks to the internet, of course, you can also find knock down, drag out analysis, which will rattle your brains. I hope to chart a middle ground – an explanation that will tell you what happened in some detail, but not so much that the bottle of brandy on your counter starts talking – “Don’t you want me?”  I can’t promise simplicity, but I hope simpler.

 
Arizona, obviously on the Mexican border, has taken the brunt of the problems from illegal immigration from Mexico, mostly because of increased crime and drugs. Many there believed that the federal government had fallen down on the job of enforcing and Arizona passed its own immigration law, rather short, being just 16 pages, which mostly just gave Arizona officials the right to enforce the federal laws, plus a few additional powers. The federal government challenged the law as interfering with their supremacy in the immigration field. Other than healthcare, it is probably the most significant case of this term.

Unlike some other tough cases though, this one was not likely to really change the basic law. The constitution gives the federal government control over naturalization. Coupled with its control of foreign affairs, this has been deemed to place it in charge of immigration in general, with supremacy over the states. And, at various times, congress has passed various immigration schemes of differing intensity, giving the states more or less room to act themselves. There has never been serious doubt that the states also have some power with respect to immigration, where it is not excluded from it by congress, either expressly or implicitly. And, by implicitly, it is meant that congress so dominates an area, that even if it doesn’t directly say so, we can see they meant to completely control it. When it does that in an area which it has power under the constitution, the Supremacy Clause means the states can’t contravene or interfere with it, though they often have some room to do their own thing.

The question was, of course, did Arizona interfere with congress’s own immigration laws or “scheme” by trying to enforce them itself. Central to it was section 2(B) of the act known as S. B. 1070 or just 1070),  the so called “Show me your papers” provision, by which officers who were stopping someone for certain reasons, could, under certain conditions, be able to restrain the person if they have a reasonable suspicion that they were in violation of federal immigration law. I’ll get back to this.

But, there were three other provisions at stake too. Section 3 created a state misdemeanor for failure to complete or carry required federal registration documents.

Section 5(c) creates a new law, one not based on federal law, forbidding an alien who isn’t authorized to either work, apply for work, or solicit work in a public place. The solicitation part is clearly aimed at stopping gatherings of Latin men looking for work by standing in parking lots or roadside, waiting to be picked up by construction companies or even home owners needing men for a project.

Section 6 allows officers to arrest suspects without if the officer has probable cause to believe the person has committed any offense that makes him/her removable from the United States.

The court “split the baby,” which was the take away political headline for the media. Justice Kennedy, who most often determines who wins and writes the majority opinion for the court when there is a polarization, did write this opinion, but the split was different than usual. Not only was he joined by the “liberal” contingency – Breyer, Sotomayor and Ginsburg (Kagan recused herself for this case, but almost certainly would have been in agreement), but also Chief Justice Roberts. But, with regard to 2(B), the most controversial provision – all eight judges agreed it was constitutional. They disagreed over the other three.

The “show me your papers” provision (2[B]) basically says that Arizona officers must make a “reasonable attempt” to determine the immigration status of any person they stop on a legitimate basis if they have “reasonable suspicion” that the person is an illegal alien  and cannot release them until they have the person’s immigration status checked. They would do this in the standard way, by checking with the federal agency, ICE. That sounds very dramatic, but there are a few precautions. First, a driver’s license or similar i.d. is a presumption of citizenship or permission to be here. Second, the officers are not allowed to consider “race, color or national origin” except as permitted by the federal and Arizona Constitution[s]. And, third, they are mandated to follow the federal law of immigration and “protect. . . the civil rights of all persons and respecting the privileges and immunities of United States citizens.” 

