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Will Trump Get Past the Easy Religious Liberty Questions to the Hard One? (Forbes.com) February 15, 2017

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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President Donald Trump recently announced in his own colorful way that he would “destroy” the Johnson Amendment, a 1954 amendment to the tax code that prohibits churches and other nonprofits from endorsing or opposing political candidates.  This appeared to be a gift from President Trump to the evangelical Christian community that ultimately supported his candidacy.  Shortly afterward, bills were introduced in both the House and the Senate to carry out the repeal.

Although this would be appreciated by some in the religious communities, endorsing candidates is not really the hot public policy issue in the evangelical world, nor is it clear parishioners would even appreciate hearing such political endorsements from their pulpits.  Oh occasionally you see something crazy, like the mayor of Houston who, in 2014, started to subpoena ministers’ sermons to see if they were opposing the city’s new Houston Equal Rights Ordinance the mayor had championed, leaving churches to wonder if their tax-exempt status was at risk.  But after a huge hue and cry erupted over her chilling religious rights under the First Amendment, the mayor backed down.

No, the pressing issue for evangelicals is the rapidly developing clash between the equal protection clause of the Fourteenth Amendment and the First Amendment right to free exercise of religion.  It reared its head in the Obergefell v. Hodges (2015) gay marriage case when U.S. Supreme Court Justice Anthony Kennedy, writing for the majority, said that religious groups could “continue to advocate” and “teach” their views on marriage, but came short of saying they were free to “exercise” their views about marriage, which is the language of the First Amendment, if they came in conflict with the civil rights the Court affirmed for gay marriage.

The justices who dissented in the 5-4 case pointed out this looming conflict between the civil rights increasingly extended by court interpretations of the equal protection clause of the Fourteenth Amendment and the First Amendment right to “free exercise” of religion.  Chief Justice Roberts acknowledged that the decision “creates serious questions about religious liberty” while offering “people of faith…no comfort.”   Justice Clarence Thomas was even more direct: “The majority’s decision threatens the religious liberty our Nation has long sought to protect.”  Expressing concern about Kennedy’s slight nod to religious groups’ ability to teach their values, Thomas said “religious liberty is about freedom of action in matters of religion.”

The same underlying issue—the clash between equal protection and free exercise of religion—was raised a few months ago in a report of the U.S. Commission on Civil Rights.  Lawyers and commissioners wrestled over this for three years, finally concluding that religious exemptions from civil rights protections “when they are permissible, significantly infringe upon these civil rights.”  All that basically tell us is that it’s a problem, a conflict that one commissioner, Peter Kirsanow, called “profound” noting that “the passions involved may be fiercer than in any civil rights since the 1960s.”

What seems to be developing is a very constrained view of exercising one’s religious liberty.  It’s ok as long as you confine it to the worship hour in the church house, but don’t try to exercise it in the work place or the larger world the rest of the week.  If you’re a religious college that doesn’t believe in gay marriage, good luck when a gay couple wants to live in your married housing, or when a Christian baker feels a constraint of religious conscience decorating a wedding cake for a gay marriage.

Ultimately, there are only a few ways presidents can address a tough dilemma likes this.  One would be to issue an executive order, or propose legislation, beefing up religious exemptions to civil rights laws.  Another would be to nominate judges, such as Neil Gorsuch, who have a record of supporting religious liberty.  Appointing new commissioners of federal agencies, such as the Civil Rights Commission, could also make a difference.

President Trump’s willingness to address the growing conflict between civil rights under the Fourteenth Amendment and free exercise of religion under the First Amendment, will be his big test on religious liberty.  Indeed it’s a huge and important test for our country as a whole.

To view the column at Forbes.com–



Voter Message: Jobs and the American Dream Trump the Welfare State (Forbes.com) November 15, 2016

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds, Politics.
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Experts are still dissecting the vote to better understand why Donald Trump was elected. But one message seems relatively clear: Trump voters wanted jobs not welfare. Their concern was protecting the upside promise of the American dream for their children, not expanding the downside safety net with Obamacare. In that sense, it was a reminder that Americans still have some rugged individualism in their blood and are not yet content to see their government grow an extended welfare state or become a democratic socialist country like Bernie Sanders’ (and even Hillary Clinton’s) highly-praised Denmark.

The big story of the 2016 vote was that Donald Trump cracked the Democrats’ solid blue wall of industrial and rust-belt states in the upper Midwest and East (winning in Michigan, Wisconsin, Pennsylvania and the more volatile but crucial state of Ohio). But Trump did just that by winning blue-collar working class white voters by a 40% margin over Clinton, by 49% among white blue collar men. Drilling down a little deeper, analysis shows that Trump did especially well in counties with weaker job growth since 2012 and with lower average earnings among full-time workers.

