The Big Black Hole in the Middle of the Constitution

The Constitution is widely celebrated for its uses of compromise. The interests of large states and small states were compromised by having a Senate with equal State representation, and a House with representation proportional to population. The friction between slave and free states was resolved with the (infamous to many) compromise that slaves were counted as three fifths of a person for representation purposes. Concern over one branch of government becoming ascendant was addressed by a system of checks and balances. Election of the President was entrusted to the Electoral College (a term not found in the Constitution), whereby the States selected the President, but by a channel outside of Congress. Concern over the powers of a central government were addressed by a Bill of Rights curtailing the Federal Government. But there's respect that has largely gone unnoticed where the Constitution completely failed, and it's rearing its head now. No, it's not the infamous three-fifths compromise that counted slaves as 3/5 of a person, nor the failure to phase out slavery. Basically, the Constitution completely lacked any way for the Federal government to protect citizens from rights abuses by the States. Reactionaries were given free rein over State and local affairs, and until recently, they still had it. And they want it back.

The Articles of Confederation versus the Constitution

The Articles of Confederation contain a surprising amount of material that was incorporated into the Constitution. But there's also a huge amount of detailed specification of what the government could and couldn't do that was replaced by broad, generic language in the Constitution. In particular, the Articles stated: 

Article II.  Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

Whereas the Constitution states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article I, Sec. 8) 

The new Constitution wasn't an immediate hit. A lot of people still didn't want a strong central government. They didn't like the direct taxation powers of the Federal Government, or the creation of a Federal judiciary, or the creation of standing armed forces however tiny. And they didn't like omitting that word "expressly" or that power to provide for the "general welfare." And a lot of people still don't. The supporters of the Constitution came to be called Federalists, and their opponents, predictably enough, as anti-Federalists. 

An interesting crossover occurred during the ratification of the Bill or Rights. Many Federalists, proponents of the Constitution, supported the Bill of Rights, either on its own merits or because they saw that a Bill of Rights would aid in ratifying the Constitution. And many anti-Federalists, opponents of the Constitution who had demanded a Bill of Rights in the first place, began to oppose it, hoping to block the ratification of the Constitution itself. It's a classic case of "be careful what you wish for; you might get it."

To the extent that we try to shoehorn 1787 factions into today's terminology, we'd probably label the Federalists "liberals" in the sense that they favored a more powerful central government, and Anti-Federalists "conservatives." But the Anti-Federalists ended up giving birth to a remarkably liberal document, the Bill of Rights.

The Compleat Constitution?

So the Constitution gives the Federal Government the power to collect taxes, pass necessary laws, and defend itself, including suppressing insurrections. It prevents the States from doing anything to endanger the United States as a whole, like raising their own armies or entering treaties with other countries. It prevents States from harming each other by making war on each other or interfering with interstate commerce. What's missing? There is no provision for protecting the rights of people within the states.

That really wasn't big on anyone's radar in 1787. Memories were still fresh of the British Government suspending colonial charters, most of which had Bill of Rights protections like free speech and religious tolerance. It was felt that the gravest danger was the Federal government violating personal rights, or interfering with the power of States to protect personal rights. Anything States might do to endanger civil liberties could be handled at the State level by voting the violators out. In theory.

However, despite the sage words of the Founding Fathers about "tyranny of the majority," there was no corrective available to deal with tyranny of local majorities. A minority group oppressed at the local level would have no effective means of fighting back, because they would not be able to muster a majority capable of removing their oppressors from office. Indeed, it would be entirely possible for local majorities to suppress minority movements, as indeed happened in the South with respect to anti-slavery advocates.

It All Started With Urban Runoff

In the 1820's, John Barron and John Craig owned a prosperous wharf in Baltimore. The city embarked on a series of street and drainage improvements, which funneled water and sediment to the area of the wharf, eventually silting it up and destroying most of its value. Barron sued for damages, won, but saw the judgement overturned on appeal. Eventually the case made its way to the Supreme Court, on the grounds that Baltimore had violated Barron's rights under the Fifth Amendment by taking his property without just compensation.

Barron lost. The Court ruled that the Bill of Rights had been conceived as a restraint on the Federal Government only, and did not apply to the States. 

The logic of the ruling noted that Article 1, Section 9 of the Constitution contains a list of things forbidden to the Federal Government, and Article 10 contains a much shorter list of things forbidden to the States. Despite prohibitions in blunt and absolute terms in Section 9, there are identical prohibitions directed at the States in Section 10. Both sections forbid ex post facto bills and bills of attainder, leading the Court to conclude that the Constitution only prohibited the States from doing something, if it said so explicitly.  It's worth noting that Chief Justice John Marshall had been involved in the Virginia ratification of the Constitution and knew many of the drafters of the Constitution, as well as many of its opponents. So it's fair to say that Marshall's understanding of the original intent of the Constitution transcends mere speculation.

But if the Fifth Amendment modifies the Constitution, why doesn't it apply everywhere, despite the original intent? After all, the amendment changes the Constitution. That might be a cogent argument, except that the Bill of Rights was ratified immediately after the Constitution and is almost an integral part of it. And it's very unlikely Congress and the States would ratify the Constitution as a limitation on the Federal Government and then immediately change its intended jurisdiction to cover the States, too. (Although you could argue that, rather than change the text of the Constitution itself, they would simply use the Bill of Rights to make corrections.)

The Barron v. Baltimore ruling, of course, nowhere says "The Bill of Rights doesn't apply to the States" because the Supreme Court doesn't roll that way. The Court rules only on matters immediately before it, so it only says the Fifth Amendment applies only to the Federal Government. But anyone who tried to press a different Bill of Rights case at the state level, say one involving self-incrimination, or public support of religion, would immediately be hit with the counter-argument that if the Fifth Amendment doesn't apply at the State level, the plaintiff's case shouldn't either.

