In Praise of Flip-Floppers (Part II)

In my last post I scrutinized the tendency for contemporary political discourse to use the pejorative term “flip-flop” to refer to virtually any change of position by a candidate for public office. I argued that this usage uncritically discounts the possibility that some position changes are not only entirely justified, but should, if anything, improve our perception of a candidate, and that the likely effects are excessive cynicism and an exaggerated sense of the value of consistency. In this post, I want to add one more argument to the critique: contemporary usage is also problematic because it tends to attack position changes without regard for the public office the candidate seeks, and thus fails to appreciate how the particular constitutional function of the office might make a candidate’s shifts more or less problematic.

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In Praise of Flip-Floppers

Consider the flip-flopper critique, one of the more common tools of attack in contemporary politics. Ron Paul has used it against Newt Gingrich. Many have used it against Mitt Romney. Some call President Obama the “flip-flopper-in-chief”; others speak similarly of Governor Walker. The term is efficient—in just a few syllables, it suggests that the target is at once unprincipled, untrustworthy, and unpredictable. But “flip-flopper” is often better at obfuscating than revealing. In this post, I want to briefly highlight one problem with the term’s common usage.

And here’s the problem: while flip-flopper denotes a person who has changed positions without justification, political discourse frequently abuses this meaning by failing to engage sufficiently the question of whether any given change is in fact justifiable. The common implication seems to be that all position changes are tactical and Machiavellian, and that the best candidate is the one who will most steadfastly adhere to his initial policy positions. But of course not all flip-flops are created equal. By glossing over potential justifications, standard flip-flopper critiques both encourage criticism of some praiseworthy position changes, and encourage praise of some blameworthy refusals to change course.

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A Second Look at the Sharia Law Amendment

Last week, the Tenth Circuit issued a decision on Oklahoma’s “Sharia Law Amendment.” A quick summary for those who haven’t followed: In 2010, Oklahoma voters approved a ballot initiative that amended their state’s constitution to prohibit Oklahoma courts from “considering or using” either “international law” or “Sharia Law” in making judicial decisions. A district court issued a preliminary injunction that at least temporarily prohibited the law from taking effect on the ground that its language regarding Sharia Law violates the Establishment Clause. The Tenth Circuit decision held that the district court did not abuse its discretion in issuing the injunction.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds.

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