But the narrative behind the statistics is more compelling—it was about jobs and the future. In Minnesota, for example, Trump won Itasca County, which has not voted Republican for president since 1928. As a former Democratic Farm Labor lobbyist, Gary Cerkvenik said, “You have this cascading economic impact for people who work with their hands” in the mines and in the woods. Mike Lindell, an entrepreneur with a successful small business in Minnesota said, “The American dream is possible. Donald Trump understands how to get the jobs back.” American dream. Jobs. Trump. That was a winning formula.

By contrast, the Democrats were still caught up in building the welfare state and extending the safety net. Obamacare, which was President Obama’s signature accomplishment and the most important addition to the welfare state since Franklin Roosevelt’s social security and Lyndon Johnson’s Medicare, continued to be unpopular among voters. Its negative polling remains about 10% higher than those who favor it. Nearly half the voters in exit polls said they thought Obamacare “went too far,” with Trump beating Clinton 83%-13% among that group. Obamacare. Welfare state. Clinton. That was a losing formula.

Further, Hillary Clinton was perceived as a candidate whose concern about environmentalism and other priorities transcended her commitment to creating jobs. It didn’t help her win votes among this group of blue collar workers when she said things like, “We’re going to put a lot of coal mines and coal miners out of business.”

I call now as witnesses two experts who understand well what the voters are saying. First, from the Left, Willie Brown, former Mayor of San Francisco and, before that, the powerful Speaker of the California Assembly. In his Sunday column in the San Francisco Chronicle, Brown tried to explain the surprising Trump win and concluded: “Trump voters were not looking to keep funds coming into their social programs—they just wanted to be self-sustaining again.” Then from the Right, Diana Furchtgott-Roth, an economist at the Manhattan Institute, points out: “No one wants to be dependent. No one wants to grow up and live off food stamps. Even those who are no longer upwardly mobile…want their children and grandchildren to have opportunities.”

People want to hear their leaders talk about hopes and dreams, not needs and safety nets. This was where Obama outdid Clinton as a candidate, talking about his agenda as “hope and change.” In this election, Trump became the hope for blue collar white workers and, of the two candidates, he clearly was the change agent, the outsider. With 61% of Americans saying the country is on the wrong track, compared with 31% on the right track, it should not be such a shock that the candidate offering hope and change once again won. Now whether Trump can deliver jobs and a shot at the American dream is, as they say, a whole ‘nother question.

To view the column at Forbes.com: http://www.forbes.com/sites/daviddavenport/2016/11/15/voter-message-jobs-and-the-american-dream-trump-the-welfare-state/#a57ae1b37c3d

Trump and Sanders in Agreement? The Strange Politics of Free Trade (Forbes.com) April 1, 2016

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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They say politics makes strange bedfellows and what could be stranger than Donald Trump and Bernie Sanders in alignment?  Yet that appears to be the case on international trade, and more specifically trade agreements.  This harmonizing between far left Sanders and extreme right Trump is one more odd feature of campaign 2016, but it also reflects a lot of misunderstanding and misleading rhetoric about trade policy itself.

The new Trans-Pacific Partnership (TPP), signed by 12 Pacific Rim countries including the United States in February of this year, awaits Congressional approval.  It would be the first major trade agreement since NAFTA (North American Free Trade Agreement) in 1994, and would bring together several important Asian economies with the U.S. on trade, countering some of the economic power of China.  As we learned with NAFTA, such trade agreements are not only economic, but political, developing closer relations and partnerships among the member countries.

Both President Obama and Hillary Clinton have a history of waffling on such agreements, attempting to have it both ways.  President Obama was against it (or at least said important parts of it should be renegotiated) before he was for it, and Clinton was for it as Secretary of State before she developed reservations in the campaign.  Since labor and unions, key party constituencies, fear a loss of jobs, Democrats have trouble supporting free trade in a campaign, yet they end up favoring and implementing such agreements in office.  Ted Cruz has also straddled this fence, speaking earlier of the benefits of free trade agreements, but then coming out later on the campaign trail against.

If waffling is the mainstream political view, Trump and Sanders at the extremes are openly opposed to free trade agreements, albeit for somewhat different reasons.  Author of The Art of the Deal, to Trump this is one more example of America being pushed around and getting a bad bargain, calling it a “horrible deal” and “insanity.”  He doubles down on his negative stance by calling for tariffs on products from countries like Mexico and China, claiming the latter is “eating our lunch.”  For Sanders, it fits into his rhetoric of bashing big banks and Wall Street, calling the TPP “a disastrous trade agreement to protect the interests of the largest multinational corporations at the expense of workers, consumers, the environment and the foundations of American democracy.”

In fact free trade agreements bring significant advantages and most of the low-wage job loss is more part of ongoing modernization and globalization than a consequence of the trade agreements themselves.  For example, now that NAFTA is a relatively mature 22 years old, it appears that it has been a net positive, but neither as great as its proponents once argued nor as bad as its opponents warned.  Trade among the three members (Canada, Mexico and the U.S.) is up 300% and they are now each other’s largest trading partners.  Economies have been modernized and integrated, more direct investment in the poorest country, Mexico, has been facilitated, and real wages are up.  Ross Perot’s “giant sucking sound” of jobs moving to Mexico was never heard—though manufacturing jobs are down, manufacturing is up and productivity, not NAFTA, is the difference.  Jobs move because of cheaper labor, not lower import costs.  And many higher-skilled jobs have been added.

