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The Death Penalty: Who Decides? (Washington Examiner) July 26, 2019

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Beginning in 1973 with Roe v. Wade, establishing a woman’s constitutional right to choose an abortion, liberals have led a continual march for social change, primarily using the courts. Perhaps the largest social change since Roe was the Supreme Court’s recognition of the right to gay marriage in 2015, but there have been many other liberal victories along the way.

Next up on the liberal social agenda appears to be the abolition of the death penalty. With the announcement from the Department of Justice that it would resume carrying out the death penalty for federal death row inmates, not done since 2003, the response was dire and immediate. Ruth Friedman, director of the Federal Capital Habeas Project, called the death penalty “arbitrary, racially-biased, and rife with poor lawyering and junk science.” Sen. Kamala Harris called capital punishment “immoral and deeply flawed,” while former Vice President Joe Biden reversed yet another of his earlier positions, now opposing the federal death penalty.

Polls show that the public still supports the death penalty, but liberal elites are nevertheless leading the charge against it. In California, Gov. Gavin Newsom has unilaterally placed a moratorium on carrying out the death penalty, even though he said as a candidate that he would accept the will of the people who had voted twice in recent years to retain it.

So much for carrying out the will of the people or one’s own campaign promises.

One fundamental question that needs to be addressed is who decides social questions such as abortion, gay marriage, and the death penalty? Unless the Constitution mandates otherwise, these are decisions for the people to make through their elected representatives. Instead of the people, elitists on our courts have decided to become the engines of social change to create rights of abortion and gay marriage, while executive power in the case of Newsom overrides the people’s voice on the death penalty. Rather than Congress and state legislatures holding thoughtful debates, listening to the people, holding hearings, and amending legislation, courts and governors simply impose their own “superior” judgment.

The problem with unilateral action by elite courts and executive orders is that they are likely to trigger a political backlash. We never really had a national debate about abortion and so now, 46 years after Roe v. Wade, a battle rages on as states continually challenge the federal judicial ruling. States were moving on the question of gay marriage until the U.S. Supreme Court stopped the debate and simply declared it done. It was a win for liberals in the short run, but that has surely contributed to the divisive politics that have plagued us now for decades. One could argue that President Trump’s election was part of the political backlash, and his effort to stock the courts with conservative justices is an attempt to rebalance or tip the scales back the other way.

So the death penalty is the next agenda item for liberal social change and, once again, who decides? It should not be governors such as Newsom making unilateral decisions, especially in the face of a vote of their own people. Since the death penalty has operated for centuries and has not been deemed unconstitutional as “cruel and unusual punishment” banned by the Eight Amendment, judges should not decide it.

No, in our democratic republic, the people and their elected representatives should be debating and deciding the great social issues of the day. Moreover, there will need to be sufficient patience on the part of advocates for change to allow that debate to occur. Otherwise, this divisive careening back and forth between unilateral decisions by the elites followed by political resistance and backlash from the people will continue.

In our democratic republic, winning isn’t everything; it’s also important who decides and how.

To read the column at the Washington Examiner:



The Elephant in the Policy Room (National radio commentary, Salem/Townhall) July 12, 2019

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You would never know this listening to presidential candidates but Social Security, in crisis mode for a while, will begin paying out more than it takes in next year. The reserve fund will be depleted in 16 years, meaning seniors would face 20 percent cuts in their payments.

Roughly half of Americans rely on Social Security for most of their retirement income. And with baby boomers retiring and living longer, the numbers will only get worse.

While Democrats talk about welfare and socialism, and Republicans love their tax cuts, we still need to pay for the entitlements we already have such as Social Security and Medicare.

Fixing this will take several things Washington hardly does anymore: exercise fiscal discipline, debate and deliberate, and come to some kind of bipartisan agreement.

Party line vote—the new normal in Washington—will not do the trick

Social Security needs a fix.

For the audio:  http://www.townhallreview.com

There May Not Be a Right to Civic Education, But There’s Certainly a Crisis (Washington Examiner) July 10, 2019

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When something has been exaggerated or overdone, people often say “Don’t make a federal case out of it!” But students and parents in Rhode Island have done precisely that, taking the state and several of its officials to federal court over the failure of their schools to provide an adequate civic education. We are not taught how “to function properly as civic participants,” including voting, serving on juries and the like, say the students.

