NOTA--A Reform Whose Time Has Come

I recently blogged that abstention or "none of the above" would be preferable to the Mickey Mouse choices that the Democratic and Republican parties are presenting to the voters and that abstention should be a ballot choice.
In an e-mail, Barry Campbell raised the question as to what would happen if "none of the above won"? I decided to do some research and learned that there is a group in Massachusetts called NOTA (none of the above) led by William White, a Masachusetts systems analyst. NOTA's website is excellent at http://www.nota.org/ and includes a video of a fine television interview with Mr. White. White has introduced legislation into both houses the Massachusetts state legislature and the senate bill (which appears on his site) follows. I am looking forward to learning more about NOTA

SENATE NO. 456
AN ACT FURTHER REGULATING ELECTIONS TO PROVIDE FOR A VOTER CONSENT “NONE OF THE ABOVE” OPTION
Be it enacted by the Senate and House of Representatives in General Court assembled,
And by the authority of the same, as follows:
SECTION 1. 1

Whereas government should secure the consent of the governed;
Whereas all legitimate consent requires the ability to withhold consent;
Whereas voters can withhold their consent when voting on questions;
Whereas voters are sometimes presented with such choices on the ballot that none of the listed candidates for an office is acceptable, but voters are unable to withhold their consent to such elections to office.
Whereas Article VII of the Massachusetts Constitution states: “Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.”;
Therefore, to insure the legitimate consent of voters by enabling them to withhold their consent to elections to office;
Be it enacted by the Senate and House of Representatives in General Court Assembled, and by the authority of the same, as follows:
The General Laws are hereby amended by adding the following chapter:
CHAPTER 57A.
ELECTIONS WITH VOTER CONSENT “NONE OF THE ABOVE” OPTIONS 19

Section 1. None of the Above (NOTA) on the ballot
On all ballots electing a candidate to office there shall appear, after the list of candidates for each office, a votable line identified with the words “None of the Above; For a New Election”.
A voter may choose to vote for “None of the Above; For a New Election” instead of voting for a candidate. If a voter may vote for multiple candidates for an office, a vote for “None of the Above; For a New Election” counts as one vote. Votes cast for “None of the Above; For a New Election” shall be counted and reported as are votes for listed candidates.
Section 2. When a candidate receives fewer votes than NOTA
Any candidate for office who receives fewer votes than the votes cast for “None of the Above; For a New Election” for that office shall not be elected.
Section 3. NOTA election
In any election where no candidate is elected to an office because of votes cast for “None of the Above; For a New Election”, a None of the Above, hereinafter referred to as NOTA, Election shall be held to fill that office not less than sixty (60) days and not more than eighty (80) days after the prior election.
Section 4. Election of the President of the United States
In elections to the offices of President and Vice President of the United States and their electors, “Prefer None of the Above” shall appear after the list of candidates. Voters may choose to vote both for “Prefer None of the Above” as well as for a candidate. Votes cast for “Prefer None of the
Above” shall be counted and reported in the same manner as are votes for listed candidates, but shall not otherwise affect the election outcome.

Section 5. Statement about NOTA options
The Secretary of State shall prepare a statement titled “Your Voter Consent Ballot Options:”, to be displayed, along with any other materials determined by the Secretary of State, so it is legible to voters at the polling place prior to voting as well as within each voting enclosure, indicating the options available to the voter. For example, such a statement might contain the following:
Your Voter Consent Ballot Options: 47
YOU MAY VOTE FOR A CANDIDATE OR “None of the Above; For a New 48
Election”. 49


O Candidate A
O Candidate B
O None of the Above; For a New Election
When “None of the Above; For a New Election” appears on the ballot after the list of candidates for an office, then you may vote for

“None of the Above; For a New 54
Election” instead of voting for a candidate. If you may vote for more than one candidate for an office, then a vote for


“None of the Above; For a New Election” counts as one vote.
If “None of the Above; For a New Election” receives more votes for an office than any candidate, then no one is elected to that office and a new election with new candidates must be held, not less than 60 days and not more that 80 days after this election, to fill the office.

YOU MAY VOTE FOR A CANDIDATE AND FOR “Prefer None of the Above.”

O Candidate A
O Candidate B
O Prefer None of the Above

When “Prefer None of the Above” appears on the ballot after the list of candidates for an office, you may vote for a candidate and also vote for

“Prefer None of the Above”. Voting for “Prefer None of the Above” indicates you found no listed candidate acceptable.


The “Prefer None of the Above” votes are counted and reported; however, the candidate for an office with the most votes is elected whatever the

“Prefer None of the
Above” vote.

