The crusade of the nanny state

Anti-smoking fanatics have taken my part of the country by storm. 

Beginning January 1, 2008, the state of Illinois became entirely smoke-free. That means that in public parks, restaurants and even bars, smoking of any type is expressly prohibited. An organization called Smoke Free St. Louis is attempting to achieve the same objective on our side of the Mississippi River, simultaneously pushing the St. Louis City and St. Louis County governments to adopt ordinances that would ban smoking even in privately owned businesses. 

To his great credit, St. Louis Mayor Francis Slay (a Democrat) shot down all hopes of a smoking ban in the city. However, the city of Clayton, the ritzy suburban St. Louis business hub, remains under siege by anti-smoking fanatics who wish to ban smoking in all public places.

It's one thing for the government to ban smoking on publicly owned premises, such as city parks or government buildings. It's an entirely different thing to bring the hammer down on privately owned businesses, already neck-deep in red tape and taxes.  

Of course smoking is unhealthy. 

You know what else is unhealthy? 

McDonalds. Jack in the Box. Soda. Beer. Fast cars. Traveling long distances. General laziness.

Would nanny staters like to legislate those out of existence as well?

Each week, I try to incorporate 2-3 days of weightlifting and 2-3 days of cardio exercise into my routine. I do not do this because I particularly enjoy lifting heavy things, nor running in St. Louis' extraordinarily muggy temperatures during the summer. Rather, I do it because I made a conscious decision to treat my body reasonably well. 

If anti-smoking fanatics' main -- and really, only -- argument is based on the obvious health benefits of not smoking, then what is next? There are obvious health benefits to drinking milk instead of Coke. There are similarly obvious health benefits to choosing Subway over Taco Bell. There are obvious health benefits to regular exercise.

If the government is able to ban smoking in privately owned restaurants and bars because smoking is unhealthy, why shouldn't it be able to force citizens to exercise twice a week?

If an individual qualifies as "morbidly obese," why shouldn't the government be able to hit that individual's fast food purchases with astronomical taxes? 

Additionally, and equally as critically, there is no cognizable reason whatsoever that the government should be able to mandate to a private business owner that he or she must not allow smoking in his or her private establishment. It's absolute lunacy to claim otherwise.

The main argument I hear anti-smoking fanatics citing is that when one goes to a restaurant or bar, he or she should not be forced to encounter cigarette smoke.

I'm sorry.

Is someone holding a gun to your head, demanding that you eat at that particular restaurant? 

If so, by all means, dine at said restaurant. 

But if not ...

DON'T EAT THERE! GO SOMEWHERE ELSE! 

CALL THE MANAGER AND COMPLAIN ABOUT HIS POLICIES!

ARRRRGH!

I suppose that, in addition to being unable to make choices about how to spend my money wisely (I'll take those Air Jordans over that health insurance, please), I am also unable to decide where to dine.

I genuinely wonder if there is something terribly wrong with me that I find this particular argument so patently insulting. 

It is one thing for the government to choose to ban smoking in public places, such as a city park or government building. But it's an entirely different proposition to mandate to privately owned businesses that they must do the same.

The underlying principle of the American model is that the consumer's use of the almighty dollar is the most legitimate way to effectuate change in any market.

If you'd like to make a change in a restaurant's policies as a customer, terrific. Choose to dine with a competitor, then the next day, call the restaurant and inform them where you dined and why you chose to do so. They'll listen.

Such principles are invariably crushed by the nanny state when anti-smoking crusaders beat down the doors of private establishments with the strong arm of the government, and demand that they succumb to insulting, fanatical policies crafted by an obnoxious minority that has nothing better to do with its time.

How far should this principle be extended?

Let me pose a hypothetical. Let's say my wife and I, in an act of staggering goodwill to the community, put out signs in front of our apartment complex, opening our apartment to anyone in the neighborhood for a party during the Christmas season. We will provide food, cocktails and an enclosed gathering area where people can visit with one another. And let's say one or two of our guests are smokers and wish to enjoy a cigarette on our balcony. How does this differ from the smoking bans that anti-smoking fanatics are pushing on cities and municipalities nationwide?

Members of the general public, lawfully invited, will be at my residence to dine. I will be serving food and drink. Our guests will be in an enclosed area. And the number of people in our apartment might well be more people than would be in a neighborhood bar affected by a smoking ban.

How does my above hypothetical differ from a bar or restaurant? 

It doesn't. And that's the point.

I look forward to the day when the government bans me from enjoying a cigar when entertaining visitors in my own home.

I also look forward to the day when it has finally outlawed double cheeseburgers.

Leave me alone.

The return of the ideas man

He's back!

After his 56-minute skewering of President Obama at the Senate-House Republican dinner earlier this week, it's safe to say that regardless of what he might say to the press, Newt Gingrich -- the last great conservative leader the Republican Party has known -- has thrown his jowled, graying hat into the ring for the 2012 Republican nomination.

Regardless of whether I agree with Gingrich's comments, his reemergence in the Republican leadership vacuum is absolutely fascinating.