Rhode Island’s answer to the lawsuit, a motion to dismiss the case, makes its own interesting claims. There is no constitutional right to an education, even a civic education, Rhode Island has said. Besides, the defendants argue, this is not a matter for a federal court to rule on since education is a function of the states which have complete oversight over how they educate (or, in this case, do not educate) their people.

A very interesting and important constitutional throwdown, indeed, one that the students’ lawyer hopes to take all the way to the Supreme Court if necessary.

Notably, no one seems to be arguing that civic education in Rhode Island is adequate. Indeed, one could easily argue that the nation as a whole suffers from a civic education crisis. The latest results available show that only 18% of eighth-graders test as “proficient” or better in U.S. history, and a mere 23% in civics or government. Only 1-2% passed the test with a designation of “advanced” in those fields. A recent study by the Woodrow Wilson National Fellowship Foundation concluded that only 36% of Americans could pass the civics test that is part of the citizenship process. A 2017 Annenberg study noted that 75% of Americans do not know the three branches of government, and only a little more than a third could name one right guaranteed by the First Amendment of the Constitution.

So yes, Rhode Island, we have a problem.

The more difficult question is whether a federal lawsuit is an appropriate response. In a day when nearly everything seems to be a federal matter, it may be surprising to learn that the Constitution says nothing about a duty to educate. Until the No Child Left Behind Law in 2002, it was widely understood that education was a state and local matter and, when the Every Student Succeeds Act became law in 2015, responsibility swung increasingly back toward state and local control.

The lawsuit claims that several clauses of the Constitution, however, imply a right to a civic education by preparing students to be citizens. There is strong reliance on a 1973 Supreme Court case, San Antonio Independent School District v. Rodriguez, in which the court mentioned, but did not rely upon, the idea that citizens need “some quantum of education” to exercise their right to vote. It is essentially this narrow passage through which the plaintiffs’ lawyers seek to drive the Mack truck of a federal right to civic education.

It would have been a more promising case had it been brought in a state court, calling Rhode Island to account for failing to set proper standards, offer classes, and conduct testing in civic education. Even then, courts tend to defer to education officials to decide what constitutes a proper education and the lawsuit might have been turned back.

The lawyers, however, from Columbia Law School had a bigger project in mind: to create a federal right to a civic education and they shopped for just the right state and the best plaintiffs to bring it. Sometimes, a lawsuit is as much about making a statement as seeking a revolutionary outcome. Moreover, if the case actually goes to trial and is appealed, win or lose, the Supreme Court may say something that builds toward, if not establishes, a right to civic education.

Making civic education a federal case may at least build the larger public case about a crisis that must be addressed.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution. He is the co-author, with Gordon Lloyd, of How Public Policy Became War, published May 7.

The Democrats’ Dilemma: Persuasion or Turnout (National radio commentary, Salem/Townhall) July 6, 2019

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Richard Nixon, who ran 5 times for president or vice president, said he ran to the right to win the Republican nomination, but then back toward the center in the general election.

In 2004, George W. Bush and Karl Rove reinvented presidential campaigns. Discovering that undecided independent voters had shrunk from 20-plus percent to single digits, they concentrated on turning out their own base of voters and it worked. Later campaigns have followed this sometimes ugly, but effective strategy.

Now the Democrats face a dilemma.  Their early energy was all from far left Bernie Sanders, Elizabeth Warren and Kamala Harris.

But not so fast, as late entry Joe Biden is more moderate, though he is being pushed left on issues such as abortion and climate change.

Persuading the middle better suits Biden, but Democrats may demand a hard left turn.


How Public Policy Became War (on Uncommon Knowledge with Peter Robinson) June 24, 2019

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Interview with David Davenport

Monday, June 24, 2019

Recorded on May 15, 2019.

David Davenport, Hoover fellow and coauthor of How Public Policy Became War, analyzes how presidents have too readily declared war (on terror, drugs, poverty, you name it) and called the nation into crisis, partly to tackle the problem and partly to increase their own power.

Davenport explains how policy options have been left behind because the war metaphor reduces the constraints and expands the power of what a president can do. Davenport discusses how Franklin Roosevelt used the declaration of war to expand government and shift the balance of power in the United States in a new direction, away from Congress and the states and toward a strong executive branch. Davenport notes that Roosevelt exchanged the founders’ vision of deliberation and moderation in the federal government for war and action.

Davenport explains how, through the course of time, Congress has lost its ability to deliberate, negotiate, compromise, and draft bills, which results in giving more power to the executive branch. Davenport says that members of Congress are sent to Washington to represent us, and they need to be statesmen rather than party loyalists and step up to their proper constitutional role.

Davenport also discusses executive orders that permit the president to issue an order on his own without any congressional legislation. He talks about the number of executive orders that have been used by presidents throughout history and how they have impacted the nation.

As Alexander Hamilton wrote in the Federalist Papers, the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers.

Finally, Davenport says he believes that President Trump is on the right track when he takes measures to limit the administrative state

The Democrats’ 2020 Dilemma: Rally Base or Persuade Moderates (Washington Examiner) June 21, 2019

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Richard Nixon, who tied Franklin Roosevelt’s record by running on a national presidential ticket five times, said that he ran to the right to win the Republican nomination but then ran back toward the center in the general election. In the 2004 presidential campaign, however, President George W. Bush and Karl Rove found a new path to electoral victory by turning out their base rather than attracting the undecided.

Now, Democrats face this dilemma in 2020: Should they nominate a candidate who is further to the left in order to energize their base (think Bernie Sanders, Elizabeth Warren, or Kamala Harris), or should they instead steer center-left with Joe Biden?

The decline of the swing voter (someone in the center who might vote either way) has created the opportunity for the ugly, shrill style of campaign that seeks to mobilize a candidate’s base. Bush campaign strategists Karl Rove and Matthew Dowd figured out in 2004 that independent persuadable voters had declined from 22% to only 7% of the electorate, prompting them to spend less time on swing voters and more on turning out their base. That trend has largely continued, with political scientist Corwin Smidt estimating that swing votes have declined from 15% of the electorate to less than 5% over the past four decades. A recent Pew Research Center survey says that while 38% of voters identify as independent, only 7% “decline to lean towards a party.”

Although President Barack Obama had built a strong and diverse base in 2008 and 2012, candidate Hillary Clinton could not hold his coalition, with over 4 million Obama voters not even showing up to vote in 2016. Donald Trump ran a classic base campaign, carefully targeting white voters and nonvoters disillusioned by the economy, immigration, and big government. Indeed, his speech in Orlando, Fla., this week launching his 2020 campaign was more of the same, right down to the old campaign phrases and audience responses.

Where does this center vs. base campaigning leave the Democrats in 2020? All the early energy in the party was from the Left, with socialist Bernie Sanders now more of a mainstream party leader than in 2016. Pushing far left were other strong candidates Elizabeth Warren and Kamala Harris, with still others in the hunt. Based on the mistaken assumption that any Democrat could beat Trump, Democrats were preparing to go hard-left in an effort to mobilize a base of young and ethnic voters.

But not so fast. When the more moderate Joe Biden entered the fray and immediately led in the polls, the party began to rest on the horns of a more difficult dilemma. Would it go center-left with Biden and risk alienating young leftist voters or stay the hard-left course?

For now, it would appear that the far left is at least pushing Biden himself further left, with his recent flip from not favoring repeal of the Hyde Amendment limiting federal funds for abortions to reversing himself a few days later following a liberal outcry. Biden also introduced a huge $1.7 trillion climate change plan since, as Bernie Sanders tweeted, “There is no ‘middle ground’ when it comes to climate policy.” You can bet that more liberal candidates will hold Biden’s feet to the fire on issues such as the Green New Deal, government-funded healthcare, and the like.

Pressure to run hard-left creates challenges for Biden’s campaign. If he goes too far left, he risks losing the center, which might be more in play than usual against Trump. If Biden does not go far enough left, he risks energetic young Democrats staying home or even facing a left-wing third-party challenger in the general election.

A base campaign, centering on turnout more than persuasion, leads to narrow, loud appeals and an ugly year ahead. A campaign of persuasion aimed toward the middle risks another loss for Democrats.

David Davenport is a contributor to the Washington Examiner’sBeltway Confidential blog. He is a research fellow at the Hoover Institution. He is the co-author, with Gordon Lloyd, of How Public Policy Became War, published May 7.

To read the column at the Washington Examiner:


The Democrats’ Dilemma: Principle or Politics (National radio commentary, Salem/Townhall) June 17, 2019

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With over 20 Democrats announcing 2020 presidential bids, the campaign reflects the chaos of a NASCAR race.

But already there is one defining separation in the pack: Will Democrats steer hard left with Bernie Sanders, Elizabeth Warren or Kamala Harris, or center-left with Joe Biden?