Many people have argued that the law cannot truly be implemented in this fashion (that is, without considering ethnicity and with protecting civil rights) and is made specifically to target Hispanic citizens. Despite the press coverage though, the case was not argued on these grounds, but strictly on pre-emption grounds – that is, the federal law so covers the field, that these state laws conflict with and invade their province. Very loosely put, the federal government is arguing that these are complicated laws and that the federal government has to take a lot into consideration in enforcing them, including their relationships with other countries, like Mexico (which, ironically, has much stronger immigration laws than we do). Consequently, Arizona's own aggressive attempt to make it warm for illegals would be interfering with them.

In short, the court sort of punted the ball down the field in its decision with respect to this provision, holding that, as this provision hasn’t gone into effect yet, it was premature to speculate on how it will be enforced and whether federal concerns about prolonged detention without sufficient reason are valid.

But, the court also found that the other three provisions were significantly different. Section 3, where Arizona created a misdemeanor for failure to carry papers, was determined to interfere with federal law because it would allow Arizona to charge people for a crime where the federal government’s policies at the time might be opposed to pushing them out. Moreover, the Arizona law ruled out probation, something the federal crime permitted. Consequently, the section was struck.

With respect to section 5(b), which made it a crime for an illegal alien to apply for, solicit in public, or actually work, the court also found it interfered with the federal scheme, as it made criminal something the federal government has determined not to be a crime. I’ll note, that like so many complicated laws, the federal laws often seem to make no sense. So, while it is a crime to illegally cross the border, it is not to actually a crime to be here or work.

And, section 6, which permitted warrantless arrests of anyone the officer believes has probable cause (more than “reasonable suspicion,” whatever that means in real life) committed an offense that would have made them removable from the United States, was also struck as interfering with the federal scheme, which actually itself determines when state officers may arrest someone.

I very, very generally like the outcome of the case, though I can’t agree completely with the majority or, the dissenters. I'll give my opinion at the end. But, in general, no violence was done to the general idea that immigration is in the control of the federal government, as most everyone agrees makes sense (that is, having 50 or more immigration laws would make it near impossible to have any immigration policy), but also continues to allow the states to participate in it to the extent where it interferes with the feds. The court at least made legitimate arguments why the three “unconstitutional” laws were so and left the main section intact, because the federal government’s argument seems speculative about how it would be enforced.

This will, of course, come back again on the grounds that Arizona is actually discriminating against Hispanics. This will be based on the fact that those restrained while their immigration status is checked are, of course, going to be overwhelmingly Hispanic, given Arizona is a border state, and in Mexico, they are almost entirely Hispanic. You would think, if the law is fairly applied, that who it affects due to circumstances outside of its control should make no difference. But, years ago it was determined not just in a general way, but actually made part of our federal law, that not just discriminatory intent was unlawful, but also discriminatory impact. And, mark my words, this will be the argument used in Arizona - since it is primarily impacting Hispanics, it is therefore unlawful.

Justice Scalia wrote the what may consider the major opinion for those concurring and dissenting (Thomas and Alito, joined him). It took a vastly different approach from the majority, to some degree seeking to revolutionize our constitutional immigration law or, as he would have it, return it to its roots. According to Scalia, the three provisions which were overturned, should not have been, because our history shows that states had equal rights, based on their sovereignty, to control immigration within their borders alongside the federal government's more general right. But, I thought his authority supporting his main thesis was very weak. It is based almost primarily on a letter from James Madison and two references to Article 1 of the constitution which forbid certain activities by the state but makes exceptions where necessity would seem to require it. I’ll spare you the details, but you can find it in the 5^th and 6^th paragraph of his opinion if you want to look.

No one doubts that the states do possess some sovereignty. Nor has anyone suggested the states do not have the right to protect itself in cases of actual invasion or the like (covered expressly in the constitution). He does not seem to rationally consider that there was not a complex federal immigration scheme in early America as there is now, or that immigration issues in general are far more complex now than they were then. More, no doubt that at the outset of our nation, many people considered their state to be an actual separate country joined in a union – the federal government and other states being foreign countries. Now, few take that position. Even state rights advocates and most Texans and Alaskans see themselves as Americans first. People move about now whereas in the 18^th and early 19^th century, they sometimes never left the area surrounding where they were born, at least until the advent of the train. It's a very different world.