Economists are quick to point out that trade deficits, which seem to concern Mr. Trump, are not a bad thing and are not necessarily because of trade itself, or trade agreements.  Most economists, both left and right, agree that the benefits of free trade heavily outweigh the problems.  Like many policy matters, it’s just a little complicated to make those arguments in the sound bite style of a political campaign.  Let’s hope Congress, however, presumably following the election, is able to study the TPP more carefully and reach a more rational outcome than is proposed by the rhetoric of Trump, Sanders and our presidential field.

To view the column at Forbes.com:





When College Radicals Obliterate History (Defining Ideas) January 28, 2016

Posted by daviddavenport in Education, Newspaper Columns/Essays.
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Wednesday, January 27, 2016

Will the new semester on college campuses be as crazy as the one that just ended? It’s only January and already the president of Ithaca College has announced his resignation in the face of student protests. The largest college in Oregon, Portland Community College, has recently declared April “Whiteness History Month,” not to celebrate white people, of course, but to study whiteness as a social construct. Some have called it “white shaming.”

But of all the protests that have swept across campuses in recent months, the ones that are especially troubling are those that seek to plant a kind of ‘malware’ that distorts and even erases history. It appeared most visibly at Princeton University, with calls to remove Woodrow Wilson’s name from its School of International and Public Affairs, as well as a mural of Wilson from the campus over his “racist legacy.” No matter that Wilson was an important president in Princeton’s development, or a widely acknowledged progressive president of the United States. His legacy should no longer be remembered or celebrated at Princeton because of his efforts to re-segregate the civil service.

Similar malware has been introduced at Harvard Law School where, following student protests, Dean Martha Minow has formed a committee to deliberate whether the school should do away with or revise its seal that includes a family crest of Isaac Royall, Jr., the 18th century slave-owning benefactor of the school. Protestors at Yale say that Calhoun College must be renamed and the term “master,” long used to designate the head of its residential colleges, be eliminated. At Amherst, responding to student protests, the faculty voted to eliminate mascot Lord Jeff for his misdeeds to Native Americans 200-plus years ago.

Ironically, this chapter of student protests contrasts with the 1960s free speech movement, in that this is a kind of non-free-speech movement. Like George Carlin’s popular “seven dirty words” you couldn’t say on television of the early 1970s, students and faculty are busy deciding which vulgar historical figures can no longer be represented on campus.

Watch out, because George Washington owned slaves and liberal hero Franklin D. Roosevelt did put over 100,000 people of Japanese ancestry into internment camps. And who urged Roosevelt to pursue the internment? Earl Warren, who as Chief Justice of the U.S. Supreme Court later wrote Brown v. the Board of Education. Must we erase all that too? Since “all have sinned and fall short of the glory of God,” as we read in Romans 3:23, there will be few historical figures who are safe to celebrate on campus once the malware spreads. Indeed, comedians such as Jerry Seinfeld and Chris Rock will not play campuses now because of all the sensitivity and political correctness.

This malware—which seeks to attack, discredit and/or erase history—is best described as “presentism,” the idea that we should apply the modern world’s avowedly superior moral sensibilities to judge people and practices of the past. After all, we are the first people to be able to perceive the truth about things, are we not, and we cannot tolerate error. Imperfections from the past are not to be understood or learned from, but deleted. People with lives of accomplishment are to be judged and dismissed on the basis of the things they got wrong. Historical context is no defense when we are judging and hanging people by the superior moral standards of modernity.

Presentism seems especially pernicious in halls of learning where the goal should be to learn from history, not judge it. Ours is not the first generation to cultivate this virus. In an earlier time, British historian Herbert Butterfield called out a similar problem inThe Whig Interpretation of History (1951). This interpretation, according to Butterfield, “studies the past with reference to the present,” thereby creating a major obstruction to understanding and learning. It is a form of “abridgement”—don’t you love those polite English terms?—in which history is distilled to focus only on what is still relevant today. And this abridgement is based on “selection,” choosing what to take in and what to ignore.

Worse, Butterfield says, the Whig interpretation is eager to make judgments on history, to act as judge and jury, not as learner or expert witness. So apparently we have a bunch of nouveau-Whigs on our campuses, busy abridging, distilling, selecting and judging history rather than learning from it.

But we could roll the calendar back even further to the French Revolution in search of an analog to the presentism virus. That revolution sought to obliterate the past, not simply by removing names but by wiping out the past and starting over. This was accomplished not as an academic exercise but by violent revolution. What was conceived by Jean-Jacques Rousseau as a romantic utopian project, ended up in violence on the streets. Unfortunately, this might also be a precedent for this vociferous generation of college students.

