I thought it might serve what readers come by Dust in the Light from time to time to note that I'm participating in an interesting discussion, over on Anchor Rising, concerning proper Constitutional interpretation and the specific import of the ninth and tenth amendments.
I share Jeff Jacoby's frustration over American citizens' lack of influence when it comes to the Supreme Court. But it seems to me that his "all we've got" attitude toward the confirmation process legitimizes the Court's oligarchical behavior without providing any check on its power or any influence on its activities:
As chief justice, Roberts is likely to have more of an impact on American law and life than any of the senators voting on his nomination. From the power of presidents to hold terror suspects indefinitely to the power of Congress to override state law, from the execution of murderers to the recognition of same-sex marriage, from affirmative action to abortion, Roberts and his fellow justices will shape national policy for years to come. Their decisions will be binding not only on the litigants before them, but also, by longstanding tradition, on the other branches of government. There is no appeal from a Supreme Court ruling. When the court strikes down federal and state laws, federal and state lawmakers must accept its decisions.There is little in the Constitution to check and balance such immense authority. All that can keep the court answerable in some way to the electorate is the fact that the political branches give them their jobs -- the president appoints federal judges; the Senate confirms them. While delinquent judges can be impeached and removed, there hasn't been a Supreme Court impeachment in 200 years.
So the modest leverage of the nomination process is all we've got to remind the justices that they are public servants who must answer, however indirectly, to the people, not philosopher-kings to whom the people must bow. But if nominees are permitted to keep their views to themselves, how can the people decide whether they want them on the bench? For all the recent talk about the importance of judicial "modesty," Supreme Court justices have been anything but modest in imposing their views on society. Shouldn't we know what those views are before investing them with such power?
The realization that scuttles Jacoby's sensible perspective is embedded within his very reasoning: if we accept that there are no subsequent checks on the judiciary (which I do not), then having potential justices put their views on record is a symbolic practice at best, and a cynical bit of politicking at worst. What's to stop a nominee who espouses a return of abortion policy to state legislatures — or something in the opposite direction if the political atmosphere requires — from reversing his or her position with the very first swish of a newly donned black robe?
If symbolism and an ability to "remind the justices that they are public servants who must answer, however indirectly, to the people" are our only tools for self governance when it comes to the judicial branch, than I'd prefer that our efforts focus on internalizing the belief that judges views are irrelevant to their confirmation because they are irrelevant to their application of the law, as legislated, to specific cases.
Perhaps something will come to me in the night, but upon first reading, I'm simply left speechless by this:
STATE SEN. Marian Walsh (D.-Dedham) has filed legislation requiring churches in Massachusetts to submit annual reports to the state detailing their collections, expenditures, funds on hand, investments, real-estate holdings, etc.The proposed law would apply to all religions, and their churches, synagogues, mosques, temples, tents or storefronts. But the clear impetus for the bill was two cataclysmic events in the Roman Catholic Church: the long-running sexual-abuse scandal and the closure of many venerable parishes in the Boston Archdiocese.
For my column — which will now be appearing every other Wednesday — I pondered the formation of London's homegrown Muslim terrorists: "Exploding Across Arm's-Length Tolerance." The bottom line is that the common thread that runs through the astute explanations — the root cause, if you will — is disengagement. And pushing religion, and the religious, away from politics and government will only exacerbate the problem.
The following, from a Lee Harris piece on Tech Central Station about the Supreme Court, brings to mind a question:
The Dutch philosopher Baruch Spinoza argued that those with power had an unlimited right to exercise this power, and observed that they invariably will seek to push this right to the utmost extreme that they can get away with -- anticipating Lord Acton's famous remark about the corrupting effects of absolute power. Yet Spinoza offered a ray of hope. Eventually, he said, those who are exercising unchecked and capricious power will push people too far, whereupon the latter will rise up and, often in a spasm of irrational frenzy, cast out the few who have arrogated to themselves mastery over the fate of the many.Unless, of course, the many happen to be made up of Americans, who seem to have an unlimited capacity to be pushed around by those who claim to be speaking in the name of the law.
Has anybody among the ranks of conservatives considered marching on the Supreme Court? Asking the question answers it; the idea seems somehow... inappropriate. But why? My readership, here, has declined dramatically in the recent months that necessity has required my time to be spent elsewhere than at the computer, but perhaps even we few, if we can begin a small-scale murmur with our mumbles could set people to wondering why something so obvious should seem so revolutionary.
Think of the relative lack of coverage that even a major pro-life rally claims. Now give that massive crowd the target of the U.S. judiciary. Perhaps the effects could be government-shaking.
The following suggestion of Andrew Sullivan's, which I read in a piece by Jonah Goldberg, strikes me as surprising coming from a European and shocking coming from a Catholic:
[Conservatives of doubt] can point to the astonishing success and durability of the U.S. experiment to buttress the notion that the Constitution is a much more stable defense of human equality than that inherent in any religion. The Constitution itself has far wider support among citizens than any theological argument. To put it another way: You don't need an actual religion when you already have a workable civil version in place.
Readers will be aware that I'm a patriot in the conservative sense, but I have to ask: By what historical standard is two hundred years and change evidence of durability? People who live among monuments to their cultures that date back millennia might be hard-pressed to stifle a chuckle. Similarly, those whose religions are defined by documents and traditions with the same or longer heritage might wonder whether Sullivan is playing games with the terms that qualify something as durable. The question of success would be just as arguable (especially if we factor in the acceleration of social change over time).
