From the Archives: May 2021


archives

15 years ago

May 2006

“A grassroots movement for gambling does exist in America, and it has existed for hundreds of years. Its members may not paint signs and organize rallies, but every day, week in and week out, year after year, they perform the most significant political act of all: They vote with their wallets.”
Greg Beato
“Sin Cities on a Hill”

“Although it has been adjudicated only in relation to prison and probation programs, [Alcoholics Anonymous (AA)] coercion by state agencies and representatives extends well beyond these populations. Government-licensed professional organizations—including pilots, attorneys, and health professionals—public assistance programs, and family courts all regularly assign Americans to 12-step programs. Most people recognize that imposing Christianity is un-American, even if those who adopt Christianity have fewer drug and alcohol problems. Yet many people readily accept the government’s imposition of AA and 12-step treatment.”
Stanton Peele
“Drunk With Power”

“The root of baseball’s economic problems lies in the restraints on what might otherwise be a free market. The league, as a whole, fails to realize that absent controls on team movement and rules against forfeiture of games, a revenue-sharing system would naturally evolve in one form or another. The key to transforming New York’s pastime back into America’s is to drastically reduce the powers vested in the central office. Maybe next year.”
Dan Lewis
“It Happens Every Spring”

30 years ago

May 1991

“Everyone agrees with [Shelby] Foote that the Civil War defined America, but they disagree about what that definition means and whether it is for good or ill. Depending on whom we consult, the Civil War was either a noble struggle to complete the unfinished work of the Founding Fathers and to enhance equality as the central idea of American politics or a desperate struggle to check the expansion and centralization of power in the federal government. Hence the controversy over the central figure of the Civil War: Abraham Lincoln.”
Steven Hayward
“The Children of Abraham”

“The hairline cracks long evident at the edges of the U.S. postal monopoly have been opened wide by February’s seismic postal rate hike. Within the next few years, sizable chunks of postal business could start breaking off into the private sector.”
Carolyn Lochhead
“The Superior Mail”

40 years ago

May 1981

“In 1970, when Congress and the Nixon administration agreed to continue passenger rail travel in the face of growing public preference for auto, bus, and plane, a modest $40 million was put up to get Amtrak rolling. In 1981 Amtrak is still rolling, and the taxpayers now are laying down nearly $900 million a year for it. Amtrak officials enthusiastically predict that the system will soon achieve ‘a permanent and ever more crucial role in our national transportation system.'”
Jeffrey Shedd
“Congress’s Toy Trains”

“Mr. Hotdog Vendor had watched his customers’ verbal assault on the inspector in speechless amazement, and when he saw his tormentor retreat, his eyes watered in happy relief and gratitude. ‘You save me,’ he repeated several times. He insisted on free lunches all around. A nice ending to a bit of spontaneous libertarian direct action?”
Peter Samuel
“Dog Days for the Small Entrepreneur”

“Much government interference in the marketplace is inspired by business requests. Producers frequently seek tariffs, subsidies, licensing requirements, and so on to shore up their markets, boost their prices, or enhance their finances. If those who have been verbally stoning Chrysler were asked who is without sin in this regard, few could raise their hands.”
Russell Shannon
“Are Businesses Really Opposed to Big Government?”

45 years ago

May 1976

“Finally, freedom for the prostitute means not just freedom for those who ply the profession, who choose the lifestyle; it means more freedom for all the members of society: freedom from hypocrisy; freedom for individuals to join the profession they choose, to spend their time as they choose; sexual freedom for all, and perhaps most important, freedom from yet another set of irrational and hypocritical laws criminalizing an act without victims.”
Timothy Condon
“What To Do About Prostitution”

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From the Archives: May 2021


archives

15 years ago

May 2006

“A grassroots movement for gambling does exist in America, and it has existed for hundreds of years. Its members may not paint signs and organize rallies, but every day, week in and week out, year after year, they perform the most significant political act of all: They vote with their wallets.”
Greg Beato
“Sin Cities on a Hill”

“Although it has been adjudicated only in relation to prison and probation programs, [Alcoholics Anonymous (AA)] coercion by state agencies and representatives extends well beyond these populations. Government-licensed professional organizations—including pilots, attorneys, and health professionals—public assistance programs, and family courts all regularly assign Americans to 12-step programs. Most people recognize that imposing Christianity is un-American, even if those who adopt Christianity have fewer drug and alcohol problems. Yet many people readily accept the government’s imposition of AA and 12-step treatment.”
Stanton Peele
“Drunk With Power”

“The root of baseball’s economic problems lies in the restraints on what might otherwise be a free market. The league, as a whole, fails to realize that absent controls on team movement and rules against forfeiture of games, a revenue-sharing system would naturally evolve in one form or another. The key to transforming New York’s pastime back into America’s is to drastically reduce the powers vested in the central office. Maybe next year.”
Dan Lewis
“It Happens Every Spring”

30 years ago

May 1991

“Everyone agrees with [Shelby] Foote that the Civil War defined America, but they disagree about what that definition means and whether it is for good or ill. Depending on whom we consult, the Civil War was either a noble struggle to complete the unfinished work of the Founding Fathers and to enhance equality as the central idea of American politics or a desperate struggle to check the expansion and centralization of power in the federal government. Hence the controversy over the central figure of the Civil War: Abraham Lincoln.”
Steven Hayward
“The Children of Abraham”

“The hairline cracks long evident at the edges of the U.S. postal monopoly have been opened wide by February’s seismic postal rate hike. Within the next few years, sizable chunks of postal business could start breaking off into the private sector.”
Carolyn Lochhead
“The Superior Mail”

40 years ago

May 1981

“In 1970, when Congress and the Nixon administration agreed to continue passenger rail travel in the face of growing public preference for auto, bus, and plane, a modest $40 million was put up to get Amtrak rolling. In 1981 Amtrak is still rolling, and the taxpayers now are laying down nearly $900 million a year for it. Amtrak officials enthusiastically predict that the system will soon achieve ‘a permanent and ever more crucial role in our national transportation system.'”
Jeffrey Shedd
“Congress’s Toy Trains”

“Mr. Hotdog Vendor had watched his customers’ verbal assault on the inspector in speechless amazement, and when he saw his tormentor retreat, his eyes watered in happy relief and gratitude. ‘You save me,’ he repeated several times. He insisted on free lunches all around. A nice ending to a bit of spontaneous libertarian direct action?”
Peter Samuel
“Dog Days for the Small Entrepreneur”

“Much government interference in the marketplace is inspired by business requests. Producers frequently seek tariffs, subsidies, licensing requirements, and so on to shore up their markets, boost their prices, or enhance their finances. If those who have been verbally stoning Chrysler were asked who is without sin in this regard, few could raise their hands.”
Russell Shannon
“Are Businesses Really Opposed to Big Government?”

45 years ago

May 1976

“Finally, freedom for the prostitute means not just freedom for those who ply the profession, who choose the lifestyle; it means more freedom for all the members of society: freedom from hypocrisy; freedom for individuals to join the profession they choose, to spend their time as they choose; sexual freedom for all, and perhaps most important, freedom from yet another set of irrational and hypocritical laws criminalizing an act without victims.”
Timothy Condon
“What To Do About Prostitution”

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Brickbat: Nice Work if You Can Get It


sexymassage_1161x653

Two days a week, for almost two months, Ken Robison Sr., visited multiple massage parlors in Horry County, South Carolina, and tried to obtain sex in exchange for money. According to the meticulous notes he kept, Robison, a private investigator, often succeeded in getting that sex. Robison’s investigation helped local prosecutors and law enforcement shut down 20 massage parlors. In return, his firm, Robison Investigations, was paid $75 per hour, 50 cents per mile driven, $50 a day for food plus other expenses for his work.

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via IFTTT

Brickbat: Nice Work if You Can Get It


sexymassage_1161x653

Two days a week, for almost two months, Ken Robison Sr., visited multiple massage parlors in Horry County, South Carolina, and tried to obtain sex in exchange for money. According to the meticulous notes he kept, Robison, a private investigator, often succeeded in getting that sex. Robison’s investigation helped local prosecutors and law enforcement shut down 20 massage parlors. In return, his firm, Robison Investigations, was paid $75 per hour, 50 cents per mile driven, $50 a day for food plus other expenses for his work.

