A follow-up to yesterday's post

After reading Dean Obeidallah's post that prompted mine of yesterday entitled “The “Palestinians’ — who are they?” I wrote an e-mail to him, challenging his claim that simply because there was, for less than thirty years, a place named “Palestine” on the map (a name given by colonizers and never adopted by its residents freely), there is truly a “Palestinian” people. He actually responded rather quickly, which was perhaps better than I expected. But he seemed to think my note was a joke:

…are you a comedian because you are making me laugh? (or were you being serious - if you were than Im laughing at you) In any event thanks for the laugh. Are you Sarah Palin's foreign policy advisor by any chance?

Perhaps his whole post was a joke, not just the comment about his father being an inventor, which I saw as one. In that case, I apologize for not seeing the humor. My post was intended as serious discussion. If anyone can show any real justification for considering the term “Palestinian” as meaningful, I really would like to see it.

The "Palestinians" -- who are they?

There is a post on The Daily Beast by Dean Obeidallah entitled “Do Palestinians Really Exist?” which attempts to answer this question in the affirmative. But it is clearly based on a fraudulent argument. It starts:

Palestine. My late father, Abdul Musa Obeidallah, was born there in the 1930s. When I say Palestine, that’s not a political statement. It’s just a statement of fact. When he was born, there was no state of Israel. There was no Hamas. No PLO. There were just people of different faiths living together on the same small piece of land called Palestine.

What is true in ths statement is that “When he was born, there was no state of Israel.” What is unsaid is that the Palestine mandate was given that name by British colonizers. And, going back to Roman days, the name was first applied to this piece of land by Roman colonizers. There never has been a group of people living there who, of their own free choice, called this territory “Palestine.”

In the 1930s, the Japanese created a puppet state called Manchukuo, separate from China, which nobody but the Japanese accepted. Did the citizens thereby take on a new nationality, distinct from Chinese? Very few of them would have answered “yes” to that question. The same is true of “Palestine.” The name was an outside creation. People of Arab heritage, in “Palestine” in the 1920s and 1930s, asked their nationality, would certainly not have called themselves “Palestinians” — they were probably “Syrians,” if not merely “Arabs.” Obeidallah can refer to “Palestine” when he says:

When I ask these people what the land where Israel is now located was called before 1948, they tend to stammer or offer some convoluted response. The answer is simply Palestine. Not a big deal, really.

But “Palestine” was not the name anyone would call it as an independent nation. Jews were seeking to create a Jewish State of Israel. The Arab inhabitants wanted a Greater Syria (or in some other cases other names corresponding to neighboring countries, but certainly not a nation of “Palestine”). An interesting article points out that:

The word “Palestine,” originally used by the Romans, had been in disuse for centuries, but the British revived it. “Palestinian” described Muslims, Jews and all others living in the region. And land east of the Jordan River, which they had also acquired, they called Transjordan (to be renamed Jordan in 1949). The word “Arab” referred more to those who spoke Arabic than to people purely Arabic, and included Christians. Previous to the arrival of the British, the Arabs in Palestine had thought of themselves as Arabs rather than as Palestinians.

So when Obeidallah says:

After all, there are more than 5 million Palestinians in the West Bank, Gaza, and Israel alone. Of course, that didn’t stop Newt Gingrich from commenting during his failed 2012 run for president that the Palestinians are an “invented” people. Here, I thought for years my father had been a cook, but apparently he was an inventor.

he is clearly joking. Later in the same paragraph, he continues:

he would have found that most historians mark the beginning of the Palestinian Arab nationalist movement as happening in 1824, when the Arabs there rebelled against Ottoman rule.

In fact, I can't find any trace of an 1824 revolt in “Palestine,” but there was one in what is now Saudi Arabia. So I wonder what Obeidallah is talking about. In any case, I am certain that any participants in whatever 1824 revolt he is describing called themselves “Arabs,” and not “Palestinians.”

Moral equivalence?

Rick Bayan is the owner of a blog called "The New Moderate," with which I often agree and, even when I disagree with him, which I appreciate for his attempts to find a “moderate” position. Today he put out a post entitled “Itching for Another World War” which discusses a number of things, but a large piece of it discusses the fighting now going on between Israel and Hamas. And unbelievably, his conclusion is rather hard to take:

For now, let’s focus on Israel and its implacable adversaries. Both sides have been going at it with alarming gusto, and of course both sides claim to be victims. Hamas militants have been firing away at Israel mindlessly and persistently, like mosquitoes tormenting a sweaty horse, giving Israel a perfect excuse to fire back. Israel, no longer the plucky underdog of its early decades, has been spilling mostly-innocent Arab blood in the Gaza Strip, an Arab-occupied, Hamas-dominated patch of real estate the size of Philadelphia.

So who’s to blame? The obvious answer, at least from The New Moderate’s perspective, is both sides.

He correctly identifies the problem, I think, when he writes:

Hamas, like all Islamic terror groups, is guilty of refusing to accept the validity of Israeli statehood. What will it take for these Muslim militants to stop begrudging the Jewish people, dispersed and oppressed for nearly two thousand years, a New Jersey-sized slice of turf occupying roughly half their ancestral homeland, with a little extra desert thrown in for good measure? Where were the Jewish survivors of Nazi depredations supposed to establish a modern state for their people – Antarctica? The Jews earned their right to Israel through a combination of land purchases, grit and perseverance, and they’ve successfully defended it three times against staggering odds. The people we call Palestinians are simply Arabs who lived in an artificial state created from the ruins of the Ottoman Empire. After the establishment of Israel in 1948, they were free to stay put or find a new home within a vast Arab dominion that stretches from Morocco to the Iranian border. Israelis have only Israel. This much is certain: if terror groups like Hamas stopped putting Israel in their crosshairs, the bloodshed in the so-called Holy Land would stop tomorrow.

He even recognizes the artificiality of the “Palestinian nationality.” But yet, he proceeds to write:

And what about Israel, now widely vilified (especially on the multiculti left) as a world-class imperialist oppressor of indigenous peoples? First of all, Israel must plead guilty to creating a caste system that relegated its resident Arabs to second-class status. Yes, Israel was founded as a Jewish state, and you can’t blame Israel’s Jews for wanting to keep it that way. But Israel can be shockingly, almost gleefully ruthless in lashing back at its enemies; that ruthlessness has been amply displayed during the ongoing blockade and siege of Gaza. You’d think a civilized people who endured centuries of persecution at the hands of ethnic majorities would show a little more sensitivity toward the minorities in their midst – at least toward the civilians who suffer most from Israeli overkill. I’ll never forget the chilling words of an extremist rabbi who declared that “a million Arabs aren’t worth one Jewish fingernail.”

Now first of all, he refers to “a caste system that relegated its resident Arabs to second-class status.” I really wonder what he means there. There are Arabs in the Israeli Knesset (Parliament), and Arabs in the highest court of the land. By what measure are they “second-class”? On all matters where religion matters, the Jews run their own affairs, and Christians and Muslims run theirs. It's not like Saudi Arabia, where public celebration of Christmas can get you in trouble with the law. As for that rabbi who said “a million Arabs aren’t worth one Jewish fingernail,” this was one extremist — it hardly represents the views of the Israeli government.

So how can Rick Bayan say there is guilt on both sides? Hamas is killing innocent civilians, deliberately. Israel is firing back at the enemy, and, yes, killing innocent civilians, but warnings have been given in advance so they could have left, and they didn't. This is hardly a case of equally sharing the blame. I see not a single thing that Israel is doing in this war that they aren't forced to do, and that any other country would do in a similar situation.

How can a “moderate” criticize Israel in this battle?

The case for Boehner's suit

Ron Christie has written a post entitled Why Boehner’s Lawsuit Against Obama Could Work in The Daily Beast, which is a good summary of the case for John Boehner's suit. It bears repeating:

The Speaker’s suit is not some political stunt, and could actually be successful.

Since Speaker John Boehner announced his intention late last month to sue President Obama for overstepping his legal authority, his supporters have frequently noted how few executive orders he’s actually handed down. To date, Obama has only issued 182, while the predecessor he likes to blame for everything issued 291.

