Magazine April 22, 2013, Issue

The Week

(Roman Genn)

‐ On the basketball court over Easter, Obama shot 2 for 22. Must be the sequester.

‐ While a few state governments enacted new gun-control measures in the wake of the Newtown tragedy — not all of which will survive the courts — federal legislators have not even come close to drafting a bill that could pass both houses of Congress. An assault-weapons ban seems to be off the table entirely, as it reportedly has fewer than 40 votes in the Senate. And background-check legislation is “going nowhere,” in the words of Senator Lindsey Graham (R., S.C.): Republicans and Democrats cannot agree on even the most basic provisions, such as whether and how records are to be kept. Connecticut Democratic senator Richard Blumenthal, when pressed by CNN’s Candy Crowley, could not say that anything in the Senate’s gun-control bill would have prevented the Newtown massacre. Nor would it be likely to have an effect on crime generally. Banning some rifles cannot reduce gun crime, seeing as very few crimes are committed with rifles of any kind, and a background-check system is almost guaranteed to be unworkable on a practical level. But then practical steps to improve public safety have never been the point of this exercise.

‐ When Charles Francis Adams and his son Henry visited Zachary Taylor at the White House, they found the president’s horse, Old Whitey, in a paddock out front, while inside the president “was receiving callers as simply as if he were in the paddock too.” No president will ever live that way again — D. or R., limousine liberal or Tea Party. But according to President Obama, this is a time of government austerity, brought on by sequestration, so severe that he was obliged to cancel tours of the White House. And yet his daughters spent their spring break in Paradise Island, the Bahamas, and in Sun Valley, Idaho. Presidents and their families need relaxation, and the families, especially the children, deserve privacy. But if government services that benefit ordinary citizens must be cut, could the Obama girls be restricted to one country per vacay?

‐ On March 18, seven Marines were killed and eight injured by the explosion of a mortar round during a live-fire training exercise in Nevada. The next day, Senate majority leader Harry Reid took to the floor of the Senate and exploited their deaths in a denunciation of sequestration. He mourned their loss, and then said, “One of the things in sequester is we cut back in training and maintenance. That’s the way sequester was written. . . . Our Marines were training there in Hawthorne. And with this sequester, it’s going to cut back.” Of course, the military’s sequestration cuts have barely begun to be implemented, and there was absolutely no evidence that leaner budgets had anything to do with the accident; Reid insisted on juxtaposing them anyway. Semper lie.

‐ Dr. Ben Carson, pediatric neurosurgeon and recently a conservative celebrity, was invited to speak at the commencement of the Johns Hopkins School of Medicine. But when he told Fox News that “no group — be they gays, be they NAMBLA, be they people who believe in bestiality . . . get to change the definition” of marriage, a student petition was launched to disinvite him. Carson subsequently backed off his comparisons, but insisted that marriage remain a commitment between a man and a woman. So far the School of Medicine stands by its invitation, citing Carson’s “extraordinary accomplishments” and describing his “personal views” as “just that, his own.” The man is entitled to his own opinion, for now.

‐ The New York Times gave the front of its Sunday opinion section to David Stockman, President Reagan’s first budget director, to attack Reagan’s tax cuts, federal debt, Paul Ryan’s cuts in anti-poverty spending, loose money, Milton Friedman, the Supreme Court’s Citizens United decision, corporate bailouts, and the last eight decades’ worth of attempts to smooth out the business cycle. Stockman neither focuses his critique nor supports his assertions, but he does tell an easily grasped story of elite malfeasance leading to near-certain doom. His closing advice is to “get out of the markets and hide out in cash.” Conservatives must sift what is true and useful from Stockman’s screed, which does not include his implicit counsel to retreat from public life while the country burns.

#page#‐ For reasons we cannot comprehend, the Washington Post saw fit to publish an op-ed arguing that white men as a demographic should have to answer for the problem of mass shootings. Though the authors claim that we would react this way to any other crime trend that correlated with race, the evidence for this is scant: For instance, black men are overrepresented among murderers in general, but anyone claiming that black men in general should be held accountable for this would (rightly) be denounced as a racist. Further, the whiteness of mass shooters isn’t particularly striking: Liberal journalist David Sirota notes that, over the last several decades, 70 percent of mass shooters have been white men — but about the same fraction of Americans are white today, and more were white in years past. The demographics of mass shooters should not be off limits as a topic of debate, but the Post’s op-ed neither gets the facts right nor draws reasonable conclusions from them.

