Marriage federalism

So President Obama has finally done what every­one thought he was going to do: he endorsed gay mar­riage. (Bully for him for doing it before the elec­tion. Though Biden’s loose lips basi­cally forced him to.) But there’s still an argu­ment about his qual­i­fi­ca­tion: he thinks states should be allowed to choose whether to have gay mar­riage. He’s right. (And I hope he stops evolv­ing right there.)

There are good rea­sons for let­ting states con­trol mar­riage. Marriage and fam­ily law has tra­di­tion­ally been a state issue. They have the exper­tise in this area.

The fed­eral gov­ern­ment does not. Federal laws deal­ing with gay mar­riage gen­er­ally pig­gy­back on state laws. (This is a rea­son to ques­tion the wis­dom of DOMA.) When the fed­eral gov­ern­ment mucks around in marriage—which affects lots of related inter­ests, like adop­tion, inher­i­tance, and benefits—unforeseen issues can become incred­i­bly thorny. And while fed­eral courts could be expected to decide the issues rea­son­ably, they’re already over­bur­dened, and adding a host of fam­ily law issues will only add to that burden.

Traditional prin­ci­ples in favor of fed­er­al­ism also coun­sel let­ting states own mar­riage. The national gov­ern­ment has lim­ited pow­ers, gen­er­ally related to national wel­fare, while states are left to run their own inter­nal affairs, so long as they fol­low the Constitution and don’t intrude on national affairs. This divi­sion of sov­er­eignty puts deci­sion mak­ing power at the low­est pos­si­ble level, ensur­ing that those most affected by gov­ern­ment action don’t have to talk to some­one far away—by dis­tance, inter­ests, or beliefs—to get heard.

Apart from legal prin­ci­ples, there’s real­ity. All it takes is look­ing Roe v. Wade—the Supreme Court deci­sion that legal­ized abortion—and the effects it had on America. The deci­sion ripped the issue away from the states just as many were begin­ning to come to a con­sen­sus that abor­tion should be legal in some cir­cum­stances. The mod­ern, socially con­ser­v­a­tive Republican Party can thank Roe for its exis­tence. The for­mal legal­iza­tion of abor­tion also didn’t have much effect on abor­tion access. In many states, abor­tion is effec­tively unavail­able or nearly so, thanks to oner­ous regimes. (Even sup­port­ers of Roe, like Justice Ruth Bader Ginsburg, acknowl­edge that it went to far and poi­soned politics.)

Even if you think that mar­riage is a fun­da­men­tal right (not some­thing I agree with, even as a gay-​​marriage sup­porter), you should ask whether you think imme­di­ate, national gay mar­riage is worth another quar­ter cen­tury of pol­i­tics divided along social lines. As a gay mar­riage sup­porter dis­mayed by the state con­sti­tu­tional pro­vi­sions around the coun­try ban­ning gay mar­riage, I still rest com­fort­ably know­ing that in 10 or 20 years, all those pro­vi­sions will be gone. Young peo­ple sup­port gay mar­riage, and as they get more power and older oppo­nents of gay mar­riage die or con­vert, the tide will shift enough for gay mar­riage to become the law of the land in every state.

Letting that process run nat­u­rally will allow our pol­i­tics to become more sane, more respect­ful. And you’ll still get what you want.


Do you think your retire­ment sav­ings are safe? Don’t be so sure. Megan McArdle thinks that Congress will likely go after your Roth IRA pig­gy­bank, among other hoards.

When I look at the bud­get prob­lems we face, I’m skep­ti­cal that Congress is going to live up to its promise to keep its hands off that money.  At the very least, I’d bet that high earn­ers are going to see some sort of sur­tax on their Roth withdrawals.

Of course, I think this is true of non-​​Roth retire­ment sav­ings as well.  Ultimately, Congress is going to be faced with penal­iz­ing peo­ple who didn’t save ade­quately for retire­ment by cut­ting their ben­e­fits, or penal­iz­ing peo­ple who did save, by rais­ing taxes on their sav­ings.  For a lot of rea­sons, I expect them to err on the side of penal­iz­ing savings.