In its jarring lack of doubt about its own premises, Sullivan's odd bit of argument by convenient assertion appears to be an attempt to tiptoe past an inconvenient factor in his assessment of the American people. Goldberg writes of the "both-and" (versus an "either-or") that defines conservatives as people who have both "skepticism about the new and faith in the old." But the self-contradiction inherent in Sullivan's blind confidence in doubtfulness lays bare a more fundamental "both-and": the Constitution may indeed have "far wider support among citizens than any [particular] theological argument," but that is only because Americans believe that — in one way or another — their theological arguments are, themselves, embedded within the Constitution.
This attitude manifests most directly in those who believe that (for example) "America is a Christian nation" as a Constitutional matter. Sullivan disagrees with that saying, no doubt, but he can't deny that those who agree with it are likely to be among the Constitution's supporters.
The less direct means of embedment — in my view, the proper Constitutional understanding — is that religious principles exist in the civil sphere as a function of the governmental processes that the Constitution lays out. This sort of support for the Constitution hinges on citizens' ability to shape their government according to their moral beliefs.
It is not enough to treat "moral appeals" simply as free speech — to be restricted to "crusades for personal salvation, evangelism, or social work, rather than... legislative change." To the extent that Sullivan is correct that the "purpose of the Constitution was to preserve the Declaration of Independence's right to 'life, liberty and the pursuit of happiness,'" it must also allow them (as the Declaration continues in the very same sentence) "to alter" their government, "laying its Foundation on such Principles... as to them shall seem most likely to effect their Safety and Happiness."
Andrew Sullivan is prominent among commentators throwing about the dark image of theocracy, but again, he seems to be playing games with terminology. Theocracy does not describe a particular set of policies — or even the moral authority that informs them. It describes the civil authority that determines them: those acting as God's explicit representatives. With democracy, on the other hand, all authority must filter through the people.
That Sullivan has now gone so far as to suggest that the Constitution establishes a "civil version" of — and replacement for — religion reveals how much closer those of his political persuasion are to theocracy than are the "conservatives of faith" whom they oppose. That zealots for individual license traverse a dim alleyway to tyranny is evident in their conviction that their preferred policies — from abortion to same-sex marriage — are subjects of Constitutional guarantee.
Even those supposed "theocrats" who would go so far as to argue for mandatory prayers in their local public schools don't argue that the judiciary ought to find that the Constitution requires them.
Over on Anchor Rising, I've posted a speech that NRO Contributing Editor (and Anchor Rising contributor) Mac Owens gave a couple of years ago relating President Lincoln to the character of the Republican party. It seems to me that Mac captures well the fine line where the various factions contained within the party meet. Unfortunately, we seem to be falling off on either side rather precipitously, of late.
If the samples that she posted are any evidence, Kathryn Lopez might understandably be reluctant to continue visiting her email inbox. Most of what she's shared seems to be nothing so much as evidence that people don't really want to bother researching the facts of the case at hand before commenting. One email, however, raises a couple of interesting questions:
The Federal Gov't should not be deciding the specific case of Schiavo.If they had really cared they could have passed legislation about this in the past seven years. It never came up, because everyone in Congress knew it was not their role.
Every court case that gets decided in a wrong or immoral manner does not get to go to the US Congress for appeal. Yes it is a matter of life or death but this is not for Congress to intervene in.
This sets a precedent in which every family with someone on death row can bring their case to Congress.
If this was the case you would've died of a brain explosion during the early Clinton years.
Congress does not get special rights when you happen to agree with the party in power.
The overall response that comes to mind is: Why not? Particularly if it would have been legitimate for the Federal Gov't to pass legislation to the same end before the issue reached a simmer, why is it illegitimate for it to act now? Why, more specifically, is Congress barred from reacting to wrong or immoral court cases? It's not a favorite clause among folks who make a practice of discussing the First Amendment, but consider the text that I've italicized:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The right to petition the federal government is not so specific as to forbid the grievance's being against a judiciary and/or the petition's being directed toward Congress. True, all court cases do not "get to go to the US Congress for appeal," but that is a function of social and political factors, not of law. As a matter of law, "every family with someone on death row" — or any other form of grievance — "can bring their case to Congress." It may go nowhere. There may ultimately be nothing that Congress can or will do, but that will illustrate a limitation of public interest in the specific case, not of Congress's rights.
The underlying reality, here, is that the case of Terri Schiavo is now of interest to millions of Americans. One can argue that those millions are nosy, or obsessive, or whatever, but one cannot argue that they don't have a right to decide what their own grievances are and to petition their representatives to redress them. If Congress does so through mechanisms afforded it by the Constitution and rules in harmony with it, then no agreement-inspired "special rights" have been created.
Something about this single case — originating with one family in Florida — has now brought the nation to a boiling point twice over. I'd suggest that Americans who disagree with those among their fellow citizens who are stoking the flames would do well to devote their energy to considering what, in this one family's fight, points to a line that must not be crossed.
Rationalizations for judicial activism have progressed further than I'd been aware, as Michael proves in a comment my post about his previous enlistment of religious concepts of "unitive" relationships on behalf of same-sex marriage:
The legislature, in my opinion, only gives official sanction to changing standards; it very rarely acknowledges them outright on its own. That is because legislature, by their nature, think only of their continued careers. If they make unfavorable decisions, they will be fired. So yes, they are more directly accountable to the people but they are directly accountable to the majority opinion, not the majority practices.That is why Goodridge was a correct decesion, in my mind. Many people may have held some ideal picture of what marriage was in their mind, but the justices found that, in practice, that wasn't the case. Marriage maybe should be a privilege, but the majority of people weren't treating it that way; marriage may be "about procreation" but the majority wasn't acting like it was. And emerging tolerance for the rights of homosexuals coupled with the "common law" practices of marriage being a undeniable right and separated from religion and procreation, these justices found that the ability to marry someone of the same sex was unfairly being denied gays by the legislative majority who weren't really practicing what they preached (enshrined in law).
By "design" those justices should have stepped in. And ultimately if the people decide that they made the wrong decision, they can always change the law because the constitution always trumps a judge.
It's quite a notion: that elected representatives' legislation is law of the public's opinion, while judicial edicts are law of the public's practices. And that a handful of unelected jurists-for-life are not only qualified to make such judgments, but so trustworthy in their decision-making that their power need not be balanced by anything less arduous than amendment to the Constitution.
Never mind the questionable desirability of transforming the amendment process into "we really mean it" legislation; it would seem that we've got it all wrong sending lawyers into courtrooms when what is really needed is a legion of statisticians. Perhaps the Census Bureau is located in the wrong branch of government.
Before we redraw our governmental org. chart, though, perhaps we'd best test the proposal with some other issue, say anti-discrimination laws. Suppose political correctness has restricted the public such that it must state opinions that it doesn't truly hold, therefore allowing do-gooders to push through laws against hiring or firing employees according to a particular criterion, such as sexual orientation. After a couple of years, an employer explicitly refuses to hire a well-qualified gay man. The law clamps down on the employer, and he brings suit, citing statistics that very few businesses actually have a proportionate number of homosexuals on their payrolls. Clearly, the courts, being mainly concerned with "majority practices," must strike down the anti-discrimination law, right?
I imagine Michael and those who share his views would respond "of course not," proving irrelevant the already erroneous libel that "the majority of people" aren't living up to the ideal of marriage as "about procreation." It's more accurate to characterize the reasoning of Goodridge as that various manipulations of the law — many of them performed by other judges — had changed the legal meaning of marriage.
The legal path to Goodridge was largely been followed in the name of protecting minorities against the morality of the majority, whether expressed as opinion or as practice. This stuff about "majority practices," as I said, is just post hoc rationalization of our deteriorating government structure.
I spent enough time on it, and its topic is of sufficiently broad interest, that I thought I'd mention, here, a piece that I've posted on Anchor Rising about one lawyer's defense of apparent collusion between the judiciary and the legislature in Rhode Island.
PROEM:
This post is rather long, so it might make for easier reading to click "Turn Light On" at the top of the left-hand column.
By now, everybody has — or should have — read Wretchard's famous post on Belmont Club about morality/ethics/religion and democracy. In my case, it has seemed as if everything that I've read over the past few days has related in some way to the topic. The post is framed in response to some questions from the Catholic Archbishop of Sydney, George Pell:
But think for a moment what it means to say that there can be no other form of democracy than secular democracy. Does democracy need a burgeoning billion-dollar pornography industry to be truly democratic? Does it need an abortion rate in the tens of millions? Does it need high levels of marriage breakdown, with the growing rates of family dysfunction that come with them?Does democracy (as in Holland's case) need legalised euthanasia, extending to children under the age of 12? Does democracy need assisted reproductive technology (such as IVF) and embryonic stem cell research?
Does democracy really need these things? What would democracy look like if you took some of these things out of the picture? Would it cease to be democracy? Or would it actually become more democratic?
The basic question before us is whether a democracy must give people complete freedom to behave immorally within bare-minimum ethical constraints, or whether a higher degree of morality — a statement of belief and understanding of humanity's purpose that some people might challenge — can be structured inherently, asserted within the law. Wretchard argues that the first possibility is only feasible if it can be taken for granted that citizens will far exceed the bare-minimum:
When the Founding Fathers created the framework for procedural democracy it was unnecessary to spell out its ends because those were largely provided by the moral, ethical and religious consensus of the underlying society.
Indeed, a commenter at Belmont Club quoted some statements from Founding Fathers to that effect. Among them, as it happens, is the very quotation from John Adams that eluded me just the other day:
We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
And here's George Washington:
And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
Note the reference to religion as distinct from morality and used in lieu of such words as "reverence" or "piety" or (in modern lingo) "spirituality." Charles Hill captures the distinction that I mean to convey:
I might add that this disdain for the divine does not equal an insistence upon the concrete: it's perfectly respectable to concern oneself with, even to obsess over, the supernatural, so long as it's clearly divorced from that icky "religion" stuff.
The distinction between religion (or, worse, organized religion) and the vague spirituality that has been increasingly favored in the United States over the past few decades is important. With the admission that a moral foundation is vital to the health of the nation, we must ask how best to answer Jonah Goldberg's counsel to "be very, very concerned about the sorts of citizens [our society] creates." In short, what sort of religion do we need? The challenge is to ensure a moral citizenry without overstepping the bounds of freedom. The answer comes as an inverse echo of the call to ground our government structure in religious morality.
Religion must be built around a structure of its own. Describing the civic realm, the secularist insists that no man can place purely moral restrictions on another; each must have maximal space to define his own morality within the law. The assertion of the freewheeling spiritualist, similarly, is that people must have free range to explicate God and His will for themselves. Even Catholics hold that the Spirit informs the individual's conscience, but a pervasive resistance to the claims of any religious authority to offer interpretation has reached its logical end in our culture. And it has its roots in a fecund bed of Protestant silt; as Wildiris contends, approvingly, in a lengthy comment on Belmont Club:
A second observation about Protestant Christianity is that along with its emphasis on one's personal relationship with God also comes the additional requirements, "burdens", of personal responsibility and personal accountability to God. As a result, societies with a Protestant Christian cultural/religious heritage tend to be self-regulated at an individual level, with strong traditions of giving to charities and voluntarism.And as a further footnote, the only reason that we in the United States today can talk about the concept of "separation of church and state" is because of our Protestant Christian cultural/religious heritage. A constitutional democracy is a plant that only grows and flourishes in a few select cultural "soils" and one of those "soils" being the cultural heritage of the Protestant Christians.
