David Boaz

A few weeks ago I noted that the $3.3 billion county budget in one of Washington’s wealthy suburbs, Fairfax County, had a bit of fat in it, such as manners classes for kids. This weekend the Washington Post reported that ”a $2 million [swimming pool] renovation [in neighboring Arlington County], dedicated yesterday, is part of the Northern Virginia Regional Park Authority’s effort to woo residents from the increasing number of pools run by homeowners associations, officials said.”

Maybe if the private sector is providing a service, taxpayers could be relieved of that burden. If the argument is that government-run pools are intended to serve poor children who don’t have access to private pools, we could debate that policy. But the Post article makes clear that Northern Virginia government officials see themselves as competing in a “market” to attract customers from the pools provided by homeowners associations. And that seems a strikingly inappropriate mission for government.

In his weekly radio address, President Bush said that the Democrats in Congress have “passed a budget that would … pile on hundreds of billions of dollars in new government spending over the next five years.”

Can they beat the record of the past five years

Politicians are circling around hedge funds like vultures. They want to raise taxes on hedge funds, maybe by treating their capital gains as normal income. Why Because hedge funds are mysterious — do you know what they really do — and they have a lot of money. Make billion-dollar profits, get headlines, attract taxers — it’s as certain as ants at a picnic.

There are whole books on the correct theory of taxation. I’ve always assumed that Democratic members of Congress operate on the theory most clearly enunciated in 1990 by Sen. Barbara Mikulski (D, Md.):

Let’s go and get it from those who’ve got it.

There are many theories of taxation, such as Haig-Simons, the Tiebout model, and the Ramsay Principle. But I’d bet that the Mikulski Principle explains actual taxation best.

Ron Paul is the San Antonio Spurs of Congress.

Washington Post sports columnist Mike Wise praises the resilience of the Spurs, who keep coming back to win the NBA championship without ever being quite a Bulls-style dynasty. He says the Spurs “had their crown taken away twice since 2003 and got it back both times.”

Similarly, Ron Paul is the only current member of Congress to have been elected three times as a non-incumbent. Given the 98 percent reelection rates for House members, it’s no great shakes to win three terms — or 10 terms — in a row. It’s winning that first one that’s the challenge. And Ron Paul has done that three times.

He first won in a special election for an open seat. He then lost his seat and won it back two years later, defeating the incumbent. After two more terms he left his seat to run unsuccessfully for the U.S. Senate (and thereby did his greatest disservice to the American Republic, as his seat was won by Tom DeLay). Twelve years later, in 1996, after some redistricting, he ran again for Congress, again defeating an incumbent, this time in the Republican primary. Some political scientist should study the political skills it takes to win election to Congress without the benefit of incumbency — three times.

Genes can't tell us if US president James Madison fathered a child with a slave.

Several years ago newspapers reported that a study of DNA proved that Thomas Jefferson, the author of the Declaration of Independence, had fathered children with his slave Sally Hemings. Now some African-Americans want a genetic history to prove that they are descended from James Madison, the father of the US constitution. But DNA can't prove what they want.

The Washington Post reports that Bettye Kearse, an African-American physician, wants to confirm her family's oral tradition that they are direct descendants of Madison. This past weekend she attended the Montpelier slave descendants reunion at the fourth president's mansion. "Working with Bruce Jackson, co-director of the Roots Project, which helps African Americans trace their genetic histories," Kearse wants to:

compare the Y chromosomes - which are identical across generations - of male descendants in Madison's family to the Y chromosomes of some of Kearse's male cousins. Jackson and Kearse have been searching for Madison relatives in England but recently located a descendant of one of Madison's brothers in North Carolina.

The Kearse family's oral history:

begins with a kidnapped African slave, Mandy, who Kearse says was impregnated at Montpelier by Madison's father. The child, Coreen, later gave birth to Madison's child, whom she named James Madison.

So there's your problem. Even if Kearse and her genetic consultants manage to find a match between the DNA of her African-American cousins and that of Madison family descendants, it would only prove a genetic link between the two families. It would not prove that President Madison himself fathered a child with one of the Kearse ancestors. Indeed, since the Kearse family's oral history claims descent from both Madison and his father, there would be no reason to assume that President James Madison junior, rather than his father, James Madison senior, had provided the Madison DNA to the Kearse family.

The Washington Post reported:

Jackson, speaking to attendees Saturday about how genetic research is conducted, noted that if Kearse's claim proves correct, it would mean Madison's only living direct descendants are African American.

But since Jackson is a geneticist, it seems likely that he was not saying that a DNA match would prove that, but only that a DNA match plus some other form of evidence could prove such a claim.

A few facts about Madison's family point away from President Madison. James Madison had no children with his wife Dolley. His father, on the other hand, fathered 12 children. And some of Madison's brothers had children, whose descendants are being sought for the DNA testing. Dolley Madison had two sons with her first husband. So we know that Madison's father, brothers, and wife were fertile, yet he himself fathered no known children. It seems quite possible that he was infertile.

This story is reminiscent of the 1998 bombshell about Thomas Jefferson and Sally Hemings. Apparently confirming two centuries of rumors and accusations, the November 5, 1998 issue of the journal Nature ran an article bearing the headline, "Jefferson fathered slave's last child." The article was more cautious: it reported that DNA analysis pointed conclusively to some member of the Jefferson family having fathered at least one of Sally Hemings's children, and argued that the historical evidence (it cited oral history) pointed to Thomas Jefferson.

As the Jefferson historian David Mayer wrote in a critique of the research and the media coverage of it:

A more accurate headline, of course, would have been "A Jefferson - not necessarily Thomas Jefferson - fathered" Sally Hemings' youngest child.) The article on the DNA test results was accompanied by an article "Founding father," co-authored by Professor [Joseph] Ellis, which proclaimed that the DNA analysis "confirms that Jefferson was indeed the father of at least one of Hemings' children."

But in fact all the DNA analysis could confirm was that some of Sally Hemings's descendants were also descended from a male Jefferson. Sally's children could well have been fathered by Jefferson's brother or nephews. There is much debate over whether non-DNA evidence - the Hemings family's oral history, the accusations in Federalist newspapers, the ages of Jefferson and his relatives, their whereabouts nine months before the births of Sally's children - tends to point to Jefferson, his brother, or his nephews as the most likely fathers. But DNA can't prove more than the family connection.

Does any of this matter? It matters to the people who might be descended from Thomas Jefferson or James Madison. It's a common human trait to take pride in one's ancestry. It matters because truth always matters. And it seems to matter to some people in that it takes Thomas Jefferson down a peg. (The Madison story is new and much less discussed.) It makes him less the hero of the marble statue, or even the loving and lustful husband of the musical 1776, but rather a man of normal, even salacious, appetites - a man who (allegedly) engaged in sexual relations that were not just outside marriage but possibly outside the bounds of decency. Some have argued for a genuine love affair between the brilliant older man and the beautiful young woman who was the half-sister of his late wife. But most of us cannot escape the feeling that sex between a master and a slave is uncomfortably close to rape. Can a slave withhold her consent? So it matters because it lessens our admiration for Jefferson (or Madison), which is exactly what some critics want.

On the other hand, do we really need this story to point out to us the flaw in Jefferson's character? The cognitive dissonance endured by the man who declared, "All men are created equal," yet owned some men as slaves? Jefferson and Madison produced some of the greatest writing on freedom in history. We owe to them the theory and the institutions of American liberty. And yet they owned slaves. What can we say about that? That all men are imperfect, that most of us fall short of our ideals, but that the ideals still matter. We are all - white Americans, black Americans, people in other countries - better off because Jefferson and Madison fought for American freedom and wrote the documents they did.

As Mayer wrote:

Jefferson's place in American history - his central role in our nation's founding and the evolution of its system of government - justly derives from his ideas. As I see it, genealogy is irrelevant: the true "children" of Jefferson today are those who understand his ideas and work to keep them alive. His lasting legacy is the body of ideas he has given us, ideas still quite relevant today, to the perennial problems of protecting individual rights and limiting the powers of government.

The same is true of Madison. If we found that - as with the claims about Shakespeare - the Declaration of Independence and the constitution were not really written by Jefferson and Madison but by some tradesman lost to history, it would not change the power and importance of those ideas, though it would of course change our view of Jefferson and Madison as men. So it is with these possible revelations about their personal lives.

A headline in the Los Angeles Times reads,

GOP senators getting visit from boss on immigration

And who is the boss of 49 Republican senators Minority Leader Mitch McConnell 50 million voters No, the Times is referring to President Bush. Thankfully, the suggestion that the president is the “boss” of the Senate appears only in the headline, not in the text of the article. But even headline writers should remember that Congress is created by Article I of the Constitution, and the president by Article II.

The president is not the boss of the Congress. Nor is he the commander-in-chief of the United States, as Sen. John McCain has said. Small-r republicans need to keep reminding people that what Gene Healy calls “the bipartisan romance with the imperial presidency” is not rooted in the American system.

Juanita Swedenburg, the Virginia winemaker who took her battle for economic liberty to the Supreme Court and won, died June 9 at the age of 82. Clint Bolick, who argued her case as a lawyer for the Institute for Justice, discussed it in his new book David’s Hammer:

My curiosity was sparked, however, during a visit in the early 1990s to a small winery in bucolic Middleburg, Virginia. The proprietor was a striking older woman, Juanita Swedenburg, who owned and operated the winery with her husband. She produced several good wines, including a chardonnay with the toastiest nose I can remember. We got to talking and Mrs. Swedenburg asked me what I did for a living. When I told her that, among other things, I challenged regulatory barriers to entrepreneurship, she exclaimed, “Have I got a regulation for you!”

Most states, it turned out, prohibited direct interstate shipments of wine to consumers. So that if tourists from another state visited Mrs. Swedenburg’s winery and asked how they could obtain her wines back home, she would have to reply, “You can’t.” …

As a descendant of settlers who fought in the American Revolution, Mrs. Swedenburg was outraged that such a stupid law could exist in a nation with the greatest free-enterprise system in the world.

Eventually, Bolick writes, the Institute for Justice took Mrs. Swedenburg’s case to the Supreme Court. He argued against a New York law, and Stanford law school dean Kathleen Sullivan (who also spoke recently at the Cato Institute) argued against a similar Michigan law. The Court ruled 5-4 that such laws “deprive citizens of their right to have access to the markets of other States on equal terms.” When Bolick launched his new book at the Cato Institute in April, Mrs. Swedenburg was sitting in the front row.

Juanita Swedenburg was the kind of citizen a free republic needs. After a career in the foreign service, she and her husband “retired” to a Virginia farm that had been in business since 1762. They set up a winery and worked seven days a week to make it a success. As the Washington Post says, “Mrs. Swedenburg did not take the Constitution for granted.” She knew that there was something wrong with a law that prevented willing customers from buying the fruits of her labors, wherever they lived. And when she found a lawyer who shared her enthusiasm for both wine and constitutional liberty, she pressed him to take the case on behalf of her and her customers.

Like John Peter Zenger, Rosa Parks, Allan Bakke, Michael Hardwick, Bill Barlow, and many others, Mrs. Swedenburg made our constitutional rights real by using them. Raise a glass to her memory.

Tuesday is the 40th anniversary of Loving v. Virginia, in which the Supreme Court struck down Virginia’s ban on interracial marriage. It’s a good time to reflect on the social progress that Brink Lindsey discusses in The Age of Abundance: How Prosperity Changed America’s Politics and Culture. Indeed, the Freedom to Marry Coalition has been celebrating the anniversary with a series of newspaper ads highlighting the interracial marriages of such prominent Americans as Jeb Bush, Mitch McConnell, Clarence Thomas, Jim Webb, and Tiger Woods.

But Virginia’s attempts to impede the course of true love didn’t begin or end with its “anti-miscegenation” statute. As I noted for Reason a couple of years ago, in the early part of the 20th century the state was in the habit of sterilizing “imbeciles.” The Supreme Court, influenced by Progressivism, approved that exercise in social engineering. And in our own times, Virginia has been repeatedly banning same-sex marriage, not worrying excessively about how much collateral damage it does to wills, custody agreements, medical powers of attorney, or joint bank accounts.

I wrote about the state’s tradition of interfering with private choices:

Neither of these now-derided laws is a perfect match with the predicament facing gays in Virginia, but both flowed from an arrogant desire by the state to control private relationships. The state is schizophrenic about such things, but if the past is any indicator, things do not look good for gay Virginians. In the 1995 case of Sharon Bottoms, the Virginia high court took a two-year-old child away from his lesbian mother, because of her sexual orientation. If voters pass the amendment against gay marriage and civil unions next year, it would have real teeth. Already, many gays in Virginia are talking about moving to Washington or Maryland if what they view as an anti-gay crusade doesn’t recede. If things continue on their present course, the state might have to amend its slogan, “Virginia is for lovers,” to include the caveat, “some exceptions apply.”