So if the Bill of Rights only applies at the State level, what prevented the States from devolving into petty dictatorships with political censorship, religious persecution, and arbitrary arrest and imprisonment? Ignoring, for the moment, instances of those very things happening, the Revolution was fought over British interference with colonial charters, most of which included safeguards of property rights, trial by jury, legislation by parliament or assembly, and varying degrees of religious tolerance. The colonists were afraid of losing rights that were generally accepted in England, and many of the anti-Federalist opponents of the Constitution were concerned that a strong central government might abrogate those rights as well. The Bill of Rights was specifically intended to protect rights already taken for granted within the States. Searches were a particular hot button issue, since one of the principal grievances of the colonists had been broad "writs of assistance," which allowed law enforcement to search premises with little probable cause or limits on what could be seized.

There are a lot of things state and local government do right, because they work, and because the citizens want them. There's no law requiring the states to have state parks or universities, but every state does. Cities are not required to have libraries, but thanks in large part to the pioneering effort by Andrew Carnegie in the 19th century, most do. And many State constitutions contain safeguards that reiterate the Bill of Rights.

The Dark Compromise

It's remarkable that there were very few Bill of Rights rulings by the Supreme Court before the 20th Century, but that was because of the legacy of Barron v. Baltimore. Defenders of local control of social legislation took the initiative to erect further barriers against Federal action. For example, the Posse Comitatus Act of 1878 prohibited the Army from intervening in domestic affairs, and the act was specifically passed to prevent the Army from ever being used to enforce Federal laws as had happened under Reconstruction. Effectively, the sole purpose of the law was to protect white lynch mobs from military intervention. The "Southern Bloc" in Congress was able to stop any attempt to impose Federal policies at the State level, such as passing anti-lynching laws.

Basically, the Constitution created a brilliant and enlightened Federal system in return for allowing the anti-Federalists free rein at the State and local level. And for 150 years, they did. It was perfectly possible to be a progressive in national and international affairs and a reactionary in local matters. One example was William Jennings Bryan, who ran three times as a progressive Democrat but also prosecuted the Scopes Trial. Another was Woodrow Wilson, who championed a League of Nations and a lenient approach toward the defeated Central Powers after World War I, but was also an avowed racist.

The Incorporation Doctrine

The Fourteenth Amendment created one crack in the barrier between the Federal and local governments. Section 1 reads:

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.

Beginning with Gitlow v. New York, in 1925, the Supreme Court began to rule that protections under the Bill of Rights were among the liberties that States were forbidden to abridge without due process. The reasoning is, admittedly, a tad circular. If the Bill of Rights applies only at the Federal level (as Barron v. Baltimore held a century earlier), then nothing in the Fourteenth Amendment changes that. Nevertheless, the Court has extended the Bill of Rights piecemeal as cases arose (because that's how the court works) and even to this day, parts of the Bill of Rights have not been fully incorporated. For the most part, the process was pretty non-controversial since many of the protections of the Bill of Rights were already in place at the State and local level anyway.

It's important to understand the process that began with a dock in Baltimore and ended in the 20th century. For most of that time, it was perfectly permissible for States to support religion. Madison's original conception of freedom of religion read:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. 

Clearly, Madison's conception of separation of church and state consisted of not creating a national church, and protecting people from religious persecution. States could and did support churches. Massachusetts funded the Congregational Church until 1833, and New Hampshire required legislators to be Protestant until 1877 (though it's unclear if it was actually enforced). One of the very few Bill of Rights cases in the 19th century was a Mormon challenge to Federal anti-polygamy legislation. The Supreme Court ruled that while opinion was inviolable, the government could police actions it regarded as harmful, and upheld the ban.

Censorship was also permissible. States could, and did, censor publications considered indecent or seditious, and banned such things as pamphlets on birth control, union and anti-war literature, and so on. "Banned in Boston" once meant exactly that.

The three things about the Incorporation Doctrine that are critical to note are:

1. Until the 20th century, the Bill of Rights did not apply in the States.
2. Nothing in the Constitution explicitly says "the Bill of Rights applies to the States, too."
3. The Incorporation Doctrine was created by the courts. The courts could conceivably reverse it.

It is absolutely amazing and appalling how many people who claim to know the Constitution never heard of Barron v. Baltimore or the Incorporation Doctrine. They think that things regarded as unconstitutional today were always unconstitutional. The weren't.

The Empire Strikes Back

As long as the Federal and local governments operated in separate spheres, friction between the two was minimal. But in the 20th century, Federal actions increasingly impinged on local affairs. Franklin Roosevelt's New Deal created programs and regulations that affected local affairs. The hold of the Southern Bloc began to slip. Harry Truman desegregated the Armed Forces in 1948 and sacked the Secretary of the Army for continuing to obstruct the order. Brown v. Board of Education in 1954 marked a new escalation of Federal control over local affairs. And led to a lot of cars bearing "Impeach Earl Warren" bumper stickers.

Meanwhile, the anti-Federalists at the local level began to feel more and more threatened. Their vision of society was white and male dominated, and while people could be free to believe and worship how they pleased, society would be governed by Christian assumptions and values. Local society would have broad authority to ban things it considered objectionable, though the "right" people would know perfectly well where to go to get prostitutes, pornography, abortions and (during Prohibition) alcohol. Lower-class crime would be harshly punished. Problems not resolvable under law could be handled more.... informally, and extrajudicial violence would be treated leniently. Rewards in the society should go to the "worthy," and voting rights would be restricted to the "responsible" elements of society. In the 1920's and 1930's, the second incarnation of the Ku Klux Klan gained wide power, based on an insecure middle class afraid of Jews, labor unions and Socialists as much as blacks. The New Deal aroused indignation from business classes resentful at the growth of taxes and social programs for the "unworthy." The chipping away at white supremacy angered many, though as long as open discrimination was legal, the danger could be contained.