But the real issue, of course, is not the number of executive orders issued during one’s presidency but rather their legality. And it’s here that Boehner and company have a real, substantive case against the president.

Obama has issued at least 32 legislative fixes to the Affordable Care Act, softened laws against illegal immigration, and stripped the work requirement from President Clinton’s welfare reform—all with the stroke of his pen. In 2012, perhaps emboldened by the apparent inability of Congress to stop him, Obama declared the United States Senate to be in recess in order to install three nominees on the National Labor Relations Board.

The Supreme Court recently curbed Obama’s ability to circumvent Congress, and now Boehner is readying a lawsuit to do the same. On June 26, 2014, the Supreme Court unanimously ruled that Obama had violated the Constitution by naming those three nominees to the NLRB.

On the same day the Supreme Court invalidated Obama’s recess appointments, he doubled down on his vision of executive authority by flippantly dismissing Boehner’s lawsuit. “So sue me,” the president told reporters when asked about the suit. Fortunately, Boehner has elected to ignore this display of petulance and continue with his landmark attempt to sue the president.

While Obama and his cheerleaders in the media sneer at the notion of executive overreach, noted constitutional scholar and George Washington Law School Professor Jonathan Turley believes Boehner’s suit could prevail. “I think there is a case against the president for exceeding his authority…I happen to agree with the president on many of his priorities and policies, but as I testified in Congress, I think that he has crossed the constitutional line,” Turley told MSNBC the day Boehner announced his suit.

“When the president went to Congress and said he would go it alone, it obviously raises a concern,” Turley added. “There’s no license for going it alone in our system, and what he’s done is very problematic. He has shifted $454 million of the ACA from appropriated purpose to another purpose. He’s told agencies not to enforce some laws, like immigration laws. He has effectively rewritten laws through the active interpretation that I find very problematic. While I happen to agree with him, I voted for him, I think this is a problem.”

This from a supporter of President Obama, yet!

While Professor Turley has identified a serious constitutional problem, David Rivkin and Professor Elizabeth Price Foley, the legal masterminds behind the suit, say they believe that the lawsuit has precedent.

They point to a pivotal case brought by five Colorado legislators who sought the ability to challenge a state constitutional amendment in federal court. The case, Kerr v. Hickenlooper, was brought before the 10^th Circuit Court of Appeals this year and decided in favor of the legislators and their ability to challenge the legality of the executive branch. This, Rivkin and Foley argue, should worry Obama supporters who scoff at Boehner’s impending legal challenge.

Rivkin and Foley also point to Raines v. Byrd, a 1977 Supreme Court decision. In that ruling, the justices held that a prior case before the high court

namely Coleman v. Miller,

… “stood for the proposition that legislators whose votes would have been sufficient to defeat…a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”

This, although Raines v. Byrd found that the legislators in that specific case did not have standing.

Memo to White House Counsel’s Office: Boehner and his colleagues in the House can easily argue that the president’s unilateral rewrite of sections of the Affordable Care Act has essentially nullified the votes cast in the House of Representatives to pass the bill.

“Professor Foley and I believe that, consistent with the existing case law, the House of Representatives would be able to gain standing to challenge a number of President Obama’s unconstitutional suspensions of law, which have nullified the House of Representatives’ legislative authority, thereby inflicting institutional injury on it,” Rivkin told The Daily Beast on Tuesday.

He continued: “A lawsuit challenging anyone of these actions by the President and that meets the other three elements of our four-part test — explicit legislative authorization, no private plaintiff available and no proportionate political ‘self-help’ available — would have an excellent chance of success.”

Of course, nobody can tell how the Supreme Court will rule. But I would hope that the Court will see things as Rivkin and Foley have. And Coleman v. Miller, decided by the Supreme Court in the past and interpreted in Raines v. Byrd, seems to make it a reasonable hope.

Boehner will soon submit a resolution to the House of Representatives stating that the president has failed to faithfully execute the law. The Speaker contends that Congress — and by extension the American people — have been harmed by Obama’s unilateral decision to rewrite, ignore or modify laws as he sees fit. And if Obama can act lawlessly and bypass Congress now, the precedent has been set for a Republican president to do the same in future years.

Boehner’s lawsuit is no mere political stunt. Rivkin and Foley have provided a strong legal framework for Boehner to succeed in his lawsuit on the merits. And it will be interesting to see if Obama realizes this and offers a legal defense for unilateral actions, or remains stubbornly dismissive of Boehner and his efforts.

I could not have said it better myself, so I simply repost it.

Boehner's lawsuit

It is interesting to see that Democrats are going out of their way to paint Speaker John Boehner's lawsuit against President Obama as frivolous and even “nutty.” They point to the large number of executive orders that were issued by Republican presidents; Paul Begala, who used the “nutty” term, even points to Speaker Boehner's acquiescence in President George W. Bush's executive orders and holds them out as evidence that Boehner is a hypocrite, objecting to executive orders only if a Democratic president issues them.

But there are executive orders and executive orders. The point is that nobody, not even John Boehner, is challenging a President's right to issue executive orders. If a President issues an order that is in accordance with the President's Constitutional powers and Congress-passed legislation, this is just fine. It is when he issues executive orders which contravene legislation which the Congress has passed and a President has signed into law, then he has violated his Constitutional duty to “take care that the laws be faithfully executed.” (Art. II, Sec. 3, clause 5 of the Constitution)

Some might argue that the House of Representatives should instead resort to the impeachmment power which the Constitution grants to the House. The problem is that all of us know that no Democrat, and there are 55 of them, in the Senate will vote for conviction. Sixty-seven Senatorial votes are needed, and even if all Republicans vote to convict, there are only forty-five. We have seen, in the case of Bill Clinton, that the impeachment power is quite toothless. Politics trumps the Constitution in the impeachment proceedings. Bill Clinton lied before a Grand Jury, and could not be convicted. So John Boehner needs to go a different route. But how the courts will rule is uncertain. This technique has not, to my knowledge, been tried before. And even if a court finds for Boehner, will President Obama defy it? I suspect he will. But all we can do is wait and see how this plays out.

Obama's feud with Congressional Republicans

A column by Peter Berkowitz is a great answer to those “stop suing and start legislating” columns that I’ve been seeing recently, and so it is useful to quote it.

Sometimes a speech is just a speech. And sometimes it furnishes a window on a politician’s temperament and provides clarifying insight into how he understands political opponents, his office, and fellow citizens.

In a prepared statement delivered last Monday in the Rose Garden, a frustrated President Obama belittled House Republicans for blocking efforts to reform U.S. immigration policies, promised aggressive executive action in the face of congressional inaction and, in vowing to accomplish the nation’s business, casually assumed the people’s trust.

His apparent aim was to show that he is in charge and relevant. Yet far from serving to reassure an anxious public that the country was in capable hands, the president’s Rose Garden remarks showcased the very qualities of mind and character that have done so much to cast doubt on his ability to keep the rousing promise that he made in 2008: to bring the country together by finding pragmatic solutions to the problems that beset the nation.

The president’s formal statement on immigration reform illustrated his penchant for reducing conservative opposition to his policies to the selfish quest for partisan political advantage. Conservatives, in his account, are engaged in nothing but “obstruction” — not only to his preferred reforms but to all reform. Portraying House Republicans as implacable foes who have placed stymieing him ahead of helping the nation, the president ruled out any possibility that viewpoints other than his own can be sincerely held.

Actually, it seems that most “progressives” seem to think that no viewpoints other than their own can be sincerely held. It's not just Pres. Obama; if you look at Justice Ruth Bader Ginsburg's recent Supreme Court dissents, it seems she believes the same thing.

Obama also patted himself on the back for exercising restraint in having “held off on pressuring” presumably reasonable GOP leaders “for a long time to give Speaker Boehner the space he needed to get his fellow Republicans on board.”

But the Republican leadership has failed, according to the president, because they’re cowards. He managed to condemn all Republicans — the reasonable and unreasonable ones — by declaring that reasonable Republicans “have proven again and again that they're unwilling to stand up to the Tea Party in order to do what's best for the country.”

Of course the president is a spectator by choice to the drama taking place within Congress. Other options are available to him. He might have, for example, reached out to Tea Party-affiliated Republicans by inviting them to the White House one by one, or in small groups, for face-to-face conversations in which, in the search for common ground, he could press his case and they theirs.

In the Rose Garden, Obama indicated why he considers such an option out of the question: Opponents of the Senate immigration bill, he believes, have no legitimate argument while the legislation he champions is, in his eyes, constructive beyond any reasonable doubt.

But is that true?

Critics affiliated with the Tea Party contend that last year’s Senate bill — passed with Republican support and embraced by the president — neglects border security and therefore won’t really do anything to stem the flow of illegal immigration. They also say that the legislation cedes extensive authority to unelected and unaccountable officials; unfairly awards lawbreakers while disadvantaging immigrants who follow lawful procedures; is unwieldy and all but impossible to understand; will prove much more costly than the price tag affixed to it; and grants amnesty without making adequate provision for providing the education that millions of new citizens will need to exercise their rights responsibly.

Some of these arguments may be overstated or on balance wrong. None, though, as the president determinedly suggests, are simply unreasonable.

In addition, the president’s Rose Garden statement displays a disdain for the separation of powers. To show his determination to act on behalf of the public despite Congress’s unwillingness or inability to pass comprehensive legislation, the former University of Chicago professor of constitutional law declared that he takes “executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.”

But the Constitution does not vest the president with the power to take executive action just because of congressional inaction, no matter how strongly he disapproves. The Constitution certainly does not vest him with the power to rewrite old laws or write new ones, and that’s true regardless of how urgently he believes the nation needs them.

Nor does the Constitution leave the president powerless in the present circumstances. It gives him extraordinary means — vastly greater than those of any other citizen — to converse with members of Congress, to cajole and twist arms, and to find ways to work with the nation’s lawmakers — particularly skeptical Republicans — to take action that both sides can see as better than the status quo. However, this vital power, the power of persuasion that comes with occupying the White House, is one the president has truculently refused to exercise.

When he burst on the scene as a national candidate, Barack Obama inflated expectations to impossible heights, promising a fundamental transformation of America. To the extent that he swallowed his own rhetoric whole, it’s understandable that he would be frustrated at having his every initiative second-guessed or opposed by a determined minority party. But succumbing to frustration in the face of robust dissent is unbecoming of the chief executive of a liberal democracy.

The president was correct to declare in the Rose Garden that this is no time for demagoguery. And he is right that with a surge of unaccompanied children on our border we confront “an actual humanitarian crisis.” But by insisting that this “only underscores the need to drop the politics,” Obama continues to play politics. For him to demand, moreover, that now we have only one choice, which is to “fix our immigration system once and for all,” is an example of the very demagoguery he decries.

The president does have another choice. It involves an approach that is authentically liberal and democratic. In the present circumstances, instead of railing against conservatives it would be the better part of wisdom for him to announce his determination to enlist lawmakers — particularly those who have stood against him — in the fashioning of incremental reform that specifically addresses the present crisis.

The president might begin with a speech. If he wants the speech to succeed, though, he will need to do some soul-searching — and possibly consult speechwriters outside the White House cocoon — and craft it based on a revised and more reasonable understanding of his political opponents, his office, and the quality of his leadership over the last 5½ years.

But he will not do so. He seriously believes that his is the only way to see things. It is clear that he has about as much likelihood of doing this as he does of resigning the Presidency.

Telling Boehner to pass laws

Yet another person has written a post saying: “Dear Speaker Boehner: Do your job instead.” That was the actual title of a post by Sally Kohn of CNN. Of course, she is described as a “progressive activist, columnist and television commentator.” And so as far as she is concerned, President Obama is just doing his job. She does not see him as violating law after law passed by Congress and the Constitution he was sworn to “preserve, protect, and defend.” She has no problem with his executive orders, which she points out were fewer in number than those of “Theodore Roosevelt, Dwight Eisenhower, Ronald Reagan, and President George W. Bush.” What she does not point out was that their executive orders were in conformity with law and the Constitution. They never issued orders directing that laws duly passed by Congress — such as our immigration laws and even the “Obamacare” law that he considers his pride and joy — not be fully enforced.

And what is most amazing is her directive to John Boehner to “pass laws to help rather than jeering from the sidelines and rooting for America to fail so you can blame it on President Obama.” John Boehner would like to “pass laws to help,” but he knows that anything his House passes will be shot down by the Senate.

Let us give an example. Kohn refers to a jobs bill that did pass the House. She of course derides it by saying,

You assert that you have passed jobs bills that President Obama and the Democratic Senate are ignoring, but frankly the word “jobs” as you use it there is questionable. Your “jobs” bills include legislation to repeal Obamacare, through which 20 million Americans now have health insurance, cut food stamps for poor Americans and reduce government regulations on fracking.

Meanwhile, President Obama proposed an actual jobs bill that would have created construction jobs to modernize our deteriorating roads and airports, provided tax credits for employers that hired returning veterans, extended unemployment benefits, which also spurs spending, and cut payroll taxes for 98% of American businesses. But that jobs bill was killed by Republican opposition in Congress.

Which approach would have actually created jobs? Clearly, Kohn thinks the second. But repealing Obamacare, in fact, would create millions of jobs, simply because employers are not now hiring people due to the onerous burden that Obamacare places on them. Reducing government regulations of fracking would create jobs in the petroleum industry. And on the other hand, extending unemployment benefits encourages people who might look for work not to. Boehner's bill would have created jobs; Obama's would not. All I can say is, Sally Kohn, you don't know what you're talking about.

Kohn wants Boehner to pass bills, but not bills that would actually help the country; she wants Boehner to pass bills like Obamacare — which she has the gall to describe as a good thing! — to hasten the president's destruction of our economy. But then, what can you expect of a “progressive activist, columnist and television commentator”?

The real issue in the Brendan Eich story

In the discussion over the resignation of former Mozilla CEO Brendan Eich, a lot of issues have come up, some of them legitimate in my eyes and some not.

A column in The New Yorker's site entitled “How Mozilla Lost Its C. E. O.,” by James Surowiecki has a good summary of the story:

When Brendan Eich stepped down as the C.E.O. of Mozilla, on Thursday, after a mere two weeks on the job, it was perhaps the least surprising C.E.O. departure ever. Eich was one of the co-founders of Mozilla — which makes open-source software, including the Firefox browser — and is a brilliant software engineer who had been the company’s chief technology officer. But Eich was also well known for his opposition to gay marriage: in 2008, he donated a thousand dollars to support Proposition 8, the California ballot measure that sought to ban same-sex marriage. The initial revelation of that donation, back in 2012, led to a welter of criticism that eventually died down. But, by elevating Eich to C.E.O., the Mozilla board brought his past to the forefront once again. While Eich attempted to defuse the problem with conciliatory blog posts and interviews about diversity and inclusiveness, he didn’t actually say that his views on gay marriage had changed. That, inevitably, provoked a uprising within the Mozilla community: a public petition was circulated demanding that he step down, the dating site OkCupid recommended that its customers stop using Firefox, and some Mozilla employees (though far from all of them) called for his resignation.

People are arguing that it is “not the liberal thing” to make someone leave a position because of his position on a political issue (especially a position with which a majority of Americans — or at least of Californians, as evinced by the result of the referendum vote — agreed!) and even some strong gay-rights advocates signed the post linked to here, which says in part:

The gay rights struggle is about freedom and equality for all. The best and most free society is one that allows the largest number to live true to their core beliefs and identities. It is a society that allows its members to speak their minds and shape their own aspirations.

The natural consequence of true liberty is diversity. Unless a society can figure out a way to reach perfect agreement, conflicting views will be inevitable. Any effort to impose conformity, through government or any other means, by punishing the misguided for believing incorrectly will impoverish society intellectually and oppress it politically.

The test of our commitment to liberal principles is not our eagerness to hear ideas we share, but our willingness to consider seriously those we oppose.

But I agree more with the column by Forbes columnist Richard Levick, entitled “Brendan Eich Is a ‘Person’ — and So Is Mozilla,” which basically points out that this is not a case of Eich's First Amendment right to free speech; Mozilla is a private corporation, with the right to take any action it feels is in its corporate interest. As Levick says,

Mozilla’s brand could only have been further threatened by protracting the discussion. … Open-mindedness may be the cultural hallmark of Silicon Valley, but it does not extend to those perceived (correctly or not) as opposed to open-mindedness itself. Why should it?

…I have the right to disparage anyone, but I’ll be in for a surprise if I expect people to still respect me afterward. And it sure wouldn’t be too good for business!

It has been mentioned by Levick and others that at the time of the Prop. 8 referendum, the basic principle that marriage is a heterosexual thing was endorsed by none other than Barack Obama, but Levick does not mention that Obama has officially reversed himself on that issue, while Eich did not (and conceivably could have saved his job if he had made a sufficiently contrite renunciation of his earlier position). Instead Levick, in the place where I put one of the ellipses in the earlier quote, has:

There is no small irony in the fact that you can reverse positions on this critical “social” issue and become President of the United States, but not the CEO of a company — at least not this company where the CEO’s stance was perilously at odds with the values of its stakeholders.

He misses something there: Eich never took that step of renouncing his earlier stance (see the New Yorker quote above); he appealed, instead, to a sort of “Look at how I'm behaving on LGBT issues now” attitude. And that was simply not enough.

Just as I, as an individual, have the right to boycott Chick-Fil-A (not because of its stance on gay marriage, which is bad enough, but because the Cathy family, which owns the company, chooses to enforce the Christian Sabbath on its franchisees, requiring them to close on Sunday whether they want to or not!) certainly OKCupid has the right to favor a boycott of Mozilla. And in fact it was a pretty toothless boycott — they merely suggested people download a different browser; they did not make their site inaccessible to Firefox users! All they really did was suggest that people boycott Firefox. This is certainly within their freedom of speech rights!

Perhaps the only thing that perhaps should have been done differently is for Brendan Eich to have renounced his earlier views — if he is really now a supporter of equal rights for same-sex couples. This would have saved his job. And if he still maintains his earlier position, then it was good that he was forced out. This position is obviously anathema to enough Mozilla employees and customers that it is bad for Mozilla to keep him as CEO. Levick's remark that “…I have the right to disparage anyone, but I’ll be in for a surprise if I expect people to still respect me afterward. And it sure wouldn’t be too good for business!” still applies.

More on health care reform

Democrats have assailed Republicans for wanting to “repeal and replace” the so-called “Patient Protection and Affordable Care Act,” usually known as “Obamacare,” but not having any plan for the replacement: in other words, Republicans are accused of being willing to “repeal” but only giving lip service to “replace.” Well, a couple of weeks ago, I read of a plan by Republican Senators Richard Burr, Tom Coburn, and Orrin Hatch that would replace “Obamacare.” As described in that article (see my January 29, 2014 post entitled “Reforming health care”) the Burr/Coburn/Hatch plan had some flaws, but recently I saw an editorial in The Washington Post that gave a description that differed from the one I saw last month. (The Post did not like the Burr/Coburn/Hatch proposal; it called it “a starting point for a conversation, not a replacement”; but that's another matter — for one, the Post seems to think that mandates are a good idea!) The original article I saw last month said that Burr/Coburn/Hatch would not require insurance companies to cover people with pre-existing conditions, but only grant the companies incentives, while the plan described in the Post editorial would require this coverage; and there was no mention in the earlier posting of replacing the individual mandate by a plan similar to what Medicare Part D has — allowing the insurance companies to charge a higher premium to people eligible for coverage who chose not to buy insurance (which I think is the best way to sove the problem of people signing up only after they become sick), but the Post editorial says that Burr/Coburn/Hatch has such a provision. I don't know whether the first posting was in error, or the Senators involved modified their proposal, but if the Post editorial is correct about those two provisions, Burr/Coburn/Hatch becomes a plan I can support pretty much unreservedly.

It is going to be a major slog trying to get something like Burr/Coburn/Hatch passed, of course. The Senate is still dominated by Democrats, though in November an election is coming up that may — probably will — change that; and President Obama is on track to veto any bill that destroys his “masterpiece.” But this blog will favor the implementation of Burr/Coburn/Hatch or something like it, and you are likely to read more here in the future.

It's crazy!

On the one hand, there are online posts like Lanhee Chen's on the Bloomberg site, entitled “If 2013 Was Hard on Obamacare, Just Wait for 2014,” giving us the news that “Obamacare” is on its way down the tubes, and giving us some hope that this colossal mistake will be repealed soon. On the other hand, there are also posts like Jonathan Cohn's, on the New Republic site, entitled “We Don't Know if Obamacare Is Working Well. But We Know It's Working.” This post seems to imply that things are back on track with it, that we just have to let it work out some rough spots. They can't be looking at the same facts.

I wish I had all the facts. But what I've seen mostly confirms the first position. “Obamacare” is a disaster, and needs to be put out of its misery — quickly. But how to do so, with Obama in the White House? I do have to admit, I don't really know. Until President Obama is replaced by a competent chief executive, like Chris Christie, it looks like “Obamacare” will limp along, with temporary postponements of its worst features. And the United States will limp along too, with nobody knowing what will be the rules in a month. A shame, but too many people were dazzled into electing this total incompetent — people said Sarah Palin was inexperienced in 2008, but she was a seasoned veteran in gevernment executive experience compared with Barack Obama!

All one can do is hope that a Republican Senate will be elected in the coming year to go along with John Boehner's Republican House, and between them, as much of President Obama's agenda as possible will be frustrated.

Competence - sorely deficient in the Obama administration

Peggy Noonan runs a blog on the Wall Street Journal’s site which posted, on December 17, 2013, a column called “Incompetence.” It is really worth reading.

Everyone is doing thoughtful year-end pieces on President Obama. Writers and reporters agree he’s had his worst year ever. I infer from most of their essays an unstated but broadly held sense of foreboding: There’s no particular reason to believe next year will be better, and in fact signs and indications point to continued trouble.

I would add that in recent weeks I have begun to worry about the basic competency of the administration, its ability to perform the most fundamental duties of executive management. One reason I worry is that I frequently speak with people who interact with the White House, and when I say, “That place just doesn’t seem to work,” they don’t defend it, they offer off-the-record examples of how poorly the government is run. One thing that’s clear this holiday season: New York’s Democrats, to the degree they ever loved the president, don’t love him anymore, and have moved on. They are not thinking about what progress he might make in Washington next year, they’re talking about what Hillary might do the year after that.

My worries came home with a certain freshness after the Mandela memorial, where the United States Secret Service allowed the president of the United States to stand for 19 minutes next to the famous sign-language interpreter who, it was quickly revealed, was not only a fraud but a schizophrenic con man who is now said to have been involved in two deaths. In fairness, the event was in another country and the Secret Service wasn’t strictly in charge. That said, it still looks like very basic negligence, as if no one is keeping enough of an eye on the Secret Service, no one’s checking the quality of the advance or sending emails asking: “Hey, what do we know about the sign language guy—any chance he’s a mentally ill criminal?”

It all looks so lax, so loosey-goosey. In the place of the energy and focus that would go into the running of things, the administering and managing of them, we have the preoccupation with spin, with how things look as opposed to how they are. The odd thing still is that the White House never misses a speech, a list of talking points, an opportunity to shape the argument on TV. They do the talking part, but the doing? They had 3½ years to make sure ObamaCare will work, three years to get it right top to bottom, to rejigger parts of the law that they finally judged wouldn’t work, to make the buying of a policy easy on the website. And they not only couldn’t do that, which itself constitutes an astounding and historic management failure, they make it clear they were taken aback by their failure. They didn’t know it was coming! Or some knew and for some reason couldn’t do anything.

And it’s all going to continue. One reason this scandal isn’t Katrina is that Katrina had a beginning and an end. The storm came, the storm left, the cleanup commenced and failed and then continued and succeeded. At some point it was over. ObamaCare will never be over. It’s going to poison the rest of the administration. It’s the story that won’t go away because it will continue to produce disorder. Wait, for instance, until small businesses realize it will be cheaper to throw their people off their coverage and take the fines than it will be to reinsure them under the new regime.

I’m worried, finally, that lines of traditionally assumed competence are being dropped. The past few weeks I can’t shake from my head this picture: The man with the football—the military aide who carries the U.S. nuclear codes, and who travels with the president—is carrying the wrong code. He’s carrying last month’s code, or the one from December 2012. And there’s a crisis—a series of dots on a radar screen traveling toward the continental U.S.—and the president is alerted. He’s in the holding room at a fundraiser out west. The man with the football is called in and he fumbles around in his briefcase and gets the code but wait, the date on the code is wrong. He scrambles, remembers there’s a file on his phone, but the phone ran out on the plane and he thought he could recharge in the holding room but there’s no electrical outlet. All eyes turn to him. “Wait—wait. No—uh—I don’t think that’s the code we use to launch against incoming from North Korea, I think that one takes out Paris!”

I have to say, I’ve never worried about this with any previous administration, ever.

“They mistook the White House for the government,” said an experienced old friend, a journalist and Democratic sympathizer. We were having holiday dinner and the talk turned to White House management. His thesis was that Obama and his staffers thought they could run the government from there, from the White House campus, and make big decisions that would be executed. They thought the White House was the government, but the government is a vast web of executive agencies that have to be run under close scrutiny, and within their campuses, to produce even minimally competent work.

I have come to see this as “West Wing” Disease. Young staffers grew up watching that show and getting a very romantic and specific sense of how government works. “The West Wing” was White House-centric. It never took place at the Agriculture Department. But government takes place at the Agriculture Department.

Anyway, my friend made me think of a story about Harry Truman. On leaving the White House after the 1952 election of Dwight Eisenhower, Truman made a small prediction about the general and his presidency. From memory: Eisenhower, Truman said, will pick up the phone and say do this and do that, pull this lever, and he’ll be shocked when nothing happens.

Ike was a general used to giving orders within an organization that takes the order and executes. But a government has to be leaned on every day, through management talent earned by experience. Generals can issue orders but federal agencies must be gently guided and clubbed around the head, every day.

People who run big businesses learn these facts of executive leadership early on. So do leaders of small businesses and great nonprofit organizations, and local political leaders in charge of local agencies whose success or failure can be charted.

Most of the Obama people just don’t have a background in executing. They have a background in communicating, not doing. That’s where their talent is—it’s where their boss’s talent is—and it’s a good talent, but not one that will in itself force a government to work well.

Whatever we look for from the Administration, we would like to see competence. The President may not agree with us on the direction the Government should go, but it’s particularly bad when it cannot even lead us in the direction they want us to go.

That’s just one more reason we need for Obama to be replaced in 2016 by the likes of Chris Christie. We need a competent President.

Obamacare -- a backward step?

Supposedly, the reason for implementing “Obamacare” was to expand health insurance coverage for Americans. But it looks as though it’s been a backward step in this direction, too. A post by Megan McArdle on the Bloomberg site, dated December 17, and entitled “Is Obamacare Really an Improvement on the Status Quo?” makes interesting reading. It begins:

By Jan. 1, fewer people may end up having insurance than before Obamacare.

Bob Laszewski, an insurance industry expert who has become the go-to guy for the news media on the rollout of the Patient Protection and Affordable Care Act (because the insurance industry is extremely reluctant to talk), tells the Weekly Standard that he thinks come Jan. 1, more people will have lost private insurance than gained it:

"Insurers privately tell Bob Laszewski that they think more people will have lost insurance by January 1 than the number who have signed up for Obamacare by January 1.

“‘I was out making some client calls this week with a number of different carriers and they know exactly how many policies they canceled and how many who reupped. And they know how many people have come in through the exchange,’ says Laszewski. ‘And I didn't find one of them who thought they were going to be net ahead on January 1. They all think they're going to net behind on January 1. That's where it's trending so far.’

“So far, at least 4.8 million Americans have received insurance cancellations notices, but Laszewski predicts that the total Obamacare enrollment will be less than half that number on January 1.“‘My guess is that we'll have somewhere around a million and a half people signed up for Obamacare on January 1 in the states and in healthcare.gov,’ he says. The big question then, he adds, is 'why have we gone through this whole dislocation of the American health insurance system if only a million and a half to two million buy health insurance?’”

This is, of course, pretty bad news. And the post then continues:

Maybe we’ll make up some of the gap with Medicaid. But at the current pace of enrollment, it would be a big hurdle to make up all the losses. Which means that we may well start the year with fewer people insured than we had in January 2013. There’s reason to think that that may be what the administration is seeing in the latest enrollment numbers.

Get that? “[W]e may well start the year with fewer people insured than we had in January 2013.” If that isn't a backward step, I don't know what is!

One of the major defenses being offered for Obamacare — botched rollout and all — is that the status quo was so awful. Obamacare may have its issues, but at least it’s not the bad old days.

The problem with reformers is rarely that they’re wrong about the status quo; there are a lot of awful things in the world that could use fixing, and the reformers have usually correctly identified at least a few of them. The problem with radical reformers is that they tend to forget that things can get worse, as well as better.

That's one thing that the Obama campaign, with its “change” theme, refused to admit, but let me repeat it: “[T]hings can get worse, as well as better.” Conservatives understand this; radicals don't.

If I’d sketched out the current scenario last summer — computer systems don’t work for months, millions lose insurance, and by the beginning of December, only 1.2 million people have picked up coverage from the exchanges and Medicare combined — the law’s supporters would have rolled their eyes and shaken their heads at the wishful thinking of the law’s critics. And now they generally assume that it will of course get better — that by March 31, if not sooner, we will see a measurable and substantial reduction in the number of uninsured.

But while that’s certainly very possible, it doesn’t exactly seem inevitable. To be sure, I myself find it hard to believe that the number of uninsured people will actually rise, even temporarily, as a result of the law. On the other hand, the administration has been pretty quick to leak whenever they had good enrollment numbers, and we haven’t heard a peep since the beginning of the month. So however incredible, it’s at least a real possibility that we’ll see a net decline in coverage on Jan. 1 — or even on April 1.

That has implications beyond just the people who would be uninsured next year. A lot of these insurance pools are already pretty small. If enrollment is much lower than expected, many markets may not have enough customers to make a viable pool. Even if the insurance pool isn’t older and sicker than expected, a pool that is too small can be wiped out by a couple of unlucky and expensive illnesses.

If the December numbers show a net decrease in enrollment, the administration will probably offer reasons to hope that we’ll see a late influx of young, healthy customers by March. Or maybe they can argue that this is a down payment on the future, and things will really get going in 2015. If they can keep premiums low heading into Obamacare’s second year, then it’s probably reasonable to think that more people will sign up.

But you can’t just keep making down payments on the future forever; at some point, you have to close the sale. If the administration can’t deliver a substantial net enrollment expansion by winter’s end, Democrats are going to have a very hard sell with voters come next fall. And that, in turn, is going to make it harder for Democrats to actually build Obamacare into the coverage-expanding, cost-lowering, voter-pleasing program they thought they passed in 2013.

Of course, one thing I've been hoping is that “Democrats are going to have a very hard sell with voters come next fall.” That way, perhaps a Republican Senate will join the Republican House of Representatives in making it hard for Pres. Obama to continue his assault on the American people. But of course, unless Obama is replaced in 2016 by the likes of Chris Christie, we can't hope this mess is going to be cured.

The "settled law" argument

Liberals like to say that “Obamacare is a law passed by Congress, signed by the president, and upheld by the Supreme Court.” The arguments by “Sundance” on “The Last Refuge” blog should dispose of that. But in any case, any law Congress can pass, Congress can repeal. In 1798, Congress passed the Alien and Sedition Acts. There was no Supreme Court test of these, because prior to 1803, the Supreme court had not declared an act of Congress unconstitutional, but these laws were certainly as much settled law as Obamacare is now. Yet people as high as the Vice-President of the United States at the time, Thomas Jefferson, were so strongly opposed that Jefferson helped author state legislative resolutions against their enforcement. (Jefferson was the author, not publicly acknowledged at the time, of the Kentucky resolution, while another future President, who is acknowledged as well as the author of much of the Constitution, James Madison, had a similar rôle regarding the Virginia resolution.)