‐ In November 2009, Major Nidal Hasan, one of our homegrown jihadists, shot up people at Fort Hood. He murdered 13 or 14: It depends on whether you count an unborn child (we do). (As Private Francheska Velez died, she said, “My baby, my baby.”) Thirty-two people were wounded. There has been a push to get the killed and wounded Purple Hearts: They were soldiers who were hit in circumstances of war. The Pentagon has said no. Our government treats the Fort Hood massacre as an instance of workplace violence, not war, or combat, or terrorism — which strikes us as a pretty bad case of not knowing the battlefield.

‐ A report from the Brookings Institution finds that only 14 of the country’s 100 largest metropolitan areas have more people employed today than they had in January 2008 — and six of the 14 are in Texas: Austin, San Antonio, El Paso, McAllen, Dallas, and Houston. Texans preened at the news, but their critics protested: It’s just an oil boom, and the rest of the country doesn’t have all that oil and gas. That line of criticism is wrong on both counts: According to the Texas Workforce Commission, the state’s jobs numbers, while certainly benefiting from the energy industry, are the product of a much more diverse economy than is generally appreciated, from Austin’s high-tech sector to Houston’s manufacturing, while better banking practices partly protected the state from the real-estate bubble. And Texas is not the only state that could enjoy an energy renaissance: California and New York, for example, have oil and abundant natural gas; what they do not have is thriving oil-and-gas industries, which is entirely the result of politics. New York State sits atop the same shale formation as Pennsylvania, but state authorities will not allow it to be developed. Politicians may not be able to pull jobs out of a magic hat, but they can do a great deal to discourage them with bad policy.

‐ The Society of Actuaries released a study finding that Obamacare would cause insurers to pay out 32 percent more in claims for individual health policies — which means much higher premiums for a lot of people. Not to worry, says Health and Human Services secretary Kathleen Sebelius, because the higher premiums will come with a lot more benefits. Policies won’t just be “skimpy” catastrophic coverage. This defense might also be available if the government were to prohibit all meat inferior to filet mignon. Yet Obamacare is actually worse than that, since comprehensive coverage is not clearly better than catastrophic coverage. If various counterproductive government policies were scrapped, most people would probably prefer catastrophic coverage because buying it and paying out of pocket for routine expenses would be cheaper. Perhaps Sebelius is working on a new regulatory edict from the department: You’ll pay more, and by God you’ll like it.

‐ Senators Mike Enzi (R., Wyo.) and Dick Durbin (D., Ill.) propose to empower states and localities to impose sales taxes on retailers over whom they have no legal jurisdiction — abandoning, in the process, the principle of no taxation without representation — with the grievously misnamed Marketplace Fairness Act of 2013, better known as the Internet sales tax. At present, sales taxes are collected by retailers at the point of sale and remitted to the local authorities, the key variable being the seller’s location rather than the buyer’s location. The Enzi-Durbin bill would turn that on its head, requiring online retailers to ascertain the location of each of their customers, calculate the appropriate sales-tax rate (there are thousands and thousands of separate state and local taxing jurisdictions), and remit the money to the proper authorities from sea to shining sea. The movers behind this bill are tax-hungry state and local authorities, who covet the ability to lay taxes on people who cannot vote against them, and traditional brick-and-mortar retailers, who resent the fact that people who buy from online retailers can often escape sales taxes. The proposal is foolish, and Senator Enzi should know better. If local authorities want to collect taxes on online retailers, they are free to do so — provided those retailers are located within their jurisdictions.

‐ That the planet has stopped warming over the past two decades has gone from persistent observational anomaly to established scientific fact. This most inconvenient of truths has thrown off the catastrophist models, troubled the purported climate-change “consensus,” and given warming alarmists cause for alarm. But it has not as yet goaded the U.N.’s Intergovernmental Panel on Climate Change into modesty. Instead, the IPCC is expected to double down on the doom in its upcoming report, raising the upper bound of its estimate of warming over the next century, because why not? IPCC chairman Rajendra Pachauri has made a positively Gory living as a global-warming “consultant” to governments and corporations. And while even he has been forced to concede the brute fact of the temperature plateau, he told an Australian newspaper that the leveling would have to continue “at least” another two decades to counter the larger warming trend. Perhaps that’s when his pension kicks in.

#page#Boys Left Behind

The Democratic National Convention last September was unreserved in its insistence that discrimination against women is a large and troubling problem in the U.S. today, with speaker after speaker noting that, in the words of Nancy Pelosi, “women still make just 77 cents for every dollar men earn.” Multiple scholars, however, have demonstrated that pay differences can be explained by factors other than discrimination.

Still, there is a large and troubling gender gap in America. As liberals fret over aggregate pay differences, a gulf has emerged over the past two decades between the academic performance of girls and that of boys. Girls outscore boys in most measures of scholastic aptitude, and this outperformance is reshaping the academic landscape. Since 1982, women have earned more bachelor’s degrees than men; they earned 56.9 percent of all bachelor’s degrees in 2012, along with 59.6 percent of master’s degrees and 52.1 percent of doctorates. And it’s not just in college and graduate school that girls are beating boys: Female students took 56 percent of all Advanced Placement tests in high schools in 2011.

While is it easy to see the gains that women have made over men in education over the past few decades, it is harder to pinpoint a definite cause. Different theories have been offered, ranging from the hypothesis that organized classrooms are better suited for the learning of girls to bias on the part of parents and teachers against young boys. A fascinating new paper by Michael Baker and Kevin Milligan for the National Bureau of Economic Research provides new clues about the root of achievement differences between boys and girls. Their evidence suggests that parents spend a bit more time engaging in activities that promote cognition with young girls.

Source: Michael Baker and Kevin Milligan, “Boy-Girl Differences in Parental Time Investments,” NBER

The nearby chart illustrates their key findings. Baker and Milligan analyzed data about the Early Childhood Longitudinal Survey–Birth Cohort, who were born in 2001 in the U.S. The chart compares boys with girls according to the number of books that parents reported the children as having, and also according to the percentage of parents who accompanied their child to the library or to a story hour within the past month. Comparisons are shown for both for two-year-olds and four-year-olds. For both ages and all of the criteria, girls were better off than boys. For example, while 29.5 percent of two-year-old girls had visited a library in the past month, only 23.4 percent of two-year-old boys had done so. Two-year-old boys owned an average of 39.9 books, compared with 44.5 for two-year-old girls. Baker and Milligan examined other activities that are not represented in the chart, such as reading stories to children, telling stories to them, and singing songs with them. At both ages, parents spent more days per week on average doing these activities with girls than with boys.

Baker and Milligan studied whether these differences influence academic performance and found evidence that strongly suggested a link. The gap between girls’ and boys’ home activities corresponded with significant gaps in their performance on cognitive tests at ages four to five, with girls outperforming boys in both reading and math. Boys, then, are now starting school with a significant handicap, one that may lead to persistent differences.

The academic performance of boys has dropped significantly over the past two decades, and this may be in part the result of increased female labor-force participation. Parenting time has become scarcer. The authors found little evidence of overall bias — parents spent about the same amount of time with boys as with girls — but they favor different activities with different sexes, and cognitive-development time with boys has suffered. If my own parenting experience is any guide, perhaps this is because it’s harder to get boys to stop wiggling, a gender difference that is too politically incorrect ever to be the topic of a Democratic-convention speech.

#page#‐ The trial of Kermit Gosnell, the Pennsylvania abortionist charged with the murder of one woman and seven infants who had been born alive in his clinic, commenced in March to subdued media coverage. “A medical assistant told a jury Tuesday that she snipped the spines of at least 10 babies during unorthodox abortions at a Philadelphia clinic,” the Associated Press reported. These abortions, including one in which Gosnell’s employee plunged scissors into the neck of a newborn delivered in a toilet, were outside the ordinary, explained the AP, because “abortions are typically performed in utero.” A New York Times report on page A17 carefully identified Gosnell’s victims as “seven viable fetuses.” When a prosecutor asked the medical assistant, who has pled guilty to third-degree murder, whether she knew that what she was doing was wrong, she replied, “At first I didn’t.” Perhaps she thought she was merely performing an unorthodox procedure on a viable fetus.

‐ After rushing to passage a highly restrictive new gun law in closed-door negotiations following the Sandy Hook massacre, New York governor Andrew Cuomo now protests that the obvious flaws in the bill are the result of the fact that “it was rushed to a vote in the legislature after closed-door negotiations.” Going off half-cocked, in other words. The main immediate problem is the law’s ban on magazines holding more than seven rounds: Nobody thought to tell the geniuses in Albany that practically nobody makes magazines that hold seven rounds or fewer, meaning that the law amounts to a ban on all firearms with detachable magazines, or about 90 percent of handguns and rifles, and therefore is probably unconstitutional. Governor Cuomo’s response was the sort of thing satirists spend a lifetime trying to dream up: Ten-round magazines will now be acceptable, he proclaims, but residents will be required to keep no more than seven bullets in them. We like to imagine a Bronx gangster preparing for a Saturday night, carefully thumbing 9mm rounds into his Glock and conscientiously stopping at number seven in deference to Governor Cuomo and his delicate sensibilities.

‐ New Jersey father Shawn Moore received a surprise visit in March from four police officers in SWAT gear and two representatives of the state’s child-welfare agency. The raiding party demanded Moore present any weapons in the house, citing potential child endangerment. The source of their worry? A Facebook photo of Moore’s eleven-year-old son holding a .22-caliber rifle made to look like an “assault weapon.” Never mind that Moore is a certified firearms and hunting instructor, or that the boy had passed a hunter-safety test and frequently accompanied his father on deer trails, or that the rifle — a birthday present — is quite literally small-bore, widely available, and common for youths and beginners, or that the boy is smiling from ear to ear in the photo in question. Moore by all accounts handled himself admirably in dealing with the police. Remind us again who the “gun nuts” are?

‐ Michael Bloomberg has been, in many ways, a problematic mayor of New York, bullying, nattering, invested in crackpot or feel-good causes (bike lanes, gun bans). The one thing he has done right has been the most important thing: He has kept crime down. This has saved thousands of lives, made New York livable, and boosted the economy in a dozen ways. This fall he will be succeeded by the reign of the tiny hacks — New York City Democrats, which is to say union shills, race hustlers, and professional gays. City Council president Christine Quinn, the largest of the dwarfs, backs a bill to place an inspector general alongside the police department, and Bloomberg rightly blasts it. “[We do not] need two competing police commissioners.” Cops down the line would feel second-guessed, and would retreat to the natural inertia of minimal work and minimal crime-fighting. “We cannot afford to play election-year politics with the safety of our city.” True — yet New York is doing just that (Quinn has vowed to pass an inspector-general bill over Bloomberg’s veto). We can’t stand him while he is here, but how we will miss him when he is gone.

#page#‐ Speaking of whom: Bloomberg spends most weekends in Bermuda, where he owns a $10 million waterfront estate (he’s known not to schedule events in New York after 10 a.m. on Fridays). One assumes he’s going for the golf and the sunshine, but there’s another thing he probably likes about Bermuda: The island has extremely strict gun-control laws, to the point where most of the police on the island are not armed. But in just another example of protection for me but not for thee, the New York Times reports that Bloomberg obtained a special indult for his New York Police Department detail to carry weapons in Bermuda. If only the mayor were willing to allow ordinary citizens to protect themselves in his city the same way he is protected on the beach.

‐ Even as fewer Americans are engaged in manual labor and medical treatment has improved, disability claims have skyrocketed. While numerous analysts have noted this trend in recent years, it was an NPR story that finally brought it to public attention and put a human face on it. In six months of travels throughout the country, reporter Chana Joffe-Walt discovered that government disability claims are often accepted or declined based on judgment calls — some people with back pain or high blood pressure qualify, while others do not, and overall the standards have been loosening. Very little effort is made to keep people off disability who do not belong there, and as a result disability has “become a de facto welfare program for people without a lot of education or job skills.” As far as solutions go, tightening standards is an obvious one, and we might also listen to scholars Richard V. Burkhauser and Mary C. Daly, who argue that we should structure disability programs so that they encourage people to work, rather than cutting off benefits abruptly once people start making their own money. People respond to incentives, and the incentives created by federal disability programs are counterproductive.

‐ Saint Joseph Abbey in Covington, La., recently won its case before the U.S. Court of Appeals for the Fifth Circuit, which has ruled that the Benedictine monastery may continue to sell the simple wooden caskets that the monks there make to help support themselves. In 2007, the state board of embalmers and funeral directors ordered the monastery to stop, citing state regulations, which were written by the board. Nine of its ten members are funeral directors. The monastery was told it needed a license whose heavy requirements made sense only if it meant to set up shop as a funeral home. With help from the Institute for Justice, the monks filed a lawsuit in 2010. Judge Stanwood R. Duval Jr. has ruled against the economic protection of “the rule makers’ pockets,” vindicating the economic freedom of the monks and their clients, for whom it’s not just about price points. “Every couple of weeks or so,” Abbot Justin Brown explained, he hears from someone expressing gratitude for their work. “It made them feel so good that they knew these caskets were made with love and prayer.”

‐ Monsanto, a major producer of the genetically modified (GMO) crop seeds that have revolutionized agriculture in the United States in the last 30 years, is the perfect target for a certain kind of liberal, setting off both his hatred for large corporations and his (certified organic) food elitism. So it was only natural that liberals would cry foul over a rider they derisively call “the Monsanto Protection Act” buried (by Democrats) in the last continuing resolution. The fevered and conspiracy-tinged coverage would have us believe that the provision effectively immunizes Monsanto and other biotech firms from legal liability should their products prove harmful (they have yet to). But in fact the rider does no such thing. It instead protects farmers who purchase Monsanto products in good faith from being ordered to rip their crops from the ground (as sugar-beet farmers recently were) when the odd judge rules in favor of the “grassroots” food groups that routinely pelt GMO producers with lawsuits. This is a salutary if quite minor bit of deregulation that has been genetically modified, as it were, into a corporatist conspiracy.

#page#‐ The Internal Revenue Service has admitted filming a pair of staff-made videos that parody 1960s television shows. In its defense, the agency says the video based on Gilligan’s Island is used to train managers (somehow that doesn’t sound as reassuring as it should), but admits that its decision to make a Star Trek parody, which was shown for entertainment at a 2010 conference, was as ill-advised as a taxpayer who calls the IRS help line. The six-minute epic, with a budget of around $40,000, has impressively realistic sets and costumes but is marred by acting that makes William Shatner look Oscar-worthy. In a just world, the IRS would face stiff fines and a possible jail sentence for the disallowed business expense, but instead it will probably receive its regular yearly budget increase.

‐ A video from the Defense Equal Opportunity Management Institute — a government agency devoted to human-relations training for the military — encourages its viewers to intervene if they see a crime, particularly a violent one, in progress. The intent is laudable; as any servicewoman will tell you, sexual harassment and assault are serious problems in today’s military. But the tactics the video suggests can be bizarre: “Name or Acknowledge the Offense; Identify the Obvious; Interrupt Behavior; Publicly Support Aggrieved Person; Use Body Language; Carefully Use Humor; Encourage Dialogue; Ease Strong Feelings; Call for Help.” Most of these make good advice for writing editorial comments, but as crime-fighting measures, they seem much less effectual. We expect our military, of all institutions, to understand that talking things over is not the best solution to every problem.

‐ There may be no European people in the sense of a common citizenry, but there is certainly a European elite capable of generating a consensus strong enough to withstand any facts. How else to explain that even the political leadership of Cyprus, with much to gain and little to lose by ditching the euro, is nevertheless sticking with it, as other EU governments want? Monetary policy in the euro zone has been set for the convenience of Germany from the beginning, with results that were first too loose for peripheral countries and are now much too tight. With banks in Cyprus already closed, there is no risk of capital flight if the country leaves the euro for its own currency. The alternative is to keep the euro and hope that a severe and prolonged depression eventually leads euro-denominated prices and wages to fall enough to make the country competitive. Yet that is what Cypriots have been signed up for. And Poland, which has been spared the worst of the European crisis, like every country on the continent outside the euro, now has a government that wants in. The dream of European unity will never die, no matter how many victims it claims.

‐ On the last day of President Barack Obama’s trip to Israel, he brought off a diplomatic coup: Prime Minister Benjamin Netanyahu phoned Turkish prime minister Recep Tayyip Erdogan and apologized for “operational errors” in the 2010 raid on a Turkish ship running Israel’s blockade of Gaza. The two countries, once friends, driven apart by Erdogan’s Islamism, face a common problem in Syria’s chaos; Obama, the pal of each, brought them together. Then, four days later, it was all off: Erdogan announced there would be no rapprochement until Israel lifted its blockade of Gaza. Erdogan, having played Obama and Netanyahu for suckers, was back to his neo-Ottoman preening, with an Israeli apology to display as trophy. In the scale of Islamist rulers, Erdogan is better than Hamas (since he is not murderous) but possibly more dangerous than Morsi (since Turkey can absorb a lot more ruination than Egypt before the rascals must be thrown out). Not an ally for Obama to build on.

#page#‐ Michael Gove, the British education secretary, wants young people to know how to add and subtract, to know some of the kings and queens of their country, and to know how to write a sentence. A teachers’ union, the ATL, condemned him in fierce terms. Its acting deputy general secretary said, “For the state to suggest that some knowledge should be privileged over other knowledge is a bit totalitarian in a 21st-century environment.” If Britons survive their education establishment, they are a great people indeed.

‐ The Shroud of Turin — believed by many Christians, including (eloquently) NR senior editor Jeffrey Hart, to be the burial shroud of Jesus — is in the news, as the subject of a televised ostentation, or public display (with a video message by Pope Francis), as well as an app, Shroud 2.0. Giulio Fanti, a professor at the University of Padua, has also concluded, after 15 years of research on selected linen fibers, that the cloth is 2,000 years old, give or take a few centuries. A carbon-dating test in 1988 dated the Shroud to the 13th or 14th century, but Fanti says that test may have been contaminated with fibers from a medieval patch. The Catholic Church has never officially declared the Shroud to be genuine, and a definitive date consistent with Christ’s life would not settle the question of His nature (“Faith alone justifies us,” as another Christian remarked). But science, which excavates lost cities and probes the stars, rightly studies a possible relic of Jesus.

‐ Comedian Jim Carrey made an asinine and unfunny anti-gun propaganda video in the form of an ersatz Hee Haw episode — no points for timeliness — in which he suggested that former NRA president Charlton Heston’s immortal soul was damned because he insisted on using firearms as penis substitutes. (This apparently is what now passes for humor in Carrey’s circles.) The world responded mostly with its usual weary shrug, though Carrey was criticized on Fox News while several gun enthusiasts gleefully began auctioning autographed photos of him on eBay, promising to use the proceeds to buy guns. Needless to say, Carrey, who has made a great deal of money waving guns around in the movies, is, like most celebrity gun-grabbers, protected by armed men during his public appearances. What strikes us is this: Years after his death and long after the zenith of his celebrity, Charlton Heston remains a large enough cultural presence that there apparently is some gain in mocking him. Thirty years from now, who will bother to parody the star of Mr. Popper’s Penguins?

‐ Google will often celebrate a day by altering its logo. For example, if you used the search engine on St. Patrick’s Day, you saw some adorable kids dancing a jig. On Easter Sunday, you saw a worshipful, glowing portrait of Cesar Chavez, the labor leader, whose 86th birthday it was, or would have been (Chavez died in 1993). Jesus and the Resurrection do not need the publicity. But Cesar Chavez on Easter, really? Couldn’t they have thrown in a bunny or something, or made a couple of colored eggs out of those “O”s in “Google”? One is grateful that Che Guevara wasn’t born on December 25.

#page#‐ Eddie Maxwell, a retired coal miner in Alabama, sent an e-mail to every member of the state legislature, expressing his opposition to any new gun-control measures. Most ignored the message or gave form responses, but Representative Joseph Mitchell, a black member from Mobile, cared enough to craft a personal reply: “Your folk never used all this sheit to protect my folk from your slave-holding, murdering, adulterous, baby-raping, incestuous, snaggle-toothed, backward-a**ed, inbreed, imported criminal-minded kin folk.” Now, Alabamans are a famously courtly bunch; one normally hears language like that only when the Crimson Tide plays Auburn. So it might be worth learning more from Mitchell about what has him so worked up. Unfortunately, after responding to Maxwell’s next e-mail with a longer and more coherent but scarcely less inflammatory rant, the Democrat abandoned the discussion. Meanwhile, he has been absent without explanation from the legislature since it convened in early February. And while we do feel lawmakers should do the job they’re hired for, his absence at least leaves Alabamans’ guns and the South’s reputation for oratorical excellence a little more secure.

‐ The Windham, N.H., school board has banned dodgeball (and other, unspecified “human target” games) from gym classes, calling it an incitement to bullying. Such anti-dodgeball sentiment is not new; in 2006 the National Association for Sport and Physical Education opposed the game on the grounds that it is dangerous and leaves students inactive for long stretches. Windham’s schools had addressed the first objection by using a Nerf ball, which doesn’t sting and is difficult to throw hard; it also dives and hops unpredictably in mid-air, which is why professionals — yes, there are professional dodgeball players, though it isn’t exactly a lucrative line of work — prefer the old-fashioned rubber ball. As for the charge that dodgeball involves too much sitting and standing around, the critics should check out softball. Nonetheless, Windham’s school board, ever alive to the peril of Nerf persecution, chose to ban it. What’s next? Will they abandon four centuries of New Hampshire tradition and ban snowball fights too?

‐ Anthony Lewis was a man for a moment — the era of crusading liberalism, led by a freewheeling Supreme Court. He covered the courts for the New York Times from 1955 to 1964 — roughly, Earl Warren’s tenure — then wrote a column, often about judicial matters, from 1969 to 2001. Lewis praised Warren for using “his power in behalf of life’s outcasts — the Communist, the suspected criminal, the Negro.” It is the proper role of a chief justice to say what the law is, on behalf of the Constitution, but that would not have served Lewis’s agenda. Philosophically he claimed to be a skeptic, but politics always tipped his hand: In a farewell interview in 2001, he warned against “people who are sure they are right, like Osama bin Laden and John Ashcroft.” We see a difference, thanks. Dead on the eve of his 86th birthday. R.I.P.

‐ Yvonne Brill was born in 1924 to Flemish immigrants in a town near Winnipeg, Manitoba. The daughter of a carpenter, she became a rocket scientist in the United States, inventing a propulsion system to help keep satellites in orbit, an achievement for which she received the National Medal of Technology and Innovation in 2011. Before mentioning these achievements, the New York Times began its obituary by noting that she “made a mean beef stroganoff, followed her husband from job to job and took eight years off from work to raise three children.” This set off a storm of accusations that the paper’s obituary was sexist. The Times’ public editor agreed, and the lead was rewritten, with the culinary commentary excised. Mrs. Brill (she preferred to go by “Mrs.”) summed up her own priorities in an explanation of why she was happy to move to wherever her husband’s job took the family: “Good husbands are harder to find than good jobs.” Dead at 88. R.I.P.

#page#THE LAW

Marital Discord at the Court

The Supreme Court has been considering whether to overturn two duly enacted pieces of legislation — the federal Defense of Marriage Act and a California constitutional amendment — on the basis of novel theories about the Constitution that had occurred to almost nobody until quite recently. It should let the laws stand.

In the California case, a popular referendum ratifying the definition of marriage as the union of a man and a woman is said to violate the Constitution’s guarantee that states will extend the “equal protection of the laws” to all persons, including those persons in same-sex couples who wish to have the state government declare their relationships to be marriages.

Equality means that like cases should be treated alike. Whether California’s definition of marriage meets that standard depends on whether there is some difference between opposite-sex and same-sex couples that justifies recognizing some of the former and none of the latter as marriages in the eyes of the law. The answer to that question in turn depends on what we understand marriage to be.

It turns, that is, on whether marriage should be understood to have an ineradicable connection to procreation or be understood exclusively in romantic terms. We believe that the basic purpose of marriage as a pre-political institution and a public policy is to channel heterosexual behavior into the social forms most likely to lead to stable child-rearing. If this is true, then it makes sense, and entails no invidious discrimination, that its definition includes sexual complementarity. Many people do not, of course, accept our premise, and they have advanced various arguments against it.

The Constitution is silent — obviously silent — about which side is correct, and that is reason enough for the Court to allow California to decide the matter as it wishes, which of course means to allow it to change its mind. The Court should forthrightly declare that the Constitution gives it no authority to choose one side or the other. It should reject calls for it to “punt” by ruling that defenders of the law have no standing to plead their case, which would have the effect of allowing lower-court judges to write same-sex marriage into the Constitution for their jurisdictions.

Justice Scalia neatly exposed the weak spot of the argument that the Constitution requires same-sex marriage when he asked Ted Olson, a lawyer making that argument, when that requirement came about. Olson declined to make the ludicrous contention that the adoption of the Fourteenth Amendment in 1868 was the public’s way of advancing same-sex marriage. That left him arguing that the evolution of the culture had changed the meaning of the amendment. Public views on homosexuality and marriage certainly have changed: But that change can be and has been expressed in the votes of citizens and legislators.

The other case before the Court is a challenge to the provision of the Defense of Marriage Act that defines marriage, for purposes of federal law, as the union of a man and a woman. Here the challengers make an argument beyond their equal-protection claim. The federal government is supposedly infringing on the states’ power to set marriage laws by insisting on its own definition in its own laws.

One would think that to state that claim is to refute it, but Justice Kennedy showed signs of crediting it. The act leaves states free to adopt any marriage law they want. The Constitution does not compel the federal government to use the states’ definitions in its own laws, although it may decide to do that as a matter of administrative convenience. If the federal government has the power to designate some households in tax laws as joint filers — which no one contests — then it has the power to say which households, and so long as its classifications are compatible with the Constitution it cannot matter whether they track state law. Federalism does not, in other words, mean that state governments have the right to force federal law to change to their liking. Chief Justice Roberts exposed the emptiness of this “federalism” argument when he asked whether the federal government would invade the province of the states by extending marriage-related federal benefits to all cohabiting same-sex couples in all states, even those that recognize no such couples as married or even in a civil union. The opponents of DOMA were appropriately flummoxed by the question.

In both cases, the Court should leave lawmaking authorities to do their will. We oppose same-sex marriage, but in the absence of a constitutional amendment enshrining our view it would be wrong for the Supreme Court to block it — and nobody has ever argued otherwise. Proponents of same-sex marriage feel no such inhibitions. The Supreme Court should be more dispassionate.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

In This Issue



Books, Arts & Manners

Politics & Policy

On the Brink

Ginger and Rosa, an intense little coming-of-age drama from the British director Sally Potter, begins with three births: The mushroom cloud goes up over Hiroshima, ushering in the nuclear age, ...
Country Life

Roots Quest

It was not a tough winter in the country, but it was a lingering one, throwing frosts and squalls right through the equinox and beyond. Snow would fall, thin to ...


Politics & Policy


Have Some Compassion I write to express my disappointment at yet another paragraph in The Week devoted to transsexuals (March 25). If I recall correctly, this is the third such news ...
Politics & Policy

The Week

‐ On the basketball court over Easter, Obama shot 2 for 22. Must be the sequester. ‐ While a few state governments enacted new gun-control measures in the wake of the ...
Politics & Policy


A BAD FIT The grapeshot of his words makes ribbons of Her vitals. When one hits a major vein, Her heart will burst, and finally her love Will recognize its efforts were in vain. He ...
Happy Warrior

Undead Reckoning

I try to resist the siren song of metaphor, luring the polemicist onto the gaudy rocks of glibness and meretriciousness only for his sturdy column to crack and sink 400 ...

Most Popular

Law & the Courts

Why Wasn’t Andrew McCabe Charged?

The Justice Department announced Friday that it is closing its investigation of Andrew McCabe, the FBI’s former deputy director, over his false statements to investigators probing an unauthorized leak that McCabe had orchestrated. McCabe was fired in March 2018, shortly after a blistering Justice Department ... Read More
Law & the Courts

Why Wasn’t Andrew McCabe Charged?

The Justice Department announced Friday that it is closing its investigation of Andrew McCabe, the FBI’s former deputy director, over his false statements to investigators probing an unauthorized leak that McCabe had orchestrated. McCabe was fired in March 2018, shortly after a blistering Justice Department ... Read More

Trouble in the Workers’ Paradise

Representative Alexandria Ocasio-Cortez is precisely the sort of campaign surrogate you want, especially if you are Bernie Sanders: She is young, energetic, charismatic, popular (with the people she needs to be popular with, anyway), and, happily, currently ineligible to run for the presidency ... Read More

Trouble in the Workers’ Paradise

Representative Alexandria Ocasio-Cortez is precisely the sort of campaign surrogate you want, especially if you are Bernie Sanders: She is young, energetic, charismatic, popular (with the people she needs to be popular with, anyway), and, happily, currently ineligible to run for the presidency ... Read More
Law & the Courts

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More
Law & the Courts

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More