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Palestinian Statehood: Who Should Decide And How? (Forbes.com) January 9, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You would think there would be a clear-cut definition and path for establishing a new nation-state.  But in the Alice in Wonderland world called international law, there is not.  And this very uncertainty has created an opening for Palestine to attempt to shift the political balance in the Middle East and pursue a novel “throw enough against the wall in the hope that something will stick” approach to gaining statehood.

At the risk of oversimplifying this vague and complex area of law, there are two basic approaches to becoming a state.  One, the more traditional, legal approach, is based on satisfying objective criteria established by the Montevideo Convention (1933):  (1) A permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states. Palestine, by the way, would have difficulty establishing each of these criteria.  The other is a more of a postmodern, holistic approach:  if others treat you as a state, then you must be a state.

It is a variation on this latter approach to statehood that has thrust President Mahmoud Abbas and Palestine into the headlines recently.  First came a close vote in the U.N. Security Council on a proposal from Jordan to vote a Palestinian state into existence.  That failed by one vote, and Abbas says it will come up again soon, and maybe over and over, in the not unrealistic hope of gaining one extra vote.  Of course, even that isn’t the end of this strategy, since the U.S., as a permanent member of the Council, could and likely would veto it.

The very next day following the Security Council vote, Abbas signed Palestine onto 15 international treaties and agreements on a range of subjects, most importantly applying to join the International Criminal Court (ICC).  The idea is to keep acting like a state—a round of agreements like this was also signed by Palestine last year—and, if you throw enough against the international wall, maybe something will stick and people will finally say, yep, they’re a state.

But to join the ICC you have to be a state, which is what prevented Palestine from bringing charges against Israel in the ICC following the Gaza conflict of 2009-10.  The Prosecutor of the ICC, however, has opined that a U.N. General Assembly vote is sufficient for this purpose.  At least some version of that vote took place several months ago, with the U.N. General Assembly establishing Palestine as a non-member “observer state” like the Vatican.  Of course that vote was largely political, and made no attempt to determine whether Palestine satisfies the legal criteria for statehood.  And one could argue that being an “observer state” in the U.N. is more about observing (participating, being at the table) than official statehood.  Indeed, the U.S. State Department has now expressed the view that Palestine, under law, is not a state, notwithstanding that vote.

A final complication underlying all of this is that Palestine is a party to the Oslo Accords, which is supposed to be an exclusive effort toward a two-state solution and which explicitly provides that “Israel has sole criminal jurisdiction over…offenses committed in the Territories by Israel.”  So through the Oslo Accords, Palestine has, in effect, promised not to seek statehood by other means and further has agreed that only Israel can bring criminal cases against its people, which is what Palestine would like the ICC to do.

And you wonder why the Middle East peace process is complicated?

In all of this, a central question the law does not clearly address is who decides what is and is not a state.  Generally it would the United Nations, but I don’t think “observer state” votes in the debating club of the General Assembly really do it.  A Security Council vote that seriously considered the Montevideo criteria would be more impressive.  But, in this case, the key players have agreed that the Oslo Accords, establishing a Middle East peace process is an exclusive path to statehood.  So, in my view, Palestine would have to step up and formally renounce the Oslo Accords—highly controversial—if it wants to go its own way.

Most immediately, an international criminal court should not be wading into the delicate Middle East peace negotiations and deciding who is a state.  The Court’s own credibility, already strained by completing only two successful prosecutions of lesser players in 10 years, will continue to decline, and the Middle East peace process will be irreparably harmed.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/01/09/palestinian-statehood-who-should-decide-and-how/

Best Business Climates are Freer and Cheaper (National Radio Commentary / Salem-Townhall.com) January 6, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Forbes’ study of best and worst states for business always provides a useful annual check-up on the state of the country as well as the economy, and this year’s list is no exception.

For example, 8 of the 10 best states for business this year are west of the Mississippi, with Utah and North Dakota leading the way.  By contrast, 8 of the 10 worst states for business are in the East.