I disagree with the so-called conventional wisdom that the GOP needs to move on and leave the former House Speaker in the rear-view mirror. The Republican Party does not need more leaders like Rush Limbaugh, Mitch McConnell and Sarah Palin -- short on ideas but long on purely reactionary opposition to the president's agenda. 

Even as much as I admire John McCain, it is clear that, as David Brooks noted, he would turn out to be a lousy leader of an ideological movement. His outside-the-box policy prescriptions, often maddening to self-styled "true" conservatives, are not the type that the GOP rank-and-file would consistently support.

This fascinating NY Times magazine feature on Newt paints a picture of a man who is brimming with ideas, and his speech earlier this week shows a man who clearly is fixing for a brawl with Obama. Author Matt Bai suggests that a 12-year stranglehold on Congress and an 8-year hold on the presidency have sapped intellectual institutions like the Heritage Foundation and the American Enterprise Institute of energy and ideas. But Gingrich -- perhaps due to his embarrassing exile from Washington in 1998 -- has largely remained on the periphery of conservative power and thought, and therefore out of the governing majority.

Let's be clear that Newt has tons of baggage. Tons. Critics will no doubt drudge up his infamous complaint about being denied a better seat on Air Force One after a state funeral. And, much more importantly, who can forget his extramarital affair that took place during the exact same time he and House Republicans made Bill Clinton the first sitting president to suffer impeachment? In his terrific 2004 offering "Rome Wasn't Burnt in a Day," former GOP congressman and current MSNBC host Joe Scarborough paints an unflattering picture of Newt as an abrasive, power-hungry dictator who believed his only weapon against the Clinton White House was to be as cutthroat as humanly possible, even within his own caucus. It's true that time heals all wounds, but I wonder if that's the case when one has made as many enemies on Capitol Hill -- even inside his own party -- as Gingrich.

While proving more than willing to work with the Clinton White House during his heyday -- see: NAFTA, welfare reform and the balanced budget in 1997 -- Gingrich was and still remains a bulwark of mainstream conservative thought. The base loves him, and his undeniable political skills and willingness to work across the aisle should not be discounted.

Additionally, Bai piece in the Times Magazine evinces a man who is an absolute idea factory. Gingrich still text messages, almost daily, John Boehner's chief of staff as well as Wisconsin Rep. Paul Ryan with new ideas and policy prescriptions. He toured the country a few years back with none other than Hillary Clinton, discussing health care reform. And unlike the popular conservative position taken by Limbaugh, et al., Gingrich told House Minority Whip Eric Cantor that if Obama chooses to govern from the center, "you have to work with him." What's particularly encouraging was another remark to Bai: "I don't actually build oppositions. I build the next governing majority. I have no interest in being an opposition party."

The Republican Party is completely bereft of this type of attitude, and this is why Gingrich could prove to be so valuable. Conservatives' energy seems to be summarily spent on screaming "No!" at every Obama move, no matter how rational it might be.

Pollster Frank Luntz told this to Bai of Gingrich when Newt came to Washington: "He himself was the counterculture. If people had run their own local campaigns up to then, he nationalized them. If people ran simplistically, he made things more complicated. If people ran by telling you how their opponents stunk, he ran by telling you why his side was better. He did the opposite of everything that had been done up to then."

As Bai correctly noted, the Contract with America itself was a new beginning itself. "[It] was mostly a call to reform the institution of Congress; moving beyond it, turning the corner from rebellion to governance, required workable ideas beyond slashing programs and taxes."

Put simply, Gingrich is a leader who would make intellectuals feel welcome under the Republican tent -- probably because he himself is extraordinarily smart. This would be a welcome change.

I suppose the point of my remarks is to point out to conservatives that, if you would like a snowball's chance to retake the White House in 2012, you have a better option than Sarah Palin. The virtual architect of 1994's Contract with America is a phenomenally skilled politician, full of ideas, and who has shown an understanding that the Republican Party tent must expand if the party is to reclaim its past glory. The contrast between Gingrich and the Alaska governor are immense -- Palin is inexperienced, completely unknowledgeable about world affairs, becomes more politically toxic the more she opens her mouth, and is a policy lightweight, if not a laughingstock. Gingrich, on the other hand, is a seasoned Washington veteran, a true cutting-edge ideas man, phenomenally skilled politically, and opponents take him seriously. 

Pull the lever for Jindal or Pawlenty should you prefer, but if you're seriously considering supporting Palin, it's time to get your head out of the sand.

To close, from Newt himself: "Most Republicans are not entrepreneurial. They're corporatists. They like the security and the comfort of a well-thought out, highly boring boardroom meeting in which they do a PowerPoint once. And it worries them to have ideas, because ideas have edges, and they're not totally formed, and you've got to prove them."

And long live ideas.

Judging Sotomayor, Part II

The level of discourse from the out-of-government party during the last two Supreme Court nominations has been brutal.

In 2005, Democrats raked Samuel Alito over the coals for a dissenting opinion he had written as an appeals court judge in Casey v. Planned Parenthood, a 1992 abortion case that eventually reached the U.S. Supreme Court. His dissent was handed down 13 years before virtually anyone in the Senate had ever heard of him. Then-Sen. Barack Obama, among many others, used this opinion (and very little else) to argue that then-Judge Alito's values were, and I quote, outside the mainstream of "core American values." It was a ludicrous argument, and only served to show how pouty the out-of-power Democratic Party really was.