Section 6. Temporary appointment to offices and assignment of duties
Temporary appointment to offices, pending NOTA elections and an elected candidate taking office, required to execute the duties of an office, may be made by the Governor, or by majority vote of the Board of Selectmen for town offices, provided the person so appointed is either the office’s current incumbent or would be otherwise eligible for election to that office. Temporary appointment to the office of Governor shall be by majority vote of the General Court. No temporary appointment under this provision shall be made to the offices of Town Meeting Representative, State Representative, State Senator, United States Representative, or United States

Senator.
If no appointment is made by the day before expiration of an office’s current term, the office’s incumbent is appointed by default.
In elections to the office of Secretary of State, or an office for which the incumbent Secretary of State is a candidate, the duties normally performed by the Secretary of State under this act shall be performed by the office of Secretary of State under the direction of the Attorney General.
Section 7. Campaign finance reporting
Candidates in a NOTA election must conform to the same, or equivalent, campaign financing and reporting requirements as a candidate for that office in a general election. Campaign financing and reporting for activities related to the issue of voters voting for “None of the Above; For
a New Election”, or for “Prefer None of the Above”, shall have the same, or equivalent, requirements as a ballot question. All such requirements shall be subject to those changes necessary, as determined by the Secretary of State, to adjust for the varying election dates and campaign durations of NOTA elections, provided such changes adhere to the original intent of those requirements and avoid unreasonable burden to election participants.

Section 8. Nomination of candidates
Any person who is eligible for nomination as a candidate in the general election for an office shall be eligible for nomination as a candidate in a NOTA election for that office, provided the person did not receive, as a listed candidate in a prior election for the same office and term, fewer votes than those cast for “None of the Above; For a New Election” the office.
All candidates for office in NOTA elections shall be nominated to be listed on the ballot either by nominating petition, or by receiving a requisite number of write-in votes in the prior election for that office.
Section 9. Nomination by petition; eligibility to sign petitions; collecting signatures at polling places
The nomination period for a NOTA election shall commence on the day of the prior election. The nomination period shall continue for fourteen (14) days after the results of the prior election for that office are announced by the Secretary of State.
Voters eligible to vote in the NOTA election for an office are eligible to sign, once for each nomination, one or more nominating petitions for one or more candidates for that office during the nomination period.
Signatures for nominating petitions may be gathered at polling places, provided they are gathered in one, or two if required, Petition Areas that shall be reserved at each polling place for such purpose, and in such a manner as to provide easy access for voters wishing to sign such petitions or not, and in such a manner that voters shall pass by those collecting nominating signatures before and after voting.

Any person collecting nominating signatures at a polling place for one or more petitions, hereinafter referred to as Collector, must be registered to vote at that polling place. A Collector may assist in the gathering of signatures for any Nominating Petition. No signed petition may be removed from a Petition Area, except, after the polls close, by the vote counting authority, who shall deliver all signed petitions to the signature verifying authority.
The Collector shall be seated in a chair behind a table, provided at no cost to the Collector, upon which such petitions shall be placed and kept while collecting signatures. The Collector shall not speak to, or otherwise communicate with, any voter unless addressed first by that voter, and shall display no sign except, optionally, one reading “Nominating Petition: ”, where shall be the name of the office for which the petition is being gathered, using letters no greater than three inches in height and affixed to the table in such a manner as to be visible to passing voters. The number of Collectors in each Petition Area shall be no more than two (2) per one (1) or more petition sheets with the same Candidate and Party designation. A petition may be brought into and left unattended in the Petition Area by any person.
The Petition Area shall be part to the polling place, and any person failing to conform to its requirements shall be considered a disorderly person.

Section 10. Nomination by write-in

An unlisted write-in candidate in the prior election may be nominated to be listed as a candidate for an office in the following NOTA election by receiving write-in votes equal to at least ten percent (10%) of either: a) the number of nominating signatures required for that office; or, b) the total votes cast for the office in the current election. Such candidates shall submit to the Town Clerk in town wide offices, or otherwise the Secretary of State, by the last day of the nomination period, a completed nominating petition, containing no filled in signature lines, with an attached affirmation by the candidate, stating the candidate received the requisite write-in votes for that office in the prior election. Unlisted write-in candidates who do not receive the number of write-in votes needed for nomination may seek nomination by petition.

Section 11. Signature verification; number of signatures required; submitting petitions
The authority responsible for signature verification for nominations for a office in the general election shall be responsible for verifying the signatures on the nominating petitions for a NOTA election are valid and of the requisite number within fourteen (14) days after the end of the nomination period.
The number of valid signatures under the same party designation required for nomination by petition shall be the same for all candidates for the same office and shall be: either equal to the number of the most signatures required for a general election nomination for the office, divided by number of days in the general election nomination period, and then multiplied by number of days in the current nomination period, and then divided by three (3); or, equal to twenty (20), whichever is greater.
Each original nominating petition sheet shall be submitted to the offices of the same verifying authority as for general elections, within three (3) days after the end of the nomination period.

Section 12. Multiple nominations of a candidate
In NOTA elections, if a candidate has been separately nominated with different political party designations, the candidate shall appear on the ballot separately for each such nomination. The same political party designation may not appear with more candidates for an office than the number of positions to be elected to that office. The party designation of either “No Party” or “Write-In” shall be allowed once each for a candidate so nominated.
Section 13. Nomination notification and acceptance
The Secretary of State, or Town Clerk for town wide elections, shall have delivered to each nominee, within three (3) days of the nominee qualifying for the nomination, a Nomination Notification, notifying the nominee of the nomination, along with other materials determined by the Secretary of State. The nominee shall respond to the Nomination Notification within five (5) days by returning the Nomination Acceptance, as determined by the Secretary of State, to the offices of the notifying authority. Failure to respond shall be deemed an acceptance of the nomination.
Section 14. Candidate Statement; requirements and limitations; qualifying for distribution
To assist the voters in assessing candidates for office in NOTA elections, the Secretary of State, or Town Clerk for town wide elections, shall distribute Candidate Statements by mail to the electorate at least seven (7) days before the election at no cost to the candidates.
When a candidate submits a Nomination Acceptance for an office, the candidate may also submit a Candidate Statement for distribution, which shall be subject to the following
requirements and limitations: required to be a black and white statement, consisting only of spaces, letters, punctuation marks, and numeric or other textual notation, contained within both sides of a single 8.5 x 11 inch white paper sheet, and, optionally, one photograph of the candidate from the neck up no greater than 3 x 3 inches, for the purpose of allowing the candidate to communicate with the voters; and, shall be limited to identifying the candidate, and, optionally, describing the candidate’s qualifications for office, party affiliations, proposed policies, and contact information; limited to one per candidate, even if the candidate receives multiple nominations for an office; and, shall contain no solicitation for funds nor refer to other candidates. The requirements and limitations of the Candidate Statement must be met, in the opinion of the Secretary of State, in order to qualify for distribution as a Candidate Statement

Across the top inch of the first page of every Candidate Statement shall be the Statement Header. The Statement Header shall be blank except for the state seal and the words, in large font, “Candidate Statement of for ”, where shall be the name of the candidate as it shall appear on the ballot and shall be the name of the office as it shall appear on the ballot; and then, in a smaller font, “Prepared by the candidate and distributed to voters without cost to the candidate by the Office of the Secretary of State.”; and then, a line at the lower boundary of the Statement Header; and, anywhere within the Statement Header, any other content determined by the Secretary of State. At Nomination Notification, the candidate shall receive sample Candidate Statements and an assigned Statement Header from the Secretary of State that the candidate is required to use as the Statement Header for any Candidate Statement the candidate submits.
The area of the Candidate Statement apart from the Statement Header is the Candidate Content determined by the candidate. The Secretary of State, or Town Clerk for town elections, shall
take care to distribute Candidate Content as submitted, except as follows: The Secretary of State, and the Town Clerk for town elections, shall review Candidate Statements submitted to them to insure they qualify for distribution as a Candidate Statement. The Town Clerk shall have delivered to the Secretary of State all Candidate Statements, along with their Candidate Instructions, if any, for final review, within three (3) days of receipt, along with a Town Clerk Opinion, defined by the Secretary of State, indicating whether the Candidate Statement meets the requirements and limits of a Candidate Statement.

If, in the opinion of the Town Clerk, a Candidate Statement does not meet the requirements and limits of a Candidate Statement, the Town Clerk Opinion shall include an explanation of the nonconformance, along with a proposed Deletion Notification to make the Candidate Statement conformant, and any other relevant document. Before submitting the Town Clerk Opinion to the Secretary of State, the Town Clerk may contact the candidate directly to verbally suggest changes to the Candidate Statement to make it conformant. If the candidate then submits one or more revised drafts, the Town Clerk shall submit the last such draft as the Candidate Statement, retaining prior drafts as part of the Candidate Statement’s record.
Should the Secretary of State determine a Candidate Statement does not qualify for distribution because it does not meet the requirements and limits of a Candidate Statement, then the Secretary of State shall have delivered to the candidate, within ten (10) days of the submission of the Candidate Statement by the candidate, a Deletion Notification, defined by the Secretary of State, which shall include a copy of the Candidate Statement to show the deletions needed to bring the statement into compliance and a letter stating the reasons for those deletions. The Secretary of State, or representative, shall meet with the candidate at the offices of the Secretary of State, upon the candidate’s request, within two (2) days of receipt of a request for such a meeting, to review the
Candidate Statement with the candidate’s representatives. The candidate shall have delivered to the Secretary of State within five (5) days of the receipt of the Deletion Notification or within two (2) days after such meeting, whichever is later: the candidate’s response to the Deletion Notification; and/or a corrected Candidate Statement; and/or a Candidate Instruction, to be defined by the Secretary of State, in the event of a non qualifying Candidate Statement, instructing Secretary of State either to withdraw the Candidate Statement completely or to distribute the original Candidate Statement with the deletions indicated by the Deletion Notification.

Changes to the Candidate Content by Secretary of State shall be by deletion only, using methods to be established in advance of the election by Secretary of State so as to be obvious to voters which parts of the Candidate Content were deleted. Should the candidate fail to provide an acceptable, corrected Candidate Statement and fail to provide Candidate Instructions for such an event, the Secretary of State shall distribute the original Candidate Statement with the deletions specified in the Deletion Notification. The Secretary of State shall make available at its offices to any person, within one day of a written request, copies of any original Candidate Statement as well as associated Town Clerk Opinion, corrected Candidate Statement, Deletion Notification, and Candidate Instruction, and other related documents during the election campaign and for ten (10) years after the election.
Whenever possible, all Candidate Statements for the same office shall be assembled into a single ballot pamphlet for distribution. Reference copies of the Candidate Statements shall be made available at polling places for voter use.
Section 15. Confirming nominations
The Secretary of State, or Town Clerk for town wide elections, shall confirm by Party Confirmation, as defined by the Secretary of State, with the governing body of the designated political party, that the party accepts the party designation on the ballot for a candidate. If the party designation
of the nomination is not accepted by the governing body of the party within ten (10) days of notification, or if the authority of the governing body is determined by the Secretary of State to be in dispute, then the candidate shall be listed with a “No Party” party designation. Write-in nominations shall be designated as “Write-In”, or with any other political party designation acceptable to both the candidate and the governing body of the political party.

Section 16. Ballot determination; election date determination
The Secretary of State shall determine the date, offices, and candidate lists for NOTA elections, and shall announce such determinations, whenever possible, at least thirty days in advance of the date set for the NOTA election.
The Secretary of State shall insure, whenever possible, various NOTA Elections take place throughout the state on the same day.
Section 17. Counting votes; recounts
In cases of multiple listings of a candidate for an office, the number of votes cast for each such listing of a candidate shall be counted and reported separately; however, the sum of all votes for a candidate for an office shall be used in determining the candidate’s vote for election to the office.
A qualified write-in candidate who receives more votes than any listed candidate, and more votes than any other write-in candidate, and more votes than “None of the Above; For a New Election” for that office shall be elected.
The Secretary of State shall conduct a recount of any election where the number votes cast for “None of the Above; For a New Election” would require, or would allow a candidate to request, a recount if that number of votes had been cast for a candidate, and otherwise act on behalf of voters who cast votes for “None of the Above; For a New Election.” Delegation of this duty to the
Secretary of State shall in no way limit voters, who affirm they voted for “None of the Above; For a New Election” in an election, from also acting on behalf of themselves and other such voters.

Section 18. Failure to nominate
Should no candidate qualify for nomination for an office in a NOTA Election, the office shall appear on the ballot with no listed candidate with only the “None of the Above; For a New Election” line.
Section 19. Nominating Petition Description
The nominating petitions shall consist of 8.5 x 11 inch white paper with the first printed title line reading “NOTA Election Nominating Petition”;
The next printed line shall state: “To be signed only by voters eligible to vote for the office.”;
The next printed line of the petition shall state: “For the office of: ”, followed immediately by the title the office, as it appears on the ballot, for which the candidate is to be nominated; and, followed immediately by the text “ for ”; and, followed by the jurisdiction of the office;
The next printed line of the petition shall state: “Nominating: ”, followed immediately by the candidate’s legal name and, optionally, in quotes, an informal name, as it is intended to appear on the ballot;
The next printed line of the petition shall state: “Whose legal address is: ”, followed immediately by the candidate’s legal address, as it is intended to appear on the ballot;
The next printed line of the petition shall state: “Political Party: ”, followed immediately by the name of the political party, as it is intended to appear on the ballot. “No Party” is
permitted. “Write-In” is permitted for candidates nominated by write-in votes; and, “For the Town or City:”, followed immediately by the name of the town or city where the signers below must be registered to vote.

The next printed line shall identify the appropriate columns for voters to fill out with the words “Voter’s Name (print)”; “Street Address”; “Signature”; “Date”;
There shall follow sixteen (16) thin, straight lines, indicating the space for the voter to make a nomination.
Section 20. Petition Sample
NOTA Election Nominating Petition
To be signed only by voters eligible to vote for the office.
For the office of: United States Representative for 5th Congressional District
Nominating: William P. Doe “Billy Doe”
Whose legal address is: 600 Elm Street, Harvard, MA 01451
Political Party: No Party For the Town or City: Harvard
Voter’s Name (print) Street Address Signature Date m/d/y

Section 21. Conflicting provisions
The provisions of this act shall prevail over any conflicting provisions of any other law.
Section 22. Severability
The provisions of this act are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.
Section 23. Effective date
The provisions of this act shall take effect two (2) years after enactment

Abstention Should Be A Ballot Choice

Mickey Mouse would be a better candidate than the current Democratic and Republican choices

I have recently blogged that none of the major party candidates can be taken seriously. None addresses the key issues that face the United States, namely, monetary inflation, excessive government, the war against terrorist jihad and the influence of economic special interests. As a result, I conclude, voters would be more rational to abstain than to vote for a candidate who has already demonstrated an unwillingness to discuss serious issues.

The candidates seem to have chosen to avoid serious discussion in order to avoid offending their economic patrons and revealing their true intentions. Many Americans, including many conservatives, would conclude that George Bush misled them as to his intentions in 2000. Given that the media has been unwilling to uncover meaningful evidence or information about candidates (as opposed to sexual predilictions or drug habits), the public has insufficient evidence to vote intelligently.

The problem with not voting, though, is that it sends a confused message. Is the individual not voting because he does not care? Or is he not voting because he actively aims to express dissatisfaction with the current candidates? The matter is further confused by fringe political parties such as Libertarians and Communists who are as ridiculous as the mainstream candidates but who give the impression of offering alternatives to the disaffected.

Instead, states should provide a column called "ABSTAIN". Voters should have the ability to actively express lack of interest in the dingbat political candidates. By actively choosing "ABSTAIN", the country will know the certain percentage of the public that cares enough to vote but is onto the inflationary/special interest brokerage game that the political/financial complex (along with its lackies in the press and academia) have been playing.

Kenneth L. Marcus's "Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964"

Kenneth L. Marcus, staff director of the US Commission on Civil Rights, has forwarded two articles that he has recently written. The first, "Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964", which appears in the February 2007 issue of the William and Mary Bill of Rights Journal(pp. 837-891, published by the students of the William and Mary Law School) provides a review of recent literature documenting the new anti-Semitism on college campuses. In the last millenium, anti-Semitism was associated with European conservatism, the Junkers and romantic intellectuals like Fichte. More recently in America and Europe, the left, which carries on the traditions of German romanticism, is most closely associated with virulent strains of anti-Semitism.

Recently, Professor John W. Epperson of Simpson College sent me an e-mail questioning the existence of campus anti-Semitism and requesting documentation of it. Marcus's essay provides several recent sources and offers case studies of incidents at San Francisco State University, Columbia University, and the University of California at Irvine. Marcus notes that:

"The Anti-Defamation League documented nearly 100 anti-Semitic incidents on American college campuses in 2005 alone...most incidents are probably not reported to the ADL." I know this to be true because I was subjected to a degree of anti-Semitic harassment at Clarkson University in 1991. I was also subjected to inquiry as to whether I was Jewish at a job interview at the business school of New Jersey's William Paterson College in 1990. I never complained about either incident. The dean at William Paterson College subsequently changed jobs, moving to the business school at CW Post College on Long Island. I learned that in the mid 1990s a professor at the CW Post campus who had been denied tenure under this dean filed a law suit against CW Post under Title VII of the Civil Rights Act, claiming disparate treatment because of religion (while Title VI of the 1964 Civil Rights Act does not permit religious claims, Title VII, which concerns employment, does). Thus, there were at least two unrelated incidents but only one complaint regarding this dean.

Marcus notes that the Department of Justice's Office of Civil Rights began pursuing anti-Semitism complaints in 2004 as part of a policy concerning Sikh, Muslim and Jewish students involving discrimination that involves a combination of ethnic and religious traits. In Marcus's fall 2006 essay in the Nevada Law Journal (p. 171-181) he argues for legislative language that would prohibit religious discrimination. But Marcus also argues that groups, like Muslims, Jews and Sikhs, that combine religious and ethnic characteristics can likely sue under Title VI because of their ethnic (but not religious) traits.

When the Zionist Organization of America filed a complaint concerning the anti-Semitic incident at UC Irvine that Marcus documents, UC Irvine argued publicly that "Title VI does not apply to allegations of anti-Semitism" based on anthropological evolution of the definition of race. However, the courts have not supported this argument. Moreover, in 2006, the US Commission on Civil Rights, of which Marcus is the staff director, found that anti-Semitic campus incidents may constitute a hostile environment in violation of Title VI of the Civil Rights Act, although the ambiguity has increased since then.

Marcus argues that Title VI is meant to ensure that federal funds are spent in accordance with the Constitution's Fourteenth Amendment and the Civil Rights Act of 1866, which holds that:

"citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."

Marcus argues that the 1866 Civil Rights Act has been interpreted to include ethnic discrimination and since the Fourteenth Amendment was passed to provide a basis for the 1866 Act, the Fourteenth Amendment ought to be construed to contemplate ethnic discrimination. In Al-Khazraji v. St. Francis College an Iraqi professor argued that he had been discriminated against racially under the Civil Rights Act of 1866. Based on a historical review, the Supreme Court determined that ancestry or ethnic characteristics are included in the definition of race. Since the 1866 Act contemplates anti-Semitism, argues Marcus, the Fourteenth Amendment does as well. Moreover, argues Marcus, the 1964 Civil Rights Act is based on re-conceptualization of the 1866 Act, so Title VI of the 1964 Act ought to include protections against anti-Semitism and other forms of ethnic discrimination, such as anti-Muslim or Sikh.

As Marcus points out:

"The primary congressional intent in stripping religious discrimination from Title VI appears to have been concern over the ability of denominational institutions to discriminate in favor of co-religionists in academic admissions, choir and employment."

However, there are neat ways around this problem. Thus, for example, colleges like Wheaton College that have a doctrinal requirement for admission ought not be affected by elimination of religious discrimination.

Moreover, during the Civil Rights Act hearings in the 1960s, Rabbi Irwin Blank, Chairman of the Commission on Social Action, Synagogue Council of America, testified that a prohibition on anti-Semitic discrimination was not needed in 1964. Yet, Marcus points out that the Civil Rights Act includes religion in its prohibitions on discrimination in 15 places but not in Title VI.

Marcus argues that Congress's goal was to provide an enforcement mechanism for the 1866 Act and similar Reconstruction era legislation. Religious discrimination is, in Marcus's view, a bit of unfinished business from the Civil Rights Act of 1964.

In Davis v. Monroe County Board of Education the Supreme Court held that a single or isolated incident does not constitute harassment. Rather, there needs to be severe, pervasive and persistent harassing conduct so as to interfere with a student's education before the courts will interpret an action as constituting a hostile environment. Thus, if ethnic harassment (to include anti-Semitism) reduces the ability of one student to learn, then it consitutes harssment as long as the university is on notice of the problem and has failed to take steps to remedy it.

Kenneth Marcus has outlined the ongoing problem of left-wing anti-Semitism in American universities; provided case study examples; cited additional sources; and provided a cogent legal analysis, to include recommendations on how to handle the problem. His work is exemplary.

The Assets and Liabilities of Ideological Differences

Marvin Belsky has forwarded an essay by Peter Berkowitz of Stanford's Hoover Institution. Dr. Berkowitz notes that in recent years the left has displayed uniformity of thought and ideas while conservatives have often been embroiled in debate. Dr. Berkowitz is right that higher education has failed to educate about conservative ideas, and that part of the problem with today's debate is lack of intellectual grounding and poor education. However, the lack of education can be overcome. I would reply that differences of opinion are not bad, and that the education system has failed in an additional way. Conservatives lack conflict resolution and problem solving skills that can capitalize on ideological differences.

Indeed, creativity theorists would argue that debate and disagreement are fundamental to imagination, group problem solving and productivity. In his classic 1967 Psychological Review article "The Assets and Liabilities of Group Problem Solving" Norman Maier argues that well-managed disagreement that leads to new perspectives and problem solving methods or algorithms is the chief asset of group problem solving. This asset is threatened by conformity pressure, dominance of a leader and poorly managed factionalism. Maier argues that the leader of a group ought to function like the nerve ring of a starfish, which interprets information transmitted from the spokes but does not impose pre-conceived solutions. In Jim Collins's book Good to Great Collins argues that great leaders tend to be self-effacing and to encourage and stimulate the creativity of their team. I am reminded of George Washington. Wasn't his exposure to the conflicting ideas of Jefferson as well as Hamilton ultimately beneficial to the nation?

But much as the federalist and anti-federalist conflict of Hamilton and Jefferson lead to Hamilton's duel with Aaron Burr, much of the debate within the conservative movement has been poorly managed. Indeed, I don't recall any debate or discussion about "big government conservatism", which seems, like Dionysus, to have sprung from the thigh of Zeus, or should I say the thighs of President Bush and Senator Frist.

Conflict needs to be managed and part of great leadership is conflict management. I think that the Republicans have failed in this regard, as they have traditionally adopted a uniform public face despite differences. The Republicans have not been conflictual enough on the surface, and so resolvable doctrinal differences (that can be resolved on a practical if not an intellectual level) become more heated than they need to be. I recently blogged my disagreement with Jesse Walker's position on the Academic Bill of Rights. Such disagreements are beneficial if they do not elminate the ability to cooperate. Perhaps one problem that faces conservatives is how to couch disagreement in ways that are not destructive to long term political alliances.

Berkowitz notes that the left's views are converging and the left is not engaging in much debate. This signals the left's decay. Berkowitz adds that conflict in the conservative movement is between those who advocate traditional values and those who focus on individualism. It seems to me that there is ample room for compromise, and that there is a logical alliance between these two perspectives, as well among those who derive their ideas from Kirk or Burke, Strauss or Hayek. However, I have not sensed an interest in such an alliance, perhaps because of lack of education not only about intellectual foundations but also interpersonal skills and conflict resolution methods.

Berkowitz argues that on "non-standard" issues such as Iraq, gay marriage and stem cell research there is increasingly strident divergence among conservatives. But as Berkowitz points out:

"blinded by rage at the Bush administration and resentment over its own lack of power, the left has betrayed its commitment to grasp the many-sidedness of politics".

It is precisely the left's tunnel vision which confirms that its ideas and its success are moribund.


My response to Marvin Belsky about the Berkowitz essay:

All I ask is a commitment to reduction in the scope of government. The Republicans have failed for me not because of a commitment to a different kind of conservatism, but rather because of a commitment to opportunism. I assume that to be a conservative in America you need to be committed to limited government. If not, then I am not a conservative, like Hayek. I am more than open minded to alliances with the religious right and cultural conservatives, but the Republicans have made it clear that they do not understand nor care about economic liberty. Therefore, I am staying home this year until the Republicans educate themselves about basic economics and about freedom. I don't see that as a debate among conservatives, but rather a practical tactic that arises because the Republicans have thought in terms of pandering to special interest groups and in terms of big government that facilitates such pandering. They figured that they do not need economic liberals in Hayek's sense because the economic liberals have nowhere else to go. But they are wrong. I am not going to waste my vote on Republicans until they once again commit themselves to small government and economic liberty.

Marvin Belsky writes:

Thanks for replying, particularly as I agree with you about Republican opportunism and its betrayal of conservative principles. Though not a Republican, I have gone from Far Left to Right and I thought Peter Berkowitz's thoughts were provocative.

Nonetheless, the critical issue in this election remains the Islamic onslaught on Western democracy and Israel, and I have absolutely no confidence that any Democratic candidate has any grasp of how to defeat that onslaught. Even more, the past history of their party and its philosophy has been appeasing Islam, trust in a corrupt UN at the expense of America's interests, increasing taxes and even more spending than the Republicans, moral equivalency, most especially with bed-rock values, such as gay marriage, affirmative discriminating action, abortion on demand.

