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Of Harry S Truman and Last-Minute Surges to the Incumbent

Back when I was in high school and Harry S Truman was (as he remains) one of my political heroes, I wrote a paper on the 1948 election. And while the conventional wisdom long has been that the polls predicting that his Republican opponent Thomas Dewey would defeat him for reelection that year got it wrong, I recall coming across one article saying that the polls weren’t wrong, just out of date.

Back then, there were only a handful of polls (as opposed to the plethora today). The scholar who had written that article noted that the last poll (showing a Dewey victory) taken that year had been completed two weeks before the election.* No wonder that polls failed to detect the last-minute surge to the Democratic incumbent.

This year, less that two weeks away from the fall elections, with more regular surveys of the electorate, we see some signs of momentum “flowing in the right direction,” that is, toward the GOP. Couple this surge with evidence that belies MSM reports of a depressed GOP base that “the GOP base does seem pretty angry – angry at the Democrats, angry at the media, angry at those who keep telling them they’re not going to show up on Election Day,” it seems that while the Democrats are certain to make gains this year, it won’t be the blowout they — and their allies in the MSM — have been predicting.

In the Senate, Republican candidates are surging ahead in Tennessee and Virginia while inching ahead in Missouri and closing the gap in Rhode Island, Montana and even Minnesota. And there has been similar momentum in House races. While it seems likely that the GOP will hold onto the Senate, the battle for control of the House remains too close to call.

As we head into the campaign’s final stretch, the GOP could still hold onto the House if its Get Out the Vote (GOTV) effort is as good as advertised and if Republican candidates convince voters that they are better able to govern than the Democrats. Given that the Democrats has so far not offered much in the way of an agenda for America, it still seems likely that many last-minute voters will opt for the incumbent party as they did here in 1948 and in Britain in 1992.

Whether that last-minute surge will be enough to protect their majority in the House is, at this moment, anybody’s guess.

-Dan (AKA GayPatriotWest)

* I have tried to track down that poll online, but have failed to do so. It would be interesting to see how accurate my memory is here, whether the last poll in 1948 was taken two weeks before the election (as I remember) or at some other interval.

UPDATE: Over at Hugh Hewitt, Dean Barnett seems to share my sentiments, agreeing that the “House is going to be really close.” Looking at the polls, he finds that “Across the board, races are tightening.” Looking at his e-mail, he finds that e-mails from disgruntled conservatives “have disappeared.” He sees that as a sign that “the troops coming home just in time for Election Day.” And he highlights a problem for the Democrats:

The problem for the Democrats right now and their abettors in the media is that they’ve puked up so much bile, the public has chosen to look away. If the New York Times were to leak yet another classified document, the Republican base would become more motivated while the independents who don’t pay attention to politics would roll their eyes, sensing that the act has gone stale.

Now that I’ve whet your appetite, just read the whole thing!

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55 Comments

  1. I still think the GOP will lose the House, but those more optimistic can take comfort that on the day before election day 2004, all the polls had Richard Burr losing in NC, Tom Daschle winning in SD, and Bush and Kerry dead even or Kerry ahead in Florida… which Bush won by over 300,000 votes.

    My guess for the Senate is the GOP loses RI, MT, OH, and PA. The last is especially sad, given that Bob Casey has proven himself to be a complete blithering idiot in every debate with Santorum. RI and OH I don’t so much care about since DeWine and Chaffee were RINOs anyway. But if Talent and Corker lose, it’s because Elizabeth Dole spent millions propping up Chaffee instead of helping out real Republicans in close races.

    Comment by V the K — October 26, 2006 @ 5:45 pm - October 26, 2006

  2. Dan, I think you’ve said it before here, but I like the fact that in 1948 Gallup was reporting less than 36% of voters approved of the job Truman was doing.

    The Truman Campaign in ’48 created an internal polling group and they tracked the race with polls every 2 wks from the Convention onward. The Truman group had Dewey winning in a landslide two weeks before Election Night.

    According to fellow-Wolverine and Michigander (yeah) Gov Thos Dewey’s bio, he credited Truman’s win to the Dewey Campaign’s cautious, conservative, timid, no-goofs campaign format… which was a reaction to the debacle in 44. He offered afterwards, “We didn’t give them a reason to vote for us”.

    Kind of good advice to the modern day Democrats, eh? Voters don’t get out and vote unless there’s a damn, good reason.

    Comment by Michigan-Matt — October 26, 2006 @ 7:00 pm - October 26, 2006

  3. V the K: I am not a partison person at all. But I’m not going to lie to you, I’m rooting for Rick Santorum to lose, lose lose. And, frankly, Harold Ford, too. They’re both despicable bigots.

    Comment by kdogg36 — October 26, 2006 @ 7:10 pm - October 26, 2006

  4. #3
    “I am not a partison [sic] person at all.”

    Woo hoo. Good one. Thanks, kdogg, for a laugh that I’ve been needing all day!

    Comment by ColoradoPatriot — October 26, 2006 @ 8:11 pm - October 26, 2006

  5. #4: Thanks for the spelling correction. You can trust I’ll be going through your future posts with a fine-toothed comb. 🙂

    I despise Democrats, have never voted for a Democrat in my life, and never will. I have voted for Republicans in the past, and in 1994 I volunteered for Ellen Sauerbrey’s campaign for governor of Maryland. Since then, though, I’ve mostly rejected them, too, because their promise of smaller government was a joke. So, at this point in my life, at least within the context of establishment politics, I am truly not a partisan person. 🙂

    Let me repeat what I said, with some added detail: Rick Santorum is a horrible, bigoted Republican; Harold Ford is a horrible, bigoted Democrat. Both believe in lots of government, and both have made it clear they really don’t approve of people being gay. I hope they both lose.