Scalia accepts that the Federal government has the right to concern itself with immigration – not because of anything the constitution say, but because it is a sovereign nation and controlling your borders goes along with that. But, because he takes the sovereignty of the states more seriously than many others on the court, he has a much larger view of state sovereignty. “Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.”

I know what Justice Scalia believes this case comes down to, because he says: “What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. . . .”

In other words, he is arguing that once the Federal Government decides who it lets in, the states can treat them as it would anyone else (though, even illegal immigrants, he reminds us, are protected by the Bill of Rights).

For me, that is too simple a line to be drawn and virtually ignores the Supremacy Clause. Though Scalia was on the bench when the Rehnquist Court was turning back a liberal decades long tide of destroying state sovereignty by restoring some of the states' sovereignty, it clearly was not without end, and must make sense in terms of our federal system. Allowing states to decide who may sue them (a right of a sovereign power which the Rehnquist court fortified and the one example Scalia gives) is different than states deciding immigration issues, because it affects not just the litigants in the suit against the one state, but our country’s foreign affairs and even what happens in other states. It is, rationally, a national issue.

Justice Thomas and Justice Alito also wrote opinions dissenting in part and both made some sense to me. Thomas’ opinion was, in my view, more persuasive than Scalia’s. He summarizes his short opinion thus at the beginning and the end:

“I agree with Justice Scalia that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. . . (‘Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict’ . . . .

 . . .

Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they ‘stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ . . . I have explained that the ‘purposes and objectives’ theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. . . . Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. . . Thus, even assuming the existence of some tension between Arizona’s law and the supposed ‘purposes and objectives’ of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis.”

What Thomas is saying (and, yes, I am being presumptuous in unstilting his language) is that when courts are deciding whether state laws are pre-empted by federal laws, they have to look at the actual laws to see what congress and the states intended, not “federal objectives” or the supposed intent of congress as “divined” by the judiciary. This is certainly consistent with his judicial philosophy and also makes some sense to me. Where I believe he is wrong, is in not finding that statutes that give increased penalties for federal crimes or create crimes based on federal law, are inconsistent with federal law. I believe they conflict in this case, anyway, though perhaps not in other circumstances. But, I probably would agree with him that section 6, which allows for arrest upon probable cause that someone has committed a removable offense under federal law, and without a warrant (my guess is, more often than not, drugs or domestic violence) is not conflicting with federal law so as to be said to be interfering with it. Warrants are very often not necessary when there is probable cause that someone have committed a removable offense – that goes back to the founding and even previous to it. I do not see how this conflicts with federal law at all.

Last, Alito also made an argument with some sound reasoning, but would have split the baby even more so than the majority. He agrees with the majority on the “show me your papers” provision, as did all the justices, but also with respect to section 3, because the states cannot add to the federal government’s registration scheme by simply adding penalties to it. However, when it comes to sections 5(c) and 6, he “parts ways.” That’s because they concern employment, which is undoubtedly a traditional “police” power of the states. Relying on De Canas v. Bica, which was one of the majority’s two central cases, he argues that “[b]ecause state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C) . . . []or . . . 6.”

Here he raises a valuable point. The law has recognized that a supposed conflict between state and federal law often rises and falls on what it is the state is legislating about. Regulating employment is a police power. But, he runs into a road block. While perhaps the law should always recognize that this is a traditional state matter that the federal government should not interfere with, the feds long ago won this battle. In the past century, the courts, wrongly in my opinion, began freeing the federal government to insert itself through its reading of the Commerce Clause, into traditional state areas – including employment. This is why we now have federal laws regarding minimum wage or limits on hours or child labor laws, etc. His point is, when it is a traditional state function that congress is legislating about, they must at least clearly (expressly?) state their intention to pre-empt state action, or the states are free to do what they want.  

So, how would I rule? Not quite with any of them. I would agree with the unanimous finding in favor of the “show me your papers law,” but also with Justice Thomas that with respect to the section concerning permission to arrest when there is probable cause the suspect has committed a removable offense, but not with respect to the other provisions, the state law does not really conflict with the federal law. Despite the appeal of Alito’s argument, though employment is in fact a traditional state police power, the Supreme Court has really gutted prohibitions against the federal government intervening in almost any area it wants, with very little in the way of limitation. So, my position is somewhat in the middle of the two basic positions.

Politically speaking, the case is interesting for several reasons. First, everyone knows that the Hispanic vote is very important this year. This will mostly go to Democrats anyway, but the conventional wisdom is that Romney needs 35% of it to win. Right now, it looks like he is at about 25%. Of course, an analysis need really be done for the highly contested states, where it matters most. I give the Republicans/conservatives some credit here on principle. Knowing full well that the anti-illegal immigration position could lose them the big enchilada as well as many state or local elections, they have persevered nevertheless in their position. On the other hand, the Democrat/liberals have made more of a bargain with the devil, being willing to accept illegal immigration to a large extent because they know that the votes will run in their favor. Thrown into the mix, of course, is the paradoxical fact that this administration has done so much better a job of deporting illegal aliens than previous administrations, and for that, Obama deserves credit.

The real story here and in the healthcare case is twofold. First, particularly with healthcare – have we continued down a path of government control over our lives from which it will take untold agonies and ruined lives to get out from under? More steps towards the financial oblivion any serious person can see coming? Amazingly, despite defections from some economists in the government, despite some big companies refusing to provide healthcare anymore, despite the administration having to give waivers to others just so that they continue – it will still be argued by the government that the “affordable” in “Affordable Care Act” is not a misnomer, signifying the opposite. And, as the Act goes into effect now, it is going to get worse. Naturally, the government will blame the companies, but, even forgetting now the constitutional issue, in my humble opinion you cannot micro-manage a huge market like this with untold regulations and expect companies to prosper. It is sort of like trying to skip rope with a million instructions in your head about where to place each body parts as you spin the rope. You will get tangled up very quickly and success will start to me measured in meaningless “best practices” and statistics rather than good health care and low costs.

But, the even bigger story is Justice Roberts. And, because Justice Kennedy also signed the majority opinion, joined by all the liberals – and in one part by everyone – Roberts signing on in the Arizona case doesn’t seem like a big deal. But, his defection on healthcare to stand with the liberal wing is a big deal and apparently, has caused a huge personal rift betwee him and the conservatives on the court. I have no problem with political defections. I like them. But, this one fits a predictable template that is worrisome. For a few years I have wondered and even written about what Justice Roberts thinks about this really being the Kennedy Court, instead of his own. In fact, he is neither the decider (Kennedy), or even the most prominent voice on his own wing (Scalia, arguably). One way to take prominence on the court would be too move over to the other side, giving him much more impact – (“See, even Justice Roberts thinks so and he’s a conservative.") This might be very unfair to the chief justice, as his “defection,” might actually be political courage. But, at least one journalist claims to have two sources inside the court (including one or two justices?) which might indicate otherwise. I’ll revisit this after I discuss healthcare on another day (and I'm cutting off Bear's predictable rejoinder - "Please, for the love of God - don't.")

Okay, last thing, completely off topic. Whatever the media is selling right now, I think President Obama is winning the only thing worth winning at the end of the day - the electoral college race. New York and California are huge advantages, very tough to overcome, and I don't see it yet. It's a very complicated speculation, and I'm guided more by my feelings than by a state by state analysis. Arizona, which can be spun as a win, and especially the healthcare case,  will only help him. I am not one of those people who always thinks everyone else likes the guy I like - I am rooting for Romney. But, if I were betting, right now I like Obama's odds.