Then on June 25, 1962, the Federal government pressed the red button and launched the arsenal. That was the day that the Supreme Court outlawed state-sanctioned prayer in the schools. It was the Fort Sumter, the Pearl Harbor, the 9/11 (to be a bit anachronistic) of the Culture Wars. It didn't merely ban the brief utterance of a formulaic prayer at the start of the school day, it was a national-level repudiation of the idea that society was explicitly Christian, and that localities could define the values they would impose on their citizens. 

In short order came a raft of rulings expanding the rights of criminal suspects, and the passage of civil rights laws. Barry Goldwater's opposition to civil rights legislation had two effects. He lost the 1964 election in one of the worst defeats in history, but Southerners switched their allegiance en masse to the Republican Party. In 1973 came Roe v. Wade, that struck down state bans on abortion, but that ruling amounted to little more than "making the rubble bounce" because the edifice of local control of social affairs was pretty much in ruins anyway.

After years of frustration at their inability to repeal Roe v. Wade or other liberal legislation, plus their outrage over the election of liberal President Barack Obama, conservatives created the "Tea Party" movement, which invoked the image of the Boston Tea Party at the start of the American Revolution. Asserting that compromise had only led to retreat, conservatives in Congress adopted a progressively more intransigent stance. In 2016, their anger had risen to the point where they made Donald Trump a serious contender for the Republican nomination. As the campaign looked increasingly like it would pit Trump against Hillary Clinton, the election looked like it would pair up two opponents more mutually antagonistic to the other side than any election since the election of 1860 where Lincoln was elected.

What the Tea Party and Donald Trump have done is launch a full-scale anti-Federalist counter-revolution. Many of their backers reject the idea that the Federal government has any power at the State or local level. They call for the repeal of Constitutional amendments that have increased the power of the Federal government, like the 14th, 16th and 17th. What they ultimately want is to recreate the vanished world from before the Incorporation Doctrine. To paraphrase Michael Moore's documentary, "Dude, Where's My Country?" the Tea Party's answer is "Dude, the people you took it from are taking it back."

The Most Important Thing Ayn Rand Got Right

Ayn Rand on collective rights:

Since only an individual man can possess rights, the expression “individual rights” is a redundancy (which one has to use for purposes of clarification in today’s intellectual chaos). But the expression “collective rights” is a contradiction in terms.

Any group or “collective,” large or small, is only a number of individuals. A group can have no rights other than the rights of its individual members.

A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. The principle of individual rights is the only moral base of all groups or associations.

“Collectivized ‘Rights,’”The Virtue of Selfishness, 101

Rand, a bitter opponent of Marxism, had Communism in mind when she wrote this. Since Communism recognized no individual rights (apart from the right to be a Communist), therefore Communist governments had no rights.

But it's important to clarify something. Having no rights is not the same thing as other people having the right to do whatever they want to you. Just because the Communist government of the Soviet Union was illegitimate, or the theocracies of Iran and Saudi Arabia are illegitimate, doesn't give someone else the right to declare war on them capriciously. These governments may have no regard for the rights of their citizens, but their citizens do have human rights nonetheless. The government of North Korea is utterly illegitimate, but dislodging it would probably create more suffering than the regime itself does. Totalitarian states have a way of protecting themselves like that.

At the opposite end of the ideological spectrum, we have the concept of "States' Rights." One interpretation of "States' Rights" is the rights held by the government of some geographic area. That's easy to dispose of: a State in that sense is an arbitrary polygon on a map. It can no more have rights than latitude and longitude have rights, or a UTM grid square has rights. In fact, in Rand's interpretation, a state government, being a group, has no rights.

The other interpretation is that States' Rights means the rights of the citizens living within those states. That's the only definition that makes any sense. And so, for example, the citizens of 49 states have the right to pump their own gas at a service station, but not the citizens of Oregon. That's probably motivated by a desire to preserve jobs in the filling station business, or prevent accidental spills, but there doesn't seem to be any widespread resentment over it in Oregon. The militants who took over a wildlife refuge had many grievances against the Federal government, but never uttered a peep about being forced to let someone else pump their gas.

One ironic fact is that people who want the 17th Amendment repealed (which provided for popular election of Senators) appeal to States' Rights in terms that seem to regard States as abstract entities that have rights in and of themselves. As one site put it:

The popular election of our senators is bad public policy because it stripped the states of the one voice of representation they had in Washington, DC.

Note the assertion that popular election of Senators stripped the states of their rights, and therefore the states are entities that have rights independent of their citizens. One wonders what those rights might be? The cynic in me suspects those "rights" are really the rights of interest groups, that is, the right of wealthy and powerful individuals to draft their own laws.

A Modest Proposal on Gun Control

Gun owners believe that, if they haven't done anything wrong, they shouldn't have to justify their gun ownership. And they don't trust the government with registration, for the same reason that lots of people don't trust the NSA or FBI to read their e-mail.

One proposal to limit gun violence is to restrict the mentally ill from owning guns. This measure might put a serious dent in the number of gun suicides, but will scarcely affect gun homicides. Very few gun homicides are due to mental illness. Elliott Rodger, the teenager who posted a video manifesto outlining his anger at being ignored by women before killing six people, had been to a number of therapists but never diagnosed with a mental illness. To screen out people like him, we'd have to consider every socially isolated or even merely quirky individual as mentally ill, and maintain a nationwide registry. That would probably outrage civil libertarians every bit as much as gun owners.

Gun owners want the burden to fall on people who commit gun crimes, but that won't help the people who get shot in the meantime. And a significant number of gun criminals either kill themselves or force the police to do it, so capital punishment won't be a deterrent. Indeed, it's hard to see what registration would do before the crime. 

So what might help? We don't want something that deprives current lawful gun owners of any liberties, nor do we want a definition of "mental illness" so broad it snares a large part of the population, most of who are guilty of nothing worse than mild eccentricity. But we don't want to wait until people actually kill someone, because by then it's too late.

There's one common factor in a large fraction of gun crimes: a sense of entitlement that the criminal has a right to lash out at others for real or imagined slights. Elliott Rodger was angry that women wouldn't respond to his awesomeness despite his affluence. He also committed other acts that, in retrospect, pointed toward his final outburst. He followed a couple and threw coffee on them, splashed coffee on two women who refused to pay attention to him, and sprayed a group with orange juice from a Super-Soaker. In fact, a lot of shooters have prior records of minor violence before they graduate to the big time. The logical way to control gun violence is to act when someone shows some precursory violent tendencies.

So here's the plan. Anyone who ever commits an act of violence except with very strict legal authority loses their right to own a gun. This wouldn't require any gun owner to register because it applies only to future acts. The registry right now is blank. The only requirement on current gun owners is a firm personal commitment to hold their temper and act responsibly.

• Unless you have specific legal authority (police, military, teachers and principals in school, security personnel, and so on), you have no authority whatsoever over anyone else. The teacher has the authority to discipline your child in school. You have no authority to attack or threaten the teacher.
• The only exception is self defense or defense of others. You have no authority to accost someone walking down your street and demand to know why he's there. And there's no exception for "feeling threatened." If you don't have the judgement to know for certain if you are threatened, you don't have the judgement to own a gun.
• Conviction for any violent act costs the offender his gun rights. Felonies, of course, but misdemeanors, too. Even disorderly conduct. Any offense under the influence of alcohol or drugs costs the offender his gun rights. If you can't hold your liquor, you can't hold a gun.
• All domestic violence costs the offender his gun rights.
• Any vandalism or cruelty to animals costs the offender his gun rights.
• Threatening anyone with a weapon costs the offender his gun rights. That includes you, Y'All Qaeda. And any landowner who thinks it's okay to shoot at trespassers.
• Any act of road rage whatsoever costs the offender his gun rights. Tailgating, aggressive driving, trying to run someone off the road. If someone cuts you off, call 911 and report it. If the police don't take it up, then there's no problem.
• Accidentally discharging a weapon costs you your gun privileges. If you can't play responsibly with your toys, you lose them. Accidentally discharging a weapon in the military earns you an Article 15. Also negligently storing a weapon so that children can access it. The people whose son shot a neighbor child because she wouldn't show him her kitten may not have violated any laws, but they should never again be allowed access to anything more dangerous than a butter knife.
• Threats (on line or in person) constitute valid grounds for a search warrant (a rule that could very well have prevented the Columbine shootings), and threats of violence constitute grounds for losing gun rights.
• These apply to everyone. If you're a police officer or member of the military, and you engage in frivolous violence, your career is over. Yes, I know being a cop is stressful. Deal with it or change jobs.

There is no excuse whatsoever for anyone ever to commit any of these acts, and they very frequently show up in the backgrounds of shooters. They are far more reliable predictors of eventual lethal violence than someone merely being diagnosed with mental illness. Anything on the list gets you on the do-not-sell registry.  Plus, the court punches a hole in your ID, just the way we punch holes in expired passports. Plus, the police get a search warrant for your guns. All you have to do to keep your guns and stay off the radar is keep your temper. If you never attack or threaten anyone, you can have an arsenal fit for a battalion in your basement and nobody ever needs to know. You can have total anonymity.

So you mean, if I lose my temper and kick the dog or hit my wife, I should lose my right to a gun?

Yep.

Well, why don't you just castrate us while you're at it?

Since a lot of our gun violence boils down to an overblown sense of masculinity, I'm totally down with that idea. But it would present Eighth Amendment problems.

Why is Trump Winning Evangelicals?

The head-scratcher of the day is a piece at Time on line called "Why Trump Is Winning Over Christian Conservatives?" by Alex Altman and Elizabeth Dias (Jan. 21, 2016). It's a head-scratcher because one wonders how anyone can be puzzled over it.

He's not a values conservative, knows less than squat about the Bible (although the flap over his saying "2 Corinthians" instead of "Second Corinthians" is a nontroversy stirred up by people who never set foot in church, because you hear "2 Corinthians" all the time among churchgoers). So why is he so popular among evangelicals?

It's a cliche among paranormal debunkers that scientists are the easiest people to hoax, because scientists expect experiments to be conducted and data reported honestly. They don't expect someone to say "Look over there" and switch test tubes or microscope slides on them. Likewise, well-informed and sincere religious leaders can often be blind to the darker aspects of their fellow believers. They take that "love your neighbor" and "judge not" stuff seriously, and can be blindsided by people who say the right things but actually hold wholly different viewpoints.

First, the pons asinorum. The difference between fundamentalists and evangelicals is that fundamentalists insist on the most literal interpretation of scripture possible. They will flex somewhat, for example, accepting that the Sun only appeared to stand still for Gideon, but the global flood was global and the seven days of Creation were seven literal days. Evangelicals are conservative but willing to admit a fair amount of flexibility in interpretation. Wheaton College, Billy Graham's alma mater, has a fully functional geology program, complete with grants and research published in mainstream outlets. Needless to say the two systems grade into one another.

So why do conservative religious believers go for Trump? Richard Dawkins once said “It is absolutely safe to say that if you meet somebody who claims not to believe in evolution, that person is ignorant, stupid or insane (or wicked, but I'd rather not consider that).” Well, I've read enough stuff from the far Religious Right to say I'm absolutely not reluctant to apply the label "wicked."

They're Really Driven by Anger

For a lot of people, conservative religion serves as an outlet for anger. They eat up all that stuff about judgement and damnation.

Many of them are really angry at God, first of all, for forbidding them from doing things they'd like to do, but worse yet not punishing people who do the forbidden things. God betrays them by expecting them to behave a certain way, but not punishing people who disobey. That explains all the wish-fulfillment rants about how, any day now, God will summon America to judgement. Others make God in their own image. They're angry people so they create an angry God.

Trump is verbalizing all the things that make them angry. And he's pretty much promising, unlike that slacker God, to punish all the people who make them angry, or at least not interfere if they do it themselves.

They Trust Trump Won't Legislate Against Their Values

Trump himself lives a decidedly non-Christian, even anti-Christian, lifestyle. And that's okay. Lots of politicians have been caught having affairs, getting their mistresses abortions, trolling for gay sex, and gotten re-elected. The issue is not how they behave, but what sorts of behavior they are willing to impose on others. It's not whether they have an affair, but whether they're willing to penalize others who do. It's not whether they get an abortion for their mistress, but whether they're willing to legislate against abortion. It's not whether they have gay sex, but whether they're willing to vote against gay marriage.

One major reason why so many people are willing to forgive sins of the wealthy is the idea that they can bear the costs of their transgressions. The $1000 a night call girl probably won't rob her client or hassle passers by on the street. The powder cocaine dealer probably won't randomly spray a neighborhood with gunfire in a turf battle. If the politician's mistress gets pregnant, the public won't be stuck with the child support costs. If the politician gets hooked on drugs, the public won't have to worry about him mugging someone for a fix, or paying for his rehabilitation.

Trump's lack of concern for values issues is a plus, because his supporters believe they can trust Trump to throw gays, women, and minorities under the bus.

Religion is a Mask for Magic

Beyond science and religion is a third force, equally inimical to both: magic. Science asks, how can I conform my thinking to physical reality? Religion asks, how can I conform my thinking to God? Magic asks how can I get God and physical reality to conform to my thinking?. A scientist might want to know how to achieve a certain result, working within the framework of natural laws, but he knows energy can't be created from nothing, and no amount of wishful thinking will make it so. A magical believer looks for a way to make the universe behave the way he wants it to regardless of physical laws, simply because he wants it to. A religious believer asks God to intervene on his behalf, but knows God won't allow him to have an affair or get away with murder. Believers in magic think it's possible to bribe, trick, or propitiate God into allowing such things.

The vast majority of what passes for "religion" is really magic. And a lot of people apparently believe that uttering the right words or being angry about the right things serves as a substitute for actually obeying the Commandments. Hating gays buys enough karma to make up for adultery and stealing. And a lot of conservative Christians believe that mouthing a mantra about accepting Jesus is a lifetime free pass into Heaven.

Forever. You Keep Using That Word

"Someday soon, we'll have techniques that will allow us to live forever."

"We need to set up safeguards so this sort of thing never happens again."

You see stuff like this all the time. Well make some change that will last forever, or we'll prevent some bad thing from happening forever. I'm a geologist. Don't use words like "forever" to me. They do not mean what you think they mean.

Even in historic times, the spans involved can be stunning. Thomas Jefferson and John Adams both died on July 4, 1826, the 50th anniversary of the signing of the Declaration of Independence. That event is closer in time to us than it is to the Pilgrims landing at Plymouth Rock. The Golden Age of Islam can roughly be dated between 632 AD, when Mohammed died, and 1258 when the Mongols sacked Baghdad. That's 626 years. If we date our scientific epoch from the time of Copernicus (died 1543), 626 years takes us to 2169 AD. Cleopatra (died 30 BC) is closer in time to us than to the building of the Pyramids. We are closer in time to the Battle of Hastings (1066 AD) or the Crusades than Jesus was. 

When we talk about geologic time, things get even more extreme. Compress a single year into a second and count backward. Your own life is barely a minute. Count backwards at the rate of one year for every second. Fifteen seconds takes you back to 2000 AD. If you're retiring soon, a minute takes you back to the time you were born and ten seconds more takes you back to World War 2. Three and a half minutes takes you back to the Declaration of Independence and roughly half an hour (33 minutes) takes you back to the time of Christ. It takes over an hour to get back to the building of the Pyramids and three hours to get back to the end of the Ice Age. 

A million years? That will take you 11-1/2 days, counting at one second equals a year. To the time of the dinosaurs will take you over two years of counting. Our numbering system is so efficient it conceals the true sizes of things from us. 10,000 years to the end of the Ice Ages and the last mammoths (1), and 65,000,000 years to the time of the dinosaurs, don't look terribly different in size. One number looks only a few times bigger than the other. The reality is the last dinosaurs are 6500 times older than the last mammoths. And the age of the dinosaurs wasn't just an instant - it lasted about 150 million years. Everyone's favorite dinosaur bad boy, T-Rex, lived toward the very end of the Cretaceous Period about 65 million years ago. Anyone who has seen the original Fantasia by Walt Disney has seen the famous duel between a T-Rex and a Stegosaurus, the herbivore with the bony plates on its back. Stegosaurus lived in the previous period, the Jurassic, around 150 million years ago. That means that not only could they not have fought as in the movie, but T-Rex is actually closer in time to us than to Stegosaurus. As Tim Urban put it on waitbutwhy.com, a T-Rex had a better chance of seeing a Justin Bieber concert than a live Stegosaurus.

The first abundant fossils appear about 540 million years ago. That will take you over 17 years to count off at the rate of one year per second. A billion years - and there are many places with rocks that old, like the Adirondacks - will take you 31 years. Two billion years, the age of many of the rocks in northern Canada will take over 63 years to count off. That means if you start counting when a baby is born, you'll hit two billion about the time he retires. Most people will never live long enough to count off three billion years (the age of some rocks in southern Minnesota) - 95 years.

And nobody will live long enough to count off the 4.6 billion year age of the earth - almost 146 years. That means if you started counting when the Golden Spike was driven on the Transcontinental Railroad in 1869, you would just now be counting off the age of the earth.

On a geologic time scale, even rare events become commonplace. In a million years, there will be about 7000 magnitude 8 earthquakes on the San Andreas Fault, and the Mississippi river will change course maybe a couple of thousand times. No, our flood control structures will not last long enough to delay it significantly. Any given spot on the U.S. Atlantic coast will see thousands of hurricanes. No human structure made with steel will last that long and even the Pyramids will probably collapse, since they're steeper than the angle of repose.

Let's assume we eliminate all disease. That still leaves accidents, and some will destroy you no matter what miracles our medicine can perform. The death rate from unintentional injury in the U.S. is about 41 per 100,000, or roughly one chance in 2500 of dying in a year. Your chances of living 1000 years at that rate are about 2/3. You have about a 44 percent chance of making it 2000 years and about 1.6% of making it to 10,000 years. You probably won't make it to the next Ice Age. Your odds of making it to 20,000 years are 0.03%. A million years? A lousy million years, not even close to the time of the dinosaurs? Decimal point, followed by 176 zeroes, followed by a one, per cent (2).

And we aren't anywhere close to forever. We haven't even scratched the surface of how big numbers can get. The universe is about 13.6 billion years old, but the tiniest speck of dust you can see has more atoms in it than that. Atoms have relative weights, called atomic weight. Hydrogen is 1, carbon is 12, oxygen is 16. That many grams of each (1 hydrogen, 12 carbon, etc) contains 6.02 x 10²³ atoms. That's 6 followed by 23 zeroes. Counting those atoms, one per second, will take you about 140,000 times the age of the Universe. 

You have about 30 trillion cells in your body and the DNA in each cell is about a meter long. Strands of DNA are only a dozen or so atoms wide, and very tightly crinkled. That means if you could take all the DNA out of your body, well, you would die. But it would total 30 trillion meters or 30 billion kilometers in length, enough to wrap around the orbit of Pluto. Which is so awesome it would be a real shame you wouldn't be there to contemplate it. You probably have around 2 x 10²⁷ atoms in your body. The total number of atoms in the earth is around 1.3 x 10⁵⁰ atoms. Scientific notation is even more compact and efficient than ordinary numbers and is even better at concealing the true sizes of things. The difference between the number of atoms in your body and the number in the earth isn't the difference between 27 and 50, it's about 1 followed by 23 zeros. 

The sun is 300,000 times as massive as the earth, but the earth is largely made of iron and silicon. The sun is made up mostly of light hydrogen and helium, and it takes a lot more of those atoms to equal the same mass. The sun has about 10⁵⁷ atoms. The difference between 50 and 57 doesn't seem great but it translates to the sun having ten million times as many atoms. In the whole universe, the number of elementary particles - protons, neutrons and electrons, is estimated to be about 10⁸⁰. 

According to some theories, the Universe is running down and will eventually expand to a cold inert place where everything is at the same low energy. This "heat death" is estimated to be about 10¹⁰⁰ years in the future. That's about the largest number used in science for actually counting discrete objects. How long is that? Take the age of the universe, spend that amount of time contemplating every single individual subatomic particle in the universe. Then do it ten billion times. 10¹⁰⁰ years isn't just a bit longer than the age of the universe, it's incomprehensibly longer. I can write the numbers and do the math. I can't actually picture it.

It's clear that when people say "live forever," they don't mean insane quantities like 10¹⁰⁰ years, or even a million years. A million years would allow you to spend a thousand years as a doctor, as a politician, as a teacher, as a soldier, as a farmer... Then you could spend a thousand years living in each country on Earth and still have time left over. No, "forever" likely means "until I get tired of it." It means going out on your schedule and nobody else's.

And we've just stumbled onto a fascinating theological point. Whatever happens after we die, it cannot involve linear time as we experience it. What would you do with a million years' worth of memories? "Oh, but I believe in the Bible." Funny thing, check this out:

“What no eye has seen,
    what no ear has heard,
and what no human mind has conceived”—
    the things God has prepared for those who love him— (1 Cor. 2:9)

When it says "no human mind has conceived," do you suppose it actually means "no human mind has conceived," as in, nobody can possibly imagine it?

As long as I have the pulpit, a lot of religious believers seem to picture that they're five or six feet tall, and God is maybe eight or nine feet. But consider this: "As the heavens are higher than the earth, so are my ways higher than your ways and my thoughts than your thoughts." (Isaiah 55:9). So the reality is, there's the floor, with bacteria and mold and stuff the dog tracked in, and there's us, a fraction of an inch above that, and there's God, beyond the roof, beyond the Solar System, beyond the galaxy, beyond the remotest quasar. To paraphrase Douglas Adams, "Infinity is big. You just won't believe how vastly, hugely, mind-bogglingly big it is."

Surely 10¹⁰⁰ is the biggest number anyone would ever actually use, right? Not even close. There are numbers so big they're even hard to write. What's the biggest number you can write with three 9's? 999, right? What about 99⁹ ? That equals 9.1 x 10¹⁷. But we can do way better. 9⁹⁹  = 2.5 x 10⁹⁴. But what if we take nine to the ninth power (387,420,489) and raise the third nine to that? Exponents do screwy things to documents, especially if they're stacked, so we can use the alternate notation 9⁹  = 9^9, and the biggest number we can write with three nines is 9^9^9 = 9^387,420,489 = millions of digits. The rule is you start with the outermost exponent and work down. 2^2^2^2 = 2^2^4 = 2^16 = 65,536.

Numbers get really huge when you start calculating the number of different ways things can happen. For example, the number of different sequences you can deal a deck of cards is 52 for the first card, times 51 for the next and so on down to one for the last card. That's 52x51x50x49....x1, and that sort of thing crops up often enough to have a name and a symbol. It's written 52! and called 52 factorial. (It suggests that people who claim to have seen a perfect bridge deal where everyone gets all cards of one suit are - putting it delicately - mistaken. At the very least they failed to shuffle and deal properly.) Going back to three nines, care to contemplate how big (9^9^9)! is? Let alone ((9^9^9)!)! or ((9!^9!^9!)!)! ?

How many possible chess games are there? Information scientist Claude Shannon estimated a possible paltry 10¹²⁰, chicken feed compared to some of the numbers we've just discussed. Of course, you could ignore the rules about stalemate and simply repeat the same sequence of moves forever, but that's trivial. But to study the quantum mechanics of materials, you have to calculate the possible number of energy states of the material, which means some number for each atom times all the others. For example, how many atoms in a room are moving slower than 10% of the average velocity? There could be 10^30 atoms or molecules of air in a large room, so the number of possible energy states of those atoms is something like 10 raised to the power of the number of atoms. That is 10^10^30. In quantum mechanics, it is possible for a camel to pass through the eye of a needle; the odds are so mind-bogglingly tiny that "impossible" barely does it justice.

These are about the biggest numbers I know of in physics. In abstract math, you can obviously write arbitrarily large numbers like 9!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!.... But in "serious" math, where someone is actually trying to solve a real problem, they can still be stupendous. 

Tim Urban  has a great discussion of large numbers on the site "Wait But Why" (waitbutwhy.com). Consider the first few levels of making big numbers:
9 = 1+1+1+1+1+1+1+1+1
10 x 9 = 10+10+10+10+10+10+10+10+10
10^9 = 10*10*10*10*10*10*10*10*10
10^^9 = 10^10^10^10^10^10^10^10^10
10^^^9 = 10(10^^9 terms)
etc.
Graham's Number, at one time the largest number ever used in a serious mathematical proof, defined a number g₁ = 3^^^^3, then g₂ = had g₁ up arrows, then carried that process out to 64 levels. 

As Urban put it: "Imagine living a Graham’s number amount of years.  ... it’s a reminder that I don’t actually want to live forever—I do want to die at some point, because remaining conscious for eternity is even scarier."

So don't use the word "forever" around anyone who deals with large time spans or numbers. You have no conception what it means.

Notes

1. There were some holdout mammoths that survived on Wrangel Island off the coast of Siberia until 4000 years ago. They lived until the time the Pyramids were being built. Fascinating and poignant, but not really relevant here.
2. The way to calculate odds like these is to calculate the odds of something not happening. If you have 41 in 100,000 odds of dying in an accident each year, you have 99,959/100,000 or 0.99959 odds of surviving. Your chances of surviving 1000 years are 0.99959¹⁰⁰⁰  = 0.6636, and so on.

Comets, Meteor Showers and Science Denial

So it's mid-December and the internet is busily hyping the Geminid meteor shower, supposedly the best of the year. Meteor showers, to me, are one of the most irresponsibly hyped celestial phenomena. And the damage is far from harmless.

Meteor Showers

Meteor showers happen when the earth crosses the orbit of fine debris, shed by a comet or asteroid. In some cases, we know the specific source. In other cases the parent object is long dead or had its orbit perturbed. The meteors appear to radiate from a single point just like snowflakes in your headlights do. It's a perspective effect - their paths relative to you are actually parallel. Meteor showers typically peak after midnight because that's when your location on earth is facing forward in its orbit. 

Yes, there are daytime meteor showers. How do we know? Because the ionized trails of the meteors affect radio signals and can be detected on radar.

The Geminids are expected to display about 120 meteors per hour, and by meteor shower standards, that's pretty intense. To get an idea what it's actually like, say "whee!" then count slowly for 30 seconds and say "whee!" again. And that's assuming you'll see every meteor. You won't. Many will be outside your field of vision, Expect more like one every two minutes. 

If you're a non-scientist, imagine someone promises you a great fireworks display, but you have to get up at 3 AM to see it. Then, every two minutes, someone tosses a sparkler in the air. And worse yet, he seems genuinely impressed. Will you trust that person next time he promises something?

No meteor shower shower should be described as strong unless it displays 1000 or more meteors an hour. What shower is that? Well, there isn't any. There are rare "meteor storms" that exceed that rate, the most famous being the Leonid shower in November. The Leonids were spectacular in 1833 and 1866, and produced a spectacular burst in 1966. Astronomers have had some success in predicting the orbits of dense swarms of particles and predicting outbursts. Unfortunately, the bursts tend to be short and geographically localized. But at least it can be worth getting out of bed to check.

Comets

Rivaling meteor showers for irresponsible hype are comets. Comets are generally discovered far from the sun and travel long eccentric orbits. So there's a long lead time before the comet passes close to the sun or earth. Once upon a time we wouldn't know about a major comet until it became pretty obvious, but now sky patrols pick them up when they're quite faint.

Sometimes a comet lives up to the hype. Comet Hale-Bopp in 1997 was detected far from the sun and was visible to the unaided eye for over a year. It set records for duration and distance of visibility. And it won't come back for several thousand years. It was brilliant in a dark sky and, for the first time in human history perhaps, billions of people were able to see a comet as a thing of beauty instead of a fearful portent of disaster.

And there are surprises. Comet Holmes had been plodding uneventfully through the inner Solar System every 6.9 years since its discovery in 1892. Then, in October, 2007, it had the greatest outburst ever seen in a comet, and brightened half a million times from a faint object visible only in large telescopes to something easily visible to the unaided eye. It actually attained a diameter greater than the Sun, though the total amount of mass was tiny. Payoffs like that are why amateur astronomers watch "dull' comets.

But for the average non-scientist, the experience is more like Comet Kohoutek in 1973. Kohoutek was believed to be a visitor from the remote Oort Cloud on its first visit to the inner Solar System. First time comets are a notorious crap shoot. They can release spectacular amounts of gas and dust and be dazzling. Or they can be so tightly frozen that they release little material. That's what happened with Kohoutek, and after the media hype, Kohoutek became a synonym for spectacular failures. Something similar happened to Comet ISON in 2013. ISON was discovered far from the sun and was following the orbit of numerous other comets that had close passages by the Sun. So a year out, the astronomical community was buzzing about the potential show. But ISON failed to brighten as hoped, and worse yet, it evaporated passing the Sun. Images taken after closest encounter showed a short-lived diffuse cloud that rapidly dissipated.

Even comets that put on spectacular displays can disappoint if their brightest appearance is so brief that bad weather can blot it out. Or a comet can appear briefly and unfavorably for one hemisphere and be spectacular in the other. Perversely, they seem to favor the Southern Hemisphere.

One comet I recall was Hyakutake in 1996, one of the closest comets to earth in centuries. Unfortunately, my observing site was a floodlit compound in Bosnia. A few weeks earlier, my team had been out after dark under a dazzling sky, but not when Hyakutake came by. Armed with only vague descriptions of the location in Stars and Stripes, I tried my best to view it from the shadows and saw nothing. But I bet that was the experience of most urban dwellers who tried, as well.

Based on my own experiences being disappointed by comets, I think a comet should be reported in the mass media only if it will be brighter than magnitude zero (a very bright star) in a dark sky and at least 30 degrees above the horizon. Report it only if the comet would be obvious to an urban resident with no knowledge of the constellations. And report it when and if it happens, not a year out like ISON or Kohoutek.

So What's the Harm?

If people can't trust science to tell them accurately what they can expect to see from their own back yards, why should they trust science when it tells them about climate change, GMO's, vaccination or evolution?

Forget the Second Amendment: This is the Critical Amendment

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Has this ever been a problem? Well, During the War of 1812, Sackett's Harbor, New York was a major military base and the buildup of forces rapidly outstripped the supply of housing. So soldiers were quartered in private homes, presumably by law. Since the town was a likely target of British attack, probably consent wasn't a large problem. There were quite a few instances of private homes being used during the Civil War. Apart from that, about the only court case in U.S. history involving this amendment was a case where prison employees in New York went on strike (Engblom v. Carey). National Guardsmen were called in as temporary prison guards and the striking prison guards were evicted to provide quarters for the Guardsmen. A Federal court agreed that the tenants counted as owners and sent the case back to a lower court, which dismissed the case because the State could not have foreseen the higher court ruling and there were no legal guidelines to use for compensation. So they simultaneously won and lost. No Supreme Court decision has ever directly involved the Third Amendment. At most, the amendment has been cited in passing only to show how deep American concerns about privacy and property run.

Nobody does life support like the U.S. military, and almost any situation requiring temporary quarters for troops will probably make use of public buildings or large private spaces like warehouses or hangars. Note that there's absolutely nothing to prevent troops from being housed with consent, so a family putting up a visiting family member in the military doesn't apply. Nor is there anything to prevent people from voluntarily housing troops from patriotic motives or for compensation.

So what's relevant about perhaps the least-applied Amendment in the Constitution? A few court cases have invoked the Third Amendment, most of which have been described as "far fetched" or "silly." One of the most widely quoted was United States v. Valenzuela (1951). Gus Valenzuela (who was serving in Korea at the time) was sued by the Federal government for violating the 1947 House and Rent Act. He asked a Federal Court to dismiss the case on Third Amendment grounds. The Court ruled:

Reference will be made to only one of defendant's constitutional contentions. In his brief, the defendant states, "The 1947 House and Rent Act as amended and extended is and always was the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III of the United States Constitution."

"This challenge" to quote from defendant's brief, "has not been heretofore made or adjudged by any court, insofar as our research discloses."

We accept counsel's statement as to the results of his research but find this challenge without merit.

The motion to dismiss is denied.

So metaphorically equating regulators with occupying troops doesn't cut it in court. The courts in general take a dim view of sweeping curtailment of government authority based on someone's novel reinterpretation of the Constitution. And given the very narrow wording of the Third Amendment, unless someone houses a squad of Marines in your rumpus room, the courts aren't going to take your Third Amendment case seriously. You can argue the EPA are like storm troopers and regulating products you use in your home amounts to being quartered in your house. Just don't expect a court to take you seriously.

What's the Real Issue?

Before the American Revolution, Britain had a problem. The Colonies demanded protection from Indian attacks, but refused to put up the money for barracks and rations. Staying in private homes, of course, wouldn't be an issue in the field because there weren't enough settlers to make it practical, and soldiers permanently stationed on the frontier would stay in forts. So quartering troops in private homes only became an issue in garrison. It's important to note three things in defense of the British:

• The need for military protection wouldn't have been so acute if settlers had respected Indian lands and restrictions on settlement.
• The colonists wanted military protection, but didn't want to pay for it. Sound familiar?
• The regulations on requisitioning quarters called for occupying public and unoccupied buildings first and private homes last.

Simply refusing to send troops until the Colonies ponied up wasn't an option. It would effectively abandon the Colonies and make resistance to calls for independence a lot less defensible. Allowing voting representation in Parliament would have created a plethora of problems because the Colonies had a population roughly half that of Britain. The Colonies couldn't out-vote the home country, but they could certainly ally with sympathetic members of Parliament and seriously upset the political balance of power. And as tensions rose in the Colonies, British troops assumed more the role of an occupying force, costs rose, more taxes were imposed, tensions rose still further and the rest, as they say, is history.

We can see tons of counterfactual ways Britain could have defused the situation. Giving each colony (plus those in Canada and maybe Jamaica) a voting member would have kept control firmly in British hands but allowed a much freer exchange of information. Parliament could have gotten much more accurate understanding of colonial grievances, and the colonists might have gotten a clearer picture of how much their defense was costing. As fun as it can be to write counterfactual history, that's not the point here.

So the real issue is, the government (in this case Britain) didn't have the money to solve a problem, and solved the problem by dumping it in the laps (or living rooms) of citizens. And that is a contemporary issue. No, it's not soldiers. But government at all levels dumps the costs of programs on everyone else. The Federal government wants secure identification. So it dumps the costs of creating secure ID on the States, who in turn dump the costs of gathering the necessary documents onto private citizens. We solve the need for equal opportunity by restricting the rights of employers and landlords. We provide access to the handicapped by requiring business owners to pay for ramps, elevators, rest room stalls and so on. States decide the schools must provide services to students and passes the costs on to school districts, who, in turn, pass on the costs to taxpayers.

If we were drafting the Constitution today, we might see the Third Amendment expressed in these terms:

No unit of government shall impose any unfunded mandate on any lower level of government or private person.