    Comment by kdogg36 — October 26, 2006 @ 9:20 pm - October 26, 2006

  6. kdogg36 –
    In the last couple of days, ads have been running here in Tennessee (I’m in Nashville) on behalf of Bob Corker which assert that Harold Ford, Jr. supported legislation that would force Tennesseee to accept gay marriage. Even though I am a gay man and a Republican, seeing that ad made me sad because I knew it to be a lie. My recent column (which runs twice a month in Church Street Freedom Press (www.churchstreetfreedompress.com) – /self promotion) flayed Ford and gay liberals for their support for him. He supports the FMA and has based his campaign, at least in part, on his opposition to gay marriage.

    The reality is that both of the major party candidates for U.S. Senate in Tennessee are wrong on gay rights. To use your words, they are both “despicable bigots.” I too have never voted for a Democrat, and will not start with this election. I will vote for Corker only because I do not want the Democrats to control the U.S. Senate.

    Comment by Michael K. Bassham — October 26, 2006 @ 10:09 pm - October 26, 2006

  7. #6: “flayed Ford and gay liberals for their support for him.”

    You apparently don’t know that many “gay liberals.” Here’s what I said earlier about him
    http://gaypatriot.net/?comments_popup=1806#comment-161336

    I don’t know many gay liberals supporting Ford and there were few if any defending him in a Kos thread today. Indeed, Markos himself stated today in a post on the NJ ruling “I won’t cry when [Ford] doesn’t [win.]”

    Comment by Ian — October 26, 2006 @ 10:36 pm - October 26, 2006

  8. The last Dhimmicrat I ever voted for was Ann Richards for governor in 1990, only because Clayton Williams was the most inept politician to ever run from Texas.

    That is, until Ross Perot showed up.

    Regards,
    Peter H.

    Comment by Peter Hughes — October 27, 2006 @ 12:15 am - October 27, 2006

  9. I’m a gay Republican but it doesn’t define me. In other words if a polititian doesn’t believe in gay marriage yet agrees with me on many other pressing national issues, I’ll vote for him or her.Re: Santorum. He’s right on almost every other issue we believe in, so he gets my vote every time. He’s one of the few strict Catholics who practice what the pope preaches and quite frankly, that is a bit refreshing and unique. Like Ronald Magnus, I admire people of principle. Mr. Santorum isn’t going to round up gay people and put us in camps. The Republicans have had control of the levers of government long enough to know they aren’t Nazis despite what the lefties say. But Bob Casey has been hiding out here in PA and only making 2, that’s TWO campaign appearances per week! Do you know any candidate doing that in the whole country? Guess my state of Pennsylvania has become a hopelessly blue state.
    My election predictions:
    We lose RI PA OH, keep TN MT VA and surprise either in MD or NJ.
    The House…in a sixth year off year election we are suppoe to lose 25-35 seats. 14 or less is a total rout of the Dems. Let’s see if the MSM plays it that way. BTW did u see that Dems Webb in VA writes kiddie porn in his novels. Check it out.
    http://www.drudgereport.com/flashaw.htm

    Comment by Gene in Pennsylvania — October 27, 2006 @ 12:22 am - October 27, 2006

  10. If you don’t know about the RealClearPolitics web site check it out. Because the movement by the good guys the past week is striking.
    http://www.realclearpolitics.com/
    House seats just a week ago that were said to be in trouble Hart in PA
    and Reynolds in NY, Drake in VA have surged.
    Senate…..Republican leads now in VA and TN. And a tie in NJ!! Holy Cow. V the K was right in an earlier post. The way the Dem pundits and MSM had played this, you better put out a national suicide alert for any and all leftist on the 7th. I for one won’t be walking carelessly under any bridges! God Bless America.

    Comment by Gene in Pennsylvania — October 27, 2006 @ 12:40 am - October 27, 2006

  11. Hey can I bring up Leiberman in CT? He’s now up 12-17% over a Democrat anti war liberal supported by Kerry,Gore, HRC, and Pres Clinton. This in a very blue state. Shouldn’t he, Mr Lieberman, be the subject of a TIME or NEWSWEEK cover story? I mean come on. Talk about MSM bias. If Sen Lieberman was down 12 points, there would be a daily drum beat about what it meant for W and the war effort eh.

    Comment by Gene in Pennsylvania — October 27, 2006 @ 12:47 am - October 27, 2006

  12. Well, let’s just look at a “fair and balanced” source shall we?

    http://www.foxnews.com/story/0,2933,225561,00.html

    “Less than two weeks before Election Day, Democrats hold a double-digit lead over Republicans among likely voters in the Congressional election ”

    How about some other sites?

    http://tinyurl.com/y33vwq shows Dems with 219 in the House WITHOUT any tossup seats included.

    http://www.electoral-vote.com:2006/ : Dems get 227 seats

    I still think the GOP will hang onto the Senate – they can always rely on Cheney to break ties and I suspect the fix is already in for Lieberman to caucus with his Republican backers.

    It all assumes that the actual voting is reasonably fair and that not enough Diebold machines can be tweaked to reverse Dem victories.

    Comment by Ian — October 27, 2006 @ 1:25 am - October 27, 2006

  13. Gene, isn’t it obvious the MSM is doing everything in their power to suppress conservative, religious, and Republican vote? They hype every scandal involving a Republican while flushing Democrat scandals down the memory hole. They maintain a constant drumbeat that Republicans are doomed (sending the message ‘Don’t even bother to vote.’) They bury the good economic news… 4.7% unemployment, the 12,000 Dow. They hype the violence in Iraq without giving the context that the terrorists are going all-out to kill Americans because the terrorists want the Democrats to win so the US will withdraw.

    The MSM has totally gone into the tank for the Democrats because they think throwing this election is their last chance to prove they have legitimacy in an age of weblogs and talk radio. It’s autumn, the trees are beautiful because the leaves, as they die, realize their time has come. The legacy media are also dying, but they are raging against the dying of the light. And it is so very, very ugly.

    Comment by V the K — October 27, 2006 @ 8:40 am - October 27, 2006

  14. Gene: I’m a gay Republican but it doesn’t define me. In other words if a polititian doesn’t believe in gay marriage yet agrees with me on many other pressing national issues, I’ll vote for him or her.Re: Santorum.

    Well, with Santorum it goes a bit further than just not believing in gay marriage. However, I gather from the rest of your post that you have a very different political outlook from mine, so it probably wouldn’t be too fruitful for me to go into telling you in detail why I hate Santorum. I’m from Maryland rather than Pennsylvania at any rate, so it would be presumptuous of me to do so anyhow.

    Because the movement by the good guys the past week is striking.

    I do scratch my head a little when people express the actual thought that either Democrats are Republicans are “good guys.” I can understand thinking that voting for a non-establishment candidate is a waste, and choosing one of the two major parties because they’ll do the least damage — although I don’t agree with that strategy, I do understand it.

    However, in all honesty, I can’t understand thinking that the majority of either Democrat or Republican politicans are really decent people with integrity. I can’t understand why someone would consider either Clinton or Bush, for example, to be a good person.

    Comment by kdogg36 — October 27, 2006 @ 10:52 am - October 27, 2006

  15. I think Santorum is one of the good guys (unlike Chaffee or DeWine). Gay lefties like to distort his words, and claim he equated homosexuality with paedophilia and bestiality. But he was actually making a point about the courts, in saying that if the courts could usurp the authority of the legislature in an area they had no Constitutional authority to do so, they could theoretically overrule the legislature on anything.

    It’s odd that a self-professed ‘libertarian’ would hate Rick Santorum because of his opposition to judicial oligarchy.

    Comment by V the K — October 27, 2006 @ 11:04 am - October 27, 2006

  16. #15: IIt’s odd that a self-professed ‘libertarian’ would hate Rick Santorum because of his opposition to judicial oligarchy.

    Rick Santorum opposed the decision in Lawrence v. Texas. No legislature ever had, or ever will have, the legitimate moral authority to restrict people’s liberty by criminalizing sex with the willing partner of their choice. No one has any valid power to tell me what I may and may not do in that department. In this case, the court was doing exactly what it should do — striking down a restrictive law that no legislature had any business making in the first place.

    Comment by kdogg36 — October 27, 2006 @ 11:44 am - October 27, 2006

  17. #16: But the court had no Constitutional authority to do so. Hence, judicial oligarchy.

    Comment by V the K — October 27, 2006 @ 11:53 am - October 27, 2006

  18. It’s interesting, kdogg, you claim to be a libertarian… except when it comes to using the Government to impose the things you believe in.

    Busted.

    Comment by V the K — October 27, 2006 @ 11:54 am - October 27, 2006

  19. No legislature ever had, or ever will have, the legitimate moral authority to restrict people’s liberty by criminalizing sex with the willing partner of their choice. No one has any valid power to tell me what I may and may not do in that department.

    A lovely thought, but you realize that that opens the door to polygamy, adultery, incest, bestiality, pedophilia, prostitution, and all other cases in which the legislatures have specifically stated what you “may and may not do” in regards to sex — and have criminalized portions of it.

    Justice Scalia recently said something to the effect that the fact that something is stupid does not mean that it’s unconstitutional — which I think is an excellent bright line the exercise in judiciary power.

    The vast majority of the states prior to Lawrence v. Texas had managed to repeal their sodomy laws themselves; having been a Texas resident, I can tell you positively that the law truly was symbolic.

    What Lambda and the other whitewashers left out in their deification of Lawrence and Garner was that a) the reason the police were in the apartment where they were at all was because someone had (falsely) told them that there was a robbery taking place therein and b) that Lawrence and Garner were both convicted criminals with a record of violent crimes.

    The reason was that Lambda couldn’t tell the truth — that another gay person had set the whole thing up as an act of revenge, that the police were duped into going into the apartment in the first place, and that, when confronted with a “he said” situation like that in which you have two criminals with a history of violence involved, it is not uncommon for police to arrest said individuals until matters can be sorted out.

    Comment by North Dallas Thirty — October 27, 2006 @ 12:20 pm - October 27, 2006

  20. #18 V the K: It’s interesting, kdogg, you claim to be a libertarian… except when it comes to using the Government to impose the things you believe in.

    I honestly don’t understand what you’re getting at. How is striking down a sodomy law imposing anything on anyone? It’s merely stopping them from imposing on me.

    Sodomy laws restrict people’s legitimate freedom; the lack of sodomy laws does not restrict anyone’s freedom — unless you claim that their “freedom” is restricted because they cannot enact laws that would punish me for having sex with my boyfriend.

    I don’t know of any libertarian who opposed the Lawrence decision, because it struck down a law that criminalized what I hope you agree is the exercise of legitimate freedom. The government never has any business enacting laws like that, even with majority support.

    #19 NorthDallasThirty: All of this may be true, but I’m glad the sodomy laws are definitively and permanently gone. And I generally applaud a court’s use of the concept of “sustantive due process,” whereby a law can be stricken down that limits liberty and serves no rational purpose, because legislatures have no business enacting such laws to begin with. Certainly, sodomy laws fall under that category.

    Comment by kdogg36 — October 27, 2006 @ 12:48 pm - October 27, 2006

  21. #12 – “It all assumes that the actual voting is reasonably fair and that not enough Diebold machines can be tweaked to reverse Dem victories.”

    Ah, yes, the iansockpuppet has cleverly fallen into the MSM/DNC talking points of how to spin the Dhimmicrats’ loss on 11/7 – it’s EVERYONE ELSE’S FAULT.

    The voting machines were “fixed.” The voters are “stupid.” The races are “gerrymandered.” The “message didn’t get out.” (Note to Dhimmicrats – what message? I sure as hell didn’t hear one.)

    Isn’t it amazing that for the 40 years the Dhimmicrats held the House, nobody complained about the above? But since 1994, when the GOP ran (and continues to run) on the issues, it’s been hell on the RATS and they’re still trying to find their way out of the woods.

    Not coincidentally, it was the 1994 elections that signaled the demise of the RATS and their willing accomplices in the Drive-By Media. And with the GOP poised to remain in control (o ye of little faith – please see realclearpolitics.com for the truth), we can finally say MISSION ACCOMPLISHED.

    Regards,
    Peter H.

    Comment by Peter Hughes — October 27, 2006 @ 12:54 pm - October 27, 2006

  22. #12 Ian, in case anyone here actually checks out the site you offered to prove that the GOP is doing miserably and GOP voters and candidates ought to slit their collective throats right now instead of waiting for election returns…

    No surprise, the site is run by an avowed Kerry supporter and Democrat. Gheez, go figure, eh? And Pollster.Com is one page off the DNC’s vendor list for crying out loud.

    Of course, a reader can’t find those facts out unless they search around the site… you really have no sense of intellectual honesty, do you?

    And Ian, for the final time, generic candidate tests have been roundly discredited by all except for greedy politicians looking to fleece campaign contributions out of unsuspecting targets.

    I know, I know, I know armchair pundits in the blogosphere like to quote them to sound “expertly-ious” but give it a rest pal, no one will confuse your partisan-formed opinion as ‘expert’. Maybe over at the DailyKos, but not here Ian.

    Comment by Michigan-Matt — October 27, 2006 @ 12:55 pm - October 27, 2006

  23. NDT – no.

    Pedophilia and bestiality are NOT victimless. Even under a libertarian view of the Constitution, government retains the right to criminalize them appropriately.

    As for adultery and incest – the door is already wide open there. They aren’t criminal, as far as I know. So I have no idea what your new point is.

    As for prostitution – yes, that ought to be legal in principle, as a private matter between consenting adults – but the State would naturally retain the right to restrict it to certain spaces and rules, as with other commerce.

    As for polygamy: You’re making a Chicken Little argument. The Lawrence decision – or, a libertarian, **9th-Amendment-honoring** approach to the Constitution generally – in no way alters (or requires the alteration of) marriage as a legal union of two (2) persons to the exclusion of all others.

    Long story short: kdogg #16 is right. The Framers set out to limit government’s intrusive power, or to establish a society of privacy where the home – and the actions one takes in it – are inviolate. That they did not abolish sodomy laws at the time was a mistake on their part – just like they initially failed to abolish slavery.

    Like all innovators, the Framers did not always realize the implications / requirements of their own philosophy. The Lawrence decision was Constitutionally correct decision, not judicial activism. The judiciary’s proper function is to review, and strike down if appropriate, existing positive laws that violate the Constitution, which sodomy laws clearly do (4th and 9th Amendments).

    One of the ironies of our Constitutional debates is that both the “standard liberal” and “standard conservative” positions are wrong. Liberals want to make the Constitution mean whatever they think it means, which, of course, is always to expand government power. Conservatives want to make the Constitution mean only what it says explicitly – in other words, people only have the rights that are enumerated. Both violate the Framers’ intent. The Framers intended for GOVERNMENT to be restricted to its enumerated powers, while the People expansively retain UN-enumerated (as well as enumerated) rights. Which we today, unfortunately, have forgotten.

    Comment by Calarato — October 27, 2006 @ 1:03 pm - October 27, 2006

  24. #20 – kdogg, well said.

    Comment by Calarato — October 27, 2006 @ 1:07 pm - October 27, 2006

  25. I just don’t see how anyone who advocates for a court to usurp legislative authority when it has no Constitutional authority to do so is any different than a socialist Democrat. If you want a Constitutional right to sodomy, or for the courts to have authority over “privacy issues,” then advance a Constitutional Amendment to do so.

    But people who approve of judicial oligarchy when it favors their pet issues can’t claim to be on the side of liberty or of the Constitutional.

    Comment by V the K — October 27, 2006 @ 1:18 pm - October 27, 2006

  26. Hey Calarato, I just don’t know if I can agree with your thoughts and opinions about what Lawrence does or doesn’t intend… I do know that a noted Imam recently said… “If a naked gay man is red meat and you put the red meat out on a hot clean sidewalk in January in, say, Brisbane and the red meat begins to burn or brown, cats will then come to eat the red meat and we’ll know he was gay because only gay guys like cats.” Or something like that anyway.

    Glad to be able to add substantive information to the debate over liberals v conservatives and the US Constitution.

    Comment by Michigan-Matt — October 27, 2006 @ 1:27 pm - October 27, 2006

  27. “pet issues” VdaK, “pet issues”? Were you reading my post about cats, red meat, gays and hot days in Brisbane?

    Comment by Michigan-Matt — October 27, 2006 @ 1:28 pm - October 27, 2006

  28. So, Calarato and kdogg, you guys support Roe v. Wade too, right? Same basic deal, the Court usurping the power of the legislatures to decide on an issue of morality even though there’s no explicit right in the Constitution for it to do so?

    Comment by V the K — October 27, 2006 @ 1:30 pm - October 27, 2006

  29. I don’t know enough about Roe v. Wade to say. From what I have heard, it’s one of the most badly reasoned decisions ever, so I shouldn’t endorse it even if I end up agreeing with parts of its conclusions. I couldn’t agree or disagree with your claim that the Court “usurped” something in it.

    In addition, I oppose late-term abortions as murder – though not early-term. (I see a very big difference between a 9th-month fetus about to be born, and a first-month embryoblast… called a brain.)

    I’ve already indicated that I do think there is a generalized, presumptive right to privacy in the Constitution – private life (or a Constutional order where government’s intrusive power is restricted) being the entire point of having a Constitution, as well as in the 9th.

    Comment by Calarato — October 27, 2006 @ 1:50 pm - October 27, 2006

  30. #25 – V, that makes no sense. Again: our approach to Constitutional interpretation should be (and, the Framers’ philosophy WAS) that by default, everything is permitted unless government has an explicit power that pre-empts it, and/or legitimate interest in restricting or regulating it.

    Government has a legitimate interest in restricting / regulating murder, theft, pedophilia, rape, and other crimes with victims. Government also has enumerated powers of taxation, raising armies, establish a Post service, etc. that preclude some other possible private actions.

    The question we should be asking is: Where in the Constitution is government’s enumerated power to regulate private, consensual adult sodomy? Answer: ***NOWHERE***.

    The improper activism is in making the sodomy law – not in (quite legitimately) striking it down.

    Comment by Calarato — October 27, 2006 @ 1:55 pm - October 27, 2006

  31. #30 P.S. And as it happens, back in the 18th and 19th centuries, lots of people did think government did somehow have a legitimate interest in regulating sodomy – because God might stop blessing the nation if sodomy were permitted, for example. And – those people were wrong. (i.e., simply mistaken)

    Comment by Calarato — October 27, 2006 @ 2:01 pm - October 27, 2006

  32. Here’s my issue, Cal.

    As for polygamy: You’re making a Chicken Little argument. The Lawrence decision – or, a libertarian, **9th-Amendment-honoring** approach to the Constitution generally – in no way alters (or requires the alteration of) marriage as a legal union of two (2) persons to the exclusion of all others.

    The problem is, Cal, that Lawrence uses the 14th Amendment to abrogate Amendments 9 and 10, and in a way that is very dangerous.

    The 14th Amendment reads as follows:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Notice that the basis in the 14th Amendment for “equal protection” isn’t even citizenship — it’s, for the states, “person within its jurisdiction”.

    In essence, what the Court is saying makes no sense; if the 14th Amendment supposedly voids sodomy laws on the basis of “equal protection”, how can they claim that it leaves intact the caveats of “private, consensual, adult, nonrelated, only 2 people”? That’s nowhere in the 14th Amendment.

    And that was Santorum’s point. The court’s argument implictly voids the right of states to put any restriction on what people within their jurisdiction do to each other sexually. Since sex, according to Lawrence, is a constitutional right established by the 14th Amendment, it is a violation of equal protection to deny you the right to have sex with whomever you please under whatever conditions. To do anything less is to infringe on your “rights” as a “person”.

    Comment by North Dallas Thirty — October 27, 2006 @ 2:22 pm - October 27, 2006

  33. The question we should be asking is: Where in the Constitution is government’s enumerated power to regulate private, consensual adult sodomy? Answer: ***NOWHERE***.

    Actually, Cal, the genesis of it is in Amendments Nine and Ten, which state specifically that all powers not enumerated to the FEDERAL government rest in the hands of the state or the people.

    In short, the Constitution does not stop people from making a law criminalizing sodomy; the right to sex is nowhere elucidated in the Constitution, and precedence shows that it is not illegal for states to limit or regulate it under whatever circumstances they please.

    One must remember that using the Constitution as a reason that people CANNOT do something is the exact opposite of libertarianism. A certain measure of that is necessary to keep us from sliding into anarchy, which is the whole point of the Constitution, but in general it was written to keep the Federal government’s powers as compact as possible and vest as much authority as possible in the hands of the electorate and their direct representatives in the legislature.

    Therefore, in my opinion, you’re barking up the wrong tree.

    If you don’t want sodomy laws, that’s great; neither do I. But keeping them from being passed or getting rid of them should be done by appealing directly to the electorate and the legislature, not by expanding the power of the Federal government to say no to states from regulating sex as they please.

    Comment by North Dallas Thirty — October 27, 2006 @ 2:31 pm - October 27, 2006

  34. #31 P.P.S. – Before someone accuses me of being totally full of it 😉 I should acknowledge that not all Framers were individualists, or correctly understood individualism as the essential corollary and purpose of their own philosophy of limited government. Many Framers were what I might call “State fascists”; that is, they were interested in limiting the power of the Federal government only, with State governments having effectively unlimited power (within the constraint of a democratic / republican form). It’s one of the unresolved arguments of the Constitution’s founding – again, just as slavery was.

    The tension is reflected in the text of the 9th itself, which is deliberately vague as to whether it is giving primacy (for all the un-enumerated rights / powers) to the States or the People. But I view both of the “founding arguments” – State power, and slavery – as having been resolved by the Civil War and the 14th and 15th amendments (placing limits on State sovereignty and power).

    In addition, the 4th says unmistakably that people have a right to be “secure in their persons, houses, papers and effects against unreasonable searches and seizures.” If, as sodomy laws require, government breaks down your door and arrests you solely because you might be having private, consensual sex with your adult life partner and co-homeowner – how could that NOT be an unreasonable search / seizure (of your person, when they arrest you)?

    Comment by Calarato — October 27, 2006 @ 2:33 pm - October 27, 2006

  35. #32 – It’s quite possible Lawrence was badly reasoned – I have not read it in a long time.

    I vaguely recall thinking at the time that the majority in Lawrence had made a powerful 9th-Amendment argument for a certain personal freedom (i.e., sodomy), without properly citing the 9th Your comments are consistent with that.

    The 9th is super-downgraded in our Constitutional jurisprudence. No one wants to face what it means, so no one cites it. Too many government actions are illegitimate, if you honor it. I think that’s a tragedy, and we should restore personal and economic freedom in America by honoring it.

    Where the 14th would kick in, is if you had a gay-only sodomy laws. Someone – I think it was O’Connor – argued that yes, sodomy laws are quite legitimate (even if silly), but the problem with the Texas law at issue was that it targeted homosexual sodomy only – not heterosexual sodomy. That clearly violates Equal Protection.

    #33 – “In short, the Constitution does not stop people from making a law criminalizing sodomy; the right to sex is nowhere elucidated in the Constitution…”

    Again, I find that crazy. (Sorry, NDT.) The whole enterprise of limited government is one giant right to private life – i.e., to private / victimless sex, among many other things.

    Comment by Calarato — October 27, 2006 @ 2:43 pm - October 27, 2006

  36. ND30. Well nailed.

    I find the notion of a Constitution meaning whatever a judge wants it to mean on a given occasion to be very dangerous. I don’t support sodomy laws, even though they are largely symbolic and rarely enforced. But I think a court imposing its will in an area where there is no explicit Constitutional authority to do so to be much, much more dangerous than a legislature codifying the moral sense of the people it represents within its Constitutional power.

    If you think there ought to be a right to privacy and to sodomy and to whatever else, than go through the hard work of amending the Constitution to permit it. If you think judges should be able to dictate to the legislature exactly how they should legislate on any public issue, then amend the Constitution so that courts have that authority.

    Comment by V the K — October 27, 2006 @ 2:43 pm - October 27, 2006

  37. #35 P.S. In other words: A “right to sex” shouldn’t have to be enumerated in the Constitution. Rather, a government “power to regulate sex” should have to be enumerated.

    And – it is not.

    And the same should go for any State constitution that advances a theory of limited government. Which they all do – or ought to.

    Comment by Calarato — October 27, 2006 @ 2:47 pm - October 27, 2006

  38. #36 – “I find the notion of a Constitution meaning whatever a judge wants it to mean on a given occasion to be very dangerous.”

    Ummm… So do I.

    “I think a court imposing its will in an area where there is no explicit Constitutional authority to do so to be much, much more dangerous than a legislature codifying the moral sense of the people…”

    Again – I don’t get this. The judiciary is supposed to serve a REVIEW function – making sure government does not exceeds its Constitutional bounds . What part of Lawrence departs from that? It’s nothing like gay marriage. The Court did not say, “You have to make new law in area X.” Rather, the Court said “You made a positive law in area X, and under our review funciton, we find that it way exceeds what government is Constitutionally allowed.” That IS the proper judicial function.

    “If you think there ought to be a right to privacy… then through the hard work of amending the Constitution to permit it.”

    V, no offense, but: Many, if not most, of the people who fought the Revolution and framed the Declaration and the Constitution, would be mystified by that attitude. They gave their lives to establish the principle that the people have primacy, government’s only legitimate powers are a small subset of the people’s powers, and government’s only legitimate powers are the ones strictly enumerated in Constitutions.

    The people can do it – until and unless government has an ENUMERATED power which pre-empts them, and/or, a basic interest in preserving civil order has kicked in. Victimless conduct in the privacy of one’s home – whether it’s sodomy or baking cakes – can’t be regulated under either principle.

    If government passed a law against baking cakes in your home for private consumption only – would that be Constitutional? Under your and NDT’s theory, yes. I find that wrong.

    Comment by Calarato — October 27, 2006 @ 2:57 pm - October 27, 2006

  39. In other words: There is an implied right to baking cakes in the privacy of one’s home – or to any other victimless action – in the very enterprise of limited, constitutional government.

    Comment by Calarato — October 27, 2006 @ 3:05 pm - October 27, 2006

  40. We’ll just have to agree to disagree because I think allowing courts to usurp legislative power when they have no explicit to do so is a cure worse than the disease.

    Comment by V the K — October 27, 2006 @ 3:26 pm - October 27, 2006

  41. “allowing courts to usurp legislative power when they have no explicit to do so is a cure worse than the disease”

    … is a statement I agree with 100%.

    I just can’t, for the life of me, fathom how normal (if badly reasoned) judicial review of laws is “allowing courts to usurp legislative power”.

