Several of my close friends — coincidentally, all extremely intelligent, math/science oriented, and leaders in the freethought/rationality/atheist communities — find themselves practicing and promoting an arrangement they term “polyamory.” Essentially, this describes a post-jealousy, highly rationalized state where participants date each other, and several others simultaneously. Polyamory distinguishes itself from pre-monogamous dating in that “dating,” for most, is an interregnum occupying the time between serious monogamous relationships; and distinguishes itself from, say, Barney Stinson’s approach to romance in that polyamorous partners form serious emotional bonds with each other, know of and build friendships with their “competitors,” and find emotional as well as physical fulfillment from the relationship. Real, non-exclusive romance is the goal.

Without presuming to tell my friends how to live their lives, and truly without judgment — I think the world of each of them — I also think this is no way to live, and feel myself brought to comment because it’s (1) interesting, (2) a growing phenomenon that’s not peculiar to them, (3) an increasingly acceptable way of life in some circles, (4) debated in those circles as a serious society-wide alternative to monogamy and (5) because the issue presents a useful proxy theater for my well-known position (war?) against polygamy.

First, some background on polyamory, which I consider here only in its heterosexual formulation (only because I’m not qualified to comment on gay polyamory, if such a thing exists). In the ideal polyamorous relationship, one man is seriously “dating” several women, each of whom is in turn dating several men. Each partner may or may not have a favorite — a “primary,” in the words of one — who occupies the most of their time, emotional attention, and whose opinion and happiness factor into life-altering changes (such as, whether to move to a new city). In all cases, partners are aware of the others’ participation: polyamory without the informed consent of all parties is just cheating. In the ideal case, partners all know each other, too, become close friends, and can “schedule” time with with their mutual boy- or girlfriend as needed, à lá Big Love. Here then, my counterargument.

Simply, monogamy works (except where it doesn’t). Further, it’s the only “rational” way to build a stable society. Although some can inhabit the polyamorous world without fear of hurting themselves or others, those are both few and far between, and in all likelihood, unable to maintain their comfort with polyamory for the duration of their lives.  If polyamory represents an equilibrium position where people can be happy, and remain so for some time, it’s nonetheless an unstable one. Though flawed, marriage and monogamy are still the worst ways to manage human relationships, after all the others that’ve been tried.

Procreation: As a society-wide solution balancing of the human emotions of love, lust, and jealousy, polyamory fails because it does not account for children. None of my polyamorous friends (and none of their fellow practitioners, I believe) contemplate raising children in this arrangement. Instead, they foresee either slipping into monogamy, or simply never raising children at all. That’s for the best. Children need stability in their lives; but polyamory entails no long-term commitments. Partners come and go, seduced by a monogamous attraction to some non-participant, or as interest wanes, generally. This distinguishes polyamory from polygamy, and makes it still that much less suitable for raising children.

Polyamory fails to solve for jealousy: most polyamorous participants will tell you that the arrangement works because there’s simply no jealousy: each partner has their own thing going on. That’s lovely in theory, but from my observations, false in fact. Of the polyamorous participants I’ve met, few have never described themselves experiencing anything like jealousy while in the relationship. Those that have, I suspect of lying. Some describe different types of jealousy — fear of losing a partner to monogamy, for example — but the distinction between that and traditional romantic jealousy is razor-thin. Moreover, some find themselves involved in a polyamorous relationship only as a way to “win” one partner entirely to themselves. This seems to be a losing and painful proposition, if not for one, then for the other. But probably for all.

Polyamory cannot provide the support of healthy monogamy: this is a revelation that’s no more profound than the meanest Dido song, but one virtue of monogamy is being able to come home to someone whom you know will support you after a difficult day, or week. Because, ideally, your successes are theirs and your failures too, monogamy fosters an entwining of destinies that’s mutually beneficial, profound, and impossible if lives must be shared six or more ways. I can imagine it’s difficult to come home, for example, looking for comfort, and find one’s “primary” on a first date with someone else.

Polyamory has no endgame: in the words of one of my like-minded friends, polyamory might make sense when everyone is young and pretty, but it seems ill-adapted to the biological challenges of later adulthood. What is a “family,” in this context? What happens when partners have demanding jobs, less time for multiple relationships, and need one dependable partner to deal with life’s challenges? Monogamous relationships account for changes in human sexuality by cultivating a deep love that remains when mid-twenties lust fades; can polyamory account for that?

I acknowledge that, as a monogamist myself, who’s had the experience of happy and healthy relationships, I cannot divorce my impression of polyamory from my own biases. And I further acknowledge that I cannot presume to tell anyone how to live their lives; if polyamory works for some, for some of the time, I am happy for them. Consequently, though I’ll leave this post on the site, I won’t be sharing this post directly with my friends, for fear that they’ll feel judged. That is absolutely not my intent, as I care for each of them very deeply. Should they find it, I hope they’ll take this as an honest attempt at social commentary, simply building on discussions we’ve privately had on the subject, and respond in kind.

Well, how the Hell did it happen, anyways?

The answer seems to be money. Lots, and lots of money. Money, you see, works. And thanks to eccentric billionaires and Super PACs, it was on display in this past cycle like never before. There’s no reason to believe any of these candidates would have survived against Mitt Romney for as long as they did, but for massive and repeated capital infusions.

That’s a good thing. The degree to which Romney had to outspend Rick – and the ridiculous disparity between the price-per-vote rates — suggests that, for all his absurdity, Rick Santorum’s protracted presence in the race was good for democracy. Something about the deranged theocrat resonated with the American public, at least in comparison to Mitt Romney, something that may not have had a chance to play out in full but for the wealthy donors who substantially underwrote the campaign.

As a means to evaluate the effects of our political experiment in unrestrained spending (symbolized by Citizens United, Super PACs, etc.) on foundational First Amendment principles, we might conclude from this primary that the marketplace of ideas survives… after a fashion. Recall that ideally, First Amendment law should remove the distortionary effect of government regulation from the marketplace , allowing the people to speak clearly, and thereby enabling the truth to rise to the top. For whatever reason, the distortionary effect of money in politics has not, yet, at least in this limited sample, resulted in an unhealthy loss of ideological diversity. Instead of favoring the establishment (Romney), limitless spending allowed the various partisans in this little war for the soul of the Republican Party to fight on something closer to an equal footing than they might otherwise have attained. Maybe true freedom, by letting everyone try to buy the election, actually is better for free speech?

Any such conclusion would be premature. After all, it only happened to be the case that the whims of the super-rich favored a diversity of opinions, and therefore aligned with what’s best for democracy. Come the next election, it could be entirely different. And, regardless of his staying power, Rick Santorum ultimately lost. Would strict regulation have prevented Romney from buying the primary as surely as he did, while also not starving his opponents of the cash they needed to compete? Would that have been a better race? We’ll never know. On to the next experiment.

No-one seems to doubt that Congress could constitutionally coerce citizens into purchasing insurance coverage by, for example, altering the tax code. Even conservative pundits and the Supreme Court seem to agree (pdf). The question is — per Justice Kennedy — whether that matters:

Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.

On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.

It should. The Supreme Court rarely strikes down questionable extensions of Commerce Clause power if they would be otherwise sustainable under separate constitutional rules. Consider the case of the Civil Rights Act of 1964, which used the Commerce Clause to forcibly integrate all public institutions — restaurants, hotels, etc. — nationwide, and regardless of whether those institutions themselves engaged in interstate commerce. No-one can reasonably doubt that the Civil Rights Act was a very good thing. But as an exercise of Commerce Clause power, it’s… well… dubious.

Segregation impacts interstate commerce, Congress said, because it acts in restraint of trade, by relegating wide swaths of the population to second-class status. This barrier to commerce should be regulable under the Commerce Clause. Sure, but as the Supreme Court has repeatedly said since, Congress cannot regulate social problems, no matter how serious, by packaging them as barriers to “commercial” activity. And, moreover, the government’s position that no establishment could evade such regulation, no matter how small or how isolated from national commerce, defied conventional wisdom on the boundaries between state and citizen. To paraphrase Justice Kennedy, by making it impossible for individual Americans to evade the administration’s chosen social policy — integration — the Civil Rights Act threatened to “profoundly change the relationship of the federal government and individual Americans.”

And yet, the Court went on to sustain the Civil Rights Act — twice — holding that the Commerce Clause supported such broad-ranging social policymaking, and even if it didn’t, that Congress’ powers under the Fourteenth Amendment’s Enforcement Clause undoubtedly made up the deficiency.

This was undoubtedly the right decision. If all agree that Congress could constitutionally enact a statute, the Court has only minimal interests in striking it down merely because Congress chose the wrong means to a valid end. And all such interests — avoiding a “slippery slope,” or maintaining consistent doctrine — are historically avoidable, and can be managed by a sufficiently careful Court. Neither McClung nor Heart of Atlanta Motel presaged a total erosion of limits on the Commerce Clause, for example, because the Justices and the public alike knew exactly what the Court was doing.  The Civil Rights Act, for its importance to the country and its clear overlap with Congress’ Fourteenth Amendment powers, was special, and no-one has ever mistaken those decisions carefully upholding it for a general abandonment of Commerce Clause principles.

Similarly, despite the Justices’ intensive search for a “limiting principle” to constrain any decision upholding ObamaCare, there is no real danger that a sufficiently careful decision — acknowledging both the uniqueness of the insurance market and that Congress could constitutionally go far beyond the mandate using its tax power — would inaugurate an era of broccoli mandates or compulsory gym attendance. The Court is the master of its own destiny, as it’s proved time and again. If the individual mandate is an “extraordinary” mechanism, but one entirely incapable of altering the balance of power between the federal government and the states. And that’s all that should matter

* – Except in equal protection challenges. 

Separately, though, Professor Dow’s explanation of the mandate’s constitutionality is (especially by incorporating Akhil Amar) one of the best I’ve read yet, and clearly prevails over his detractor, a writer who actually refers to an article by Ann Coulter as “eye-opening.” Indeed. Oh, and, full disclosure — I was once took a class taught by Professor Dow, an equal protection seminar at Rice in 2005. The man is a genius, and a rough grader. He gave me a B+, I think, and I was happy to get it.

Image stolen from here.

Library Voices, “Traveller’s Digest“

I’ve come to the conclusion that the tax dilemma — convincing people that to keep the government services they want, they need to consent to some form of responsible taxation — presents a simply intractable problem in a sufficiently polarized political climate, especially where (as here) one of the most powerful lobbyists on the issue has, as his stated goal, passing irresponsibly low taxes for the specific purpose of forcing a fiscal crisis he can leverage to trim programs he dislikes. Our leaders should be above such cynical manipulation, and our citizens smart enough to detect it. But they’re not.

Which raises the question for me of, what can we do eliminate this kind of tax gamesmanship?

Probably nothing. Grover Norquist and his allies have basically checkmated democracy. But we could solve this problem if we took it back to square one, and redesigned the entire budgeting process to solve these problems in advance. Imagine a new constitutional convention, where the re-founders assemble to deploy all of their political engineering talents to intelligently solve not just the problem of tyranny, but the many, many problems democracy has managed to invent over the years. How would they do it? A suggestion:

• Provide for nonpartisan, yearly assessment of government costs: imagine a constitutionalized Office of Management and Budget, and charge them with generating, by the close of each fiscal year, an estimate of what amount of funds the government must raise to cover costs (and pay down any such deficits as may arise). This office shall be required to submit its figures to the President, and the Congress, before the first of each fiscal year.
• Constitutionally require the Congress to raise that amount of money over the course of the next year: this is self-explanatory, but the text would run something like, “Congress shall enact legislation necessary to raise” all funds necessary to meet OMB’s estimate. This provision would also make clear that it provides no new source of congressional power and that, in assessing compliance with the requirement, all sources of revenue may be considered.
• Provide penalties to ensure compliance: we should not assume that Congress will play by any rules, especially in a fractious environment. That’s what got us into this mess in the first place. So, the rules should provide for either (1) a mutually unpalatable alternative tax, automatically enacted if Congress fails to guarantee funding by a certain date; or (2) authority for some unitary actor to make decisions in the case of Congressional gridlock (the President?).
• Account for the effects of progressive taxation: this is really a sub-point on the last issue. The alternative tax option could be, for example, an automatic proportional escalation across all tax brackets, so the automatic increase would build on, rather than supplant, previously democratically agreed-upon tax brackets.
• Allow Congress to set an alternative minimum funding bar: it’s probably impossible for any OMB-like creation to correctly account for future legislative priorities — or for overwhelming, structural deficits. So, Congress (or maybe the President?) should be allowed to supersede OMB’s recommendation of the minimum income required.
• Consider judicial solutions: as an additional enforcement mechanism, the system could provide for taxpayer standing to challenge Congressional inaction, and vest original jurisdiction in the U.S. Supreme Court to resolve any such controversies, and proscribe remedies.

Arguably, this is a radical solution. But the entire history of American democracy is the history of experimentation with political systems, often with great success. It doesn’t hurt to remember that it’s ultimately our job to come up with solutions for our problems.

We Were Promised Jetpacks, “Act on Impulse“

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause….

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

But the state/federal distinction is irrelevant to President Obama’s explicit point — that a decision against the mandate would be the first in almost a century to limit Congress’ authority to regulate economic markets — and his implied point, that using “economic freedom” as an argument against economic regulation is simply a dead issue, and has been since (yes) the 1930s. From West Coast Hotel v. Parrish, 300 U.S. 379 (1937):

The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

And restated in the federal context, in upholding the Civil Rights Act of 1964:

Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may – as it has – prohibit racial discrimination by motels serving travelers, however “local” their operations may appear.

Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself.

And again in a companion case:

 But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

In other words, the notion that substantive due process creates a right to be free from reasonable economic regulation is dead. This was the President’s point. Whether it died on a battlefield reserved for state-vs.-federal conflicts, or intra-federal system conflicts, is irrelevant, because wherever the “right” died, it can no longer take either field. If the Supreme Court limits the Commerce Clause on the basis of some right to “economic freedom,” it will be new, it will be groundbreaking, and it will be a throwback to the pre-1930s era.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress.

I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.

Naturally, right-leaning sites are reporting and commenting on only the first paragraph, to paint the President as an out-of-touch hypocrite, unable to draw the distinction between good “activism” (Boumediene on CSRTs) and bad “activism” (ObamaCare). This is a line of attack the President can avoid — even though he shows no signs of taking any steps to avoid it — by making this election about first the members of the Court, and not its powers.

A decision invalidating the individual mandate would be unprecedented, but not for the reasons President Obama identifies. It would be unprecented as the very first time, ever, that the Supreme Court invalidated a congressional attempt to regulate an economic market under the Commerce Clause. Ever. It would also represent the first time since the New Deal that the Court stood directly toe-to-toe with a President over the centerpiece of his domestic agenda. That didn’t end so well for the Court last time — President Franklin Roosevelt waged an unrelenting war on the Court’s legitimacy, leading them to ultimately repudiate a vision of the Due Process Clause that barred even workplace safety rules — and it’s time for President Obama to take a page from that book.

With decision after decision in the last few years, the Court has managed to tip so far to the right as to steadily erode its legitimacy as an apolitical actor. D.C. v. Heller – which “found” for the first time a constitutional right to bear arms — was probably legally correct, but still a bolt from the blue. Citizens United wrote Mitt Romney’s laugh line (“Corporations are people, my friend!”) into the U.S. Reporter, surprised legal commentators, garnered stern presidential rebuke, sparked Occupy Wall Street, and launched a prolonged campaign of public ridicule. And just yesterday, the Court held that police may constitutionally conduct strip searches for any offense. I don’t actually know the law on that last bit, but (momentary conservative doublethink notwithstanding), Fourth Amendment freedom from absurd search protocols seems to have, magically, become a valence issue, adored by both right and left. What I’m getting at is, if the Court were trying to alienate voters, they could hardly do a better job of it.

President Obama’s challenge is to channel that outrage, through an issue where public polling is considerably murkier, into generalized bipartisan concern for the Supreme Court’s doctrinal dalliances. He needs to paint any adverse ObamaCare decision — or any thin margin on a decision upholding the Act — as a sign that, regardless of what anyone thinks about the constitutionality of the mandate itself, the Court has become unhinged from constitutional reality, and simply started handing down decisions based on the members’ political preferences. ThinkProgress has the right idea; and we might also note Justice Thomas’ wife’s heavy involvement with the Tea Party. This is a message that can work, if carefully crafted and skillfully deployed. But over the course of the past three years, that’s a combination this White House hasn’t managed to pull off, ever.

And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

As much as I’m willing to grasp at anything that might help the government sustain the mandate, I hope it’s obvious to everyone that while the democratic process is itself a limit on federal power, it’s not one that can be relied upon to restrain government action. The Constitution precommits us to certain values, with the knowledge and expectation that we might, one day, try to transgress beyond them. In such cases, the Constitution is there to limit the people’s transgressions against themselves, and snap them back into line.

The very essence of the Court’s countermajoritarian role is that elections alone are inadequate safeguards on popular liberty. If this is something we as liberals accept in social causes — when we try to invalidate validly-enacted, but nonetheless noxious bans on gay marriage — we can’t ignore it when it hurts us. That’s the conservative approach, so plainly on display on Erick Erickson’s site (judicial activism is fine when they do it, you see!). But we should be above that.