A further irony is that the objects of student presentism are frequently their own liberal intellectual ancestors, if only they were sufficiently open-minded and educated to see that. The Princeton attacks are on Woodrow Wilson, an intellectual leader of the progressive movement. He advocated the war to end all wars, led a ban on child labor, received the Nobel Peace Prize and was an advocate for the League of Nations. But all of this is trumped by his firing of a dozen black supervisors in the federal government. Or Thomas Jefferson, who inherited and owned slaves, but also led Virginia to the first American policy against importing slaves and favored policies of gradual emancipation.

But in the abridged and selective history of today’s protestors, there is no room for nuance, or imperfection, or evolution of views over time. There is only right or wrong, based on the standards of modernity, not of the earlier time in which these people lived.

What are we to do about presentism? Having detected the malware, how does one remove it? For starters, one does not welcome it. Barely raising concerns about presentism and history, faculty have voted to give in and administrators have resigned. As a consequence, there is little dialogue or learning taking place in this teachable moment; instead, there is a caving in, and a doubling down on the funding for politically correct programs.

More fruitful would be attempts to synthesize and learn from the questions presentism raises. One promising example might be the response of University of Texas president Gregory Fenves, who chose to relocate the offending statue of Confederate president Jefferson Davis from the center of campus to a museum, where it could be placed in historic context, rather than removed entirely. Indeed, college campuses should not be places of intolerance, but rather of openness and learning. Students must be prepared to hear lectures and have experiences that stretch them, even making them uncomfortable. It’s part of the free and open environment of learning.

Another constructive approach would be to engage the students in dialogue about how we deal with public figures who are fallible and have warts. Many leaders with great capacity for good also demonstrated large downsides. Among 20th century presidents, ask Richard Nixon or Bill Clinton or, yes, Woodrow Wilson about this. Does this mean we are unable to recognize or even commemorate their accomplishments? Is perfection the new and intolerant standard we seek? This cannot be the way to prepare students to go into the cold, cruel world.

Is it really moving America in the right direction for our campuses to teach that there are no heroes left, only villains waiting to be unmasked? This would be an unfortunate “Zinnification” of American history, from the historian Howard Zinn, whose People’s History of the United States is a textbook used widely in high schools and colleges. Zinn teaches that our traditional American heroes are myths or, worse, frauds. Starting with Columbus, who was not a discoverer but, according to Zinn, an “executioner,” right on through the founders who sought to protect wealth and property, and the many presidents who started wars for economic reasons, our history is an ugly one, full of heels, not heroes.

In the computer world, malware is a virus that ultimately, seeks to damage and take control over the system itself. That is precisely what we are dealing with here: a virus on campus that seeks to undermine and erase American history and lead it leftward—and not just a progressive left but a revolutionary one. The sad outcome of presentism is turning American history into an ugly tableau, making America unlovable for future generations.


To see the essay at the Defining Ideas website:


Why Rubio’s and Abbott’s Constitutional Convention Is A ‘No Good Very Bad’ Idea January 13, 2016

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Senator and presidential candidate Marco Rubio and, more recently, Texas Governor Greg Abbott have each proposed calling an Article 5 constitutional convention (a convention of the states).  If I may borrow from children’s book author Judith Viorst’s description of Alexander’s bad day:  This idea is “terrible, horrible, no good, very bad.”  But we are likely to be spared the worst of it because it is also a non-starter which even its proponents surely recognize is pure political rhetoric and not a serious policy proposal.

Article 5 of the U.S. Constitution tells how the document may be changed over time through the amendment process.   Congress is in charge of the process, which can occur in one of two ways:  (1) Two-thirds of both houses of Congress may propose an amendment which, in turn, must be ratified by three-fourths of the state legislatures; or (2) Congress may, upon the application of the legislatures of two-thirds of the states, call a convention for proposing amendments which, again, would only be adopted if approved by three-fourths of the state legislatures.

It is the second route, a convention—which has never been tried before—that Rubio and Abbott propose be taken.  Rubio, who actually opposed this earlier, has provided a broad endorsement on the campaign trail to seek a balanced budget amendment and term limits for members of Congress.  Abbott, by contrast, has developed a lengthy shopping list of 9 amendments (nearly equaling the original Bill of Rights in the first ten amendments) that would do all kinds of things to limit federal power:  empower two-thirds of states to override a Supreme Court decision, prohibit agencies from “creating federal law,” allow a two-thirds majority of the states to override a federal law and so on.  It is not unlike a similar proposal from radio host Mark Levin when his book, The Liberty Amendments (2013), advanced 10 amendments that would be adopted by a convention to save the republic.

This is the right’s idea of an instant solution to decades of growth in federal power.  Let’s just add a bunch of amendments to the Constitution that will tie the hands of Gulliver in Washington.  Oh that it could be that easy.  But there’s a reason this has never been done:  34 states will not agree to call such a convention and 38 states will not approve such amendments.  It is so wildly improbable that I think it’s fair to say that Rubio and Abbott must be advancing it as political posturing.  There is “no there there.”