The dangerous myth Democrats believe is that anyone can beat Donald Trump, but the polls show only Biden with a significant lead. For many Democrats, however, including young voters, Biden is old school and too moderate. They want their vote to count on some big progressive, even socialist, ideas.

So here’s the Democrats’ dilemma: The principle or the politics. Do they want to win the presidency, where Biden is their best bet, or seek to change the country but lose? We have a year to learn their answer.


Make Congress Great Again! (Podcast with Armstrong & Getty) (20 min.) June 11, 2019

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The Deceptive Popular Vote Bill Gains Momentum (National radio commentary, Salem/Townhall) June 4, 2019

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David Davenport: The Deceptive Popular Vote Bill Gains Momentum

Democrats, angry about losing the presidency twice in the Electoral College since 2000, are quietly taking action. The National Popular Vote Bill passed in three more states—Colorado, Delaware and New Mexico—this Spring and recently passed state senates in two more.

I call it the Constitutional End-Run Voting Bill because it would eliminate the Electoral College without passing a proper constitutional amendment. States agree to cast their electoral votes not for the winner in their state but for the winner of the national popular vote. Think of it: Your state votes for Candidate A, but your vote goes to Candidate B. Talk about your vote not counting.

The Constitution says votes are counted in state capitals and then electors make the final choice. Beware of trick plays that undermine both the Constitution and the states.


Localism Still Has a Heartbeat, Even in California (Washington Examiner) May 25, 2019

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In a move with national implications, California lawmakers recently stopped Senate Bill 50, which would override local zoning laws to require much higher density in housing. There in the Sacramento wreckage is a microcosm of the political themes and policy playbooks of our time: crisis, emergency, climate change, NIMBY (not in my backyard), the demise of local government, the rise of tech companies at the expense of livable cities — you name it.

Let me deconstruct the scene for you.

California’s housing stock is not keeping up with demand. Experts say the state needs to be building 180,000 units a year, but, for a decade, it has averaged only 80,000 new units. Gov. Gavin Newsom, a Democrat, says California needs a nearly five-fold increase in home building to keep up, and he intends to lead the charge.

Senate Bill 50 would have increased housing density by requiring cities to permit apartment complexes near rail stations and job centers and to allow two to four homes to be built on lots presently zoned for one. Suburbanites saw their California dreams disappearing along with their front yard lawns and backyard barbecues. Although Democrats hold the governorship and both houses of the legislature, enough Democrats represented those suburban districts to fight the bill off for a year.

Unusual as it is for a liberal Democratic policy to die on a suburban hill of local control, there are several important policy stories here. One is the guise of crisis and emergency that seems to be driving our politics and policy everywhere. There was no time to deliberate or compromise; this was a crisis and we needed action now. Everything in Washington is wars and emergencies: We fight a war on poverty, a war on crime, a war on drugs, a war on terror; meanwhile we live under 31 states of national emergency. Some California legislators actually said we need to take more time with this, look for something less extreme, and find a political compromise. Good for them.

This battle was also full of the politics of shaming and blaming. Proponents of the bill exposed suburbanites for their selfishness in not wanting housing solutions in their backyard. Meanwhile, these same proponents had their own selfish interests with the bill supported by labor, business, the California Chamber of Commerce, and others who wanted to build more houses and make more money. It’s just that their interests happened to coincide with the crisis of the moment, so they sought to be the good guys and shame the selfish bad guys who liked their local communities as they are. Indeed, the most serious housing shortages in California have been caused by business, namely technology companies that attract workers, paying little or no attention to their housing needs. I am sure homeowners wondered why a lack of planning on the part of technology executives became their crisis.

Finally, this was a battle about federalism, the idea that we do not need the states or federal government to take over everything at the expense of local government. If you think about it, if cities cannot decide their own zoning and property development laws, what is left for them? Why not just have the state take over everything? This, of course, is what Washington, D.C., has been doing for decades, taking over state matters such as education and welfare right down to the speed limits on our highways. Finally, California municipalities rose up and said, “Enough!”

The late Tip O’Neill, former speaker of the House, liked to say, “All politics is local.” Unfortunately, that is less and less true in America. But in stopping Senate Bill 50 for now, lawmakers in Sacramento have shown us that deliberation, compromise, and localism still have a heartbeat, even in California.

David Davenport is a contributor to the Washington Examiner‘s Beltway Confidential blog. He is a research fellow at the Hoover Institution. He is the co-author, with Gordon Lloyd, of How Public Policy Became War, published May 7.

To view the column at the Washington Examiner: