SUNDAY, AUGUST 8, 2010
KLMNO Sunday OPINION DANA MILBANK
If at first you don’t secede, try, try again
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acationing on North Carolina’s Outer Banks this week, I’ve been thinking about how different things will be here when the South secedes from the Union. The Confederates, I anticipate, will order Eliza-
beth’s Café & Winery to banish the Maine lobster tomato caprese in favor of fried catfish. The lattes at Duck’s Cottage will likely be nullified and re- placed by sweet tea. Inevitably, the Sanderling spa will be ordered to discontinue its Vinyasa yo- ga classes and instead open a shooting range. Happily, there is as yet no sign of imminent hostilities at the seaside; Escalades with Jersey plates continue to ply Highway 12 unmolested by rebel artillery. But you wouldn’t know things were so calm from the words spoken by Repub- lican primary candidates lately. Here in the South, they have been campaigning under a bi- zarre theory: nothing succeeds like secession. The latest offender is Rep. Zach Wamp, during the Republican gubernatorial primary in Tennes- see. “I hope that the American people will go to the ballot box in 2010 and 2012 so that states are not forced to consider separation from this gov- ernment,” he said on July 23 in an interview with National Journal’s Hotline. Wamp later said the reporter was somehow wrong to “extrapolate” from his remarks that he favors secession, but by then he had already sounded the rebel yell just in time for Thursday’s primary. The campaign of his opponent, Bill Has- lam, said Haslam “has the temperament to not threaten secession on a whim.” Wamp was following the successful model of
Texas Gov. Rick Perry, who was preparing for a tough primary battle last year with Sen. Kay Bai- ley Hutchison when he floated the idea that Tex- ans might “dissolve” the union. The idea quickly won the support of Tom DeLay, who went on tele- vision to explain “how you secede,” and Texas Rep. Ron Paul, who argued that “secession is a very much American principle.” Perry trounced Hutchison in the primary. And let’s not forget Rep. Steve King (R-Iowa), who seems to think his constituents will switch sides and join the Confederacy this time. In March, he told conservative activists “let’s hope we don’t have to” get together and “start a country.” Most conservatives know it sounds loopy to talk about dissolving the union. After all, it didn’t go so well the last time around. That’s why it’s more ac- ceptable to talk about secession’s cousin, nullifica- tion. Calling themselves “Tenthers” (for the 10th Amendment, which gives states powers not as- signed to the feds), they’re claiming that states can merely ignore any federal law they don’t like. That was the strategy in Missouri this week, where a ballot proposition supported by the Re- publican Senate nominee, Rep. Roy Blunt, passed with 71 percent of the vote; the initiative essen- tially declared null and void the federal health- care reform’s requirement that individuals have health insurance. But nullification, like secession, has been tried
before, with poor result. In 1832, Andrew Jackson threatened to use force against South Carolina for nullifying federal law, saying the state was on the brink of treason and arguing that “to say that any state may at pleasure secede from the Union is to say that the United States is not a nation.” A compromise held off violence for another quarter century. President Obama’s foes often claim to revere the Constitution, but the reverence is selective. By nullifying the health-care law, they are jetti- soning Article VI, which says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the su- preme law of the land.” If a state thinks the law is unconstitutional, it can challenge the law in court, as Virginia is do- ing. If people don’t like the law, they can elect a new Congress and president to repeal it. Or they can attempt to amend the Constitution, as several Republican lawmakers would do with the pro- posed repeal of the 14th Amendment, the one with all that nonsense about equal protection un- der the law. But secession and nullification have all the legitimacy of a temper tantrum. Still, they make for good politics in this Tea Party
year. Several other states are contemplating nullifi- cation laws or referenda, and in Minnesota, Repub- lican gubernatorial candidate Tom Emmer favors rejecting all federal laws unless a super-majority of the state legislature consents to the law. The Repub- lican Party in Minnesota’s 5th Congressional Dis- trict came out in favor of nullification and secession “as options to enforce state sovereignty.” As usual, the ferment has been encouraged by
the likes of Sarah Palin (who drew big cheers in Texas when she said she heard “all this news cov- erage about, oh, Texas is seceding from the union”) and Glenn Beck (who argues that “you can’t convince me that the Founding Fathers wouldn’t allow you to secede. The Constitution is not a suicide pact”). The voters in Tennessee, however, hold the Constitution in higher regard. When the returns came in Thursday night, Haslam had beaten the rebel Wamp. The Union is saved! On the beach here in Dixie,
I plan to celebrate over a latte at Duck’s Cottage, right after yoga class.
danamilbank@washpost.com TOPIC A What’s ahead for same-sex marriage?
The Post asked policy advocates and political experts for their views on the fallout fromU.S. District Judge Vaughn Walker’s ruling last week overturning California’s Proposition 8.
JOE MATHEWS Senior fellow at the New America Foundation
Two backlashes are possible as a result of this decision. The first, a backlash from opponents of gay rights, is likely to be small. Yes, defenders of Proposition 8 will perform the ritual railing against judicial activists (and complain that the fix was in because the judge who issued the ruling is reported to be gay). But the facts of the case should put a damper on that. Judge Vaughn Walker is a Republican appointee known for conservative jurisprudence. And the stakes were relatively low; both sides in the case know that this is only one round in a long legal battle that seems headed to the U.S. Supreme Court. The second possible backlash has to do with California and its direct democracy. Perhaps the spectacle of a federal judge overruling such a momentous electoral result will force Californians to reckon with the fact that their initiative process is at odds with norms of American civil rights and government. At the very least, my state needs routine judicial review of initiatives before they go on the ballot so the public doesn’t face the repeated frustration of passing something only to see it thrown out in court. Maybe this case will produce a backlash that pushes that reform forward.
MAGGIE GALLAGHER Chairman, National Organization for Marriage
A litigator e-mailed me last week to say:
“Walker’s grandiosity will be his undoing.” Even legal scholars who support gay marriage have expressed reservations about the ruling’s “maximalist” nature. Instead of producing a lawyerly opinion, Judge Walker wrote an advocacy brief for gay marriage. I think it will
backfire and the ruling is likely to be overturned, perhaps even at the U.S. Court of Appeals for the 9th Circuit. In the meantime, the ruling — a slur against the majority of the American people, who have been declared irrational bigots by a federal judge — is firing up millions of voters, complicating an already difficult election for Democrats. This decision feeds into a larger narrative in which ordinary Americans believe they are losing control; that the powerful aren’t responding to their views or values. The only way for people to respond to this kind of slur is through the political process. At the National Organization for Marriage we are already seeing a flood of new activists and small donors who are demanding we “do something” about this decision in November. This will revive marriage as a national issue, create new pressures for a federal marriage amendment, and put politicians who prefer to dodge on the spot. As in 2004, Democrats will try to blame right-wing extremists for injecting the dreaded social issues into the campaign. But in truth, they will have Judge Vaughn Walker to thank.
DOUGLAS E. SCHOEN
Democratic pollster and author; adviser to President Bill Clinton
The court decision throwing out Proposition
8will almost certainly hurt the Democrats in November. To be sure, it will activate gays and supporters of equal rights in California, New York and Massachusetts, and there may be some congressional districts in which this brings marginal benefits. Yet the decision effectively defies the will of the California electorate and has brought the issue of gay marriage front and center as the midterms approach. It is almost certain that opponents of gay
marriage vastly exceed supporters, both in number and intensity. But opponents’ biggest advantage is their location. A disproportionate number of them live in swing states and swing districts crucial to the balance of power this November. Opponents of gay marriage will be motivated to turn out on Election Day in the same way opponents of immigration are likely to turn out because of a federal court ruling striking down parts of Arizona’s immigration law. Having seen up close the deleterious impact
of the “don’t ask, don’t tell” policy on President Bill Clinton’s approval ratings, my colleagues and I warned the president in the 1990s that any movement toward embracing gay marriage could be fatal to his political position — notwithstanding the equities in the matter. Attitudes have evolved, and more support
for gay marriage has been recorded in the past 10 years. Yet in an election in which many original supporters of President Obama are
demoralized and are, by all accounts, less likely to turn out than his opponents, putting social issues into play only encourages his opposition.
LEA BRILMAYER Howard Holtzmann professor of international law at Yale Law School
Because Proposition 8 came out of California’s idiosyncratic ballot initiative process, it lacked the careful legislative record that most state statutes would enjoy. It was evaluated instead by reference to the sometimes unscientific or intolerant public claims of anti-gay campaigners. An impressive factual showing at trial was therefore essential to the legislation’s survival. The largest part of Judge Walker’s opinion is
devoted to the evidentiary inadequacies of the defenders’ case. Observing that their evidence was “dwarfed” by that of the proposition’s 8 opponents and dismissing the testimony of key supporters’ witnesses as “unreliable,” the judge concluded that “the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.” Disappointed supporters will no doubt try again, arguing that this decision is a limited assessment of one particular factual record. As written, the decision lends itself to the conclusion that the failure was not with Proposition 8’s legal content but with its supporters’ sorry lawyering. This ruling is not going to settle anything.
ED ROGERS
Chairman of BGR Group; White House staffer to Ronald Reagan and George H.W. Bush
The left seems determined to force its ideals on the majority, even in the face of overwhelming public disapproval. Californians made their view clear; they believe marriage is between a man and a woman. If a legislature wants to vote otherwise or if a state referendum wants to define it differently, then so be it. But those rules don’t give many Democrats the result that they are insisting upon. Therefore they seek mandates on the unwilling population by judicial fiat. You can believe marriage is between a man and a woman, yet still respect individual privacy rights. Believing marriage is between a man and awoman isn’t anti-gay, and it isn’t bigoted. The more the Democrats scream otherwise, the more they alienate themselves from the majority. This is yet another distraction that adds to the political bull’s-eye the left has painted on itself. Democrats haven’t achieved solid economic growth. And changing the subject to health care, Charlie Rangel, so-called financial reform or gay marriage only makes their problems worse.
TOPIC A ONLINE: Jarrett T. Barrios, president of the Gay and Lesbian Alliance Against Defamation
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JEFF CHIU/ASSOCIATED PRESS
OMBUDSMAN ANDREW ALEXANDER Grappling with when to ‘unpublish’
charged with indecent exposure at a Woodbridge McDonald’s. But The Post never reported what happened next. According to Unice, a judge quickly concluded
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that the incident had been inadvertent and the case went no further. As he recounted it last week, he’d forgotten to wear an athletic supporter while run- ning and his gym shorts were too revealing for sev- eral patrons at the McDonald’s where he stopped afterward. “It wasn’t intentional,” Unice said. He hired an attorney and got the charges ex-
punged, so there is no public record, he said. His career with the U.S. Marshals Service continued until he retired in 2003. “I just let it go,” said Un- ice, now 65 and living in the western Ohio com- munity of Miamisburg. But last year, when he started looking for jobs to supplement his retirement income, Unice said pro- spective employers Googled his name and found the two brief stories The Post had written in 1987 — not on The Post’s Web site but on research Web sites that archive Post stories. “They won’t hire me,” he said. “I never realized that 23 years later it would come back to haunt me.” He wants the stories to disappear. Google says
that removing news stories is up to the Web site that published them. That’s why Unice contacted The Post. “I’m really in need of your help,” he pleaded, noting that he can’t point employers to court records because they were expunged. News Web sites such as The Post’s increasingly hear from people who want information “unpub-
early 23 years ago, The Post’s Metro section reported that Joseph P. Unice, a chief depu- ty for the U.S. Marshals Service, had been
lished.” In rare instances, requests are granted. For example, The Post deleted a woman’s name as the purchaser of a home because she feared being located by a stalker. Most requests are simply efforts to avoid em-
barrassment. Occasionally it’s so-called “source remorse,” when someone The Post quoted wants to revise their comments to make them more ar- ticulate. Or it’s a request to remove a news brief about a drunken driving conviction. The Post properly rejects these. Altering a
newspaper’s historical record, which lives in digi- tal databases and is relied on for research, can erode credibility.
But a growing number of requests to unpublish
are like the one from Unice, where the issue is fairness. “What’s surprising is how few news organiza- tions have policies to deal with things like this,” said Mallary Jean Tenore, who has examined the issue for the Poynter Institute on media studies in Florida. The Post has no written policies. Requests are handled ad hoc throughout the newsroom, with some referred to Post attorneys. They are not tracked, so The Post has no firm grasp on the vol- ume or types of requests being made. And readers are left in the dark about The Post’s rules on unpub- lishing or even how they might submit a request. A brief reference to unpublishing is included in
a draft of updated corrections guidelines that is being reviewed by top Post editors. It reads: “We generally won’t ‘unpublish’ or simply remove arti- cles or blog posts after discovering an error. We can republish a corrected version as soon as pos-
sible, with the acknowledgement of the original error.”
Senior Editor Milton Coleman, who helped de- velop the guidelines, said that when dealing with requests to unpublish, “Our general approach has been to say that something that occurred was fact, we reported it and we cannot and should not act like it did not occur. But since these things live forever online, we can correct the record online, and that is what we will do.” That makes sense. But what about cases where
the material is accurate but incomplete? What of situations where The Post reported the charge, but not the dismissal of it? What about fairness to those who were accused but later vindicated? The Post’s guidelines for these situations should make clear not only which types of unpub- lishing requests should be granted but also the range of remedies. When is it best to order a fol- low-up story that links to the original one? Is it permissible to simply post an “update” atop an ar- chived online story, noting later developments? And what is the level of proof that is required from people like Unice in order to convince The Post that a criminal charge went away? All of these guidelines for unpublishing should be spelled out to the newsroom. But just as impor- tant, they should be explained to readers on The Post’s Web site. Readers appreciate transparency, which builds loyalty and trust.
Andrew Alexander can be reached at 202-334-7582 or at
ombudsman@washpost.com. For daily updates, read the Omblog at
http://voices.washingtonpost.com/ ombudsman-blog/.
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