I consider it obvious that a person is ultimately accountable to God for his own actions, his soul ultimately being a private concern in coordination with Him. But the pitfall is to think of "state" purely as another word for "structured authority" and therefore to reject out of hand the body of Catholic Christians as a pseudo-state that interferes with personal spirituality.
I submit that the distinctive and defining quality of a "state" is its coercive power; one cannot walk away from a state unless explicitly permitted to do so. (Although one may be able to escape it.) In contrast, one can walk away from a church. That doesn't mean that the church cannot declare believers and non-believers to be in the wrong, or that it can't proclaim what adherents must do or say to be right. It means simply that a church cannot force a person, through threats to life and property, not to choose to be wrong.
It would be ridiculous to claim that any religious organization, generally, or the Catholic Church, specifically, has never crossed into the role of the state. Not only is corruption to be expected among human beings, but these societal categories have been millennia in development. However, Wildiris's assessments — and I think they have wide currency among non-Catholics — aren't restricted to a particular historical time and place. Rather those who propound such things mean them to describe the very nature of Catholic Christian beliefs — in this case, allegedly contrasting with Protestant Christianity as follows:
It is interesting to note that along with Christianity, Buddhism and Hinduism also share this property of separability of "church" and state. So it is no coincidence that the most successful democracies in the eastern world occur in countries like Japan and India, while the least successful democracies in the western world occur in countries whose cultural heritage goes back to pre-reformation Catholicism or to the Eastern Orthodox Church.
Even if we could follow this writer in ignoring other factors that affect a nation's success (e.g., Eastern Europe's proximity to both Nazi Germany and the U.S.S.R.), we cannot declare the comparative analysis of the religions complete. History, as I'm sure all of my fellow Christians will agree, has not run its course. Therefore, in discussing the future of our own nation and the way in which it ought to handle religion — and the model of religion that civic policy will imply — we must come back around to the events and questions that sparked this entire conversation. How healthy are the "most successful democracies"?
Two common, and related, warnings are moral depravity and ideological weakness. With the first, Western society will collapse under the accumulated demands for license among its inhabitants. With the second, a stronger, more concrete ideology — typically, radical Islam — overthrows the passive order. Writing about the assassination of Dutch moviemaker Theo van Gogh, Michael Ledeen traces these intertwined dangers back a little more than a century:
The process by which the Europeans arrived at this grave impasse has been going on ever since the late 19th century, when the intelligentsia revolted against "bourgeois society" and its values, and sought for deeper meaning in acts of nihilistic violence, in fascism and communism, and in vast wars that engulfed the rest of the world. The Europeans might have confronted their spiritual crisis after the Second World War (some brave souls, like Albert Camus, tried), but the Cold War tamped it down. With a huge enemy on their borders, the Europeans finessed the issue, opted for a soulless materialism (that has given them a nanny state and a birth rate that promises to extinguish them in relatively short order), and pretended that the core of Western civilization was irrelevant to their lives.
Although one can become mired in the tumultuous cultural currents of Europe, let's consider that Ledeen picked an arbitrarily recent era in history to which to ascribe the beginning of this process. It would be plausible, at least, to argue that atheistic relativism represents a progression along philosophical strains in Protestantism. It's possible, then, that the "soulless materialism" that threatens to undermine those more "successful democracies" — now that they've survived a century of world wars — has been highly likely, even inevitable, for centuries.
If I am correct, a broader historical view suggests that some of the very qualities that make Protestant countries "the most successful" at this time might ultimately make them extinct. In this vastly oversimplified picture, Catholic countries, restrained by the gravity of the Church, didn't run full tilt toward the progressive future, and that might prove to be their salvation. In the context of government, Wretchard asks:
When that underlying [moral, ethical and religious] civilizational consensus has been destroyed or diluted, as is the case in Western Europe and to a lesser extent the United States, what intrinsic ends does a value-neutral democratic mechanism serve?
Well, to redirect the question, what intrinsic ends does an individually self-regulated religious ethos serve? Recalling the above quotation from John Adams, it is susceptible to serving selfish ends — greed, vanity, the reckless, immoral quest for immortality — because it undermines external authority. And, being fallen slaves to our sin, we will find ways to justify our selfishness.
I should stress that I don't intend to badmouth Protestants (and I don't think I have). Various sects have constructed citadels in which to house authority — sometimes elsewhere in the society (e.g., social stigma). And without doubt, Catholic Christianity is susceptible to human corruption and has, in its history, been too inclined to behave with an emphasis on political, rather than spiritual, power. It would serve us well, all of us, to pull back a bit and investigate how each side has been important to the other in a process of mutual formation. The circumstances that sparked schism won't always apply, and an area of thought that allowed schism can slip into its own excesses.
As Wretchard suggests, in different (more evocative) words, humanity seeks a guide — a lord. (I believe it is part of our drive to seek God.) Without a beacon we know not the direction of truth; without authority we forever lack confirmation that our own thinking is reliable. With no one on a raised pulpit, we turn wide-eyed and credulously either to charismatic deceivers or to the deception in our own emotions and desires.
I'm not saying that everybody must become Catholic. But I am suggesting that we require a sort of catholicity in our approach to religion in the West. We need to resolve spiritual and moral questions in the appropriate setting — religion — and then, with confidence, conform our law to the conclusions. Not legislating every particular — that's not what I'm talking about. Rather, I'm suggesting that moral debates must be pursued in religious/moral terms, and that it is entirely legitimate (and often crucial) for the law to reflect the debates' conclusions.