Therefore, as we don't have perfect options, the differences in the Democratic and Republican candidates are so striking, it would be an unmitigated disaster for American interests to be beholden to any Democratic president. So we should fight Republican opportunism, even as Baker, Scowcroft, Rice sabotage and also appease, for me the choice is clear in this most imperfect world.

Hoping that we perfectionists do not abandon our nation's fate to the Clintonistas, Obamas, Edwards,
Marvin Belsky



POLITICAL THOUGHT
The Conservative Mind

The American right is a cauldron of debate; the left isn't.

BY PETER BERKOWITZ

The left prides itself on, and frequently boasts of, its superior appreciation of the complexity and depth of moral and political life. But political debate in America today tells a different story.

On a variety of issues that currently divide the nation, those to the left of center seem to be converging, their ranks increasingly untroubled by debate or dissent, except on daily tactics and long-term strategy. Meanwhile, those to the right of center are engaged in an intense intra-party struggle to balance competing principles and goods.

One source of the divisions evident today is the tension in modern conservatism between its commitment to individual liberty, and its lively appreciation of the need to preserve the beliefs, practices, associations and institutions that form citizens capable of preserving liberty. The conservative reflex to resist change must often be overcome, because prudent change is necessary to defend liberty. Yet the tension within often compels conservatives to wrestle with the consequences of change more fully than progressives--for whom change itself is often seen as good, and change that contributes to the equalization of social conditions as a very important good.

To be sure, some standard-order issues remain easy for both sides. Democrats instinctively want to repeal the Bush tax cuts, establish government supervised universal healthcare, and impose greater regulation on trade. Just as instinctively Republicans wish to extend the Bush tax cuts, find market mechanisms to broaden health care coverage and reduce limitations on trade.

But on non-standard issues--involving dramatic changes in national security and foreign affairs, the power of medicine and technology to intervene at the early stages of life, and the social meaning of marriage and family, the partisans show a clear difference: the left is more and more of one mind while divisions on the right deepen.

Consider Iraq. The split among conservatives has widened since Saddam was toppled in the spring of 2003. Traditional realists continue to put their trust in containment, and reject nation-building on the grounds that we lack both a moral obligation and the requisite knowledge of Arabic, Iraqi culture and politics, and Islam. Supporters of the war still argue that, in an age of mega-terror, planting the seeds of liberty and democracy in the Muslim Middle East is a reasonable response to the poverty, illiteracy, authoritarianism, violence and religious fanaticism that plagues the region.

In contrast, Democrats today are nearly united in the belief that the invasion has been a fiasco and that we must withdraw promptly. Indeed, rare is the Democrat (Sen. Joe Lieberman was compelled to run as an Independent) who does not sound like a traditional realist denying both America's moral obligation to remain in Iraq and its capacity to bring order to the country.

Consider also abortion rights and embryonic stem-cell research. Here too, the right is torn, with the social conservative wing opposed to both, and the small government, libertarian wing supporting both. No such major divisions are in evidence on the left. Rare is the progressive man or woman who opposes abortion rights, or who regards the destruction of embryos as the taking of human life, or even as a dangerous precedent corroding our respect for the most vulnerable among us.

And look at same-sex marriage. Again, the right is rent by serious difference of opinion. A crucial segment of those who voted for Bush in 2000 and 2004 think that the Constitution should be amended to protect the traditional understanding of marriage as a union between one man and one woman. Another crucial segment of the Republican coalition rejects alteration of the Constitution to advance debatable social policy, preferring that states function as laboratories of innovation.

Meanwhile, on the left, despite ambivalence among the rank and file, all that remains to be decided at the elite level is how and in what ways to endorse same-sex marriage. Few doubt that presidential candidate John Kerry's opposition to same-sex marriage in 2004 was driven more by political calculation than moral conviction. And rare is the man or woman of the left who, in public debate, identifies competing principles and goods that ought to cause hesitation or doubt about same-sex marriage's justice or benefits to the nation.

This absence on the left of debate or dissent about moral and political ends has been aided and abetted by many of the party's foremost intellectuals, who have reveled in denouncing George W. Bush as a dictator, in declaring democracy in 21st-century America all but illegitimate, and in diagnosing conservatism in America as in the grips of fascist sentiments and opinions.

A few months ago, Hoover Institution research fellow Dinesh D'Souza published a highly polemical book, "The Enemy at Home," which held the cultural left responsible for causing 9/11 and contended that American conservatives should repudiate fellow citizens on the left and instead form alliances with traditional Muslims around the world. Conservatives of many stripes leapt into the fray to criticize it. But rare is the voice on the left that has criticized Boston College professor and New Republic contributing editor Alan Wolfe, former secretary of labor and Berkeley professor Robert Reich, New Republic editor-at-large and Council on Foreign Relations senior fellow Peter Beinart, Berkeley professor George Lakoff, and New York University law professor Ronald Dworkin--all of whom have publicly argued in the last several years that conservatives form an enemy at home.

One explanation of the unity on the left is its belief that today's divisive political questions have easy answers--but because of their illiberal opinions and aims, conservatives are unable to see this and, in a mere six years, have brought democracy in America to the brink. This explanation, however, contradicts the vital lesson of John Stuart Mill's liberalism that political questions, as opposed to mathematical questions, tend by their very nature to be many-sided. Indeed, it contradicts the left's celebration of its own appreciation of the complexity and depth of politics.