Further, if such a convention ever got traction, under the law of unintended consequences, it would be as likely to do mischief as good.  Article 5 is entirely vague about the details of such a convention.  Proponents assert that it could be limited to the purposes and amendments that brought it into being, but there is nothing in Article 5 to support that and nothing in the law to prevent other issues coming to the fore.  Liberals have said they would like to overturn the Citizen’s United Supreme Court case, for example—no reason that couldn’t be inserted into the proceedings, along with everyone else’s pet ideas.  Justice Scalia put it succinctly:  “I certainly would not want a constitutional convention.  Whoa!  Who knows what would come out of it.”  Former Chief Justice Warren Burger wrote that such a convention “would be a free-for-all for special interest groups.”

Article 5 makes it difficult to amend the Constitution for good reason:  it should be exceptional to change the rules of the road.  The history of the liberal left has been to find work-arounds to avoid the high bar of the amendment process.  All of Franklin Roosevelt’s sweeping New Deal revolution was carried out with no constitutional amendments, for example, only liberal interpretations of the law by judges.  The National Popular Vote Bill, which seeks to circumvent the Electoral College by requiring all electors to vote for the winner of the national popular vote, is another work-around of the Constitution.

It’s disappointing, however, when conservatives, who should be respectful of the Constitution and willing to do the hard, long political work of protecting it, instead offer the false hope of instant gratification by foolishly proposing a modern constitutional convention.


To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/01/13/why-rubio-and-abbotts-constitutional-convention-is-a-no-good-very-bad-idea/#2715e4857a0b1cf9b1c74f1d

Republicans As Disruptors: They’re Not Uber Successful (Forbes.com) October 20, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Politics.
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The Republican Party is reinventing itself and so far the results are not pretty.  Clearly no longer your father’s Republican Party, it is becoming a party of disruptors.  The new conservative young turks in Congress, calling themselves the Freedom Caucus, have finally worn out Speaker John Boehner and have run off his apparent successor Congressman Kevin McCarthy.  So far no one of any stature wants the job, and who can blame them, with 36 party disruptors right in your own backyard.

The same vibe continues to dominate the Republican presidential race, with disruptor-in-chief Donald Trump leading the field.  Amazingly, the three candidates with zero experience in elected office—Trump, Ben Carson and Carly Fiorina—share a cumulative 54% in support against a collective 39% for all the other candidates who have held office.  Even Jeb Bush, the ultimate establishment candidate, has been reduced to saying in Iowa that he wants to go to Washington to “disrupt the old order.”  Apparently there’s no point in running this year unless you have a disruptor union card.

Unfortunately Republicans only get half the disruptor DNA.  Silicon Valley companies have revolutionized one field after another with disruptive technology and business models.  But the way they do it is by developing and investing in something new and bold which, as the effect and not the cause, disrupts existing business models.  Take Uber as the classic example:  Uber invented an entirely new way of transporting people around busy cities, providing greater convenience and comfort at affordable prices.  As a consequence, the taxi industry has been entirely disrupted, and Uber has faced protests, demonstrations, lawsuits, and legislation.  But Uber did not start the revolution by attacking the taxi industry, rather it built something new and improved that had a disruptive impact.

Here’s where conservatives and Republicans are missing the point:  they seem focused first on disrupting government and politics as usual, but they offer nothing new or improved in its place.  What has the Freedom Caucus accomplished in its first year?  Essentially running off the House Republican leaders and threatening a government shutdown over funding Planned Parenthood.  It’s similar to the record of its predecessor, the Tea Party Republicans, who shut down the government in 2013.  They have no platform—instead their agenda is disrupting and taking over the levers of power.

But to disrupt an existing way of doing business, you need to offer a better way, and this is has always been a challenge for conservatives.  William F. Buckley, one of the founders of modern American conservatism, acknowledged that conservatives “stand athwart history yelling ‘stop.’”  By contrast, a Democrat like Bernie Sanders throws out more new ideas in one debate than 15 Republican candidates combined.  Of course, I would have loved to have seen a meter at the bottom of the television screen running the tab on Sanders’ proposals—by some estimates he would add $18 trillion to the federal budget—almost precisely the amount of the accumulated federal debt of $18.2 trillion.

To become known as a party of disruptors is basically to admit you prefer being a minority obstructionist party and you are not ready to lead Congress or the country.  It will be a failed business model, with Republicans accomplishing nothing in Congress and losing the presidency.  What will it take to turn this around?  Wiser heads coming to the fore with some real policy ideas.  Paul Ryan, who is as close to a policy wonk as Republicans have, needs to step up and become the new Speaker of the House.  As the election draws nearer, voters need to appreciate that outsider candidates may sound good, but they don’t have any idea or experience in how to run a government for 300 million people.  Already Marco Rubio has edged into the top three candidates in recent polls, with outsiders Trump peaking and Fiorina fading.  In six months, the field needs to look entirely different or Republicans will have blown one more great opportunity to lead.