It's unbelievable that every Supreme Court nomination comes down to one, or a small handful, of issues. With Alito (and to a lesser extent, John Roberts), it was abortion. 

Fast-forward to 2009. With Sotomayor, it's affirmative action. 

The Supreme Court hears roughly 100 cases every year. I could be mistaken, but I believe that the Court has ruled on exactly one abortion case since Justice Alito's tenure began. It's likely that, should Sotomayor be confirmed, she might not hear a case concerning affirmative action or race relations for two or three years.

The Supreme Court deals with an incredibly vast range of complex issues that the general public, thanks to its self-appointed opinion leaders and spongy-kneed media scourges, knows little or nothing about. Most of the Court's cases dealing with everything outside the range of hot-button issues like abortion and affirmative action -- but you wouldn't know it. Additionally, these issues can't be fit into nice, neat ideological boxes, such as "originalist," "activist" or "living Constitution." 

One example is the Court's commercial speech doctrine, and how regulations on things like billboards or television advertising square with the mandates of the sacrosanct 1st Amendment.

The 1st Amendment reads that "Congress shall make no law ... abridging the freedom of speech." A literal reading of this language -- as a small minority of justices have done in the past -- would seem to invalidate any type of governmental action that would limit speech, no matter what the circumstances. 

But a purist's constitutional jurisprudence doesn't always square with the realities of everyday life. In fact, no justice who has sat on the Supreme Court over the last two decades subscribes to this absolutist view. In fact, the late Chief Justice Rehnquist, an avowed originalist, was one of the harshest critics of commercial speech. Noting that the 1st Amendment was drawn to protect the free marketplace of ideas, and maintaining that commercial speech does not in any way contribute to such an exchange, he argued that such speech should be afforded virtually no constitutional protection. One of his kindred spirits in this regard was the arch-liberal John Paul Stevens, who frequently sided with his old friend when any commercial speech case came before the Court.

What's the point of referencing the Court's commercial speech doctrine? To prove that the job of a Supreme Court justice is incredibly complex, and isn't as easy as these "us vs. them" decisions in the areas of abortion, gay marriage and affirmative action about which Rush Limbaugh and Dianne Feinstein will inevitably rant and rave. The rhetoric of the political opinion leaders on the right will mirror the rhetoric of the left-wing moonbats who attempted to derail the Alito nomination.

Give me a sharp-minded liberal who can parse the multiple layers of issues in a commercial speech case over a simple-minded opponent of Roe v. Wade any day of the week. 

Judge Sotomayor has spent 17 years on the federal bench. If the GOP can cite a case in which she wrote a particularly disturbing opinion well outside the mainstream of modern constitutional thought, or that evinces clear political extremism, or perhaps in which she knowingly applied a clearly erroneous methodology in reaching her decision, I'd love to hear it. But that hasn't been the case -- the only two arguments Republicans have been able to come up with have been an article she wrote for a La Raza publication in the 1990s, and an out-of-context quote (and yes, I've watched the entire clip -- I bet you haven't) lifted from a panel discussion several years ago that was mirrored almost verbatim by a dissenting opinion of none other than Justice Antonin Scalia. That is not enough. I need actual, real, substantive judicial opinions. Sonia Sotomayor does not make law sitting on a panel with laymen.

I don't agree with many of Judge Sotomayor's apparent opinions, nor her larger-scale judicial philosophy. That said, it's hard to brand her anything other than a mainstream Democratic nominee. She also has a resume that is equal to that of Justice Alito, and has by all accounts proven herself to be a most capable jurist. Therefore, she should be confirmed.

Finally, with one eye on the conservative uproar to Judge Sotomayor's nomination, I'd like for our readers to recall the 2005 catfight centering upon the infamous Gang of 14, a bipartisan coalition led by Sens. John McCain, John Warner and Ben Nelson. In 2005, with the wind at their collective back, the GOP attempted to ram through the nominations of the 11 Bush judicial nominees (out of roughly 130 sent to the Senate) that the Democrats had either filibustered or threatened to filibuster. In response to Democratic foot-dragging, Senate Republicans threatened to change the Senate rules and discard the filibuster, calling it an arcane procedural mechanism that merely served to thwart the chamber's natural role as the White House's rubber stamp regarding judicial nominees.

The Gang of 14 correctly noted that changing the rules for political gain is an obscenely asinine way of doing business, even in Washington. So McCain and 6 other Republicans struck a deal with 7 Democrats in which the Democrats agreed to oppose a filibuster on three of the 11 nominees, plus (very notably) President Bush's next Supreme Court appointee, and in exchange, the Republicans agreed to vote against the rule change. Orrin Hatch's "nuclear option" failed without the requisite number of votes, four more Bush nominees were subsequently named to the federal bench, and, most importantly, the Senate rules were unchanged.

In 2009, conservative readers, isn't that filibuster a wonderful thing?

That's why you don't change the rules when you're in power.