Even those who believe that a moral foundation is necessary for the United States' health tend to think in terms of individuals voting according to a politically developed moral platform. We must reconceptualize the great aggregate Church of our nation — encompassing all religious moral views, from Catholic to Buddhist to Atheist — as a tacit institution, wherein to address matters with civic implications within a religious context. We need to create a moral structure with enough general religious authority that those who disagree could address the difference in moral terms, rather than political ones.
Paul Cella quotes from a Patrick Henry Reardon piece with a novel way of instilling a sense of how far we've slipped in this regard:
The prohibition that restricts Congress from interfering with the press has never been regarded as some kind of "wall of separation" between government and the press. We do not expect to find on the editorial page of the Chicago Tribune a statement that says, for example, "Although we ourselves personally approve a woman's right to choose, we refrain from pushing the point in these pages, lest we appear to be imposing our own moral persuasion on the normal workings of the courts and the legislature. The traditional wall of separation between Press and State must be maintained at all peril."
Cella and Reardon are viewing Church from the position of State, but I think it equally valid to apply the clever juxtaposition from the perspective of Church on State. A person who disagrees with policy-related reportage doesn't declare its evidence invalid in the eyes of the law and irrelevant to his own belief about the facts. He investigates — confirms or refutes journalism with journalism.
The necessary change will be largely cultural, but as the argument over the First Amendment suggests, there is a civic, legal barrier to break down in bringing the law back toward a realm of moral consensus. Most folks involved in this debate will acknowledge that something ineluctably arises to fill the void of a directionless governmental mechanism. To be sure, segments of society have recast the State itself as the embodiment of the sought-after deity. For them, the law declares right and wrong and, furthermore, if we change the law, we change that judgment. The intellectual ease of this standard creates a dangerous temptation to agree.
But such a sacralized state simply rings hollow. People sense that it is false; religious people hold a Truth that only exacerbates the falsehood by comparison. We who see all things earthly as mere shadows can only watch as the gap is filled either with the deification of the self, and the self's lusts, or the authoritarianism of a religion that gives the self profundity by making it the instrument by which a larger god suppresses non-believers.
In our over-confidence in self-directed spirituality and morality, we've blocked the healthy, democratic mechanism that should allow the people to apply religious conclusions to public policy. Removing that blockage won't cause democracy to be submerged; it will allow it to sail.
The conversation in the comments section to a post from Monday has become too interesting to leave drifting into the archives. Attempting to dig down to our essential differences of opinion, I asked Jon Rowe:
You say that sodomy laws "simply aren't proper functions of government." I disagree, at least inasmuch as I think it ought to be a state issue. Others will disagree with you more dramatically. Your view is the self-evidently correct one because... ?
He filled in the short-answer blank as follows:
The Declaration of Independence and its theory of natural right refers to certain "ends" of government — all government. The passage that I bolded from Bloom's book...that's it. That's all that is appropriate for government to do: protect men's equal rights to life, liberty, property, and pursuit of happiness, not concerning itself with what consenting adults do within the privacy of their own home.
It is useful that Jon has given us a specific document as a field on which to knock around the abstractions of rights and government. However, in doing so, he has not ceased to skirt the basic question. Let's sketch out our playing field with the relevant passage from the Declaration:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The question remains: what does it mean to ensure a right to life, liberty, and the pursuit of happiness? The Declaration, itself, demurs, stating simply that the people can lay their government's "foundation on such principles" as seem most promising "to them." So, again, who decides what policies are "most likely to effect [citizens'] Safety and Happiness" for the better? Who has the final say? Jon suggests that judges do, but his conclusion presumes that the legislative and executive branches are being objectively negligent.
Perhaps it is from Jon's other source, Allan Bloom, from which he derives an "objective" measure to which judges are qualified to demand deference. From the above-mentioned bolded text:
Government exists to protect the product of men's labor, their property, and therewith life and liberty.
Note that Bloom sublimates life and liberty to another right that isn't even in the Declaration: property. Perhaps we have succeeded in finding an essential difference of belief of the sides in this debate; I'm surely not alone in believing that — far from being subordinate to property — life, liberty, and especially happiness don't ultimately require it.
Such a view is no doubt especially common among those who would be disposed to note a consideration raised by the centrality of the Declaration in Jon's argument: that document actually provides a Reference for defining our natural rights. Interestingly, the courts have proven to be the mechanism of choice for citizens who wish to illegitimate that very Reference.
ADDENDUM:
Jon has responded here. I'm keeping it on my list of things to read and may respond at greater length later, but I want to address this point:
I would caution any conservative against arguing that property is not a vital concern that governments must secure. Indeed, there exists some tension between "equality" on the one hand, and "property" on the other.
I certainly wouldn't argue that property is not a "vital concern," and I had written (but edited out) that Jon put property on the same level as life, liberty, and the pursuit of happiness. Rather, my point is that the Declaration gives no indication that the natural rights of man are limited to whatever three or four the Founders might think to list in that document. Why, for example, could "a moral public square" not be among the unlisted rights?
And beyond the matter of the unnamed rights endowed by our Creator, it remains an open question of what mechanism is best toward maximizing our receipt of those named. (I know there's a famous Founder quote that would fit well here, about democracy's requiring an ethical public, but I can't find it right now.)
Over on Anchor Rising, I ponder a Rhode Island columnist's strange notion that the federal government should have subsidized embryonic stem cell research in order to spread the wealth that the immoral research will now concentrate in California.
Before the election, John MacArthur, publisher of Harper's Magazine, used his monthly Providence Journal column to advise John Kerry to declare that President Bush's statements and actions with respect to Iraq were "more akin to treason than mere lying." On election day, MacArthur turned his ire on American theists. After describing both candidates' frequent use of religious language, MacArthur writes:
This is a religious qualification for public servants desired by Puritans (ancient and modern) and banned by the Constitution -- yet now, in effect, established. The vote today may well turn on the perception of each candidate's religious faith.Whoever wins, I fear that one of our principal constitutional jewels has been permanently defaced, at least in spirit. And my secular party believes fervently in a spirit -- the human kind.
The "constitutional jewel" to which MacArthur is referring is Article VI of the Constitution, which states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." On display, here, is the common error among liberals (particularly wealthy ones) to lose the distinction between popular consensus and government mandate. In this instance, MacArthur moves from the observation that the citizenry has "established" a rule that the law could not to the implied suggestion that government ought to thwart the popular consensus.
With this suggestion, he tramples another "constitutional jewel": the First Amendment. The religious test that his fevered atheism projects onto the campaign consists entirely of rhetoric — of speech. Not official oaths, not signed proclamations, just plain ol' speech. To keep from being offended by religious politicians, MacArthur would have to subvert their right to express their faith and the importance that they attribute to it. Indeed, in painting the current administration as the incarnation of religion's establishment, MacArthur chips away at the very jewel that he holds so dear:
In his role as "saved" Christian (from alcohol, drugs, and financial and political failure) President Bush has never missed a chance to profess his fealty, not to the manmade Constitution but to Jesus Christ, "king of kings." His attorney general, responsible for defending the separation of church and state, composes and performs gospel songs and invites his subordinates to morning prayers in the Justice Department.
Should John Ashcroft have been disqualified for his position on the grounds that he is a gospel musician? Should a willingness to suppress religious belief be a requirement for public office? MacArthur notes the "humor and common sense" of Thomas Jefferson in that Founder's argument that it "does me no injury for my neighbor to say there are twenty gods or no God." Well, apparently it does the publisher of Harper's injury for his neighbors to say that there is just one God.
Against Mr. Jefferson, MacArthur juxtaposes what he sees as "extreme Presbyterianism":
In New York, the Rev. John M. Mason declared that another radical innovation -- the explicit omission of God from the new Constitution -- would have dire consequences: "We will have every reason to tremble, lest the Governor of the Universe, who will not be treated with indignity by a people more than by individuals, overturn from its foundations the fabric we have been rearing, and crush us to atoms in the wreck."
Let it be noted that MacArthur could just as easily have quoted Ben Frankin to similar effect. But Rev. Mason's extremity aside, he raises a question that MacArthur either has no interest in or assumes answers itself: was he correct? Does America need God among its foundations?
I won't attempt an answer, here, but the relevant point is that citizens will respond differently. A liberal might find prescience in Mason's use of the word "atoms." A conservative might argue that all of our nation's enlightened constructions are at risk of springing from the loom if our moral ligaments rot from within. And if any government-granted right is central, it is the right of the people to vote and to form their government to address reality as they see it, within proscribed limits.
As our nation has this discussion and deals with the geopolitical and cultural dangers of our time, it seems to me that the MacArthurs of the world enter the debate not only as participants, but perhaps moreso as evidence.
Michael Berry of North Kingstown, Rhode Island, thinks the American Catholic Church should just shut up about politics:
Anyone not convinced that we need to reinstitute civics classes in our schools should read your Oct. 12 front-page article "Conservative Catholics push for Bush."A basic understanding of our Constitution should make one cringe at "an alliance of bishops intent on throwing the weight of the Roman Catholic Church into the election," or on reading that the Bush campaign has spent four years "cultivating" Catholic leaders and "hiring a corps of paid staff members."
Archbishop Charles J. Chaput, of Colorado, who all but said that a vote for John Kerry is a sin, could be a poster boy for an effort to repeal tax-exempt status for churches.
Berry does us the service of offering an object lesson in how a Constitutional amendment intended to protect religious freedom transforms into manacles with which to restrict it. Of course, I haven't any knowledge of Berry's other opinions about matters of the day, but there are a few particulars about which I could speculate that surely aren't wild guesses. The media and United Nations conspiring to influence our election? Well, that's an important protection against tyranny. Another Supreme Court justice suggests that it's a good thing that our judiciary is increasingly taking note of legal happenings in other nations? Well, global community and all that.
The bishops take pains to explain how their faith ought to apply to something as crucial for believers as their vote in government elections? Slap those boys down! Can't have morality preached from the pulpit! The American way is, after all, to restrict the political application of religion to cynical references for rubes and vague feelings about the righteousness of giving handouts to the poor and environmentalists.
Continues Mr. Berry:
A more widespread understanding of the principle of separation of church and state is needed.
Amen, brother. I'm even starting to agree about tax exemption, which seems only to corrupt our thinking about what is and isn't appropriate for religious organizations to do.
Because it seems typical of a certain mindset, a letter to the Providence Journal from Walter Bosse of Cumberland, Rhode Island, demands response:
We need to create jobs for the unemployed, but no more than that. The nationwide marketing plan discussed by Governor Carcieri for Quonset would create many more jobs than we have unemployed. The top jobs for new companies are filled by people who already work for the company and would be moved in. The remaining jobs might be filled by the unemployed. Where would the people come from to fill jobs above what are available here? They would have to move here, also.
Without guessing at Mr. Bosse's general political approach, one can say that his suggestion echoes the socialist's conceit that these things can be micromanaged. They can't be; moreover, in a state of stasis, problems are more difficult to handle, and economic mobility ceases to exist.
Let's think this through. Suppose Rhode Island companies need more workers than there are available in the state: what do they have to do? Well, they either have to lure workers away from other companies, or they have to attract workers from elsewhere, entailing either a move or a commute. In all cases, they have to make themselves more attractive to potential employees; pay and benefits increase across the board.
As for housing and population density, the value of housing will increase. In an environment primed for growth, that will require companies to make further efforts to attract and keep employees. Increased tax receipts from both companies and the wealthier citizenry can be directed toward improvement of public land and rethinking of convoluted transportation systems. And if the two sides of the issue come together such that companies can't afford the rate that the market demands they pay for workers, perhaps industries that pay less will have to move elsewhere or find ways to be more efficient.
I've simplified the picture, of course; it's probably beyond human ability to fully comprehend. But just as it is exponentially more difficult to move a car without allowing its own forward motion, so with the economy. Without a doubt, the various forces at play will require adept steering (i.e., management), but in a way that is probably related to the socialist's conceit, asking fellow citizens to accept the squalid stagnation of the status quo to maintain a preferred density is the liberal's selfishness.
If it happens that Rhode Island begins to change in character, then the "country feel" will become a premium for which citizens who can will have to pay, in some form, or to look elsewhere to find. And should they decide to do the latter, they'll get a much better price for their land, perhaps enabling an upgrade in lifestyle when they move somewhere that fewer people wish to be.
Two bits of information that came to my ears as I continued attempting to prepare for my seventh grade Catholic school class's first day, next week, struck me as symbolic. Hopefully they aren't yet representative.
My awareness of the first tidbit is light on details. Apparently, anybody who volunteers to serve as a Eucharistic minister must undergo a Criminal Offense Record Investigation (CORI), which is a state-run background check for people — ostensibly — who deal with children. For those who don't know, a Eucharistic minister is a layperson who stands at the front of the church (or an aisle therein or elsewhere) and hands out the Eucharist to parishioners. That's it.
Now, I don't know whether this is a state policy or a diocesan policy, and I'm not saying that sexual predators ought to be able to take any post they desire in a church. However, unless this is a case of the Church's setting its own policies well beyond the law's requirements, the state is clearly overstepping its boundaries into religious affairs.* Furthermore, I'm not implying a secular conspiracy, but CORI forms have a blank space in which to write the position sought, and we ought all to become a little bit uncomfortable when the government begins compiling data on everybody who serves in such purely religious capacities.
The second tidbit is more concrete and, in my view, objectionable. The school's new principal has been going through the building in a thorough sweep of reorganization and redecoration, so when I noticed the absence of a picture, of Jesus looking over a valley, that often attracted my attention when I taught in the computer room, I asked the new computer teacher where it had gone. Apparently, it wasn't the impulse of fresh surroundings that had pulled the picture down, but rather a Title 1 grant.
Contrary to many of the stereotypes of Catholic schools, our student body includes children from such families as federal funds are meant to assist — completely in the spirit of the stated purpose of Title 1:
The purpose of this title is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.
Is it definitional to "fairness" that a room be free of religious imagery? That would seem manifestly unfair to students from communities that consider religion intrinsic to proper education. If the purpose of a grant is to provide, for example, adequate computers for use by students who otherwise would have to make do with the 1995 donations of working-class parishioners, how is it otherwise than discriminatory to expand on that purpose to ensure that the walls pay homage to anybody except explicitly religious figures? (Incidentally, don't even atheists concede that Jesus was probably an historical figure?)
Certainly, the public has a right to direct its shared funds to shared goals and interests. But it is a perversion when those interests are conceived to reach beyond a tangible, shared objective in order to enforce the worldview of a particular segment of society — dictating by stealth that a central aspect of a community's life is cannot underlie their children's education. Ink would fly among all three branches of our government were any one governing body to offer grants with the provision that no figures representative of racial, gender, or ethnic identity contributed to the educational setting. How turned around we must be for religion — among the primary and most explicit areas in which our government is required to take no coercive interest — to be the one aspect of life that provokes government leverage for extraction.
* In an idealized, abstract world, I'd give states more leeway in deciding their own boundaries between Church and State, but it is simply unacceptable for infringement of the latter on the former to be the only allowable prerogative.
Earlier this month (ages ago, in blog time), Charles Hill brought up the issue of "affordable housing." I've held on to the URL for so long because housing is a major issue in Rhode Island. As every informed citizen of the state knows, we are heading for an affordable housing crisis ("!"). As valid as the applicable numbers and conclusions may be, Charles's first commenter, the Proprietor, raises one of those unspoken angles that issues tend to have under their skirts:
The main thing to realize is that this has *nothing* to do with providing affordable housing. It is a way to bust zoning in exclusive communities so there is a more fertile field for developers to build housing.
Although I shudder to suggest it, in response to the New Jersian commenter, it may be that Rhode Island's system is a bit more corrupt. According to various conversations that I've had, affordable housing rules have been leveraged in attempts to bust the zoning rules even in some of the poorer, most "affordable" towns in the state. It has become a pervasive part of the culture, here, that people must grab all that they can, and that the government is an appropriate method through which to do so... on the sly and with altruistic-sounding rhetoric for cover.
Whatever the political struggles for finding the land, however, it's undeniable that Rhode Island has a problem. And Charles may point the way toward a solution:
At my income level, I couldn't possibly hope to live in a place like Lincolnshire. In a society with some measure of rationality, I would be urged to do one of the following: either improve that income, or go live somewhere I can afford. The town can't legally keep me out — probably wouldn't dream of keeping me out — but there's no justification for forcing a property owner in that town to sell to me, or to rent to me, at a price far below what he wants and can get.
There are two words in the phrase "affordable housing," and thus two sides of the equation. If, for example, Rhode Island could match the average annual wages of its neighbors, Connecticut and Massachusetts (PDF), the affordable housing crisis would disappear overnight. Prices that are exorbitant to the poor are reasonable to the less poor.
