A lawyer begins his oral argument in a court south of the Mason-Dixon Line with the following:
“A deed, y’honors, is an instrument wherebah title to property is transferred from one person [theatrical pause] to anothuh person.”
One of the judges drawls in response, “Counsel, you can assume that we know some law.”
The lawyer ruefully responds: “Well, y’honor, I made THAT mistake in the lowuh court.”
We all make “that mistake” sometimes — we neglect to point out the obvious — because it seems so obvious to us. We filter experience through habits of language and meaning, and we either forget that others understand things differently, or worse, we count on them to not pay attention.
Politicians, no less than the rest of us, filter experience through their habits of language and meaning. Lawmakers, however, have a special obligation to approach language with honesty and precision. They are responsible for the words that are enacted into law, and they command the public ear when the issues of the day are debated.
Happily for Marylanders, politicians in Annapolis, for the most part, do take that obligation to heart. State politics are largely free of the shrill partisanship that impedes responsible lawmaking.
Maryland has seen its share of political corruption, but we have been largely spared the calculated histrionics and the misuse of language that corrupt public discourse. Before passing yet another mainstream Democratic bill, Democratic legislators politely hear out, rather than shout down, Republicans. Legislators from the Eastern Shore grouse about Baltimore, whereupon the State Highway Administration dutifully adds another lane to Route 50. But no Clinton-hating conspiracy theorists declaim in Annapolis, and no slanderous anti-Ehrlich placards mar the steps of Government House.
And why is that? Is it the frequent appearance of governors — McKeldin, Tawes, Mandel, Schaefer — whom we not only like, but take pleasure in liking? Yes, in part. But there is a reason for our good luck with governors. You don’t win the votes of a relatively well-educated electorate by patronizing and manipulating them. You win by approaching voters with respect, which means respecting language and respecting process. Maryland rewards responsible discourse, and the process therefore tends to self-select for a responsible political class.
I used to snicker at the thought of that lawyer trying to explain deeds to a panel of judges. However, after my wife, who is from Boston, pointed out to me that Maryland is south of the Mason-Dixon Line, a fact that had not previously occurred to me, the joke took on a painful aspect.
Similarly, some political players in Annapolis, despite (or because of) this honorable tradition of rhetorical clarity, need to be reminded when their mindsets drift out of alignment with the operable facts, as it has ever so slightly recently. Two examples involve taxes and gay rights.
As the debate over taxes and slots gathered steam last year, Progressive Maryland published a purported inventory of $3 billion in “tax loopholes” which, if closed, could solve the state’s budget problems several times over. Read the report, however, and you discover that many of Progressive Maryland’s loopholes consist of insufficiently high tax rates. Ahem. I’m a tax lawyer, and I know about loopholes. Taxing income at a lower rate than New York or California is no loophole.
Let me state the obvious: Tax policy is complicated, not only because the rules are complicated, but because the law of unintended consequences plays a particularly unforgiving role. A responsible debate over taxes requires that we acknowledge the complexity of its many moving parts and that we avoid provocative, misleading labels. There are several quality Web sites that offer a starting point. The Center for Tax Justice, at www.njc.org, is liberal; the National Center for Policy Analysis, at www.ncpa.org/pi/taxes, is conservative; and a wonkish Brookings Institute site, www.taxpolicycenter.org, is the best of the three.
The issue of gay rights has been thrust upon us by recent court rulings in the United States and Canada. It will not do to avoid the debate by categorizing proposals relating to gay rights as a quest for extra rights, or “special pleading,” as some disapprovingly call it. The U.S. Supreme Court and the Massachusetts Supreme Judicial Court most recently have defined their role in the debate as an obligation not to “mandate [a] moral code,” but rather to “define … liberty.”
So’s you folks don’t end up like that lawyer who made the mistake about deeds in the lowah court, let me break that down: Courts, hereinafter, cannot and will not “mandate a moral code,” and instead will focus, as a matter of jurisprudence, on “defining liberty.” Got it? “No” to moral code; “yes” to defining liberty (or, in lawyer-speak, due process).
As a result of these rulings, gay rights is, in terms of legislation, no more a matter of “special pleading” than Maryland’s corporate tax rate constitutes a “tax loophole.” Those who want to affect the outcome of the debate on civil unions must speak the language that will govern the debate. To do that, they need to read Lawrence, the U.S. Supreme Court case (123 S.Ct. 2472), and Goodridge, the Massachusetts case (440 Mass 309), and figure out where the courts are headed with this liberty vs. morality distinction. In addition, interesting debate pro and con can be accessed through links at www.andrewsullivan.com, the political weblog of a gay, right-leaning former editor of the New Republic.
I may have been laughably dense on the location of the Mason-Dixon Line, but it doesn’t take a slick Yankee to see that stridency not backed by ideas leads to unhappy voters. Gray Davis made “that mistake” in California. By insisting on informed, principled debate, our leaders will avoid that mistake in the Old Line State.
© Maryland Gazette. Reprinted with permission.