The regulatory environment is a big factor, with “big brother” states like New York coming in at number 17 and California at 37. Business costs are right up there in importance, with South Dakota and Nevada leading the way with low overhead.

The fact is that businesses, like Americans broadly, are voting with their feet, and moving West toward greater opportunity and less regulation. Too bad that highly regulated states just don’t get it—or at least they elect leaders who lack the will to do something about it.

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699296


Holiday Inequality: The Latest Progressive Target (Forbes.com) December 19, 2014

Posted by daviddavenport in Op/Eds.
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‘Tis the season—not to be jolly, unfortunately, but to tussle over religious holidays in the public square.  Atheists got an early jump on the holiday season this year, posting a provocative billboard in Southern cities with a child writing, “Dear Santa, all I want for Christmas is to skip church.  I’m too old for fairy tales.”

Meanwhile, deep in the heart of Texas, their legislature countered with its “Merry Christmas Law,” making it legal to celebrate Christmas and Hanukkah in schools and public displays.  And a Colorado Congressman has again introduced a resolution in the U.S. House of Representatives in support of Christmas, opposing “atheist groups working to remove nativity displays and other decorations.”

The so-called war on Christmas is often framed as a culture war, but when it is fought in government venues such as courts, legislatures and school boards, it becomes a legal battle with the Constitution as the last word.  The First Amendment to the Constitution assures “freedom of religion” (not freedom “from” it) and “prohibits the making of any law respecting an establishment of religion.”  The history and spirit of the “establishment clause” was to avoid the state churches of Europe and instead create a free market, if you will, for religion in the U.S.  So people of all faiths, or no faith, are free to communicate their messages.

But the unfortunate twist these days, arising out of the inequality narratives of various kinds, is that keeping the public square open and free means not just creating opportunities for all faiths, but beating back the majority faith, Christianity, and its holiday expression, Christmas.  With a recent Pew Research Center poll confirming that 73% of Americans believe that Jesus was born of a virgin, 81% say he was born in a manger, and 72% opining that nativity scenes should be allowed on public property, the view is we can’t have a really free and open public square for religion unless we diminish the influence of the majority religion.

The misguided notion that creating equality for some means diminishing the others is a consistent problem with inequality narratives in America.  In education, for example, it is not enough to help students at the bottom, but we must also, in fairness, limit students at the top academically.  So tracking, where students are grouped by ability, becomes inappropriate, and studies show the new and dominant testing and accountability regimes bring up the bottom at the expense of stagnation at the top.  In racial matters, again it is not enough to create opportunities for underrepresented minorities, but we must also create limitations and quotas for the majority.  The solution presented for income inequality is not just more education and opportunity for those at the bottom of the economic scale, but higher taxes and penalties for those at the top.

Even Nicholas Kristof, progressive champion from the New York Times opinion pages, recently acknowledged that “we should use the word ‘inequality’ less and the word ‘opportunity’ more.  Otherwise we buy into the notion that everything of value in America—education, the public square, the economic pie—is limited and gains for one must necessarily come at the expense of others.  Rarely is this true, especially in America, and to buy into that is to create a culture of disillusionment and cynicism, not one of growth and progress.

Where I come out is that I’m fine if a retail clerk wants to say “Happy Holidays” instead of “Merry Christmas.”  We are increasingly a nation of diversity, religiously and otherwise, and our culture should make room for that.  But I’m not ok if people say we must push Christians and Christmas out of the public square.  The law does not require that, and the Constitution does not even permit it.  And so, boldly and legally, I wish you a Merry Christmas.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/12/19/holiday-inequality-the-latest-progressive-target/

‘Tis the Season (National Radio Commentary / Salem-Townhall.com) December 17, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Tis the season—not to be jolly, unfortunately, but to tussle over religion in the public square.

Atheists in America fired an early shot this year, designing a billboard with a child saying, “Dear Santa, all I want for Christmas is to skip church. I’m too old for fairy tales.”  They plan to post this provocatively in several key cities in the South.

Meanwhile, deep in the heart of Texas, they actually passed a bill this year making it legal to celebrate Christmas and Hannukah in schools and public displays. Whew. Who knew it was illegal?

In our increasingly diverse country, I’m ok if retail clerks want to say “Happy Holidays” instead of “Merry Christmas,” but I’m not ok with pushing God and Christmas out of the public square, which is precisely what many seek to do. 

The law does not require it.

And the Constitution forbids it.

So, as an American, I freely, legally and boldly say it: I wish you a Merry Christmas.

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699281




A Liberty Moment (National Radio Commentary / Salem-Townhall.com) December 12, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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A so-called disillusionment index shows that a record number of Americans—56 percent and rising—feel that the political and economic systems in the country are stacked against them.  A stunning two-thirds say the country is on the wrong track.

These messages reflect more than disappointment with just the economy or the President, suggesting a deeper sense that the American system is not meeting expectations.

May I submit that this is a “liberty moment”?—a time when conservatives can remake the case for less government and more individual liberty in the lives and businesses of people. Government has never been bigger, regulation has never been more intrusive, federal spending by any measure has never been larger and people are tiring under this weight.

Ronald Reagan made the case for less government and more liberty in the ’80s—and even Bill Clinton said in the ’90s that the era of big government is over.

We need political leaders who will seize the opportunity for a “liberty moment” in the 2010s.

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699278

The Definitive Guide to Washington Policy-Making: The Next Two Years Are About Election 2016 (Forbes.com) November 20, 2014

Posted by daviddavenport in Op/Eds.
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Even though the words policy and politics sound a lot alike and share a Greek origin, in practice they are usually quite different.  Running for office is not the same as governing.  E.J. Dionne argues in his classic book Why Americans Hate Politics that this very difference is a key part of voters’ frustration.  Candidates come out of their seats in government every two or four years, make a lot of loud campaign arguments and promises, and then return to office doing nothing about anything they campaigned on.

That will be especially true following election 2014, a series of races that were really not about policy, but about President Obama’s loss of popular support for being inept and aloof.  It was political punishment over performance, not policy.  So Republicans really have no policy mandate, except not to be Obama.  And it would be difficult for the Republican House and Senate to lead out on policy anyway since President Obama lurks in the White House with his veto pen.  I think Senator Mitch McConnell had it wrong when he said the election would eliminate gridlock—it will simply relocate it from the Congress to the President’s desk.  Republicans can pass bills and Obama can stop them.

This also does not feel like the 90’s when Bill Clinton was willing to play bipartisan small-ball with the Congress and get some things done.  No one thinks Mr. Executive Order on immigration and Mr. Veto on healthcare repeal and reform is disposed to do that, nor do Republicans believe they were promoted to the big leagues to play small ball.  So rule out that policy scenario.

What we’re left with, I’m afraid, is Election 2016 as the North Star for policy-making on both sides for the next two years.  Obama will choose his few policy priorities based on what will rebuild the Democrats’ coalition for 2016.  Hence he begins with executive orders on immigration, a strong “in your face” move that very few believe makes for good policy, but reenergizes the Latino coalition Democrats badly need to win in 2016.  And it will be difficult for Republicans to stop him without seeming to overplay their hand—shutting down the government and the like.  Ugly stuff, but it’s coming.

I believe Obama’s other policy priority, again for political reasons, is the environment and climate change.  A relatively recent article of political faith among Democrats is that the American people are genuinely concerned about climate change and Republicans can be marginalized as climate-deniers and anti-science.  And again, this is an area where the President can act without the Congress, as he recently demonstrated in his negotiation with China.  He can give aid to other countries for this and issue more executive orders.

Despite winning the election, the Republican policy options are also relatively few.  Their top priority would be to repeal Obamacare, but even Senator McConnell acknowledged that they don’t have the votes (60 to overcome a veto).  May they can nip around the edges, get Democrats to agree to eliminate the excise tax on medical devices (since many of the medical device companies are in states with Democratic senators), or maybe eliminate or change the too-powerful board (IPAB).

Doing something on national security would be smart, since that’s the one issue on which normally fractious Republicans can agree.  Since the President is the Commander in Chief, this isn’t an easy assignment for Congress, but they could try to reduce the sequester defense cuts.  Maybe there’s room for some bipartisan agreement on trade or corporate tax reform, but I’m afraid that’s about it.

Politically what Republicans really need to do for 2016 is demonstrate that they can govern, not just oppose the President.  So, even if vetoed, a legislative agenda of tax and spending cuts, market-based energy initiatives (including Keystone), a more robust defense budget—all these things could tell the country that if you only gave us a Republican president in 2016, we know what to do.

And let’s not forget policy in the states.  Perhaps you haven’t examined the math lately, but during Obama’s term, Republican governors have grown from 21-31, state legislative chambers under GOP control from 36-69, with Republicans having total control of state governments in 24 states compared with the Democrats’ 7.  With lots of presidential candidates in governors’ mansions (Christie, Walker, Jindal, Martinez for vice president), there is incentive to demonstrate policy success.

I’m sorry to tell you that, having just finished one campaign on the airwaves and at the election booth, the next one begins now in the halls of power in Washington, D.C.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/11/19/the-definitive-guide-to-washington-policy-making-the-next-two-years-are-about-election-2016/

Will The Mid-Term Elections Make Any Policy Difference? (Forbes.com) November 3, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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As a Californian in a state so tilted in one political direction that few bother to run ads here, I am spared what a friend from Wisconsin, a major battleground state, describes as an endless barrage of political ads and messages this year.  It will soon be over, but will it have made any difference?  Will the politics of the 2014 mid-term elections bring about any major changes in the policies that govern us?  Sadly, I tend to think it will ultimately be much ado about relatively little.

Even if Republicans make gains in the House and establish a slight majority in the Senate, the election will largely shift government gridlock, rather than end it.  Instead of Congress doing virtually nothing, as has been the case this year, Congress will begin passing bills again, only to see them land with a thud on the President’s desk.  Senate Majority Leader Mitch McConnell said over the weekend that “a new Republican majority…would mean we’d be able to bring the current legislative gridlock to a merciful end.”  But that assumes that Congress will pass bills that the President would want to sign; otherwise, they die in the Oval Office.

So the real question is this:  what are the chances that a Republican Congress and a Democrat President could find significant areas of agreement in Obama’s final two years?  It is certainly possible that President Obama will take a page from Fleetwood Mac and “go [his] own way.”  He consistently says he wants to be a consequential president, which suggests that playing small ball with Republicans is not a likely scenario.  And he’s already signaled plans to tackle one of the big policy issues, immigration, by executive order, hardly a collaborative approach.  So one very realistic prospect is that Obama will not find collaborating with Republicans on policy changes to suit his political or historic agenda and we will face more executive orders and gridlock.

But what might a Republican Congress and a Democratic President do together if they were so inclined?  I suppose they could tackle immigration, for example.  The President says he wants a comprehensive plan and Republicans want to do piecemeal reform, but let’s assume they could get past that.  The difficulty with immigration reform is that everyone wants to do what they find important first.  Republicans want to strengthen border security first.  Business leaders want to improve legal immigration for workers first.  Liberals want to deal with children and others who are already here first.  That’s where immigration reform is stuck—no one trusts the other parties to get to their issue unless theirs is first in line.  I think that will be harder to resolve than one might think.

Healthcare, the other big domestic policy priority, seems even less likely to produce agreement between Congress and the President. The Republican House has voted 54 times to repeal or tweak Obamacare, but obviously the President won’t be signing anything of that sort.  Even Mitch McConnell acknowledged to Fox News’ Neil Cavuto that major changes to Obamacare “would take a Presidential signature.  No one thinks we’re going to get that.”

How about foreign policy?  Unfortunately for a new Republican majority in Congress, this is an area where the President leads, not the Congress.  Congress could try to end the sequester cuts in defense spending, as one measure, but the White House has taken the view that non-defense cuts should also be addressed, so it’s hard to see the President going along with Republicans here either.

If I had to bet, I would see President Obama spending his final two years in the following way, no matter who wins on Tuesday:  appointing lots of federal judges, raising a lot of money for the 2016 elections, making political appointments and providing pardons, delivering speeches, and issuing executive orders.  If true, that means we will see little change in policy from all the politics of 2014, and merely a shift in gridlock from the halls of Congress to the President’s desk.  All Republicans probably gain is a better platform for their ideas.  In the end, the politics of 2014 may be little more than foreshadowing and repositioning for the politics of 2016.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/11/03/will-the-mid-term-elections-make-any-policy-difference/

Houston, We’ve Got a First Amendment Problem October 15, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It was disclosed this week that attorneys for the city of Houston, Texas have subpoenaed sermons and other writings from local ministers who are opposed to the new Houston Equal Rights Ordinance (HERO) championed by its mayor. This would seem to be such an obvious violation of the First Amendment free speech and freedom of religion of pastors that one wonders how lawyers and judges, who presumably studied constitutional law, could have allowed it to get this far.

Annise Parker, the first openly gay mayor of Houston, has made HERO, which extends equal rights protections to gay and transgender residents, a central plank of her leadership platform. A number of Houston pastors have joined a drive to repeal the new ordinance, collecting over 50,000 signatures, with only 17,259 required, to place the matter on the ballot.  The Mayor and City Attorney have disallowed most of the petitions on various legal grounds, and that matter is now in court.

As part of the court action, the city thinks it should review sermons and writings of these ministers, apparently concerned whether they are engaged in politics and electioneering from their pulpits in violation of the churches’ tax exempt status. Before we even get to the First Amendment, however, such tax exemptions are a matter of federal and state law, not municipal authority, so Houston has no business even pursuing that question.  Strike one.

To say that these subpoenas are overly broad would be quite an understatement. The question raised by the lawsuit is whether the petitions collected sufficient legal signatures to support a ballot measure to repeal it.  The arguments pertain to the documentation and form of the signatures, with the city claiming that all but 15,249 of them are legally flawed.  This has nothing to do with what any pastor said or wrote.  So again, even before we reach the First Amendment questions, these subpoenas take strike two.

But most outrageous of all is the obvious violation of the First Amendment. Churches and pastors are specifically protected in their speech and religious practice under the First Amendment.  The only legitimate legal challenge would have to come from the IRS (which has its own conservative witch-hunt reputation to live down) or state taxing authorities.  The latitude given to any Constitutionally-guaranteed rights such as those under the First Amendment is broad indeed, and it would take a lengthy and elaborate case to conclude the pastors overstepped their bounds.  A court-issued subpoena over a repeal election is hardly the right legal setting for this.  Strike three.

The chilling effect on ministers is precisely what the city and its mayor seek, of course, and this they cannot do. This is legal intimidation, pure and simple.  Politicians are not free to outlaw or make legal threats over speech they do not like, or think is politically incorrect, in the face of the First Amendment.

Our society is undergoing a major social transformation in the area of same sex rights. Groups and individuals are working these things out at astonishing speed.  In just the last week, the U.S. Supreme Court surprised everyone by letting some lower court same sex marriage decisions stand without further review, implying either conflict in the Court itself or that this is truly a matter for states and circuits to work out.  The Catholic bishops shocked everyone this week by rethinking the role of gays in the Church and the contributions they make.  To paraphrase a rapper of an earlier time, this is how we do it in a democracy.

Unfortunately the Mayor of Houston thinks it’s her role to work it out for everyone in her city, and to use unconstitutional intimidation if necessary to achieve those ends. In the name of the First Amendment, someone needs to stop her.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/10/15/houston-weve-got-a-first-amendment-problem/

War Crimes in Gaza: Why Isn’t the International Criminal Court Part of the Solution? (Forbes.com) October 13, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Twelve years and $1 billion ago, a new International Criminal Court was born. Its stated goal was to prosecute war crimes, genocide and crimes against humanity so that rulers could not continue to commit these acts with impunity.  One naturally asks, then, why such crimes continue unabated, why after more than a decade and $1 billion of expenditures the Court has only managed to convict two Congolese warlords.

The answer is that partly limited by design, and flawed in its execution, the ICC has not turned out to be an effective weapon against such criminal acts. The Court’s arrest warrant for Al Bashir of Sudan is ignored.  Crimes against humanity in Egypt are not actionable because that country is not a member of the Court.  On we go, until we reach the conclusion that the ICC is yet one more international institution that has overpromised, overspent and under delivered.

One of the trickiest venues for the ICC has been in Gaza, where terrorist attacks and military responses break out with regularity. After Operation Cast Lead in 2008-09, the Palestinian National Authority sought to submit possible war crimes and crimes against humanity by Israeli forces to the Court.  The Prosecutor correctly responded that since Israel was not a party to the Court and Palestine was not a state, he could not accept the case.  Under political pressure from the Court’s constituencies, he subsequently reconsidered, spending nearly three years to reach the same conclusion.

With the recent violence in Gaza, many expect the Palestinians to submit a new case to the ICC, arguing that a United Nations General Assembly vote in 2012 making Palestine a nonmember observer state changes the question of ICC jurisdiction. In fact, the new Prosecutor of the Court, Fatou Bensouda, recently asserted that this vote makes it possible for Palestine to accede to the Court’s statute and jurisdiction.   To which I would respond:  not so fast!

Statehood is a highly complex matter that is not necessarily resolved by a U.N. General Assembly vote. International law establishes several objective tests for statehood, with the generally accepted criteria including (1) a permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states.  (Montevideo Convention on the Rights and Duties of States, 1933).  Essentially all those questions are still open in the case of Palestine.  And if Palestine does not meet the required criteria, it is not a state, no matter what the General Assembly might say.  These votes in the U.N., in case you haven’t noticed, tend to be more in the nature of pep rallies than legal assessments.  Israeli diplomat Abba Eban once said, “If Algeria introduced a resolution declaring that the earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions.”  The actual vote to make Palestine a nonmember observer state was 138-9 with 41 abstentions. This was a practical and political vote—should Palestine join the Vatican as an observer– not a legal one.

While we’re being practical, Palestine would have a lot to lose by bringing the ICC into Gaza, since it would be vulnerable to prosecution right along with Israel. And, on the political side, the U.N. Security Council—which has declined to make Palestine a state—could vote to stop the ICC from bringing a case if it chose to do so, a distinct possibility given the sensitive nature of all the Middle East negotiations.

Seeking recognition, along with the Holy See, as a nonmember observer state was one of several steps Palestine has taken in recent years to strengthen its case for statehood. But I disagree with the Prosecutor of the International Criminal Court that this is the last word on Palestinian statehood, even for admission to the ICC itself.  That should come, if it does, by the hard work of further negotiations, not a mere vote in the U.N. General Assembly.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/10/13/war-crimes-in-gaza-why-isnt-the-international-criminal-court-part-of-the-solution/

Liberal vs. Conservative Parenting (National Radio Commentary / Salem-Townhall.com) October 8, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Can you guess the one key difference in how liberal and conservative parents raise their children?  Actually, you don’t have to guess, a recent survey by the Pew Foundation tells us.

Despite significant similarity in what conservative and liberal parents try to teach their children—being responsible, well mannered, hard-working and the like—the striking difference is liberal parents’ strong emphasis on “tolerance” versus conservative parents emphasizing religious values.  Liberal parents value the teaching of tolerance 3 or 4 times more than conservative parents, whereas conservatives value the teaching of religious values two to one over liberal parents.

It would appear that liberal parents are prevailing, with studies showing young people less committed to absolute truth.  The Founders held that to maintain a free republic, a virtuous people was needed, which in turn depended on religion.  Time will tell whether or not the virtue and responsibility needed to undergird freedom can be maintained where tolerance is upheld as a higher virtue than religious notions of truth. 

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699167


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