    Gay marriage is different. There, courts have said to the Legislature, “We are altering your legislative calendar. We are ordering you to undertake a new legislative act, that specifies XYZ, and we are ordering the Governor to sign it.” That’s fucked.

    Comment by Calarato — October 27, 2006 @ 3:30 pm - October 27, 2006

  42. I just can’t, for the life of me, fathom how normal (if badly reasoned) judicial review of laws is “allowing courts to usurp legislative power”.

    I just don’t like the courts going where they have no Constitutional permission to go. If they need to have authority over sexuality, go through the Constitutional process and give it to them.

    That the courts have taken this power for themselves sets a dangerous precedent. You claim that SSM is a separate issue, but as Eugene Volokh points out, the SCNJ pointed back at legal precedent, including Lawrence v. Texas to justify their decision.

    Comment by V the K — October 27, 2006 @ 3:46 pm - October 27, 2006

  43. “If [courts] need to have authority over sexuality, go through the Constitutional process and give it to them.”

    That’s how I feel about the legislature as well. I don’t see the part of the Constitution that gives the Legislature authority over sexuality.

    ‘Agree to disagree’ duly noted – Because I am actually here to say something more on-topic. (yay 🙂 )

    Powerline tips us off to this NYT article today: http://www.nytimes.com/2006/10/27/us/politics/27race.html?hp&ex=1162008000&en=d93c2f55a9276a25&ei=5094&partner=homepage

    …there are worries among Democratic strategists in some states that blacks may not turn up at the polls in big enough numbers because of disillusionment over past shenanigans.

    “This notion that elections are stolen and that elections are rigged is so common in the public sphere that we’re having to go out of our way to counter them this year,” said Donna Brazile, a Democratic strategist.”

    Now, think about this. All these moonbat lefties have been going around saying “Gore 2000! Kerry 2004! Elections are rigged! The elections were stolen!” for the last 2-6 years.

    What does it get them? Their own voters might stay home now, for loss of faith in the process.

    I’m sad for the destruction to our democracy that the lefties have been perpetrating with their sick myths – but guys – Is this divine retribution, or what? ROFL 🙂

    Comment by Calarato — October 27, 2006 @ 4:04 pm - October 27, 2006

  44. The problem is, Cal, that in our system, you can’t divorce “government” from “the people”. Remember, our system is “of, by, for” the people.

    When you look at the Bill of Rights, notice something, Cal; they’re pretty much all agreements on things we’re NOT going to do. That’s because the point of the Constitution is not to dictate what you should do, but what you shouldn’t do.

    In that context, since I cannot find a statement that says, “You should not limit sex however you choose to see fit”, then that is something that I would perceive as being within the purvey of states to do. Therefore, I see the Lawrence decision, which states that states and their voters do not have the right to limit sex as they see fit, as being an expansion of governmental restriction on the peoples’ right of self-determination — and not one to which they agreed.

    Hence to V the K’s point; if you want something to be off-limits, it needs to be in the Constitution as such. Construing the Constitution too broadly, especially to defend a specific situation (“you have the right to regulate sex, except when it’s consensual and between only two human beings who are over a specific age who aren’t related to each other to a specific degree and who are exchanging nothing of tangible value in exchange for it”) is not the point.

    Comment by North Dallas Thirty — October 27, 2006 @ 4:05 pm - October 27, 2006

  45. “you can’t divorce “government” from “the people”. ”

    Umm, actually you can and should. They’re distinct concepts. Our system intends one to be markedly subordinate to the other.

    “When you look at the Bill of Rights, notice something, Cal; they’re pretty much all agreements on things we [sic: governments] are NOT going to do. That’s because the point of the Constitution is not to dictate what you [sic: government] should do, but what you [sic: government] shouldn’t do.”

    Whew! I was hoping someone would try this argument. Finally! 🙂

    The original Constitution did not include a Bill of Rights. You know why?

    Because the Framers thought it was self-evident that government was being limited to the strictly enumerated powers, and feared that if they were to explicitly enumerate rights for the people, future generations would forget it and start believing (wrongly) that the people were limited to enumerated rights.

    In other words, the Framers feared future generations misunderstanding the intent behind the Bill and saying stuff like, “if you want something to be off-limits, it needs to be in the Constitution as such” which was the opposite of the Framers’ philosophy.

    Comment by Calarato — October 27, 2006 @ 4:25 pm - October 27, 2006

  46. P.S

    “Construing the Constitution too broadly, especially to defend a specific situation…is not the point.”

    But I’m not construing it to defend a specific situation. Re-read #39, end of #38. There is a broad class of situations involved – namely, any and all victimless actions done in privacy. I don’t care if it’s sodomy, or baking cakes.

    Let me ask you this, NDT: Do you, or do you not, believe that the Federal Constitution would allow some crazy State to ban the baking and consumption of cakes for personal use in the citizen’s home?

    Comment by Calarato — October 27, 2006 @ 4:30 pm - October 27, 2006

  47. (since there is ‘no right to cake-baking in the Constitution’, of course)

    I’m asking this in order to clarify the principle.

    Comment by Calarato — October 27, 2006 @ 4:32 pm - October 27, 2006

  48. Let me ask you this, NDT: Do you, or do you not, believe that the Federal Constitution would allow some crazy State to ban the baking and consumption of cakes for personal use in the citizen’s home?

    We allow the states to ban the cooking and consumption of methamphetamines for personal use in the citizen’s home, do we not?

    The difference between cakes and meth, Cal, is simply in what voters like and don’t like. Voters haven’t chosen to ban cakes, but they have chosen to ban meth — and under the Constitution, they are within perfect right to do both.

    Realize again, to my point, that the Constitution was not written as a procedural manual for what you must do; it was written as a book of rules that you absolutely must not cross. The fact that you are not allowed to advance the ball by carrying it more than one step in basketball does not dictate whether you dribble or pass; that’s your preference.

    Comment by North Dallas Thirty — October 27, 2006 @ 4:47 pm - October 27, 2006

  49. I’ll take that as a ‘yes’ to my question. In your view, it is Constitutionally OK for a State to ban grandma’s private cake-baking.

    I think that goes profoundly against the Framers’ philosophy of government.

    The meth comparison is illegitimate for any number of reasons.

    Comment by Calarato — October 27, 2006 @ 5:33 pm - October 27, 2006

  50. I’ll take that as a ‘yes’ to my question. In your view, it is Constitutionally OK for a State to ban grandma’s private cake-baking.

    If the voters want to do it, yes — the Constitution says that’s OK.

    But the simple fact of the matter is that they don’t — and oddly enough, the Constitution says that’s OK, too.

    And thus Grandma bakes onward.

    And the meth comparison is perfectly legitimate. If Grandma’s cakes are so tasty that they cause people to overeat and shorten their life span, you can with perfect right claim they are a danger to society. Meanwhile, meth causes weight loss, heightens sexual pleasure, and allows you to get more done and be more productive; it just makes you hopelessly addicted and a wreck.

    And that’s the true genius of the Constitution, Cal; it allows for both, one, or neither of those perspectives to be held, passed into law, and repealed as circumstances and times change.

    Mainly because it doesn’t sweat the small stuff, cake-baking included.

    And V the K’s and my point is that judicial precedent shouldn’t MAKE it sweat the small stuff, either.

    Comment by North Dallas Thirty — October 27, 2006 @ 6:14 pm - October 27, 2006

  51. Minor FYI, my question specified that Grandma was baking for personal use (not sale).

    All that stuff you said about meth? We both know you don’t believe a word of it. Meaning the discussion is devolving into game-playing.

    Time for me to bow out and let the thread back on topic! (#43 might be a place to pick up from.)

    Comment by Calarato — October 27, 2006 @ 6:27 pm - October 27, 2006

  52. #50: I note the city of Coral Gables Florida has laws regarding what colors people can paint the interiors of their houses. Silly? Yes. I would never choose to live there. But I also don’t think the Constituion forbids it.

    On the other hand, the Constitution would appear to forbid a city government from confiscating a person’s home and selling it to the highest bidder. But, the SCOTUS decided that such confiscations were okay, in part because the takings clause had become so eroded over decades of decisions that the clear meaning of the language was no longer clear. So, now we see what happens as the Constitution is eroded to accommodate “progressive” public policy.

    Comment by V the K — October 27, 2006 @ 6:41 pm - October 27, 2006

  53. -I still think the GOP will lose the House, but those more optimistic can take comfort that on the day before election day 2004, all the polls had Richard Burr losing in NC,-

    I remember the polls by then having Burr winning.

    As for Powerline and their claim that Mark Kennedy is surging…their proof of this is an internal poll that says Kennedy is “within” single digits. They don’t bother to show this poll. The NRSC certainly doesn’t seem to think he’s surging. I remember conservative blogs that said internal polls had Blackwell trailing by 6%. He hasn’t exactly run a campaign lately suggesting he is near winning.

    I also don’t take “I no longer get e-mails from disgruntled Republicans” as a sign of momentum for the GOP. That’s really not much different than the anecdotal evidence people gave in 2004 to claim Kerry would win.

    Polls also show Virginia, Tennessee, and Missouri as tied, not surging ahead. Montana is going to be close, obviously – it’s Montana.

    I do believe Republicans will keep the Senate, but this type of “clap louder!” stuff really does no one any good.

    Comment by Carl — October 27, 2006 @ 9:01 pm - October 27, 2006

  54. All that stuff you said about meth? We both know you don’t believe a word of it. Meaning the discussion is devolving into game-playing.

    LOL….Cal, I do believe that, because it’s the truth.

    That being said, though, I think the drawbacks of using meth far outweigh the positives; therefore, I have no trouble with banning it.

    Comment by North Dallas Thirty — October 28, 2006 @ 1:05 am - October 28, 2006

  55. And that’s the true genius of the Constitution, Cal; it allows for both, one, or neither of those perspectives to be held, passed into law, and repealed as circumstances and times change.

    This is the great moral relativism of our time: individual liberty is whatever the democratic process defines it to be. The right of people to run their own lives is not a stable, objective concept; it can be limited by the shifting whims of the majority (or even a politically motivated minority).

    The fact is, people have a right to bake cakes and in fact to sell them to willing buyers. They always have and they always will. Government can either recognize this right, or violate it — but it remains a right no matter what “the law” says about it. The same holds for any other peaceful and honest things a person wants to do with his or her life.

    The problem with the two-party establishment — and this is but a reflection of a real problem with the prevailing political philosophy these days — is that it has no respect for any objective, real concept of individual rights. Thus, any law is permissible as long as you can push it through the machine known as the democratic process. In this philosophy, it’s impossible for a law to violate rights, because there are no rights except those defined by law.

    This, however, is putting the cart before the horse. Rights are primary; government is secondary, it is just a tool that was intended to uphold rights that exist independently of it. We need to work on getting people to realize this.

    Comment by kdogg36 — October 31, 2006 @ 5:03 pm - October 31, 2006

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