She’s adjust­ing her sav­ings accordingly.

I’ve started think­ing about sav­ing in ways that Uncle Sam won’t be tempted to touch–like pay­ing off your house early, maybe buy­ing a vaca­tion home (for cash) if you know where you’re likely to want to spend a lot of time, and doing the kind of ren­o­va­tions that save you money in the long run–better insu­la­tion, higher-​​end energy-​​efficient appli­ances, etc.  Paying now to lower your monthly costs later may have a bet­ter after-​​tax return than that “tax free” account.

But, of course, Rep. Paul Ryan finally opened the seri­ous debate about our long-​​term bud­get, and President Obama is going to fol­low with a (hope­fully) seri­ous response later this. With this debate under­way, maybe future Congress won’t feel the need to touch our piggybanks.

After all, bubonic plague is natural.

Marion Nestle thinks that con­sumers don’t need food col­or­ing in their food. In an email exchange with Adam Ozimek, she explains:

MN: Since they are unnec­es­sary and decep­tive, I can’t see any rea­son to do any­thing to pro­tect their use.
AO: You say that food col­or­ing is “unnec­es­sary and decep­tive”. But couldn’t you say the same thing of essen­tially any gar­nish or cook­ing tech­nique designed to make food appear more appeal­ing with­out phys­i­cally mod­i­fy­ing the fla­vor?
MN: The issue is arti­fi­cial. Food gar­nishes and cook­ing tech­niques are usu­ally not.

Megan McArdle argues that the nat­ural ver­sus arti­fi­cial dichotomy presents a false choice.

Actually “nat­ural” foods would also come with things like toxic fun­gus and hor­ri­ble par­a­sites which–I guarantee–are much worse for chil­dren and other liv­ing things than arti­fi­cial food col­or­ing. “Natural” is not syn­ony­mous with “bet­ter for you”. It’s absolutely true that you’re prob­a­bly less likely to get fat if you eschew highly processed foods in the snack and cereal aisles. But over­sim­pli­fy­ing this mes­sage to “nat­ural good, arti­fi­cial bad” quickly turns ridiculous.

Homeland insecurity

Anne Applebaum says that the Department of Homeland Security does not pro­tect America against ter­ror­ist plots. Yes, she says, “[t]errorists have been stopped since 2001 and plots pre­vented, but always by other means.” She continues:

After the Nigerian “under­wear bomber” of Christmas Day 2009 was foiled, DHS Secretary Janet Napolitano claimed “the sys­tem worked” — but the bomber was caught by a pas­sen­ger, not the feds. Richard Reid, the 2001 shoe bomber, was undone by an alert stew­ardess who smelled some­thing funny. The 2006 Heathrow Airport plot was uncov­ered by an intel­li­gence tip. Al Qaedas recent attempt to explode cargo planes was caught by a human intel­li­gence source, not an X-​​ray machine. Yet the TSA responds to these events by plac­ing restric­tions on shoes, liq­uids, and now per­haps printer cartridges.

It’s short: read the whole thing.

Those gay, gay bourgeois bohemians

From Jonah Goldberg: By embrac­ing gay mar­riage and mil­i­tary ser­vice, the bohemian left admits defeat.

[T]he sweep­ing embrace of bour­geois lifestyles by the gay com­mu­nity has been stunning.

Nowhere is this more evident—and per­haps exaggerated—than in pop­u­lar cul­ture. Watch ABC’s Modern Family. The sit­com is sup­posed to be “sub­ver­sive” in part because it fea­tures a gay cou­ple with an adopted daugh­ter from Asia. And you can see why both lib­eral pro­po­nents and con­ser­v­a­tive oppo­nents of gay mar­riage see it that way. But imag­ine you hate the insti­tu­tion of mar­riage and then watch Modern Family’s hard­work­ing bour­geois gay cou­ple through those eyes. What’s being sub­verted? Traditional mar­riage, or some bohemian identity-​​politics fan­tasy of homosexuality?

. . . .

Or look at the deci­sion to let gays openly serve in the mil­i­tary through the eyes of a prin­ci­pled hater of all things mil­i­tary. From that per­spec­tive, gays have just been co-​​opted by The Man. Meanwhile, the folks who used Don’t Ask, Don’t Tell as an excuse to keep the mil­i­tary from recruit­ing on cam­puses just saw their argu­ment go up in flames.

It’s Time to Change

Jonathan Rauch explains why gays and les­bians need to be more, well, nice:

[W]e—gay Americans and our straight allies—have won the cen­tral argu­ment for gay rights. As a result, we must change. Much of what the gay rights move­ment has taken for granted until now, and much that has worked for us in the past, is now wrong and will hurt us. The turn we now need to exe­cute will be the hard­est maneu­ver the move­ment has ever had to make, because it will require us to delib­er­ately leave room for homo­pho­bia in American soci­ety. We need to allow some dis­crim­i­na­tion and relin­quish the “zero tol­er­ance” mind-​​set. Paradoxical but true: We need to give our oppo­nents the time and space they need to let us win.

In other words, while it was wise for gays to argue stren­u­ously and never give their oppo­nents the ben­e­fit of the doubt, gays can now be kind and gra­cious to their opponents—and they should be. If gays can keep the high ground, they will be able to win the argu­ment with their oppo­nents while main­tain­ing influ­ence as a cohe­sive group.

If, on the other hand, gays and their allies shout down their oppo­nents, they may end up win­ning the argument—gay mar­riage is com­ing, like it or not—even as they dis­solve into meaninglessness.

Two ques­tions, though, for Mr. Rauch:

  1. In the end, does it mat­ter whether gays are “nice” to their oppo­nents? After all, as he pointed out, gays are likely to win the argu­ment based on num­bers alone. (The young favor gay rights more than the elderly. The elderly die and the young rise with their views ascen­dant. Ergo, the gays win.)
  2. And if the cen­tral argu­ment of gay rights is to be treated the same—to be allowed to be nor­mal, to be treated as nor­mal middle-​​class citizens—won’t the move­ment have a hard time main­tain­ing cohe­sion anyway?

H/​t Eugene Volokh.

Hunkering down

The Obama admin­is­tra­tion appears to be hun­ker­ing down for a long fight to defend its health care law. The fight will sap the administration’s energy just as it pre­pares for a reelec­tion campaign.

A pair of fed­eral judges are hint­ing that they may strike down part of the 900-plus–page law. Earlier this week, the admin­is­tra­tion reminded one of the judges he only had to strike down part of the law if he ruled that some por­tion of the law was uncon­sti­tu­tional. The administration’s lawyers help­fully sug­gested that if the mandatory-​​coverage pro­vi­sion had to go, the guaranteed-​​issue and community-​​rating pro­vi­sions would too, but not the pro­vi­sions like those for “improv­ing women’s health” and “improv[ing] demen­tia and abuse pre­ven­tion train­ing.” (More on that later.)

The health-​​care law has proved unpop­u­lar. Republicans and Democrats both think that it was key in the GOP’s vic­tory in the House and win­ning a larger pres­ence in the Senate. That’s why Republicans are falling over them­selves to repeal some or all of the act when the new mem­bers take their seats in January.

Facing down law­suits from 20 states—plus more when newly-​​elected offi­cials opposed to the health-​​care law are sworn in—can’t be an excit­ing prospect for the admin­is­tra­tion. Although it will surely empha­size the law’s more-​​popular pro­vi­sions, this is not a sub­ject that the admin­is­tra­tion needs in the head­lines as it crafts its argu­ment that it deserves another 4 years.

Seniors or sensibility

For all the Tea Party’s earnest hopes about reduc­ing the deficit and achiev­ing a low-​​tax bal­anced bud­get, the Republican Party can’t sur­vive with­out seniors’ votes. But any respon­si­ble plan for cor­rect­ing the government’s bud­get future must change seniors’ enti­tle­ments. Which makes it hard to see how Republicans can please seniors, their most loyal sup­port­ers, and Tea Partiers, the the newest mem­bers of the GOP coali­tion and the ones that put the party over the top in this month’s election.

