Rick Santorum’s Mondale Moment

Tom Van Dyke 31 Comments

The mark of a loser.  You don’t ride a fad or a pop slogan to the presidency.   Etch-a-Sketch.  Fritz Mondale and his “Where’s the Beef.”

Straight up, I’m voting for Barack Obama over Rick Santorum and I’m as conservative and Republican as hell.

This fool will not do.  Fortunately for the Republican Party and the American republic, Rick Santorum is a fad and as you read this is hurtling headlong towards the “Where Are They Now”  file, Etch-a-Sketch in hand.

I probably philosophically agree with Rick Santorum more than I do with Mitt Romney, and certainly more than with Barack Obama.

But this will not do.  So long, Rick, it’s been good to know ya.  Sort of.

 

New ADA Guidelines Expose Pool Operators to Private Lawsuits

Tim Kowal 3 Comments

imageThe Washington Examiner reports that, according to a DOJ guideline issued January 31 interpreting a provision of the ADA, all operators of publicly accessible swimming pools—including cities, HOAs, hotels, spas, and gyms—must install a permanent fixed lift at a cost of $8,000 to $20,000 each.  If the facility has a separate pool and spa, lifts must be installed for each.  The guideline takes effect tomorrow, March 15, and could subject violators to stiff penalties and attorney’s fees.

From the Examiner:

In fact, most people in the swimming pool industry thought that one portable lift would be enough. Pool owners claim they were led to believe that, as long as they had one device that could be wheeled out whenever someone needed help getting into or out of a pool or spa, there would be no need intrusive permanent fixtures.

But then industry leaders began hearing rumors last year that Obama’s DOJ would require permanently fixed lifts for each pool and spa. They began to write letters to DOJ asking for clarification on the issue.

On Jan. 31 of this year, DOJ granted the industry’s call for a clarification: But it was not the answer they wanted. All 300,000 public pools in the United States must install a permanent fixed lift. The deadline for compliance is tomorrow, March 15. Call it “Poolmageddon.”

There is no way all 300,000 pools can install permanent lifts by Thursday. There simply are not enough lifts in existence or enough people who know how to install them, according to industry spokesmen. Plus, each lift costs between $3,000 and $10,000 and installation can add $5,000 to $10,000 to the total.

imageThe Administration has assured the industry that it does not plan to enforce the new guidelines right away.  But the ADA contains a private enforcement mechanism, empowering private attorneys to bring suit immediately, collecting attorney’s fees from violators.  As the article mentions, trial lawyers contributed over $45 million to Obama’s campaign.

California-based businesses should be particularly worried.  The Unruh Civil Rights Act, itself a wellspring for abusive litigation, incorporates the ADA by reference, making any violation of the ADA also a violation of Unruh.  Since Unruh has more teeth than the ADA—$4,000 per violation, regardless of intent, plus attorney’s fees—the DOJ guideline may mean a very profitable summer for California trial lawyers.

The rest of us can probably expect to see many pools closed.

UPDATE [3/15]: Trizzlor points to this February 21 DOJ letter to the American Hotel and Lodging Association attempting to alleviate some of their concerns about compliance by the March 15 deadline (today).  The DOJ states:

“If a hotel or motel has more than one pool, it must remove barriers, to the extent that it is readily achievable, at each pool. If is not readily achievable to immediately provide an accessible means of entry and exit at every pool, then the covered entity must remove barriers to the extent that it is readily achievable to do so. It is important to note that the barrier removal obligation is a continuing one, and it is expected that a business will take steps to improve accessibility over time.”  The letter goes on to list various “factors” that must be considered to determine whether installation of the fixed lift is “readily achievable.”

This will be cold comfort to most operators.  But even if this gives some wiggle room against DOJ enforcement, pool operators have more than the DOJ to contend with.  When faced with a private attorney demanding $4,000 per violation under the Unruh Act, plus his attorney’s fees, a risk-averse operator is unlikely to toss the dice on the question of whether a judge looking at a laundry list of factors may or may not decide installation is “readilyachievable.”  He’s more likely to cut the check to the attorney and padlock the pool.

Trizzlor (ever helpful today!) also links to this DOJ article explaining the tax credits and deductions available to help businesses comply with the new guidelines.  This will take some of the sting out of the costs associated with compliance.  But it still won’t keep the trial lawyers off your back if you can’t get your lifts installed now.

UPDATE [3/15 10:35 a.m.]: Commenter Trizzlor also points out that most pool operators (except for those in California, as I explain below) can reduce their liability by preparing an “Implementation Plan” following a checklist provided by the ADA.  This does not mean that the DOJ can offer “waivers” or its own judgment on the question of whether compliance is “readily achievable,” however.  This is for judicial determination, and this is what will give private litigants leverage over operators who don’t want to incur the costs and risks of a lawsuit.

For example, from the DOJ’s checklist, the DOJ acknowledges:

the regulations do not define exactly how much effort and expense are required for a facility to meet its obligation. This judgment must be made on a case-by-case basis, taking into consideration such factors as the size, type, and overall financial resources of the facility, and the nature and cost of the access improvements needed. These factors are described in more detail in the ADA regulations issued by the Department of Justice.

The process of determining what changes are readily achievable is not a one-time effort; access should be re-evaluated annually. Barrier removal that might be difficult to carry out now may be readily achievable later. Tax incentives are available to help absorb costs over several years.

Here’s the important point from the next section in the DOJ paper:

The Department of Justice recommends the development of an Implementation Plan, specifying what improvements you will make to remove barriers and when each solution will be carried out: “Such a could [sic] serve as evidence of a good faith effort to comply.”

In other words, completing an “implementation plan” could serve as evidence in a lawsuit, but it won’t immunize anyone from a lawsuit.  Again, this is all the leverage trial lawyers need to subject even diligent and conscientious business owners to abusive litigation and shake down settlements.

And this was the real problem, underscored by the California Court of Appeal in the 2006 decision in Gunther v. Lin:

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination. . . .By contrast with the federal ADA, California’s section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.
. . . .
The alternative interpretation [allowing automatic penalties without a finding of intent], as a number of federal courts have already indicated (e.g., Doran v. Del Taco, Inc. (C.D.Cal. 2006) 2006 WL 2037942), has led to unconscionable abuses.

The Gunther case went on to hold that the automatic $4,000 penalties under California law were unavailable without the showing of intent required like the ADA requires.  But the California Supreme Court overruled that holding in its 2009 Munson v. Del Taco, Inc. decision.  Instead, lack of intent to discriminate (e.g., a “good faith effort to comply”) is irrelevant in finding a violation of the Unruh Act and awarding automatic $4,000 penalties plus attorneys’ fees.

Thus, the tendency of the DOJ guideline to increase lawsuit abuse is compounded here in California.  The remediation procedures that may help reduce (but not eliminate!) liability under the ADA don’t apply here since violations in this state are deemed automatic, regardless of motive, good faith, or due diligence.

UPDATE [3/15 10:48 a.m.]:  I gave an interview on KOGO San Diego in the 7:00 hour this morning.  http://www.kogo.com/pages/dablog.html.  Podcast is available here.

[Cross-posted at the main page]

The World American Dysfunction Made

Tim Kowal

imageMilitary policy is one of those subjects that requires certain bona fides to discuss them with any level of sophistication.  It crosses history, sociology, military history and strategy, each of which is a serious study in its own right, and yet all of which are necessary to forming an opinion on military policy worth listening to.  I certainly do not meet that standard.  I didn’t even stay at a Holiday Inn Express last night.  But I did just finish reading Robert Kagan’s brisk new book, The World America Made, and am more than happy to pass along some of his sophisticated insights.

What first got me eager to discuss Kagan’s book was an intersection between his observations about democracy’s struggle to take hold internationally and some discussions here about our own democracy.  I recently asked why many left-leaning, big-government types seem to care more about outcomes than process, and I also took issue with Justice Ginsburg’s statements suggesting our Constitution is outmoded.  While the discussion about outcomes may change with the times, the discussion about process doesn’t.  We might dispute whether the Constitution got rights right, but we don’t often tussle over whether powers should be separated, or whether life, liberty, or property should be deprived without due process of law.  And yet these procedural elements define the majority of the Constitution’s work.  Disparaging it suggests that we are no longer worried about slipping back into a tyrannical government in which power is concentrated in a small group of people and wielded for the benefit of friends of the elite.  (Depending on your definition, this may have already occurred.)

But Kagan argues it is extremely unwise to take democracy for granted.  Democracy is not a foregone conclusion; it is not our manifest destiny; and it is not the natural product of human political evolution.  By the end of the 19th century, Kagan recounts, there had never been more than five democracies among the world’s nations.  By 1900 there were suddenly a dozen, and that number doubled again after WWI.  But then a “reverse wave” washed over the world in the ‘20s and ‘30s, wiping out democracy’s four decades of gains by the eve of WWII.  What accounts for democracy’s reversal of fortune?  In the face of economic instability and social and political pressures of industrialism, “fascist governments look stronger, more energetic and efficient, and more capable of providing reassurance in troubled times,” says Kagan.  They are arguments that will sound familiar to observers of contemporary American domestic policy.

And yet, it may be America’s political dysfunctionalism—its antithesis to the “stronger, more energetic and efficient, and more capable” totalitarian governments—that made it such a successful world power since the end of WWII. “It is Americans’ evident reluctance to wield power, their obvious aversion to the responsibilities of ruling others—more than their commitment to laws and institutions—that makes the United States for many nations a tolerable if often misguided hegemon.” If the U.S. were an effective world leader, Kagan seems to be saying, its leadership might not be so unchallenged.  And liberal political and economic principles would be less established in the world.

The year 1945—not coincidentally, Kagan notes, the birth date of the American world order—marks the beginning of the end of great-power wars. “The power of the United States has been the biggest factor in the preservation of great-power peace.” The world’s great powers from then forward would comport themselves much differently because of the U.S.  Many nations welcome the opportunity to free-ride on America’s willingness to police the world.  After WWII, Europeans wanted the U.S. military standing between them and the Red Army and a revived Germany. NATO was Europe’s “invitation to empire” to the U.S.  By the ‘90s, the world America made saw the number of democracies explode to 120, covering half the world’s population.

There is no doubt that the U.S. could afford to significantly reduce its military budget without relinquishing its title as the world’s dominant superpower.  But making America a less-clear hegemon heightens the possibility for challenges. “One of the main causes of war throughout history has been a rough parity of power that leaves nations in doubt about who is stronger.…There is no better recipe for great-power peace than certainty about who holds the upper hand.”  As China accelerates its militarization while it poises to overtake the U.S. as the world’s largest economy, a declining U.S. military suggests we could reach that “rough parity” sooner rather than later.

Moreover, deep cuts in military spending may prove short-sighted.  Although Kagan questions claims of American decline, no one can question China’s ascendancy.  That ascendancy poses a threat to liberal economies since China, though wealthy in terms of GDP, is poor in terms of per capita GDP.  “This will make for a historically unique situation,” says Kagan, since the world’s largest economies have typically also been the richest.  The mature economies of such nations have little to gain from protectionist measures.  “China’s protectionist phase,” on the other hand, “could coincide with its rise to dominance of the global economy.”  Says Kagan, “[t]hat would be unprecedented.”

Coming finally to the question of whether Americans simply spend way too much on military action abroad, Kagan has this to say:

Some of the costs of reducing the American role in the world are, of course, unquantifiable: What is it worth to Americans to live in a world dominated by democracies rather than by autocracies? But some of the potential costs could be measured, if anyone cared to try. For instance, if the decline of American military power produced an unraveling of the international economic order that American power has helped sustain; if trade routes and waterways ceased to be as secure, because the U.S. Navy was no longer able to defend them; if regional wars broke out among great powers because they were no longer constrained by the American superpower; if American allies were attacked because the United States appeared unable to come to their defense; if the generally free and open nature of the international system became less so—there would be measurable costs. And it is not too far-fetched to imagine that these costs would be far greater than the savings gained by cutting the defense and foreign aid budgets by $100 billion a year.

As I led with, I lack the bona fides to add or detract much from this.  So let me make a meta-observation.  I admit to being one of those conservatives who hisses at “big government” at home but cheers “big government” when it promotes our interests abroad.  Given Kagan’s observations, however, perhaps that’s not inconsistent.  True, America wields a big stick in the world.  But it wields it clumsily, taking imprecise whacks at different ideas for different reasons.   Despite an economic and military might that would make any dictator green with envy, the structural dysfunction our Constitutional democracy imposes renders our government chronically unenergetic, inefficient, and ultimately incapable of acting like a totalitarian.  Consider again Kagan’s description about America’s foreign policy, and how it comports almost exactly with what conservatives would like to see in American domestic policy:  an “evident reluctance to wield power, their obvious aversion to the responsibilities of ruling others—more than their commitment to laws and institutions.”

Big government engenders distrust not necessarily because it’s big.  It engenders distrust when it gets comfortable wielding power and sheds its aversion to the responsibility of ruling others.  That’s true of our nation’s role in governing the world, and it’s true of its role in governing us.

[Cross-posted at the main page]

You can’t take it with you

Tim Kowal 9 Comments

Some interesting stats for your consumption and consideration:

  • Seniors control over 70% of all disposable income with $1.6 trillion in spending power with more than $1 trillion of that spend on goods and services.
  • Seniors purchase more than 40% of all new cars and over 80% of the luxury new cars.
  • Seniors account for more than 80% of leisure travel.
  • Seniors purchase 74% of all prescriptions.
  • Seniors spend more time online than teenagers.

Moreover, while previous generations handed their homes down to their children, reverse mortgages enable seniors not only to continue occupying the family home until death, but also pay for a vacation condo.  “My goal is when they carry me away in that box that my bank account is going to say zero,” says one Boomer.  The extent to which this is indicative may cause worry:  “only 49% [of millionaire boomers surveyed] said it was important to leave money to their children when they die.”

Obviously, tax policy, including death taxes, plays a role in shaping these attitudes.  But it probably takes a back seat to cultural and generational attitudes. 

Whatever the reason, the trend suggests Boomers may be creating a bubble that will break soon after they’re gone.  A relatively wealthy and famously numerous segment of America’s population, Boomers will spike demand for certain products and services as they run down their bank accounts in anticipation of shaking off the mortal coil.  Successor generations may continue that demand for some of those products and services, such as certain pharmaceuticals.  But it’s likely that Boomers’ less wealthy and less numerous children will be unable to sustain demand for luxury cars, travel, and little blue pills. 

It’s no housing bubble, but it may be one more thing Boomers get ragged on for, even after they’re gone.

Are Millennials anti-democratic?

Tim Kowal 30 Comments

MillennialsLet me set up the question with two observations.  First, from an interesting piece today at New Geography discussing the Millennial Generation’s government-friendliness:

Last November, when Pew asked whether Americans preferred a larger government that provided more services or a smaller government that provided fewer services, Millennials opted for a bigger government over a smaller one by a large 54% to 35% margin. By contrast, 54% of Boomers (born 1946-1964) and 59% of Silents (born 1925-1945) favor a smaller government. .

In addition, a majority of (55% to 41%) Millennials favored a greater level of federal spending to help the economy recover from the recession rather than reducing the federal budget deficit. Millennials also continue to support governmental efforts to lessen economic inequality; 63% agreed that government should guarantee every citizen enough to eat and a place to sleep.

And an observation I made in December about the correlation between relatively-few-legislators and relatively-high-rent-seeking, and between relatively-high-rent-seeking and relatively-high-regulatory-burdens:

Centralization makes our democratic institutions less democratic, making fewer representatives responsible for the fate of greater shares of the economy and the population. This decline makes it easier for special interests to buy influence. The pressures of this influence lead lawmakers to engage in policymaking designed as much to elicit campaign dollars as to benefit the public. This conflicted-interest policymaking results in more opportunities for rent-seekers to buy or extract further political influence. Decentralization of federal power and returning governance to states and local governments will increase the democratic function of legislative institutions and make it more difficult and expensive to buy influence. States like California and Florida with poor democratic representation can increase the number of state legislators to make rent-seeking a more expensive proposition. These measures would substantially dry up opportunities for crony capitalism, and direct special interests’ profit motive to the marketplace where it belongs.

And finally to my question:  If Millennials are indeed receptive to relatively high regulatory impacts and governmental policy influence on the economy (so long as those impacts and influence are the variety that Millennials like), does it matter if relatively non-democratically-responsive legislators, bureaucrats, and special interest rent-seekers play a significant role in getting there? 

My assumption, to be clear, is that you don’t get the kind of effective big-government policies that Millennials presumably are after without a centralized and thus relatively undemocratic government.  Is this a concern for Millennials or other big-government types?  How important is the democratic process?  I’m well aware of the argument that political equality matters little without economic means.  But does economic welfare take precedent to political process?  

Five questions for legal positivists…

Tim Kowal 85 Comments

I’ve enjoyed our recent discussions on the nature of rights and laws, as they’ve gotten me considering old topics in a new light.  New wine in old skins, or old wine in new skins, something like that.  (Does that metaphor still mean anything? Wineskins—is that still a thing?)  So that I’m not the only one afflicted with these nagging questions, I’m putting these musings to you.  If you’re a legal positivist or play one on tv, try answering some or all of the following questions.  I’d be interested in your thoughts. 

1. If law is simply a positive statement enacted by government, then does the concept of a sovereign make any sense? Wouldn’t a positive statement establishing a sovereign be a prerequisite, and if so, who could possibly make such a statement?

2. If you answered no to the question above, and if our founding documents do indeed establish the people as the sovereign, does that settle the question that the U.S. is definitely not a positivist state? 

3. Positive law bases the legitimacy of law upon the promulgation through procedures (established by law!) and made known to those to whom the law is meant to apply.  This suggests that, under positive law theory, legitimacy is at least loosely based on principles of representation, notice, and consent, among others.  From where are these principles derived?  How does positivism avoid an infinite regression?

4. Under positivism, is the term “basic human rights” a misnomer?  I.e., no rights can possibly be “basic,” since only the institution that promulgates law—and thus creates “rights”—could ever be considered basic; rights, if any there be, are merely derivative.  If not, what does it mean for a right to be “basic” if not to the effect that it precedes or is a precondition of government? 

5a. I asked Burt a variation of the following question, but want to put it to the group: What is an act of the legislature, passed by all due procedures but that blatantly contradicts the First Amendment’s prohibition against laws abridging the freedom of speech such that it’s not even a close call?  For example, a law prohibiting criticism of a sitting President.  Even for a positivist, couldn’t it be said that compliance with the constitution is one of the prerequisites—part of due process itself—to becoming a law? 

5b. Same question, but instead of blatantly contradicting the First Amendment, it was passed only by the House (not the Senate) when the President signed it, thus violating the Constitution’s bicameralism and presentment clause.  Is this a law?  Is it possible to answer this question differently from the one preceding?

Virginia’s “Foolish” Personhood Law? A look under the hood

Tom Van Dyke 26 Comments

Via LoOG regular Mr. Gregniak: Virginia’s House of Delegates has just passed a fetal personhood law.

Virginia’s Foolish Personhood Law

DOUG MATACONIS · SUNDAY, FEBRUARY 19, 2012 ·

Virginia’s legislature was very busy last week. Not only did they pass a bill that will require every woman seeking an abortion to undergo an unnecessary and invasive medical procedure, but the House of Delegates also passed a bill that purports to define life as beginning at the moment of conception…

Foolish? Let’s see.

First, it’s interesting to see the left sweating slippery slopes for a change. I rather like the law as an obstacle to “progress” in that monkey-wrench sort of way, granting the unborn a status above zero.

Now, I’m not big on the “personhood” tactic, which failed even in über-right Mississippi—it’s possible to oppose abortion without granting a zygote full citizenship. A zygote isn’t a baby, at least not yet, so it’s wack to pretend it is.

On the other hand, this Virginia law explicitly leaves Roe v. Wade unchallenged:

subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court

Roe is in the clear, for now, even if the law goes through. This is not a direct, frontal assault by a state against the federal government. This tactic does not work.

What the law’s effect might actually be is hard for even its critics to say.

[Delegate Bob] Marshall said his bill, modeled after legislation in Missouri, would not affect birth control, miscarriages or abortions but would affect the way that courts define a person. For example, parents could receive damages for the death of a fetus in a wrongful death lawsuit.

Which is sort of like the Laci and Connor Peterson trial, where the Laci’s murderer husband Scott was also found guilty of second degree murder for killing Connor, the fetus, their child.

A fetus with a name, Connor, and accordingly, with a certain “personhood” status.

This law is all about philosophical positioning, it seems to me, and there’s nothing wrong with that. I expect the courts won’t allow the fetus all the way to “personhood,” but these things make it harder for the courts to allow the fetus zero status, like a fingernail.

There are very few pro-choicers who would accept the challenge of arguing this exposed position—the less defensible rhetorical and moral ground, the lower ground—and that the baby in Laci’s womb that Scott Peterson killed was a nothing, no more than a fingernail.

That simply will not ring true, no matter how great your rhetorical skill: Scott Peterson killed something of moral status and significance, a someone of some sort.

We’re all aware of the usual arguments about abortion and a “woman’s body” etc. and that line of argument and its accompanying rhetoric have been well-honed and road-tested, and bear up well if we stick to the script.

But I think there are few who would welcome having to argue that what—who?—Scott Peterson killed in his wife Laci’s womb was a nothing, of no moral significance. Few of us believe that, and this is the purpose of this new Virginia law, if I read their intent correctly, to oblige pro-choicers to argue exactly that, and to be put on the moral and philosophical back foot for a change.

Be it enacted by the General Assembly of Virginia:
1. § 1. The life of each human being begins at conception.

Well, actually, that’s indisputably true. This does not say that every zygote is a full-fledged American citizen.

§ 2. Unborn children have protectable interests in life, health, and well-being.

That’s rather tame on its face. But rather radical in the present controversy. It’s said that he who defines the debate tends to win it. As a formal debate topic, the Virginia legislature has framed it thus:

Proposed: Unborn children have protectable interests in life, health, and well-being.

This explicitly argues the pro-life position, not the anti-abortion one, and from firmer if not higher ground. These country bumpkins in the Commonwealth of Virginia are perhaps not as “foolish” as they look.

Not all “laws” are laws

Tim Kowal 14 Comments

To those of you who think that all law is mere convention, consider engaging Tim Sandefur’s well-presented defense of the Substantive Due Process doctrine over at Cato Unbound.  Here’s Tim’s response to Larry Rosenthal (my First Amendment professor at Chapman Law):

A self-contradiction is nothing; it is null; it is no more a law than it is a pigeon or a sneeze, and a court is therefore justified in disregarding it, even if passed with full procedural formalities. Yet nothing in the Constitution expressly forbids self-contradictory statutes. This prohibition is implicit–embedded in the logic of law itself. As the framers were aware, Francis Bacon made the same point when explaining that a legislature cannot create an unrepealable law (perpetua lex est nullam legem). Nothing in the Constitution expressly forbids unrepealable statutes. Yet such things are prohibited by what Bacon called their “impertinency,” or by what Hamilton called “the nature and reason of the thing.” There are limits on legislative authority imposed by the logic of law itself. That’s why even Blackstone, who believed that government possessed “supreme, irresistible, absolute authority” still admitted it could not do something that is “naturally impossible.” To make an arbitrary, ipse dixit, unauthorized use of force into a “law” is naturally impossible.

If one concedes this much, then one must admit that mere promulgation is not sufficient to make something a “law.” Instead, the legal status of a promulgated rule must be determined at least in part by its content. That is, by its substance: we must ask what a law is, and determine whether something containing the substantive provisions in question meets that definition. That just is substantive due process of law.

A constitution does not tell us what a right is, what a law is, or how to reason.  A constitution will be utterly meaningless to a people who either cannot or will not admit these basic notions as inhering in its very idea. 

Peter Van Dyck: “Conservative” Artist?

Tom Van Dyke 7 Comments

Peter Van Dyck: Beth in White

To me, these days, any artist whose work has a resemblance to its actual real-life subject is “conservative,” so too any artist whose sense of beauty corresponds to what is considered beautiful in real life regardless of context.

Above, Beth in White [2006]. Below, Corner of Ripka and Wilde Streets [2010].

Peter Van Dyck: Corner of Ripka and Wilde Streets

Peter’s website is featuring his more recent work such as the latter, and the gentle observer notes a certain evolution in style, toward a less literal and more impressionistic and personal use of line and color.

I relate to PVD’s work not only on the visceral level, that I feel present at the scene, but it’s more than that. His newer work has added impact, and for that first glimpse of the scene, I’m an artist—I’m Peter, the artist—myself. He has lent me his discerning and loving eye, so that I may see what he sees, and feel it as he does.

What a gift, more a sharing really, between artist and audience.

As a matter of disclosure, Peter Van Dyck is related to me by marriage: my sister is married to his father. The names are coincidence, or kismet, depending on your view of these things.

I do hope that that provincial fact, or my tarnishing him with the “conservative” brush, does him or his work no fatal disservice. I was shown his earliest work over a decade ago, and even then it made my heart rise—life seemed just a little bit richer for having seen his work.

I’d say if there’s a conservative approach to artistry, it’s this—to show us what we strive to see but cannot, the beauty we know is there but lack the clarity of vision to perceive.

The kind artist, the lover of life and the lover of man, lends us the startlingly clear blink of his eye now and then, although it takes him hours upon hours [and a lifetime of preparation] to get it down onto his canvas.

I have stood on the corner of Ripka & Wilde and wanted to be nowhere else in creation at that very moment; I have had Beth take my breath away.

For that, to Peter Van Dyck, I am grateful, and shall be all my life.

Pondering Positive Rights

Tim Kowal 27 Comments

In light of some of the responses to the League’s constitutional convention on the main page, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here.  To those of you who believe there is or ought to be a constitutional right to health care, do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water–part of your "rights" to basic food, water, and health care? Can negative and positive rights co-exist?

You can see where I’m going with this: some kind of things are appropriately called basic, or constitutional, rights, and others are something else. But I genuinely want to understand the case for putting positive rights in a constitution, and how they might interact with or impact negative rights.

[In light of some of the initial comments, I added some additional thoughts and restarted the discussion at the main page.]