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via IFTTT

Lessons of the Legal and Political Struggle for Same-Sex Marriage


Marriage Equality

One of the very few positive aspects of the awful Covid pandemic is the opportunity to have big-name “virtual” guest-speakers in college and law school classes.  Tomorrow’s guest speaker in my Constitutional Law II class will be Prof. William Eskridge, of Yale Law School, probably the nation’s leading expert on the law and politics of same-sex marriage. He will be speaking about his recent book Marriage Equality: From Outlaws to In-Laws  (coauthored with Christopher Riano). It is the closest thing we have to a definitive comprehensive account of how  same-sex marriage went from being a radical fringe idea to a recognized constitutional right endorsed by a Supreme Court decision.

A brief anecdote illustrates how swift that transformation was. In 1992, when I was a college freshman, a gay classmate I will refer to as “Bob” asked me what rights I thought gays and lesbians should have. “The same rights as everyone else,” I answered.

Perhaps sensing an effort at evasion, Bob pressed on and asked what exactly I meant by that. I said it meant anti-sodomy laws should be abolished (many states still had them), that gays and lesbians should be allowed to serve openly in the military (a hotly debated issue at the time, culminating in the “don’t ask, don’t tell” compromise of 1993), and a few other similar points.

It did not occur to me to mention same-sex marriage—an idea I probably hadn’t even heard of yet. Perhaps more tellingly, it apparently didn’t occur to Bob to ask about it! He seemed happy with the answer I gave, even though it omitted the issue. In 1992, even many politically aware people (including, probably, a good many gays and lesbians)  barely knew that same-sex marriage was even an option.

As Eskridge and Riano document in their book, the idea of same-sex marriage long predated that time. But few Americans were aware of it, beyond the relatively narrow circle of activists and policy experts who closely followed gay rights issues.

Within a few years, that changed. By 1995, same-sex marriage was a major focus of public debate, though majority public opinion was strongly opposed to it. I myself was happy to endorse same-sex marriage as soon as I heard of the concept (probably around 1994 or so).  But that was very much a minority view, a the time.

While a few state supreme courts ruled in favor of a right to same-sex marriage under their state constitutions, majority national opinion remained opposed up until around 2012. Even such liberal politicians as Barack Obama found it advantageous to oppose it themselves, or at least pretend to do so.

Yet public opinion ultimately shifted decisively in favor of same-sex marriage, and in Obergefell v. Hodges (2015), the Supreme Court ruled that laws banning same-sex marriage are unconstitutional. That happened only a little more than two decades after my little discussion with Bob.

What caused this dramatic transformation? If you want to know the answer, read Eskridge and Riano’s book! It may well be, however, that we are still too close in time to these events to get proper historical perspective on these events. Legal scholars, historians, and social scientists will likely debate their implications for many years to come.

For now, I would like to mention two key lessons that—at least to my mind—permeate Marriage Equality.

First, legal and political action are mutually reinforcing strategies for achieving constitutional reform. Again and again, Eskridge and Riano describe how victories in court set the stage for wins in the political arena, and vice versa.

Early pro-same-sex marriage decisions in state courts were, such as the Massachusetts’ Supreme Judicial Court ruling in Goodridge v. Department of Public Health (2003) were made possible by the (partial) success of the gay rights movement’s efforts to shift public opinion about gays and lesbians generally. Those rulings, in turn, gave a further boost to the gay rights movement, and helped pave the way for further shifts in public opinion, and further favorable judicial rulings—eventually culminating in Obergefell. The “normalization” of same-sex marriage required a combination of legal and political action, not an exclusive focus on or the other. Far from being mutually exclusive, as some scholars argue, these two strategies were mutually reinforcing.

Eskridge and Riano are not the first scholars to chronicle such a process. Earlier writers found similar patterns in the civil rights movements, the women’s rights movement, the gun rights movement, and others. I myself have written about it in the context of the struggle to strengthen constitutional protection for property rights. But Marriage Equality is a particularly thorough and insightful account of how that synergy worked in one of the most high-profile constitutional movements of our time.

The second lesson is that the same-sex marriage movement did not triumph by advocating the importance of of validating a distinct LGBT cultural identity, but rather by emphasizing how same-sex marriage is fundamentally similar to opposite-sex marriage; and gays and lesbians, more generally, are fundamentally similar to heterosexuals.

As an Iowa Supreme Court ruling quoted by Eskridge and Riano put it, the plaintiffs in the case were “in committed and loving relationships, many raising families, just like heterosexual couples.” Similar statements abound throughout Marriage Equality. Ultimately, the same-sex marriage movement triumphed by focusing on universal principles of liberty, justice, and equality, rather than on a distinctive group identity.

This, too, is far from unique to the struggle for same-sex marriage. We see the same pattern in the success of the antislavery movement, and movements for racial and gender equality. Elsewhere, I have argued that a similar strategy should be adopted by advocates of free international migration regardless of morally arbitrary circumstances of parentage and place of birth.

It is no accident that the antislavery movement’s most famous and successful image was this 1787 Josiah Wedgewood image of a black slave, asking “Am I not a man and a brother?”

 

Wedegwood drove home the point that there is no morally significant distinction between blacks and whites, and thus no good reason to deny the former the same liberty as that claimed by the latter.

Similarly, the same-sex marriage movement (and the gay rights movement generally) emphasized how gays and lesbians are also our brothers and sisters (sometimes literally so!), and that differences in sexual orientation are ultimately superficial in nature. Thus, there is no good reason to deny gays and lesbians the same rights for their relationships as those claimed for heterosexual ones.

This lesson may seem blatantly obvious. But it is deeply at odds with the positions of many identity politics movements on both the “woke” left, and the nationalist/identitarian right, which focus on the supposed uniqueness and incommensurability of different ethnic, racial, cultural, and religious groups.

Much more can be learned from Eskridge and Riano’s excellent book. For a sampling of some of the other issues it raises, see this recent symposium about it at the Balkinization site.

 

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via IFTTT

Lessons of the Legal and Political Struggle for Same-Sex Marriage


Marriage Equality

One of the very few positive aspects of the awful Covid pandemic is the opportunity to have big-name “virtual” guest-speakers in college and law school classes.  Tomorrow’s guest speaker in my Constitutional Law II class will be Prof. William Eskridge, of Yale Law School, probably the nation’s leading expert on the law and politics of same-sex marriage. He will be speaking about his recent book Marriage Equality: From Outlaws to In-Laws  (coauthored with Christopher Riano). It is the closest thing we have to a definitive comprehensive account of how  same-sex marriage went from being a radical fringe idea to a recognized constitutional right endorsed by a Supreme Court decision.

A brief anecdote illustrates how swift that transformation was. In 1992, when I was a college freshman, a gay classmate I will refer to as “Bob” asked me what rights I thought gays and lesbians should have. “The same rights as everyone else,” I answered.

Perhaps sensing an effort at evasion, Bob pressed on and asked what exactly I meant by that. I said it meant anti-sodomy laws should be abolished (many states still had them), that gays and lesbians should be allowed to serve openly in the military (a hotly debated issue at the time, culminating in the “don’t ask, don’t tell” compromise of 1993), and a few other similar points.

It did not occur to me to mention same-sex marriage—an idea I probably hadn’t even heard of yet. Perhaps more tellingly, it apparently didn’t occur to Bob to ask about it! He seemed happy with the answer I gave, even though it omitted the issue. In 1992, even many politically aware people (including, probably, a good many gays and lesbians)  barely knew that same-sex marriage was even an option.

As Eskridge and Riano document in their book, the idea of same-sex marriage long predated that time. But few Americans were aware of it, beyond the relatively narrow circle of activists and policy experts who closely followed gay rights issues.

Within a few years, that changed. By 1995, same-sex marriage was a major focus of public debate, though majority public opinion was strongly opposed to it. I myself was happy to endorse same-sex marriage as soon as I heard of the concept (probably around 1994 or so).  But that was very much a minority view, a the time.

While a few state supreme courts ruled in favor of a right to same-sex marriage under their state constitutions, majority national opinion remained opposed up until around 2012. Even such liberal politicians as Barack Obama found it advantageous to oppose it themselves, or at least pretend to do so.

Yet public opinion ultimately shifted decisively in favor of same-sex marriage, and in Obergefell v. Hodges (2015), the Supreme Court ruled that laws banning same-sex marriage are unconstitutional. That happened only a little more than two decades after my little discussion with Bob.

What caused this dramatic transformation? If you want to know the answer, read Eskridge and Riano’s book! It may well be, however, that we are still too close in time to these events to get proper historical perspective on these events. Legal scholars, historians, and social scientists will likely debate their implications for many years to come.

For now, I would like to mention two key lessons that—at least to my mind—permeate Marriage Equality.

First, legal and political action are mutually reinforcing strategies for achieving constitutional reform. Again and again, Eskridge and Riano describe how victories in court set the stage for wins in the political arena, and vice versa.

Early pro-same-sex marriage decisions in state courts were, such as the Massachusetts’ Supreme Judicial Court ruling in Goodridge v. Department of Public Health (2003) were made possible by the (partial) success of the gay rights movement’s efforts to shift public opinion about gays and lesbians generally. Those rulings, in turn, gave a further boost to the gay rights movement, and helped pave the way for further shifts in public opinion, and further favorable judicial rulings—eventually culminating in Obergefell. The “normalization” of same-sex marriage required a combination of legal and political action, not an exclusive focus on or the other. Far from being mutually exclusive, as some scholars argue, these two strategies were mutually reinforcing.

Eskridge and Riano are not the first scholars to chronicle such a process. Earlier writers found similar patterns in the civil rights movements, the women’s rights movement, the gun rights movement, and others. I myself have written about it in the context of the struggle to strengthen constitutional protection for property rights. But Marriage Equality is a particularly thorough and insightful account of how that synergy worked in one of the most high-profile constitutional movements of our time.

The second lesson is that the same-sex marriage movement did not triumph by advocating the importance of of validating a distinct LGBT cultural identity, but rather by emphasizing how same-sex marriage is fundamentally similar to opposite-sex marriage; and gays and lesbians, more generally, are fundamentally similar to heterosexuals.

As an Iowa Supreme Court ruling quoted by Eskridge and Riano put it, the plaintiffs in the case were “in committed and loving relationships, many raising families, just like heterosexual couples.” Similar statements abound throughout Marriage Equality. Ultimately, the same-sex marriage movement triumphed by focusing on universal principles of liberty, justice, and equality, rather than on a distinctive group identity.

This, too, is far from unique to the struggle for same-sex marriage. We see the same pattern in the success of the antislavery movement, and movements for racial and gender equality. Elsewhere, I have argued that a similar strategy should be adopted by advocates of free international migration regardless of morally arbitrary circumstances of parentage and place of birth.

It is no accident that the antislavery movement’s most famous and successful image was this 1787 Josiah Wedgewood image of a black slave, asking “Am I not a man and a brother?”

 

Wedegwood drove home the point that there is no morally significant distinction between blacks and whites, and thus no good reason to deny the former the same liberty as that claimed by the latter.

Similarly, the same-sex marriage movement (and the gay rights movement generally) emphasized how gays and lesbians are also our brothers and sisters (sometimes literally so!), and that differences in sexual orientation are ultimately superficial in nature. Thus, there is no good reason to deny gays and lesbians the same rights for their relationships as those claimed for heterosexual ones.

This lesson may seem blatantly obvious. But it is deeply at odds with the positions of many identity politics movements on both the “woke” left, and the nationalist/identitarian right, which focus on the supposed uniqueness and incommensurability of different ethnic, racial, cultural, and religious groups.

Much more can be learned from Eskridge and Riano’s excellent book. For a sampling of some of the other issues it raises, see this recent symposium about it at the Balkinization site.

 

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via IFTTT