Click here for the original post at Forbes.com:


“Let My Conscience Be Your Guide” (Hoover Digest, Fall, 2015) October 13, 2015

Posted by daviddavenport in Newspaper Columns/Essays.
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America is moving into uncharted territory as it enters a post-Christian era. This shift has been evident for several years, with reported drops in church attendance and belief in God, but Justice Anthony Kennedy and the US Supreme Court gave it a big push with last summer’s decision in Obergefell v. Hodges concerning same-sex marriage. The court decisively shifted marriage away from not only the states but also the church and conservative religious understandings of the institution. While the court gave lip service to the ongoing role of religion in marriage, it spoke only in limited terms of the right to “advocate” or “teach” historic values about marriage, avoiding the broader language of the First Amendment right to “exercise” its religious tenets.

A deeper and more disturbing philosophical argument being advanced is that God and the church must adjust their moral and doctrinal understandings with the times. Frank Bruni, a columnist for the New York Times, wrote that Christians should rightly “[bow] to the enlightenments of modernity.” He quoted with approval businessman and gay philanthropist Mitchell Gold, who said church leaders must be made to “take homosexuality off the sin list.” Hillary Clinton, speaking of reproductive care and safe childbirth at the Women in the World Summit, sounded a similar theme, saying “deep-seated cultural codes, religious beliefs, and structural biases have to be changed.” Even the Archbishop of Dublin, after Ireland’s vote on gay marriage, said the church needed to do a “reality check” to see whether it had “drifted completely away from young people.”

The notion that God must keep up with the times is more than a little presumptuous, as well as historically unconstitutional, but that seems to be where the law is heading. An emerging limitation on the First Amendment right to the “free exercise of religion” would apparently require that such religion be in touch with the spirit and understandings of the modern age. Perhaps the Fourteenth Amendment promise that “no state [shall] 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” now trumps the First Amendment’s free exercise of religion, which would be a momentous and stunning conclusion, reached with essentially no debate.

Especially troubling for religion was Kennedy’s invention of a right to “equal dignity” in support of the Obergefell decision. In the closing line of the opinion, the court said those seeking the right to gay marriage “ask for equal dignity in the eyes of law. The Constitution grants them that right.” But read the Constitution from beginning to end and you will find no such right. Kennedy has long searched for a right to equal dignity, mentioning it in his opinions in the Casey abortion case, the Lawrence sodomy decision, and the Defense of Marriage Act (DOMA) case, as well as in this latest opinion. But whatever equal dignity means to Kennedy, such a right would be so vague and broad that it could mean almost anything as a legal standard. Although none of the cases has attempted to define equal dignity under the law, dictionary definitions of dignity talk about respect and esteem. In our crowded, busy, and increasingly impolite society, one regularly encounters indignities everywhere.  Apparently some unspecified grouping of those, at least if such affronts involve the state, is now unconstitutional.

In particular, it is easy to foresee a clash between a conservative Christian exercising freedom of religion and a gay couple’s right to equal dignity. A number of religious conservatives or traditionalists, including Muslims, some Jews, and some Christians, believe that gay marriage violates their religious beliefs and principles. Some believe that according to the Bible, homosexuality itself is a sin. Does such a belief constitute a failure to extend dignity and is therefore against the law? How about preaching it from its pulpits? Might that even be a form of hate speech under the law? In his dissenting opinion, Chief Justice Roberts saw hard questions arising when, “for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex couples.” These are all looming clashes between the growing jurisprudence of equal dignity of the Fourteenth Amendment and the shrinking First Amendment right to the free exercise of religion.

Indeed, a number of these clashes are already occurring. Immediately after the decision, some county clerks refused to issue marriage licenses to same-sex couples in violation of their conscience, in at least two cases with state support, and these questions are now in court. The question has been raised whether churches that do not fully comply with the right to same-sex marriage should lose their tax exemptions. Florists, bakers, and photographers who say that participating in same-sex ceremonies violates their religious beliefs have already been subject to legal action, including a $135,000 fine and gag order imposed on Christian bakers in Oregon. Senator Mike Lee of Utah has introduced the “First Amendment Defense Act” in Congress in an effort to protect religious liberty and tax exemptions in the wake of Obergefell.

Over time, the pendulum of religious liberty has swung left and then right. Efforts to remove God from the public square brought about the religious right. A court decision limiting religious liberties served as a catalyst for religious freedom restoration acts, both federal and state. More recently, the Affordable Care Act provisions about abortion and birth control triggered the Hobby Lobby case affording religious rights even to a privately held company. In the Obergefell case, proponents of gay rights had said that same-sex marriage should have no effect on other people or society as a whole—it was just about letting two people in love get married. But, as Roberts observed in his dissent, “Federal courts are blunt instruments when it comes to creating rights,” and this case will have profound implications, including challenges to religious liberty.