Another explanation is that blinded by rage at the Bush administration and resentment over its own lack of power, the left has betrayed its commitment to grasp the many-sidedness of politics, and, in the process, has lost appreciation of modern conservatism's distinctive contribution to the defense of a good, liberty, which the left also prizes. Indeed, the widespread ignorance among the highly educated of the conservative tradition in America is appalling.

In contrast to much European conservatism, which harks back to premodern times and the political preeminence of religion and royalty, in America--which lacked a feudal past to preserve or recover--conservatism has always revolved around the preservation of individual liberty. Of course modern conservatism generally admires virtues embodied in religious faith and the aristocratic devotion to excellence. It also tends to emphasize the weaknesses of human nature, the ironies and tragedies of history, and the limitations of reason and politics. At the same time, it wishes to put these virtues and this knowledge in liberty's service.

Balancing the claims of liberty and tradition, or showing how liberty depends on tradition, is the very essence of modern conservatism, the founding text for which was provided by Whig orator and statesman Edmund Burke in his 1790 polemic, "Reflections on the Revolution in France." The divisions within contemporary American conservatism--social conservatives, libertarians, and neoconservatives--arise from differences over which goods most urgently need to be preserved, to what extent, and with what role for government.

The varieties of conservatism are poorly understood today not only because of the bitterness of current political battles but also because the books that have played a key role in forming the several schools go largely untaught at our universities and largely unread by our professors. Indeed, perhaps one cause of the polarization that afflicts our political and intellectual class is the failure of our universities to teach, and in many cases to note the existence of, the conservative dimensions of American political thought.

Rare is the political scientist, to say nothing of other faculty, who can sketch the argument, or articulate the point of view, of such influential works as Russell Kirk's "The Conservative Mind" (1953), F. A. Hayek's "The Road to Serfdom" (1944) or Leo Strauss's "Natural Right and History" (1953). Yet these works, and the schools they helped launch, are essential to understanding not only where we come from but where we should head.

Kirk identified six elements that make the conservative mind: belief in a transcendent order that "rules society as well as conscience"; attachment to "the proliferating variety and mystery of human existence" as against the routinizing and leveling forces of modern society; the assumption that "civilized society requires orders and classes"; the conviction that "freedom and property are closely linked"; faith in custom and convention and consequently a "distrust of the 'sophisters, calculators, and economists' who would reconstruct society upon abstract designs"; and a wariness of innovation coupled with a recognition that "prudent innovation is the means of social preservation." The leading role in this mix that Kirk attaches to religion marks him as a social conservative; his insistence that religion provides the indispensable ground for individual liberty marks him as a modern conservative.

Famously, at least in libertarian circles, Hayek, an Austrian-born economist who became a British citizen and then immigrated to the U.S. in 1950, wrote a postscript to "The Constitution of Liberty" (1960), explaining why he was not a conservative. For him, "true conservatism"--which he confused with European reaction--was characterized by "opposition to drastic change" and a complacent embrace of established authority. Because his overriding goal was to preserve liberty, Hayek considered himself a liberal, but he recognized that in the face of the challenges presented mid-century by socialism, he would often find himself in alliance with conservatives. As a staunch member of the party of liberty, Hayek was keen to identify the political arrangements that would allow for "free growth" and "spontaneous change," which, he argued, brought economic prosperity and created the conditions for individual development. This meant preserving the tradition of classical liberalism, and defending limited, constitutional government against encroachments by the welfare state and paternalistic legislation.

For Strauss, what was most urgently in need in preservation was an idea, the idea of natural right. Like Kirk, Strauss believed that modern doctrines of natural right derived support from biblical faith. Like Hayek, Strauss taught that limited, constitutional government was indispensable to our freedom. But Strauss also saw that modern doctrines of natural right contained debilitating tendencies, which, increasingly, provided support for stupefying and intolerant dogmas. To arrest the decay, he turned to the classical natural right teachings of Plato and Aristotle, who were neither liberals nor democrats, but whose reflections on knowledge, politics and virtue, Strauss concluded, provided liberal democracy sturdier foundations.

There can not be a conservative soul today in the way one can speak of a liberal soul or spirit. Whereas the latter revolves around the paramount good of freedom, modern conservatives, while loving liberty, differ over its position in the hierarchy of goods most in need of preservation, and indeed differ over the paramount good. Yet the writings of Kirk, Hayek and Strauss do form a family. All developed their ideas with a view to the 20th century totalitarian temptations of fascism and communism. All agreed that liberal democracy constituted the last best hope of modern man. And all showed that defending liberty involves a delicate balancing act.

Conservatives, facing uncertainty about George W. Bush's legacy, and the reality of their own errors and excesses, have good reason just now to read and ponder Kirk, Hayek and Strauss. Progressives, too prone these days to perceive difficult moral and political questions as one-sided and too keen to characterize their allies at home in the defense of liberty as enemies, have good reason to do so themselves.

Peter Berkowitz is a senior fellow at Stanford University's Hoover Institution.