No law is ever totally settled. And anyone who thinks a law is a bad one certainly has the right to work for its repeal. If Thomas Jefferson and James Madison could take the actions they did on the Alien and Sedition Acts, no Republican should be considered unreasonable for opposing, by all means possible, Obamacare. (Even a Constitutional amendment is not beyond repeal. Look at the history of the Eighteenth Amendment, and the Twenty-first.)

You are also invited to read posts by Nick Gillespie on the Reason.com blog, and by Noemie Emery on the Washington Examiner's site.

Who won? Who lost?

I am amazed when I look at the things being written about the recent shenanigans over the budget. On the one hand, there are people like the editors of The Nation, who wrote an editorial dated October 16, 2013, entitled “Even When the GOP Loses, It Wins,” whose thesis is that it was in fact a Republican victory because:

The GOP now goes into budget talks with sequestration as the new baseline, primed to demand longer-term cuts in Medicare, Medicaid and Social Security. And they still hold the gun of a US default to the nation’s head in the next debt ceiling showdown.

But on the other hand, Obamacare is still in place, and we read such things as Timothy Noah's posting on MSNBC's site:

[W]hat the GOP’s right flank is experiencing right now, in government and the court of political opinion, is failure.

Both these posts come from the political Left, so it is not a case of the Left seeing it as a Right win because they had to give up some and the Right seeing a mirror image of this. It is clear that John Boehner feels that he lost:

“We fought the good fight. We just didn't win,” Boehner told Cincinnati radio station WLW on Wednesday after the Senate stepped in to effectively end the legislative impasse.…“Every time I've gotten into a discussion with the President, the Vice President, the Democrats here in Washington, and talk about entitlement changes, trying to make these programs sustainable, all they want to do is raise taxes. Well we can't do that,” Boehner said.

“If they're going to hold onto their position that we're always going to raise taxes, then we're not going to come to an agreement.”

As I said in a previous post, they just kicked the can down the road. Who will come out ahead in the long run, I just don't know.

A British view of the recent happenings

An interesting blog post on the site of the British newspaper, The Telegraph, recently appeared. It was written by Tim Stanley and dated October 16^th, 2013, and entitled: “US debt ceiling crisis — Barack Obama has won the shutdown. His prize is a lame duck presidency.” It is quite interesting to see how the events of the last week or so are viewed by others; of course, The Telegraph is a conservative paper, so this needs to be taken into account. But the title alone makes it clear that, to Mr. Stanley (who is a historian whose area of specialty is the United States) at least, President Obama has won a battle, but at a serious cost to his own ability to govern:

The shutdown is basically over and the President has won. Or, at least, he's won because the Republicans have definitely lost. Not only did they not get what they wanted — that “life or death” delay on Obamacare implementation — but they've given the impression of dragging partisanship to new lows. Obamacare had been passed already, the Supreme Court had okayed it and Obama had won an election on it, yet the GOP was still prepared to bring the country to the brink of ruin to cripple it. When Grover Norquist is saying that the Right went too far (he of the “drown government in the bath tub” fame) then the Right probably went a bit too far.

So much for the “won a battle” part. Then, however, he continues:

But there are caveats to that narrative. First, the Republicans aren't the only ones who ought to hang their heads in shame. It was the Democrat-controlled Senate that first rejected the House's bill and so sparked the crisis. It was the President who refused to talk to anyone about it (and went campaigning instead). It was the federal government — even when in shutdown — that behaved like a spoiled child, covering war memorials in fences and trying to stop military priests from saying Mass. And it was the mainstream media that took the side of the President and helped foster the impression that the GOP is run by a bunch of blowhard crazy people. For example, Dave Weigel points out that, contrary to reports, wild child Ted Cruz actually had “no intention” of delaying the critical final vote in the Senate. His image of being Sarah Palin 2.0 is entirely a media myth.

Many of these things, particularly regarding the Senate, the President, and the media, coincide with my own recent posts, so naturally I was happy to see someone else in agreement.

Continuing, Mr. Stanley writes:

Second, what has Obama really won? He keeps his precious healthcare reform and he gets government open again — but tomorrow morning he'll still have the same gridlocked political system that he had the night before. The shutdown is a rare example of him winning, but remember that this lame duck president has not only had a very simple (and, frankly, inoffensive) gun control bill killed in the Senate but was so spooked by bad poll numbers that he tried to dump responsibility for military action in Syria onto the Congress — before quietly dropping the idea altogether. Any thought that the shutdown payoff will be that he can sail an immigration reform package comfortably through Congress is pure fantasy. This is a broken presidency living out its last few years either holding off Republican attacks or lazily cruising the country on some pointless, endless, fatuous campaign trail. Obama's administration is politically bankrupt.

Very interesting. The media in general are unwilling to concede this, but I believe Mr. Stanley is right. The House of Representatives must approve any new legislation, and after this débacle, the House will be less inclined than before to pass anything with Obama's stamp of approval on it.

And finally, Mr. Stanley writes:

The talk for the next week will be about how the Tea Party is dead and Republicans must elect a politically correct, middle-of-the-road, unimaginative, establishment, compromising candidate in 2016 (preferably a singing sloth, cos the polls show that Americans just love those). But the reality is that US politics right now is a mess for both Left and Right, and the country is stuck in partisan limbo until the 2014 midterms or even the 2016 presidential election. This is not a Republican problem, it is an American problem.

Here, I part company to some extent with Mr. Stanley. A “middle-of-the-road, … compromising candidate” is necessary. There is no way a Rick Perry or Rick Santorum could get elected in this country in 2016. This, of course, is why I have been pushing Chris Christie. He will show, in three weeks, how he can get votes even in a deep blue state like New Jersey. This is clear. And no Republican can win unless he can get at least some people who are not convinced Republican voters to pick him. This is an important factor, which Mr. Stanley does not point out, and perhaps which he does not realize to be the case.

A biologist's comment on the question "When does life begin?"

I don't know what PLOS means, but they run a site with science-oriented blogs on it, and I just saw a post, dated October 3, 2013, by Ricki Lewis, Ph.D. entitled “When Does a Human Life Begin? 17 Timepoints.” It's good stuff, and I'd like to quote it in full before giving my own comments. Since Dr. Lewis is a biologist, and as she says in her post, the author of a biology textbook, her comments deserve some attention. This is what she writes:

On September 24, the direct-to-consumer genetic testing company 23 and Me was granted patent no. 8543339, covering the selection of traits in offspring by genotyping eggs and sperm. (“Gamete donor selection based on genetic calculations.”) An analysis of the ethical issues the patent raises is published today in Genetics in Medicine. (Coincidentally, a co-author of the paper was so critical of a recent DNA Science blog post that comments had to be cut off. Small world.)

I’d started thinking about today’s post a few weeks ago, when a prominent science writer posted on a listserv “What was the CEO of AAAS thinking?” and then quoted Alan I. Leshner telling the New York Times: “K-12 students need to know the nature of science, how scientists work and the domains and limits of science. Science can’t tell you about God. Or when life begins.”

“Um…when life begins is a pretty basic idea in biology,” commented the originator of the compelling listserv thread that followed. Actually, no.

I’m the author of an intro college biology textbook called “Life,” my having nabbed that title before Keith Richards did. Life science textbooks from traditional publishers (I’m with McGraw-Hill) don’t explicitly state when life begins, because that is a question not only of biology, but of philosophy, politics, psychology, religion, technology, and emotions. Rather, textbooks list the characteristics of life, leaving interpretation to the reader. But I can see where the idea comes from that textbooks define life as beginning at conception. Consider a report from the Association of Pro-life Physicians. After a 5-point list of life’s characteristics from “a scientific textbook,” this group’s analysis concludes with “According to this elementary definition of life, life begins at fertilization, when a sperm unites with an oocyte.” Sneaky.

Being a biologist, a textbook author, and a mother, I’ve thought a great deal about the question of when a human life begins. So here are my selections of times at which a biologist might argue a human organism is alive. I’ll save my preference for the end.

1. Life is a continuum. Gametes (sperm and oocyte) link generations.

2. The germline. As oocytes and sperm form, their imprints – epigenetic changes from the parents’ genomes – are lifted.

3. The fertilized ovum. Of the hundreds of sperm surviving the swim upstream to the oocyte, one jettisons its tail and nuzzles inside the much larger cell, which obligingly becomes an ovum, completing its own meisosis. A fertilized ovum = conception.

4. Pronuclei merge, within 12 hours. After fertilization, the packets of DNA from male and female — the pronuclei — approach, merge, and the intermingling chromosomes pair and part, as the first mitotic division looms. A new human genome forms. Following that first division, some genes from the new genome are accessed to make proteins, but maternal transcripts still dominate development.

5. Cleavage. Divisions ensue. The cells of an 8-celled embryo (day 3) have not yet committed to becoming part of the embryo “proper” (one with layers) or the supportive membranes. Such a cell can still, on its own, develop. An 8-celled embryo whose cells are teased apart could lead to an octomom situation.

6. Day 5. The new genome takes over as maternal transcripts are depleted. The inner cell mass (icm) separates from the hollow ball of cells and takes up residence on the interior surface. It will become the embryo proper, distinguishing itself from the remaining part of the ball fated to become the extra-embryonic membranes. The icm is what all the fuss about human embryonic stem (hES) cells is about — the stem cells aren’t the icm cells, but are cultured from them.

7. End of the first week. The embryo implants in the uterine lining.

8. Day 16. The gastrula. Tissue layers form, first the ectoderm and endoderm, then the sandwich filling, the mesoderm. Each layer gives rise to specific body parts.

9. Day 14. The primitive streak forms, classically the first sign of a nervous system and when some nations set the deadline for no longer using human embryos in experiments.

10. Day 18. The heart beats.

11. Day 28. The neural tube closes, within which the notochord, preliminary to the spinal cord, will form, while the bulge at the top will come to house the brain. If the tube doesn’t close completely, a neural tube defect (anencephaly, spina bifida, and a few others) results.

12. End of week 8. The embryo becomes a fetus, all structures present in rudimentary form.

13. Week 14 or thereabouts. “Quickening,” the flutter a woman feels in her abdomen that will progress to squirms and kicks from within.

14. Week 22. A fetus has a chance of becoming a premature baby if delivered.

15. Birth.

16. Puberty. The Darwinian definition of what matters on a population and species level, when reproduction becomes possible.

17. Acceptance into medical school. I don’t know where this came from, a joke about Jewish mothers, but in some circles it might now apply to acceptance into preschool. Or when one’s grown offspring leave home.

My answer? #14. The ability to survive outside the body of another sets a practical limit on defining when a sustainable human life begins.

Having a functional genome, tissue layers, a notochord, a beating heart … none of these matter if the organism cannot survive where humans survive. Technology has taken us to the ends of the prenatal spectrum, yet not provided too much for the middle, other than fetal surgeries for a handful of conditions. We can collect and select gametes, now thanks to patent no. 8543339. We collect and select very early embryos in pre-implantation genetic diagnosis, allowing those without a specific disease to continue development. And although the gestational age at which a premature infant can survive has crept younger, it hasn’t by much, not since I starting thinking about these things back when I was a stage #16.

Until an artificial uterus becomes a reality, technology defines, for me, when a human life begins, rather than biology. Alternative views are welcome!

Notice that she says that a human life begins at the point of viability, her 14^th timepoint. I would actually hold out for her #1 option, that life never really begins, but is in a continuous span across the generations. But her viability criterion is, I would say, the point that a new and independent human being starts to exist. It's not the start of life, but the start of an independent human life. And so I would agree that up to that point, I would permit abortions, because up to then the fetus is simply a parasite living off the mother.

Bradley Manning wants to be called "Chelsea"

A post entitled “He Is Not Bradley Manning. She Is Chelsea Manning. Deal With It,” by Ryan Kearney on The New Republic's site says that Bradley Manning, the WikiLeaks leaker, wants now to be called “Chelsea.” Kearney, of course, has the right to call him anything he wants to. But he will always be Bradley Manning on this site.

I have no problem with people being gay, lesbian, or bisexual. We don't know how much is heredity, how much is environment, or even if there is some third cause, but whatever it is, people feel attractions to different people, and regardless of the Religious Right's railing about “unnatural” sexualities, it is truly natural for them. I'm willing to accept even stranger sexualities, though I can't fully understand them; I won't go into all the details. But the one group I can never understand or make sense of is that of the transgendered: men who think of themselves as women or vice versa.

A man who falls in love with another man just has his sense of what he finds attractive different from the majority. We are all programmed to eat, but many people eat, every morning, foods that it disgusts me just to contemplate. Sex is like food — the species could not survive without each of them, but how desires manifest themselves in different people varies. (Yes, gay sex does not procreate; but people have been known to eat non-nutritive foods as well!) And now, as gay people are getting more and more accepted (a lesbian has a good chance at being the next Mayor of New York!), there is less and less reason to consider a same-sex attraction as “unusual.” People can simply love whomever they want to love.

But transsexualism is another story. Bradley Manning will never be able to have a cell in his body (other than the sperm cells in his testicles) that has anything other than an XY chromosome type. Even if they cut off those testicles and his other male organs, and give him all the estrogens he asks for, he will still be genetically male, and he will never be able to function sexually as a female. He will simply be a castrated male, dressed in woman's clothes. No act on earth is possible that will make him anything other than that. So what does he get by adopting a female identity? I suppose, the right to go around in a dress. It's not the right to marry a man — twelve states already give him that, and more will follow, while the others probably would not even if he undergoes the sex-change operation.

Kearney's policy is “call someone what they want to be called.” Mine is “call them what they really are, if I know it.” And what they really are is in their genes.

Redefining marriage?

I have held that opening up marriage to same-sex couples hardly qualifies as “redefining” it. But an interesting post, essentially, takes the bull by the horns: suppose it is true that we are “redefining” marriage? The author of the post, a rabbi named Joseph Meszler, responds with a thoughtful post on the Daily Beast site entitled “Redefine Marriage? Absolutely”:

About 2,000 years ago, a group of radicals called rabbis sought to redefine marriage. "Traditional marriage" at the time looked something like this:

Two families of similar socio-economic status sought to preserve their wealth by arranging a marriage between their children. They negotiated a deal with conditions that included a dowry as well as obligations on the woman to provide for her husband's home. In fact, in much of the literature of the time, she was simply referred to as his bayit — his house — the absolute homemaker.

Sometime after the betrothal, she was marched under a wedding canopy from her father's house safely into her new husband's home (or more likely to her father-in-law's house as the husband was probably only an adolescent and not yet independent).

If she failed to please him, the husband could hand his wife a bill of divorce. (She could not do so if the reverse was true.) This could potentially leave the girl — and she was most likely still a girl — impoverished.

Because of the risk of women being left destitute, the rabbis intervened and created a document called a ketubah. This document became mandatory for all weddings. It was basically a prenuptial agreement that a wedding was not a casual affair but was rooted in a time and place with witnesses. The groom had an obligation to his wife, and she had rights as well. And if he wanted to divorce her, he was required to pay her a certain sum of money in order to protect her from poverty. A court could enforce the payment of her ketubah.

The ketubah back then still defined women according to their status (with less of a payment if the woman was a divorcee or widow) that today we would find offensive. But make no mistake: by creating the first prenuptial agreement and advocating for women's rights, the ketubah redefined marriage.

A different revolutionary move happened later in the Middle Ages. Church law and Jewish law began to forbid men from having more than one wife. In the history of Judaism, this prohibition happened definitively in the 10^th century by Rabbi Gershon. This, too, eventually became the norm.