The present times feel less like the temporary swing of a pendulum and more like a new era of more limited religious liberty whenever it clashes with the freedoms or dignity of others. A new secular orthodoxy has trickled down from the elites to the larger society, and has now been codified by the Supreme Court. God has survived countless forms of government throughout the ages and will doubtless find a way through this one as well. But, as Roberts warned, “hard questions” about religious liberty under the Constitution lie ahead, ones that Justice Clarence Thomas warned hold “potentially ruinous consequences for religious liberty.” This is the new normal in post-Christian America.

See the original Essay in the Fall, 2015 Hoover Digest:


What’s So Good About Donald Trump? (Forbes.com) September 2, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It seems like everybody has something bad to say about Donald Trump—everyone except Republican voters who are speaking through the polls. One headline says he is a “mortal threat” to the GOP. Former Congressman Anthony Weiner calls him “outrageous.” Jeb Bush screwed up his courage and charged that Trump is a “germophobe” over his reluctance to shake hands. Trump piñatas are flying off the shelves in immigrant communities in California. And that’s just this week.

So let me tell you what’s good about Donald Trump and why his candidacy makes sense at this stage of the presidential campaign. Republicans can thank him later.

First, Trump is the voice of midlife crisis, the answer to voters’ disappointing question, “Is this all there is?” Voters are obviously tired of the same old roster of candidates talking about the same things in the same ways. We all recognize if there was a place on the ballot for “none of the above,” that listing would win a lot of races. It’s no accident that joining Trump at the top of the polls right now is the other political novice and outsider, Ben Carson, with businesswoman Carly Fiorina charging hard from the rear. Voters in midlife crisis need a voice and Trump provides it. But they won’t marry him later.

Second, Trump is talking about things that some voters care about. While everybody else discusses building a path to citizenship for illegal immigrants, Trump speaks for those who are still concerned about the rule of law in rewarding those who are in the country illegally. Voters hear his cockiness and bluster and think, “Well, at least he won’t be leading from behind in the world.” A guy who has made a ton of money might know something about economic growth, instead of the stagnation we’ve been living through for years. So rather than Common Core or teacher unions or issues other candidates are advancing, Trump seems to articulate things at least some people would like to hear.

Third, Trump is reminding the other Republican candidates of how to run to the right. Richard Nixon, who campaigned twice for the vice presidency and three times for the presidency, used to say that in order to win, a Republican had to first run to the right to consolidate his own party, then run to the center to win the general election. Today’s Republicans are having trouble with the first part, running to the right. Presumed front-runner Jeb Bush, who has characterized himself as a reform candidate, wants a lot of the same big government reforms as liberals and Democrats in education and immigration, for example. As Mitt Romney learned in 2012, Republicans will not win without energizing their conservative base and a candidate like Trump will force the conversation in that direction.

A classic political book, E.J. Dionne’s Why Americans Hate Politics, sets up Trump’s early success beautifully. Dionne points out that typically in political campaigns, candidates run around chanting and beating their chests about things voters don’t care about. Then, when they win, they go back to Washington or their state capitols, do nothing, and then go back out in two or four years for more pitched battles. It is precisely this paradigm that Trump breaks through—a guy who is not a professional politician who is talking about things that at least some regular people care about.

Of course the professional politicians won’t like a candidate like Trump. Who could like the star of “Donald Trump and the Sixteen Dwarfs,” especially if you are one of the dwarfs? As Jeb Bush whined, “He should be treated like a front-runner, not like some kind of alternative universe to the political system.” But that’s the point isn’t it? A year out, people who are frustrated about the political system and those who lead it have the time, and thanks to Donald Trump, the opportunity, to fantasize about life in an alternate political universe.

Read Column at Forbes.com:


Ordinances Banning Public Sleeping Are Unconstitutional Cruel And Unusual Punishment? Seriously? (Forbes.com) August 17, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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At first I didn’t even read the story about whether laws against the homeless sleeping in public places violated the 8th Amendment prohibition against cruel and unusual punishment. I figured it was just one more crazy story to filter out in the effort to retain my sanity when reading our local paper, the San Francisco Chronicle. Boy was I wrong. This wasn’t just another “only in San Francisco” story—this was the Obama administration’s Department of Justice (DOJ) telling the Federal District Court in Idaho that Boise’s ban on public sleeping as applied to the homeless was cruel and unusual punishment. And it’s getting the attention of cities everywhere.

You really have to appreciate all those lawyers back in Washington acknowledging that homelessness is a huge problem, pointing out that on any given night in America half a million people are homeless, with 42% sleeping in public locations. And then going on to tell the nation’s cities and mayors, “Sorry, but the way you are dealing with it, banning public camping and sleeping, is unconstitutional. Oh, and by the way, good luck with figuring out a different solution to this huge social problem. We’ve got your back—with a sharp legal filing sticking in it.”

Let’s agree that homelessness is a huge and complicated issue, compounded in recent years by the recession, tight housing markets, and less money for mental health, public housing and other social services. While cities, churches and nonprofits try to establish shelters and services, local governments also seek to keep the problem away from public parks and spaces, with laws against camping or sleeping in public or in vehicles. The latter is admittedly a bit of a defensive holding position while trying to build up the resources to tackle homelessness in more productive ways.

So into that delicate policy balance steps a team of federal lawyers from Washington, D.C.—“I’m from the government and I’m here to help,” Ronald Reagan liked to joke. And with the crudest of instruments, a legal filing, they seek to change hundreds of local policies with a creative interpretation of the constitution and a word processor. Historically, there is judicial precedent for the notion that one should not be punished for one’s condition (for example, addiction), but obviously what cities are seeking to ban is certain conduct. Now the argument becomes more complicated when you weigh whether the homeless, in certain cities at particular times, have a choice in where to sleep. But this feels more like a dilemma to be managed than a law seeking a ban. We await the court’s decision on this, but already many cities are nervous about the DOJ’s opinion.

This is but the latest example of a growing problem—lawyers and courts as engines of social change. As Chief Justice Roberts recently wrote in the his dissenting opinion in the gay marriage case: “Federal courts are blunt instruments when it comes to creating rights. . .[T]hey do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.” This is far too complicated a matter to resolve with a quick and relatively easy constitutional ban.

Let’s face it, these DOJ lawyers are, as our son used to say about his big sister, throwing their weight around. Courts have gone from being “beyond comparison the weakest of the three departments of power,” as Alexander Hamilton put it in Federalist 78, to the strongest. As recently as 1989, legal scholar Bruce Ackerman described courts as sitting in the last car of the train and deciding whether to throw on the brakes—now they’ve moved to the engine, powering social policy and deciding which track to take. Courts are now the quick and easy route to change, but representative government, with its ability to study matters, engage in debate and experimentation, is the better way to tackle social problems.

To read story at Forbes site:  http://www.forbes.com/sites/daviddavenport/2015/08/17/ordinances-banning-public-sleeping-are-unconstitutional-cruel-and-unusual-punishment-seriously/

Making Sense of the Republican Presidential Race: It’s Like Major League Baseball in August (Forbes.com) August 12, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Politics.
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How do you make sense of a Republican presidential race with 17 candidates running 15 months before the election? It’s a lot like making sense of the Major League Baseball season in August, two months before the World Series. My logic parallels that of former Dodger manager Tommy Lasorda who said: “There are three types of baseball players: Those who make it happen, those who watch it happen and those who wonder what happens.”

For starters, you have to know what you are trying to “make happen” at this stage of the season. No team is trying to win the World Series in August; instead the goal is to get in position to be one of the 10 (of 30) teams to make the playoffs where, as they say, anything can happen. Likewise, 17 Republicans are not trying to be the final party nominee this early, they’re just trying to be one of the 3-5 candidates left standing next summer. As in baseball, that’s really about developing momentum and finding the money to remain in the race as long as possible.
Then to understand baseball at this stage, you’d have to look at the races within the race: which teams are competing for the automatic playoff berths of division championships and which teams are realistically positioning themselves for the less secure wild-card slots? Fewer people understand that, among 17 candidates, there are mini-races as well. Jeb Bush and John Kasich are vying for the “moderate” slot in the final rounds. Donald Trump can afford to stay in the race as long as he wants, holding the special “reality star” berth. All the rest are competing to be among two or so “conservatives” left standing a year from now.

Of course, many teams are not realistic contenders this year and are positioning themselves for the future, and so too are some of the candidates. Some are staking out particular issues and constituencies, such as Mike Huckabee and Rick Santorum with conservative Christians. As a woman, Carly Fiorina is useful in attacking Hillary Clinton and her record. Some are really running for vice president (Carly Fiorina, Bobby Jindal, and even Marco Rubio come to mind) and several are building war chests and name recognition for the future.

So in Tommy Lasorda’s trilogy, who is making it happen? I would say Bush, Walker and Trump, with Rubio still a possibility. Bush will be the moderate finalist, Walker the conservative, and Trump the reality wild card. Rubio, or someone else, might join Walker as a conservative near the end.

Notably, Donald Trump is this year’s wild card who may become a new norm. As a reality television personality, he uses his platform to connect with people’s anger and frustrations about politics. He has the money to stay in the race as long as he wants to and you know what? Staying in the race helps build his personal “brand” no matter how well he fares politically. The last time we had a candidate of this sort was Ross Perot in 1992, who ran as an independent and collected an amazing 19% of the popular vote but none of the all-important electoral votes. He arguably did split the Republican votes sufficiently to prevent George W. Bush’s reelection, which is a problem for the party again this time if Trump continues next fall as an independent candidate. Imagine 2020’s version of the Kardashians or Jenners running next time.

A few are, in Lasorda’s words, at least watching it happen: Ted Cruz, Rand Paul, Chris Christie, and perhaps Carly Fiorina. And the rest, well no one is likely to even remember that they ran once it’s all over. Polls are already at work deciding who will be in the field when the next debate moderators say: Play ball. Like baseball, presidential politics is a long season.

See the article at Forbes.com: