Friday, June 19, 2009
EPA comment period closes Tues: tell ‘em no state-establishment of CO2-phobic religion
There is overwhelming statistical evidence that the primary driver of natural temperature change is solar-magnetic activity, yet the solar flux is completely omitted as an influence on climate in all four IPCC assessments and in the Obama administration's new "Climate Change Impacts in the United Sates" report. This omission is rationalized on grounds that the existing theories of how solar activity affects climate are still formative. The scientific method rejects this rationalization. Observational evidence is supposed to trump theory, not vice versa, but the IPCC is using theory (its distrust of existing theories of the mechanism by which solar-magnetic activity drives global temperature), as an excuse for ignoring the overwhelming evidence that solar-magnetic DOES drive global temperature. Not all religions are anti-scientific, but the demonstrably anti-scientific nature of CO2 alarmism proves that it IS religion, not science.
EPA regulations are supposed to be science based. Imposing restrictions based on an anti-scientific religious doctrine would not just violate the EPA's mandate, but would violate the constitutional prohibition on state establishment of religion.
Solar-magnetic warming: theory and evidence
The sunspot-temperature theory is actually looking pretty solid. It is known that a strong solar-magnetic flux shields the earth from high energy cosmic rays which otherwise, according to the theory of Henrik Svensmark and Friis-Christensen, would ionize the atmosphere, seeding cloud formation. Thus the solar wind in effect blows the clouds away, giving the earth a sunburn.
Whatever the precise mechanism, researchers have found that solar-magnetic activity “explains” statistically about 60-80 percent of global temperature change on all time scales going back hundreds of millions of years. On the decadal time scale, see the seminal 1991 paper by Christensen and Lassen (“Length of the Solar Cycle: An Indicator of Solar Activity Closely Associated with Climate”) and the 2003 isotope study by Usoskin et al (“Solar activity over the last 1150 yrs: does it correlate with climate?”), which found: “a correlation coefficient of about .7 - .8 at a 94% - 98% confidence level.”
For longer time scales, see the 2003 paper by Shaviv and Veiser (“Celestial driver of Phranerozoic climate?”), which found that found that the cosmic ray flux explains statistically about 75% of global temperature variation over the last 550 million years.
Omitted variable fraud
Solar activity was at “grand maximum” levels from 1940 and 2000 which, given the historical correlation between solar activity and temperature, could easily explain most or all late 20th century warming. When the IPCC and others omit the solar-magnetic variable from their models, any warming effect of solar activity gets misattributed to whatever correlated variables ARE included in their models.
By sheer coincidence, CO2 reached its own “grand maximum” levels (at least compared to the rest of the Holocene) in the second half of the 20th century. Thus in the alarmist models, whatever warming effect the omitted solar-magnetic variable is responsible for gets misattributed to CO2.
You can find rationalizations for this omitted-variable fraud in every IPCC report. For instance, section 126.96.36.199 of the Third Assessment Report does not question the correlation between solar activity and climate, but dismisses the cosmic-ray cloud THEORY as too speculative to include in their climate models:At present there is insufficient evidence to confirm that cloud cover responds to solar variability.But they don't just leave solar-magnetic activity out of their models. Because their forecasts are based entirely on their climate models, they also leave solar magnetic effects completely out of their climate forecasts, despite knowing that there is SOME mechanism (even if the cosmic-ray/cloud theory turns out to be wrong) by which solar-magnetic activity is the primary driver of global temperature.
The only solar variable they do include is solar output or Total Solar Insolation (from long to short-wave radiation), which does not include the solar-magnetic flux. The Fourth Assessment Report does the same thing, looking only at TSI, as do all of the analyses that follow from these reports. For instance, if you look at he “Natural Influences” subsection of the Obama administration’s new report, you will see on page 16 that the only natural influence listed is “solar output’ (or TSI), which is why it is shown graphically to be so tiny.
Solar output is close to constant over the solar cycle (less than 0.1% variation), which is why it is called “the solar constant." Because TSI is nearly constant, it cannot account for the many thousands of years of close correlation between solar activity and temperature. That must be coming from the one solar variable that DOES vary with solar activity: the solar magnetic flux. Every IPCC climate scientist knows this, yet they still omit the solar-magnetic variable.
Proof of omission: page 16 graphic from the June 2009 report by U.S. Global Change Research Program (in effect, the NOAA). The only natural warming effect listed is total solar output, which does not include the solar-magnetic flux. Similar graphics can be found in each of the IPCC's assessment reports, where this analysis originates.
Religion, not science
When the alarmists omit solar-magnetic effects on the grounds that they are not satisfied with with existing theories of HOW these effects work, they are not just committing statistical fraud, but they are contradicting the very definition of science. Observation (the overwhelming correlation between solar activity and global temperature) is supposed to trump theory, not vice versa.
Consider an analogy. Until Einstein developed his theory of general relativity there was no good theory of gravity. Newton had a description of the gravitational force (that it diminishes by the inverse of the square of the distance) but nobody had any sensible account for the mechanism by which massive objects were drawn to each other. Applying the standards of the IPCC, a pre-Einsteinian or pre-Newtonian scientist should have forecast that when a stone is released in the air, it would waft away on the breeze. After all, we understand the force that the breeze imparts on the stone, but we don't understand this thing called gravity, so we should not include it, even though we observe that heavy objects fall.
That is not science, and neither is CO2 alarmism. Data is supposed to trump Theory. By using theory (the proclaimed insufficiency of solar-magnetic theory) as an excuse to ignore the evidence (where solar activity is known to somehow warm the climate), warming alarmism perverts the scientific method.
That makes it religion in the constitutionally barred sense. Not only is this belief system embraced by millions of people WITHOUT EVIDENCE, but it is embraced in the face of overwhelming contrary evidence. Alarmism about CO2 is not just a religion, it is a demonstrably irrational religion, equivalent to believing that rocks will waft away on the breeze.
EPA is supposed to make science-based rulings. If you regulate CO2 based on demonstrably anti-scientific ideology, it will be an unconstitutional state establishment of religion.
The current cooling trend fits the solar-magnetic theory, not the CO2 theory
All of the major temperature records show that the earth's average temperature has been falling for ten years now (with the 21 year smoothed temperature falling for five). In this period, CO2 has continued to increase, while the sun has descended into a prolonged solar minimum. This turn in the sun (breaking the coincidental correlation between solar activity and CO2 that existed for the previous 70 years), is rapidly unmasking the hoax of anthropogenic global warming.
It should not take a rare astrological event to unmask an obvious statistical and scientific fraud. Will the EPA now destroy its reputation by codifying the "green" religion at the very moment when the heavens themselves are exposing its dishonesty? If you choose this course, you will be destroying the nation's economy and the lives of your countrymen in the service of your own anti-scientific religious beliefs, in violation of your oath of office.
Tuesday, June 16, 2009
False AP report: Obama did NOT say that Iran must respect voters' choice
He said it's up to Iran to determine its own leaders but that the country must respect voters' choice.Why then have reputable people continued to pass harsh judgment? And why would AP paraphrase what would have been Obama’s key statement?
Turns out Obama said no such thing. What he actually said is that the VOICES of the Iranian people should be heard and respected, not their votes:
And particularly to the youth of Iran, I want them to know that we in the United States do not want to make any decisions for the Iranians, but we do believe that the Iranian people and their voices should be heard and respected.This is consistent with the rest of Obama's remarks. He never said a word about respecting votes. Obama did mention "the democratic process," but far from saying anything about this process having to meet any standards of integrity, he instead implied strongly that he will accept whatever result the "process" followed by the Mullahs produces:
I want to start off by being very clear that it is up to Iranians to make decisions about who Iran’s leaders will be; that we respect Iranian sovereignty and want to avoid the United States being the issue inside of Iran, which sometimes the United States can be a handy political football...Democracy means that Iranian sovereignty lies with the Iranian people and that a regime that rigs an election is NOT sovereign. Yet Obama is explicit that he will continue to treat the mullahs as the Iranian sovereign no matter how they judge the election. He even goes so far as to suggest that the only reason he is bothering to comment on the competing claim to sovereignty at all is because it would be unseemly for him not to:
We will continue to pursue a tough, direct dialogue between our two countries, and we’ll see where it takes us. But even as we do so, I think it would be wrong for me to be silent about what we’ve seen on the television over the last few days.The only operative concerns that he mentions are for: "free speech, the ability of people to peacefully dissent." When he talks about the "democratic process" going forward, all he urges is that the process be peaceful and that dissent be allowed. He says nothing about the process being honest:
...there appears to be a sense on the part of people who were so hopeful and so engaged and so committed to democracy who now feel betrayed. And I think it’s important that, moving forward, whatever investigations take place are done in a way that is not resulting in bloodshed and is not resulting in people being stifled in expressing their views.It is no accident that Obama ended with the statement that AP paraphrased so egregiously (equating his call for bloodless suppression with a demand for legitimate elections). This was his theme throughout. He views the honesty of Iran's democratic process as something to be judged by the mullahs, who he clearly accepts to be the sovereign power, regardless of the merits of competing claims.
AP covers its tracks, just like they did with the Flight 93 memorial
AP's fraudulent report about Obama demanding respect for voters' choice was the primary print report on Obama's comments. Now that it has already misled millions of people, AP has covered its tracks by filing an update that overwrites the errant statement. This is what AP does when it gets caught putting out misinformation. To avoid issuing a correction, they flush the misleading story down the memory hole by using the same url for a completely different story. (Google only finds AP's original article still posted at Fox News.)
AP did the same thing last year after it was taken to task for failing to check the most basic facts in a story about the controversy over possible Islamic symbolism in the Flight 93 memorial. Ramesh Santanam reported a number of conflicting factual assertions, like the 44 blocks:
Opponents also claim there is a plan to have 44 glass blocks, for the 40 victims and four hijackers, in the design.When it was pointed out that Santanam could have found the four extra blocks just by opening up the design drawings and counting, AP quickly filed a completely different story (about fundraising for the memorial), under the same url.
"That's an absolute, unequivocal fabrication that is being portrayed as fact," said Edward Felt's brother, Gordon Felt, president of Families of Flight 93. "It's misleading and helps drive the conspiracy theory."
It's not that there is anything inherently wrong with AP using subject feeds that automatically update with their latest offering. It is that AP is systematically using this system to dodge corrections. This is actually their official policy:
For corrections on live, online stories, we overwrite the previous version. We send separate corrective stories online as warranted.Except AP virtually never issue corrective stories, for the simple reason that AP has no established correction procedure. They just do the overwrite thing and say "too bad."
Well this time the overwrite thing is not good enough.
Demand a corrective story about AP's false paraphrase of Obama's words
Associated Press obviously understands the importance of Obama saying that Iran must respect voters' choice or they wouldn't have bothered to pretend that he said it when he didn't. They don't just fail to mention Obama's glaring omission on this crucial point, but actually tell the public via false paraphrase that he did say what he glaringly omitted. This cannot stand. Faced with our new president's key statement on a historic crisis, AP reports a photo negative of what Obama actually said.
There may be no established procedure for AP corrections, but anyone can still send a pre-written email to AP CEO Tom Curley, Chairman Burl Osborne, Editor Kathleen Carroll, the reporters who worked on the story (the egregious Jennifer Loven, along with Anne Gearan and Robert Burns), plus a smattering of other AP editors and bureaucrats. Who knows. There may even be a limit to how disingenuous some of these people are willing to be.
Error Theory extra: Obama implies that he will let the mullahs get nuclear weapons
Obama is king of the weasel words. At first blush, his statement about Iranian nukes seems to suggest that he will try to stop Ahmadinijad from getting nukes:
...tough, hard-headed diplomacy — diplomacy with no illusions about Iran and the nature of the differences between our two countries — is critical when it comes to pursuing a core set of our national security interests, specifically, making sure that we are not seeing a nuclear arms race in the Middle East triggered by Iran obtaining a nuclear weapon...But wait a minute. If he meant to say that we need to make sure Iran doesn't get a nuclear weapon, how come he said this other thing? How come he said we need to make sure that there is not an arms race triggered by Iran getting a nuclear weapon? Is he actually saying that what we need to insure is that when Iran does get nukes, it does not trigger and arms race?
Yes. Absolutely. With 100% certainty. Otherwise he would not have used weasel words. The only reason to use weasel words was to find a way NOT to commit to stopping Iran from getting nukes.
Seeing Obama use weasel words for the simple objective of stopping Iran from acquiring the most powerful weapons is like seeing AP use paraphrase for what would have been Obama's key remark. There has to be a reason for going the long way around, so you look at the actual words and you see the actual meaning.
Obama evades the simple goal of stopping Iran from acquiring the most powerful weapons because he does not share that goal. He either positively wants Iran to have nukes, or he is determined to accept it. Since these views shared by very few of his countrymen, Obama uses weasel words.
This nixes any possibility that Obama accomodation of Islamofascist election-stealing is because he thinks he can negotiate Ahmadinijad and the mullahs out of their nuclear ambitions. He has no intention of keeping the Islamofascists from acquiring nuclear weapons. If there is any interplay between Obama's tolerance for election-stealing and his tolerance for Islamofascist nukes it can only be that one reason he wants the mullahs in power is so that his plan to accommodate their nuclear ambitions will not go unfulfilled.
UPDATE: Robert Kagan on how Obama's already established "realist" policy is premised on accepting the legitimacy of Iran's Khomeini-ist regime
Excellent column on how Obama's "grand deal" with the Iranian Islamofascists seeks to trade recognition of their legitimacy as a way of getting them to come around on nuclear weapons. This, says Kagan, is how to understand his lack of encouragement for the uprising. It isn't that he really thinks that "meddling" from the U.S. would hurt their cause. It is that he wants them to go away, so that his negotiations with the "legitimate" Islamofascist dictatorship can proceed as planned.
"If you find all this disturbing," says Kagan, "you should":
The worst thing is that this approach will probably not prevent the Iranians from getting a nuclear weapon. But this is what "realism" is all about.The only thing he is missing is that Obama has no intention of stopping the Islamofascists from getting nukes and never did. His "grand deal" was always just a ruse to keep the Islamo-fascists in power and help them get the bomb.
Why? Because Obama is an Islamofascist himself. That is the obvious explanation, fitting everything we know about Obama with everything about his behavior. As I have documented before, every single one of Obama's long term mentors and confidants (with the possible exception of Michelle) is not just Muslim, but Islamofascist: William "Abu Zayd" Ayers, the so-called "ex-Muslim" Jeremiah Wright, Islamofascist "cousin" Raila Odinga, PLO terror supporter Rashid Khalidi, Saudi-NOI moneyman Khalid Al-Mansour, and perhaps the greatest influence of all, Obama's communist, racist. Islamofascist father.
UPDATE 2: Obama justifies his indifference to Iranian democracy on grounds that there is little difference between Ahmadinijad and Mousavi
CNBC asked how the uprising changes things for our relationship with Iran. Obama's answer? It doesn't change things at all:
Well, I think first of all, it's important to understand that although there is amazing ferment taking place in Iran, that the difference between Ahmadinejad and Mousavi in terms of their actual policies may not be as great as has been advertised.Shouldn't that be "last of all"? The nation is standing up for honest democracy, and Obama is looking at the lack of difference in the candidates.
Of course there is turning out to be a big difference between the candidates as well. Ahmadinijad is determined to "purify" Iran by mass murdering the brave Iranians are trying to overturn his election fraud. Mousavi is standing up for electoral honesty and the lives of the protestors.
Notice that Obama's original comment only expressed concern for peaceful dissent:
...whenever I see violence perpetrated on people who are peacefully dissenting, and whenever the American people see that, I think they’re, rightfully, troubled.Yes, and we are also troubled when an unarmed population tries to physically resist an armed usurper and gets slaughtered, but what about Obama? His statement sidesteps this emerging reality, but the contortions that he is already going through to support Ahmadinijad suggest that "peacefully" will indeed turn out to be another Obama weasel word.
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Thursday, June 11, 2009
Gay marriage is not a right
There was a time when marriage was about more than mere social approval, so that being barred from marriage could indeed violate a person's natural liberty. For instance, sex outside of marriage used to be a crime, often severely punished. This is no longer the case, not just as a practical matter, as society has become more tolerant, but as a matter of Constitutional law. Justice Kennedy’s ruling in Lawrence v. Texas recognized for the first time (and long overdue) a general right to liberty, grounded in the 9th Amendment’s assertion that the sphere of protected liberty is not limited to the enumerated protections.
In the particular instance, Lawrence v. Texas specifically decriminalized homosexual relations, whether homosexuals are married or not. In one stroke, that stripped away the relevance of marriage to constitutionally required tolerance. The remaining legal concomitants of marriage contain only minor liberties (some of suspect propriety, like allowing spouses not to testify against spouses, regardless of the severity of the crime in question). At the same time, the economic arrangements of marriage can be secured by freedom of contract, without requiring society to do anything more than provide enforcement of contracts.
In terms of assistance, our laws don’t provide any significant advantages to married couples, and what advantages do exist are to support the bearing and raising of children. Supporting children indirectly by assisting parents is always hit or miss, and there is no possibility, never mind any constitutional requirement, that all parents or children be supported equally.
All that is left is the issue of social approval. Given that tolerance and approval are opposites of a sort, it may seem obvious that no one has a constitutional or moral right to approval, but it is still important to work through the moral machinery, beginning with the theoretical question of how to achieve the greatest equal liberty.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Mill’s principle of liberty and the right to privacy
Sometimes a person’s interest in engaging in a particular behavior is indirect. He might be specifically interested in other people’s reaction to his behavior, as when San Francisco homosexuals take to the streets for their pornographic parades. On the other side, residents who don’t like these displays have only an indirect interest in having these exhibitionists put their pants back on. The result is a conflict of indirect interests only.
Mill never addressed this case, but logically it should be treated the same as a conflict of direct interests. Since none of the liberty interests that are at stake can be identified as greater or lesser than the others, the greatest-equal-liberty criterion has nothing to say about what should happen. The natural liberty of individuals is not at stake, which means the question must be turned over to majority rule.
Ours is a government of the people, by the people and for the people. The natural liberty of individuals comes first, then come the rights of the majority. So long as the majority does not infringe natural liberty then the democratic ideal holds sway, and the boundary of natural liberty, as far as reason can discern it, is the priority of direct over indirect interests.
In San Francisco majority rule means porno-marches yes. In Fresno, porno-marchers no. The upshot is a right to privacy, created not as a way of protecting a class of inherently private behavior, but as a way of allowing some behaviors to be banned in public.
People DO have a direct interest in being allowed to participate in pornographic acts. It is only engaging in such acts in public that no one has a direct interest in. So long as people have scope to engage in pornographic acts in private, then their direct interests are protected, and only their indirect interests are affected by being barred from this behavior in public, which is not a liberty concern.
Gay marriage is an indirect interest
Since marriage no longer regulates matters of natural liberty, all that is left of the institution of marriage under American law is society's stamp of approval for married couples. A desire for approval is an indirect interest: an interest in what other people think.
On the other side, the granting of approval or disapproval is also an indirect interest. That is, both sides of gay marriage question--both the desire of gay couples for approval, and the question of whether others want to grant that approval--are matters of indirect interest. Nobody has a direct interest in whether homosexuals are allowed to marry.
That means there is no right to homosexual marriage, and the matter should be turned over to majority rule. To impose homosexuals' indirect interests in other people's approval over the indirect interests of the majority is to treat the indirect interests of homosexuals as direct interests, and ultimately to impose them over the direct interests of others, violating Mill's principle of liberty and the natural liberty that Mill's principle elucidates.
Of course majority rule is imperfect. What it approves will never be what everyone approves, and some people will always be forced to go along with public approval for what they do not approve. Still, one of our individual rights is to have a republican form of government, which means that matters that are properly subject to majority rule ARE subject to majority rule, and that minorities do not get to impose their demands for approval on the rest of us. When that is violated, the harms to direct interests that result are wrongs.
Ted Olson's suit in favor of gay marriage
In their interview with Larry King, Ted Olson and David Boise outlined the equal protection argument they are going to make in federal court against Proposition 8 (which amended the California State Constitution to define marriage as between a man and a woman).
They appeal to the precedent established in the aptly named case of Loving v. Virginia, where 42 years ago SCOTUS struck down a Virginia law barring interracial marriage. Loving v. Virginia recognized marriage as a fundamental right. Olson and Boise argue that under the equal protection clause, that right must be recognized equally for all Americans, regardless of sexual orientation, allowing anyone to marry anyone.
This argument begs the exact question that Prop. 8 raises, and answers so succinctly: what is marriage? If it is by definition between a man and a woman, then yes, homosexuals have a right to marry, but they can only marry people of the opposite sex. Otherwise it is not marriage.
Olson and Boise are in-effect trying to use the equal protection clause to change the definition of marriage, but changing the definition of marriage is beyond the purview of the equal protection clause. The definition of marriage as between a man and a woman is established by history and religious tradition, things that the equal protection clause cannot affect. The 14th Amendment can only determine that homosexuals have a right to marry people of the opposite sex, just like everyone else.
Kmiec’s proposal to get government out of the marriage business entirely
Douglas Kmiec thinks the thorny problem of gay marriage can be resolved (or at least swept under the rug) by getting government out of the marriage business altogether. But when government participation in marriage is viewed as a vehicle both for conferring social approval and for directing social assistance mothers and fathers who bear and raise children, abandoning this enterprise is no solution. Kmiec is just dodging the question of what society should approve and disapprove by deciding not to approve or disapprove of anything.
The moral weakness of this approach is well captured by Ed Morrissey's reason for approving of it:
Kmiec has the better argument, mostly because the “state” gave up protecting marriage and children decades ago.We already fail to give proper due to heterosexual marriage, so instead of fixing that failing, lets just dump the whole thing.
From the viewpoint of moral science, getting government out of the business of approving or disapproving anything is a violation of the rights of the majority. So long as natural liberty is protected, majority rule properly holds sway. To say that the majority cannot exercise its properly allocated powers is a tyranny of the minority, overthrowing the largest part of republicanism, which is democracy.
The American meaning of republicanism is the system of liberty under law. Democracy has two roles in this system. It allows us to throw off a tyrant who tramples on the natural liberty of the people (a capacity that looks like it is going to be tested in the next two elections); and it allows the people to decide for themselves how they want to be governed consistent with natural liberty. Thomas Jefferson stated the latter in an 1817 letter to Alexander von Humboldt:
The first principle of republicanism is that the lex majoris parties is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.
Tyrannies of majority and minority in California
In the name of anti-discrimination, California has for many years been engaging in both tyranny of the majority and tyranny of the minority. The state government (tyranny of the majority) has passed numerous laws that violate freedom of association and other natural liberties, forcing not just toleration, but actual association with homosexual behavior.
Consider California’s 2003 Fair Employment and Housing Act, which expanded the state’s anti-discrimination laws to include trans-gendered people in employment and housing. What? You didn’t promote that grizzled and graying 250 pound bald man wearing a pink dress and a push-up bra? Yes, I’ve actually seen it, at a local Sear Robuck no less.
Bet he wasn’t dressed like that when he applied, but if they fire him for it, they’ll lose in court. And what sane jury would ever believe that this person's grotesque behavior did not hold back his career? To avoid losing in court, Sears will actually have to promote him. In California, it is now in effect the employer's job, not the employee's job, to keep the employee's career on track, so long as the employee dresses shamefully.
California's Democrat dominated legislature has been larding the state up with this garbage for decades. Homosexuals were added to the anti-discrimination laws several years before the trans-gendered. All of these laws are violations of natural liberty. People are allowed to discriminate on the basis of every behavior except homosexual behavior. Again, the upshot is forced approval on the pretense of individual rights, when there is no right to approval.
These bogus rights claims become tyranny of the minority when they are used to keep the majority from enacting restrictions that withhold public approval for homosexuality. The California Supreme Court did this when it struck down the first anti-gay-marriage proposition on grounds that it violated the state constitution. No it didn’t. California has approximately the same equal protection clause as the 14th Amendment. This clause can’t change the definition of marriage any more than the federal clause can. Homosexuals have the same right to marry people of the opposite sex that everyone else does. They do not have a right, legal or moral, to marry each other.
Californians are fighting back against the tyrannies of majority and minority that are being imposed upon them. I have no problem with conservatives who think that gay marriage SHOULD be approved by society, but to force this approval under the guise of individual rights is perverse.
Gay marriage nothing like interracial marriage
The contrast between interracial marriage and gay marriage goes far beyond the simple fact that marriage has traditionally referred to a man and a woman. Even if there was no pre-existing right to heterosexual marriage, bans on interracial marriage would still not stand up to constitutional scrutiny.
In the absence of a constitutionally recognized fundamental interest, the test for constitutionality is the rational relation test: is a ban on interracial marriage “rationally related” to “a legitimate state interest”?
The answer is “no.” There is a legitimate state interest in maintaining the genetic quality of the next generation, but miscegenation laws are an irrational way to pursue that state interest. (The "rational relation" test is not in general a rationality test. Only the relation has to be rational, not the law itself. But if a law is positively irrational, that can call the rational relationship into question.)
Regarding the genetics of the next generation, individuals are motivated on their own to find the best partner with which to have a family. Since desirable qualities are spread throughout all races, and since the qualities of any individual can only be judged by those who encounter them as individuals, the expected best outcome for the next generation results when individuals are free to pick their own mates as best as they can. Any interference with this free choice will only block some people from accepting their best available choices, which will harm the genetics of the next generation.
Similarly for parenting quality and for every other legitimate state interest relating to mate-choosing. Thus rationality calls for free choice, and any discrimination against free choice is positively irrational. Interracial couples still have no right to approval. It is just that disapproval in this case fails to meet the most basic test that ANY law must meet (or should have to meet) to pass constitutional muster: that it cannot be positively irrational.
No such affirmative argument can be made in the case of gay marriage. On the contrary, limiting marriage to a man and a woman is perfectly rational for an institution designed to foster the bearing and raising of children. The specific accommodations that society makes here and there for married as opposed to unmarried couples are generally aimed at the accommodation of children.
Homosexual couples CAN have children, but do so at a much lower rate than heterosexual couples, and it is perfectly rational for society to focus its approval and its various accommodations for children towards those who for the most part are bearing and raising the children. The object of such laws is to promote the welfare of children, not to assuage the feelings of adults.
Bans on gay marriage are not just rational, but compelling
If homosexual couples are allowed marry, they will have to be given equal access to babies for adoption. After all, if society has determined not just that homosexual marriages should be approved, but that homosexual couples have a RIGHT to approval, then how can that approval be denied by any part of society? But in fact there is plenty of evidence that children need to be raised by a mother and a father. Children don’t always get what they need, but it is certainly rational for society to try to improve their odds.
There is also a huge correlation between male homosexuality and sexual abuse of boys, both pre and post pubescent. That makes homosexual adoption a huge risk, separate from the lack of a normal mother-and-father household. To protect children from homosexual adoption, it would be necessary to ban homosexual marriage, making the case against homosexual marriage not just rational, but compelling.
This is the test that the Court applies when a constitutionally recognized “fundamental interest” is at stake. A law that infringes fundamental interests must be "necessary" to "a compelling state interest." Thus even if the courts were to pretend that equal protection can change the definition of marriage, there would still be a strong case to make for the constitutionality of a ban on homosexual marriage.
In sum, the question is whether we are going to take our fundamental institution for supporting the bearing and raising of children and turn it into something very different, something for everybody, based on the fraudulent idea that homosexuals somehow have a RIGHT to approval.
No. They have a right to be tolerated, which they have been granted in full. Now they answer that liberal generosity with this illiberal demand for approval. I would like to see society move in the opposite direction and use the legitimate powers of the majority to suppress public homosexual displays. That is what the right to privacy is really about. It is the public’s right to put behind closed doors that which society is only required to tolerate.
Make the gang trash pull their pants up in public. Give tickets to the parents of foul mouth teenagers. Keep the porno-parades in San Francisco, and ban gay marriage entirely.
ADDENDUM: Privacy and abortion
The Supreme Court has proclaimed a right to abortion, pursuant to a proclaimed right to privacy that is held to be implicit in the Constitution. Suppose privacy rights were to be understood as I suggest in this essay: as a way to allow some protected activities (activities that do not harm the direct interests of others) to nevertheless be banned in public (when only indirect interests are harmed by such a ban). Would such a right to privacy still imply a right to abortion?
Absolutely not. Abortion involves the most extreme harm to the direct interests of the unborn. That means it is not a protected activity in the first place, which means it cannot be protected by a right to privacy.
The ordinary language meaning of privacy says the same thing. Something is a private matter if it does not harm third parties. A child, born or unborn, is obviously a third party.
This does not mean that there is no natural right to abortion. I think there is such a right, stemming from the fact that in many cases, not terminating a pregnancy will mean that another child who would otherwise have been conceived at a later date will no longer be conceived. This is just an extension of the recognition by anti-abortion advocates that an abortion means a child who would have lived does not live. Carrying the same logic one step further, there are also actual children who some years down the road will not be born if their parents do not have abortions today. In fact, we can name millions of these children. Every child born to a parent who earlier had an abortion is a child who would not have been born otherwise.
These lives can no more be discounted than the lives of the unborn in the womb, and in my probably not humble enough opinion, the only people who can choose between these lives are the parents. That makes it a private decision in the private-sphere vs. government-sphere sense, but not in the common language sense of there being no third party interests that need to be accounted. It is just that the best people to account those third party interests (whether to have children now or later) are the parents.
Abortion is about the last thing that can be fit under the unenumerated rights of the Ninth Amendment. Because the direct interests of the unborn are at stake, it does' not fit under Mill's principle of liberty (and hence not under the rights of the Declaration, which Mill's principle logically articulates), and it was not a historically recognized right, available for the people to "retain." Thus until a constitutional amendment is passed that protects a right to abortion (an amendment I would gladly work for), it ought to be for the states to decide.
The advocates of the "living Constitution" are wrong. The constitution does not say whatever progressive opinion wants it to say. It says what it says, and if we don't like what it says, it is incumbent on us to amend it, not re-interpret it to suit our will.
UPDATED 8/15/12 to clarify how Mill's principle helps to secure maximum equal liberty.
Friday, June 05, 2009
Obama’s filing against 9/11 families: so bad it's good
9/11 families were stunned this week to learn that President Obama is asking the Supreme Court NOT to review their effort to recover damages from the government of Saudia Arabia and from several Saudi princes for funding al Qaeda’s 9/11 attack on America. That the defendants did funnel vast sums of money to al Qaeda was accepted as a given by the appellate court, as was the fact that al Qaeda was known to be dedicated to and engaged in violent attacks against America. So what was the Obama administration’s reason for siding with the Saudis?
Solicitor General Elena Kagan’s amicus brief to the Supreme Court had to admit that the Second Circuit Court of Appeals erred in its grounds for denying the suit against the Saudi princes. No, the fact that the princes did not actually direct the al Qaeda attack on the United States does not relieve them of liability for attacks that they funded. The precedent on this is clear. As long as the defendant knew “that the brunt of the injury” from his tortious act would be felt in America, then:
... he must ‘reasonably anticipate being haled into court there’ to answer for his actions. [Calder v. Jones, 465 U.S. 783, 790. Cited on Kagan’s p. 18.]Nevertheless, said Kagan, she could think of a way around the appellate court’s utter failure to get the heart of the case right. The families’ suit falls under the 1976 FSIA law that establishes exceptions to the principle of sovereign immunity. This law does not allow jury trials. Thus while the appellate court was clearly wrong to say that the suit should not be heard, Kagan suggests that there are snippets in the ruling that can be read as the appellate court acting in its role of trier of fact, and thus ruling against the families for providing insufficient evidence.
In other words, instead of seeing the Second Circuit as rejecting the basis of the suit, we should see them as accepting the suit, and ruling against it on the substance. To make her argument that the appellate court actually did try the facts, she quotes the Second Circuit’s statement that:
Conclusory allegations that [Prince Turki] donated money to charities, without specific factual allegations that he knew they were funneling money to terrorists, do not suffice.But of course the families DID marshal reasons why Turki could be expected to know that his donations were going to al Qaeda, as indicated by the appellate court’s further statements that there was no personal jurisdiction even if the defendants did “know that their money would be diverted to al Qaeda,” or were “aware of Osama bin Laden’s public announcements of jihad against the United States.” (Cited in the families' reply brief, p.8, and in Kagan’s brief, p. 19, respectively.)
For Kagan to pretend that the Second Circuit acted as a sufficient trier of fact, when it explicitly asserted that the facts don’t matter, is just an attempt to mislead the Court. The evidence that the Saudi Princes knew they were funding al Qaeda has yet to be considered by U.S. courts, even though Kagan herself admits that if they did know, they should be held liable.
The families respond
Of course the families are angry that Obama is blocking their access to the courts, despite their legitimate claims under U.S. law:
The Administration's filing mocks our system of justice and strikes a blow against the public's right to know the facts about who financed and supported the murder of 3,000 innocent people. It undermines our fight against terrorism and suggests a green light to terrorist sympathizers the world over that they can send money to al Qaeda without having to worry that they will be held accountable in the U.S. Courts for the atrocities that result. …This at the same time as Obama insists that al Qaeda operatives held at Guantanamo Bay must be granted access to U.S. courts. Concocted rights for terrorists, yes. Following the law for the victims of terrorism, no.
The Administration's filing is all the more troubling in that it expressly acknowledges that the courts below applied incorrect legal standards in dismissing the Saudi defendants, but nonetheless argues that the case -- one that seeks to account for the terrorist attacks against America and the murder of our family members -- does not warrant the Supreme Court's time.
On Saudi state liability, Kagan again misleads to the point of outright dishonesty
Here too, Kagan is forced to start out by noting that the grounds on which the Second Circuit Court of Appeals dismissed the families’ claims is not valid. The circuit court held that damages for terrorist acts have to be brought under the FSIA law’s special exception for terrorist acts, which requires that the state defendant be designated by the State Department as a terror supporting state. Since Saudi Arabia has not been so designated, suit cannot be brought under this provision, end of case.
Wrong, as Kagan herself explains:
Congress’s concern was not to impose new limits on the domestic tort exception, but instead to expand jurisdiction to cover a narrow class of claims based on conduct abroad. See, e.g., H.R. Rep. No. 702, 103d Cong., 2d Sess. 3, 5 (1994) (explaining that the bill would “expand” jurisdiction to include claims by an American who is grievously mistreated abroad by a foreign government”).This was necessary because the domestic tort exception only applies to injuries that occur on U.S. territory. Specifically, the domestic exception allows suit when:
1605(a)(5) - money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state.In the wake of the Iranian hostage taking in Tehran, Congress wanted designated terror-supporting states to be liable for harms that they inflict on Americans even on their own territory, but this in no way was supposed to limit suit over harms that occur within the United States, such as the 9/11 murders.
Confronted with this obviously wrong ruling by the Second Circuit, Kagan again tries to cobble together an alternative grounds for granting Saudi immunity. To fullfill this improbable command from above, she decides to flat-out lie about precedent, big bald astounding lies.
Notice that the language of the domestic tort exception is perfectly clear that what has to occur inside the United States is the personal injury or death, not the decision that leads to the personal injury or death. Suppose that the home office of a state owned shipping company decides to scrimp on safety equipment for its cargo vessels, leading to loss of American lives when cargo is offloaded in an American port. This is exactly the kind of thing that FSIA was intended to cover, but Kagan pretends otherwise, arguing that not only the tort (the harm), but also the “tortious act or omission” that creates the harm, have to take place inside the United States.
In many cases there is no separation between the harm and the act that creates it. They both occupy the same time and place. Neither does the language of torts typically distinguish between the tort and the tortious act. Instead, the tortious act is seen as being realized when the tort (the harm) actually occurs. Kagan's ploy is to try to make a distinction between the tort and the "tortious act" that leads to it, and she is able to come up with some out-of-context references to make it sound as if precedent demands that both the harm and the decision-making that leads to the harm have to occur here in America.
She claims, for instance, that:
In Amerada Hess, the Court considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception. 488 U.S. at 441.Applied to the current case, she is clearly suggesting that the “domestic effect” corresponds to the 9/11 attacks, and that the “conduct abroad” corresponds to the statutorily required “tortuous act or omission” that in both cases took place outside of U.S. territory. A look at the actual Supreme Court ruling, however, shows this to be a gross misrepresentation of Ameranda Hess.
Looking up Argentine Republic v. Amerada Hess Shipping Corp. and turning to p. 441 we find what the case was actually about:
In this case, the injury to respondents' ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred "in the United States."In other words, it was the harm itself that in this case did not occur within U.S. territory. Contrary to Kagan’s representation, the Court was NOT making a distinction between the harm and decision that led to it and claiming that both had to occur within the United States.
This kind of blatant misrepresentation of precedent is lawlessness! Is this how the Obama administration treats precedent? As fodder for utterly dishonest word games? YES.
To preserve its own reputation, SCOTUS will have to hear the families’ case
The Supreme Court asked the Obama administration to submit this brief. It cannot be ignored. If SCOTUS accepts guidance from this contemptuous document, then it is implicated in the Obama administration’s contempt for the law.
If the sheer perversity of Kagan’s filing does force the Court to hear the families’ case, that would be a great outcome, but the downside risk is equally amplified. If the Court DOES accept Kagan’s guidance, it is a black black day for America.
Meretricious cites and arguments dominate every paragraph of Kagan’s brief, except in two place: where she shoots down the Second Circuit’s patently errant grounds for dismissal. It almost seems like she started with a brief in support of the families’ suit before getting the order from Obama to side with the Saudis. Apparently she decided that it was fruitless to try to support the Second Circuit’s reasoning, so she let the demolition of the Second Circuit’s ruling stand, then supplied her own just as bad case for Saudi immunity.
However it came about, Kagan’s destruction of the Second Circuit ruling is so competent, and her substitute arguments for immunity so incompetent, that the whole almost seems designed to force a Supreme Court hearing. Could she have intentionally sabotaged her own brief? Doubtful, given that the Obama DOJ just overruled its own career lawyers in order to drop an already won case against three New Black Panthers who were caught on tape using weapons to intimidate voters. Apparently the Obama administration just really is this stupid and malicious.
In any case, it seems unlikely that Kagan’s shenanigans will get past the justices. Antonin Scalia is unlikely to forget the FISA case opinion he wrote in 1992, addressing the very question of harms resulting in the United States from decisions made by foreign entities in their home countries. His conclusion? In a breach of contract case where the only tie to the United States was the option of receiving payment in dollars in New York City, the Court denied immunity. Only the harm itself had to take place on U.S. territory, not the decisions that led to the harm, and the opinion was unanimous.
Obama’s imperial presidency: he does not want to be bound by the 1976 Foreign Sovereign Immunity Act, and says so
The family group states directly that:
The filing was political in nature and stands as a betrayal of everyone who lost a loved one or was injured on September 11, 2001.Indeed, the entire first section of Kagan’s brief is replete with claims that exceptions to sovereign immunity should be determined politically.
That is the way it used to be, before Congress passed the FSIA act specifically in order to take these determinations out of the political realm. The United States only started granting any exceptions to the legal tradition of sovereign immunity in the 1950's, after some nation-states started getting heavily involved in commerce. If state enterprises could not be held liable in U.S. courts, they would have a competitive advantage over private industry. Not smart policy during the cold-war contest between capitalism and communism.
Exceptions were at first made on a case by case basis by the executive, but such arbitrariness does not suit the needs of commerce, so Congress made an explicit decision to take this power away from the executive. Even so, Kagan’s brief hints over and over (p. 4-10) that executive prerogative should still hold sway, but without ever making an explicit case that FSIA intrudes on the inherent powers of the presidency, and without ever stating what the president would want to do with those powers in the present case if the court were to recognize them as pre-eminent.
The reason Kagan doesn’t make these things explicit is because they are damning. Obama knows that the Saudi’s are liable under U.S. law, but for his own political reasons he does not want them to be held liable, but neither does want the nation to understand that he considers currying favor with the people who attacked us on 9/11 to be more important than justice for his own murdered countrymen.
The president does indeed have some inherent power here, just as President Bush had inherent power to wiretap conversations with al Qaeda operatives both at home and abroad, regardless of what Congress put in the FISA wiretapping law. Bush did abide by FISA, but he didn’t have to.*
Obama is going further. He does not want to abide by FSIA, but is unwilling to make the case that the particular exemption from FSIA that he is asking for is a legitimate exercise of his inherent powers, or even assert what he would do with that power. He just wants the courts to do his dirty work for him, asking them to grant immunity to the Saudis based on bogus claims about FSIA law and precedent.
Conservative justices might be tempted to recognize the president’s inherent powers in the area of foreign policy, but they should not let him exercise this power on false pretenses. If he wants to claim that he has the inherent power to grant immunity to the Saudis and that this is how he wants to exercise that power, he can do it publicly, but he should not be allowed to overrule Congress on the pretense that he is doing the will of Congress.
To allow this subterfuge would destroy fundamental FSIA precedents while failing to attain the virtue of the pre-FSIA regime, where the president had to stand or fall by his explicitly political decision-making. If Obama wants to invoke the inherent power of the presidency here, he at the very least has to be willing to admit it.
* FISA court precedent on inherent powers
The powers of Congress to regulate in an area where the president has his own inherent authority was addressed by the FISA court in September 2002:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.The contrast to the present case is instructive. Bush’s Solicitor General Ted Olson did not hide the fact that President Bush wanted the court to recognize his inherent authority to conduct signals intelligence. With that power duly recognized, Bush still went the last mile to conform to the law as enacted by Congress. That is what it means to “uphold our fundamental principles and values,” while Obama, who keeps accusing President Bush of failing to uphold our values, engages in legal subterfuge, showing as much contempt for the law as for our 9/11 families.
Monday, June 01, 2009
NASA still hiding correlation between solar activity and temperature
Thar she blows, the Maunder Minimum of sunspot activity:
As it has done for two years now, NASA is predicting that solar cycle 24 will ramp up tomorrow. Should that broken-clock prediction hits its hour, then NASA is also predicting that solar cycle 24 will have the modest amplitude of the 1928 cycle, indicated by the red arrow.
A look at the temperature record shows the correspondence between solar activity and temperature:
Maunder Minimum cold; Dalton minimum (just before the red thermometer-based line starts) cold; unnamed end-of-1800's minimum (first dip in red line) cold; "grand maximum" solar activity between 1920 and 2000 warm.
NASA is acutely aware of this correspondence, but is keeping John Q Public in the dark. Now that the sun has gone quiet again, the climate is cooling again, but you will never hear it from James Hansen’s underlings at NASA:
CO2 keeps going up, but temperatures are going down. NASA frowns and scratches.
Gee you tax-payer supported SOLAR SCIENTISTS, busy gaping at "the quietest sun we've seen in almost a century," if temperature is not being driven by CO2, what possibly COULD have created warming since 1910 and cooling since 2000?
Deluded people all over the world actually think the planet is still warming
This week's sky-falling headline, courtesy of the UK Times:
Climate change is already killing 300,000 people a year in a “silent crisis” that is seriously affecting hundreds of millions more, an influential humanitarian group warned today. ... The report claims that 90 per cent of the deaths are related to gradual environmental degradation caused by a warming climate.Whatever those supposed deaths might be attributable to, they cannot be attributed to a warming climate, because THE CLIMATE IS NOT WARMING. It is cooling. Just look at any of the major temperature records:
You'd think that the Times could bother to check with England's own climate office for something as basic as the temperature record, but the problem isn't JUST the press. Like NASA, the Hadley Centre tries to keep the most basic climate-science facts from the public. When temperatures were rising, Hadley cried the global warming threat from the rooftops. Now that the planet is cooling, they are doing their best to cover it up. Here is Hadley's current statement:
The year 2008 was tenth warmest on record, exceeded by 1998, 2005, 2003, 2002, 2004, 2006, 2001, 2007 and 1997They are actually describing a jaggedly descending temperature, but with no mention of the cooling that is occurring. All they say is how warm it still is.
Even those who see themselves as trying to take the reasoned middle ground are misled about the most basic facts. A recent Popular Science editorial claimed that:
...few if any doubt any longer that the warming itself is occurring, given the worldwide rise in surface temperature...HADcrut3 is a surface temperature record. Can PopSci name a single warming skeptic who is ignorant enough think that this record shows that "warming itself is occurring" when it very clearly shows the opposite?
Presumably they mean to refer to the fact that pretty much everybody now acknowledges that there does seem to have been a small amount of warming between the late 70's and 2000, topped off by the El Nino spike of 1998. It did indeed take a while for many skeptics to acknowledge this small amount of warming, for the simple reason that it was not evident in satellite readings (as can be seen in the above graphic with the gray background), while the surface temperature records were known to be tainted with an upward temperature bias, thanks to growing "urban heat island" effects.
No clear warming signal until very late 90’s, then cooling
Pre-98, the alarmists themselves were not yet sure that temperatures were actually rising. Their theory was that CO2 should cause temperatures to rise, and they were watching like hawks for a clear warming signal that they could take as evidence that this theory was right, but it took them a while to get it. In the mid 90's, even the most radical alarmists, like NASA's James Hansen, were only talking about whether or not this predicted signal had been seen yet or not.
They even worked it out so they could claim to see CO2-caused warming in the absence of rising temperatures. Aerosols from coal burning are seen as having a cooling effect, so in the absence of CO2 warming effects, cooling would be expected. Thus so long as temperature readings were not actually showing global cooling, Hansen et. al. could claim that human release of CO2 was having a measurable warming effect. (See for instance, the 1995 IPCC report, summary of the science, p. 22, subhead 4: "The balance of evidence suggests a discernable human influence on global climate.)
With the El Nino spike, it became clear that some warming had occurred. But that was the temperature peak. Since then the surface records and the satellite records all show cooling. Thus the alarmists got essentially one data point that can be taken as supportive of their theory: the very late 90’s did show a clear warming signal. Unfortunately for them, the CO2 theory has no explanation for the rest of the temperature record.
There was no significant human production of CO2 before WWII, so the CO2 theory has no explanation for planetary warming from the Little Ice Age to the 1930s (covering about .8° of the 1°C temperature rise between the Little Ice Age and today). In contrast, the theory that solar-magnetic activity drives climate fits this emergence from Little Ice Age very well: goodbye Maunder Minimum, with hiccups at the Dalton Minimum and the fin-de-1800's minimum.
Ditto for the post-2000 cooling: it does not fit the CO2 theory at all, but fits perfectly with the theory that climate is driven by solar activity.