An equally important effort is being made today to allow same-sex marriage. As I argue in my book, “A Man's Responsibility: A Jewish Guide to Being a Son, A Partner in Marriage, a Father, and a Community Leader” (Jewish Lights Publishing, 2008), while some say same-sex marriage flies in the face of tradition (and it absolutely contradicts certain passages of Scripture and a long legal legacy), we should ask ourselves what tradition looks like. How selective do we want to be when we refer to “traditional” marriage? Do we include arranged marriages for children? Polygamy? Doesn't tradition also include the revolutions that took place as we grew in knowledge and wisdom?

Scripture rejects the act of sex between those of the same gender. But we have learned a great deal since then and must always learn anew from our Scripture and the world around us with the minds God has given us. Just as our rituals are hallowed by time, we must be careful because prejudice and violence are also very old as well. And shouldn't we keep in mind Scripture also says we are all made in the image of God (Genesis 1:27)?

We need to redefine marriage to include gay and lesbian couples with the same vigor that the rabbis introduced the ketubah and legislators banned polygamy. We should see same-sex marriage as the latest revolution in the creation of unions sanctified by God. It is a repudiation of prejudice and oppression and an affirmation of human rights. It brings the support of community into the private lives of two people who love each other. It also affirms that we reinvent traditional practices as human beings struggle to morally progress and evolve.

If only we were as brave as the rabbis were back then.

Now, since the author of this post is a rabbi, it is clear that at least some of the clergy in my own, Jewish, religion are comfortable with same-sex marriage. And certainly some Christian clergy are as well. So the argument that it goes against God's law holds no water: no single religious belief is supposed to take precedence over any other, according to the First Amendment. I must say to those who argue against it on the “God's law” ground: “Even if you believe it is contrary to God's law, other people believe otherwise, and their opinion needs to be taken into account as well, per the First Amendment!” Same-sex marriage, despite what some people have posted, infringes nobody's religious freedom, but banning it actually does infringe.

The marriage front advances

Now that the Supreme Court has repealed DOMA, so that the Federal Government recognizes same-sex marriages where the people live in a state that does, obviously the next step is to have more states recognize them. As I said in a post at the end of last month, I thought the best way to proceed was to use an Article IV argument, and at least in some states (Pennsylvania and Ohio) this is how they are going. The Ohio case is of some interest because a couple came here, to Maryland, to marry. (This was a case of the sort that I thought was less likely to succeed; they were really Ohioans, but just went to a state where they could marry specifically for that purpose. So this will be a real test of how well the Art. IV argument works.) So far, a Federal District Court judge has bought the Art. IV argument. Will this case go higher? To the Supreme Court? Only the state of Ohio can decide — as they might appeal this courageous decision.

And yet, there are people who want to stand in the way. A post by Shane Vander Hart, entitled “Federal Judge Ignores Ohio’s Marriage Amendment,” seems to think Art. IV does not apply, because marriage between a man and a woman is something special:

This is a sad circumstance, no doubt, but yes Ohio can. They have a Constitutional Amendment that forbids marriage licenses to be issued to same-sex couples and for their marriages to be recognized in the state of Ohio. The Supreme Court, when it struck down the Federal Defense of Marriage, act did state that the definition of marriage has traditionally been up to states. Ohio doesn’t have to recognize marriages between cousins and involving minors if they chose not to, but the difference with those is that they are involving – one man and one woman. Judge Black is comparing apples to oranges.

This is exactly why the Federal Defense of Marriage act was passed so other states would not be forced to adopt another state’s redefinition of marriage. This is an example of why it would have been helpful for the U.S. Supreme Court to rule on California’s Proposition 8. Can Federal judges ignore or overturn state constitutional amendments? I’d say in most circumstances no they shouldn’t unless there is a compelling Constitutional argument that a person’s enumerated rights spelled out in the Constitution are violated. There is no right to redefine marriage or, frankly, even a right to a marriage license. I know some would argue the government shouldn’t even issue marriage licenses – I can sympathize with that viewpoint, but the horse is already out-of-the-barn on that. It’s instances like fuel that help make the case for a Federal marriage amendment if Federal courts continue to insert themselves.

States have always been able to determine their own marriage laws and issuing marriages licenses to one man and one woman is demonstrating equal protection under the law. Every man and every woman in states like Ohio have the ability to marry one (willing) spouse of the opposite sex – provided it’s not an incestuous relationship and they are not minors.

But in fact, the judge's decision rests, among other things, on the fact that Ohio has honored marriages performed in other states between first cousins (considered incestuous under Ohio law) and people who were considered minors under Ohio law! Mr. Vander Hart even quotes ABC News, although the actual source is the Associated Press:

In his ruling, Black said that historically, Ohio law has recognized out-of-state marriages as valid as long as they were legal where they took place, pointing to marriages between cousins and involving minors.

So Mr. Vander Hart is undermining his own argument by the last sentence of the quoted portion (which I emphasized in blue) of his post.

And, I note, Mr. Vander Hart uses the phrase “another state’s redefinition of marriage.” I don't understand how anybody is “redefining marriage,” when all they have done is open it up to a larger class of people. As I said on July 11,

[Michael] Geer (the president of Pennsylvania Family Institute) is, as conservatives try to do, defining this as a “redefinition of marriage”: but it is hardly a real redefinition; it is simply redefining who is eligible. When the vote was extended to 18 year olds, it did not “redefine” an election; it simply made more people eligible. This is no different.

Why do conservatives like Mr. Vander Hart think it is so important that same-sex couples not be afforded equal marriage rights? Well, it is telling that the blog on which he made the post has the subtitle “Stimulating Christian conservative news and commentary.” He is not just “conservative,” but his commentary is from a “Christian” angle. And there's the rub. No matter what Christians like to say, this is not “a Christian nation.” It is a pluralistic nation, with a First Amendment that recognizes all religions as equal — even atheism! Mr. Vander Hart wants to impose “Christian values” — and not just any sort of “Christian values,” but the values of his particular version of Christianity (since some Christian churches are willing to accept same-sex marriage!) — on all of us, regardless of our own religious values.

The one thing that no “Christian conservative” has been able to demonstrate to me is how allowing same-sex couples to marry affects, in any way, the rights of opposite-sex married couples. And that would be the only justification for restricting them.

A response to a commenter on the blog

One reader commented on my April 10, 2012 post by saying:

2 of your 3 stated principles are in error. The government has one function only: to provide the people with an environment that is free from force, so that they can live freely… it is not a govt function to provide goods that the people can't or won't provide themselves… the gov't has no place in industry… [L]incoln was totally wrong in his statement that gov't may provide goods if it can do so at a cheaper price… that would place the gov't in direct and unfair competition with private industry.

This comment really does not refer to my post, but, as his reference to Lincoln shows, to my statement of principles at the top of the blog. The commenter is certainly entitled to his opinion, and this is an example of an extreme libertarianism that, at first glance, looks good. It would be nice if the Government could confine itself to “provid[ing] the people with an environment that is free from force, so that they can live freely.” But there are simply too many inequalities of position to make that possible. When the railroad companies, in the 1960's and even earlier, decided that they could not make a profit by running passenger trains, the Government needed to step in and create Amtrak. There was no way that a single passenger could build a new passenger rail line, buy the trains, hire the crews, and provide himself with a train ride from one city to another. When an individual (or an individual company) has such a control of resources that, on its own, it can either refuse to provide a product or service or simply price it at a prohibitive rate, and the consumers of that product have no alternative than to go without it, it makes sense for Government to step in. I do not want Government to compete with private industry “unfairly.” But it is not really unfair if the private company refuses to provide a product, although it is able to do so. (And if it cannot make a profit providing that product at a reasonable price, it should welcome Government's stepping in!)

The poster of that comment differs from me. That much is clear. But one freedom we still have is to express our opinions on our respective blog pages. I hope he will accept that I have as much of a right to express my opinions as he does; and after all, he has two separate blogs of his own. We disagree, but let us be civil about it. Statements like “2 of your 3 stated principles are in error” and “[L]incoln was totally wrong” go overboard; all he has a case for saying is that in his opinion, that is so. And I disagree.