David Frum points out that the deficit com­mis­sion pro­posal is already fac­ing bit­ter oppo­si­tion from the likes of Sean Hannity, who summed up the proposal:

First, they want to increase the Federal Gas Tax rate start­ing in 2013 by 15 cents per gal­lon. Next they pro­pose increas­ing the Social Security retire­ment age. Now third, the com­mis­sion is call­ing for cuts in both Social Security and Medicare ben­e­fits. . . . And we’re going to means test [Social Security ben­e­fits] so you’ve got to pay your whole life, and if you paid your whole life, you’re going to—we’re going to con­fis­cate it basically.

As Frum explains,

What we see in today’s GOP is a party whose ide­ol­ogy (lim­ited gov­ern­ment) and whose con­stituency (the biggest recip­i­ents of domes­tic gov­ern­ment spend­ing) are sharply at vari­ance. That vari­ance is not a sus­tain­able sit­u­a­tion. In fact, it’s not sustained.

Cracking the nut of seniors’ oppo­si­tion to key changes is dif­fi­cult,  but absolutely nec­es­sary. Part of the solu­tion is already in the com­mis­sion chairmen’s pro­posal: make the changes grad­ual, so that peo­ple at or near retire­ment don’t get the rug pulled out from beneath them. For exam­ple, the chair­men pro­pose to raise the retire­ment age, but only by one month every two years, and only after the retire­ment age is sched­uled to increase to 67 (in about 2025). If seniors can be con­vinced that the bud­get will not be bal­anced on their backs, then they can help fix the fis­cal cri­sis that looms over the country.

Corporations are people too. (Sort of.)

Make Shadowy Campaign Money the Issue This Election.”  The White House is “stepp[ing] up attacks on what it describe[s] as a tidal wave of secret out­side money.” Corporations, freed by the Supreme Court’s Citizens United deci­sion, are mak­ing large, unre­ported dona­tions to “char­i­ties” like Karl Rove’s Crossroads GPS and Norm Coleman’s American Action Network. Public inter­est groups like the Democracy 21 and the Campaign Legal Center are wring­ing their hands over the money pour­ing into the sys­tem, fear­ing that it will cor­rupt the process.

Now, I under­stand the rea­sons for con­cern. No rea­son­able per­son wants bribery or quid pro quos in the polit­i­cal process. But I’m here to stand for what is appar­ently a remark­able propo­si­tion: cor­po­ra­tions are peo­ple too. Or rather, cor­po­ra­tions are groups of peo­ple with jus­ti­fi­able inter­ests and deserve to be heard and to par­tic­i­pate in the polit­i­cal process.

Corporations are taxed, they are sub­ject to laws and reg­u­la­tions, and they are inde­pen­dently liable for their actions. In short, they are legal actors, just as much as you. And, like­wise, they are affected by the polit­i­cal process, just as much as you.

Remember, the injus­tice of “Taxation Without Representation” was a key moti­va­tion behind the American Revolution. If the abil­ity to suf­fer detri­ment with­out a say in the process jus­ti­fies rev­o­lu­tion, then shouldn’t cor­po­ra­tions get at least some say in the polit­i­cal process? If a coal com­pany is being tar­geted by energy leg­is­la­tion, shouldn’t it be able to raise its col­lec­tive head and sug­gest that maybe its interests—and its own­ers’, employ­ees’, and cus­tomers’ interersts—be taken into con­sid­er­a­tion? Or should we exclude the enti­ties with the most exper­tise from the polit­i­cal process, ensur­ing that we don’t under­stand what the leg­is­la­tion is going to do to the affected industry?

I’m not sug­gest­ing that cor­po­ra­tions have the right to vote or that they should be treated the same as nat­ural per­sons. I am not even sug­gest­ing that cor­po­ra­tions shouldn’t be treated dif­fer­ently from nat­ural cit­i­zens when it comes to cam­paign finance reg­u­la­tions. But the work­ing assump­tion among many com­men­ta­tors that cor­po­ra­tions have no legit­i­mate inter­est in the polit­i­cal process, and par­tic­u­larly not in the leg­is­la­tion that attempts to tar­get them. That’s remarkable.