This represents a complex subject matter, to be sure. Holding population and available housing steady while everybody's income rose, for example, would surely cause housing costs to rise accordingly. Furthermore, any solution aimed at raising income levels would require a degree of subtlety and a long view often lacking in our government. One typically short-sighted solution is to increase the minimum wage, and Rhode Island's top-five minimum wage (31% greater than the federal minimum wage that most states follow) hasn't managed to increase our average income even above the country's mean line.
It probably isn't a stretch to suggest that the minimum wage is one factor among many keeping businesses out of our state and constraining the types of jobs that are created. Another Providence Journal piece about affordable housing reports:
Of the 20 occupations projected to add the most jobs between 2000 and 2010, only four -- registered nurses, computer support specialists, secondary school teachers and elementary school teachers -- pay enough for a median wage earner to afford a two-bedroom apartment at the state average rent.
A quick look at the list of the fifty fastest-growing occupations in the state reveals that almost all of them are location-specific. In other words, they increase only inasmuch as there is enough money in Rhode Island to make it worth doing more business here. In such cases, a region is the source of revenue, but not necessarily the destination, and with the exception of tourism and higher education, the money in Rhode Island increasingly tends either to circulate within the limited local market or to flow out of state. Emblematically, the two fastest-growing occupations are registered nurses and retail salespeople.
The latter — retail — tells a particularly worrying story when it is considered that the list of declining industries is almost entirely made up of varying forms of manufacturing. Companies are willing to sell in Rhode Island, but not to build here. Returning to the minimum wage, it's one thing to pay 2,481 retail clerks $6.75 an hour when the only other option is to let the state's retail market go untapped. It's another thing to place any other point of the company's operational chain in a state that demands low-level positions to pay $1.6 more per hour than in most states across the nation. Hiring 2,481 workers at that level in Rhode Island (assuming 40-hours and paid vacations) would cost the company an additional $8,256,768 per year.
As I said, this problem has only complex solutions, but it poses questions that people in all states must ask themselves. What are our priorities? Where do we have to compromise our desire to give everybody everything so that we don't make it impossible for more than a minority to get anything? Rhode Island, for one, can no longer afford its distrust of the free market and disbelief in the power and importance of individual responsibility. It certainly can no longer afford to let the recipients of public funds insulate themselves from financial realities as everybody else experiences them.
Here's where the various issues begin to come together. In Rhode Island:
Josh Chafetz declares — with a bit more confidence than circumstances (or the law) merit — that the Marriage Protection Act, already passed by the House, is unconstitutional:
Congress cannot strip the federal judiciary of the ability to hear or decide any question pertainint to the interpretation of, or the validity under the Constitution of, the Defense of Marriage Act. Sorry, guys.
As you can probably glean from Chafetz's response to it and its name, the Marriage Protection Act specifically removes the Defense of Marriage Act — defining marriage for federal purposes and affirming states' right to reject the same-sex marriages of other states — from the federal judiciary's jurisdiction. And as you can glean from the fact of the act, many in the U.S. Congress apparently disagree with Josh's constitutional analysis. The reality is that the question of Congress's power over the judiciary is very much open to debate, with legal precedent to support both claims, right down to varying interpretations allowed by the Constitution itself.
Before I delve into that mire of nuance, however, it might be helpful for me to ease into the discussion by addressing a burden that Chafetz supposes those who disagree with him to have:
People who disagree with me also need to explain the Eleventh Amendment. After all, the Eleventh Amendment is just a jurisdiction stripping measure. (It strips diversity jurisdiction rather than federal question jurisdiction, but I can't see why that would be relevant.) If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose? To put it differently, if you disagree with my analysis above, then, assuming the Eleventh Amendment hadn't passed, why, on your theory of Article III, couldn't Congress simply have passed the Eleventh Amendment as an ordinary statute? And if they could have, why didn't they in the first place?
The first paragraph of an annotation from Chafetz's own source for constitutional text points the way to a response. Not only did the Eleventh Amendment follow a Supreme Court assertion of jurisdiction (thus being reactionary rather than preemptive), but it dealt with a matter of "original jurisdiction," around which the Constitution does not provide for congressional regulation.
Already, you see, we're in the thickets of legal jargon. Article III, Section 2 of the Constitution lists the matters to which the judiciary's power "shall extend" and describes the form of jurisdiction — original or appellate — that the Supreme Court will have. Cases falling under original jurisdiction go directly to the Supreme Court, and Congress has no statutory power; those falling under appellate jurisdiction reach the Supreme Court through appeal, "with such Exceptions, and under such Regulations as the Congress shall make."
Although the case that sparked the Eleventh Amendment had to do with matters of assumpsit and process about which my knowledge is too limited to comment, the need for the amendment in order to accomplish its end is clear. Cases "in which a State shall be Party" fall under original jurisdiction, so for Congress to remove cases in which a state is the defendant against citizens of another state or a foreign state, as the Eleventh Amendment does, the Constitution itself had to change. In contrast, claims against DOMA — with the U.S. government as defendant — would fall under appellate jurisdiction.
Now, consider the conclusion of the above-mentioned annotation:
There thus remains a measure of doubt that Congress' power over the federal courts is as plenary as some of the Court's language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution nor from the cases.
Even here, the Marriage Protection Act seems to fall on an interpretable line. I continue to believe that DOMA is constitutional, and I'm not at all persuaded that the least accountable branch of the federal government ought to be empowered to demand an interpretation at odds with those expressed by the other two branches, particularly if subsequent iterations of those branches reaffirm the constitutionality of the law through a removal of jurisdiction.
That, however, is more a political assessment than a legal one. To come to the objective conclusion that the Marriage Protection Act is constitutional, one must clear the highest hurdle that Chafetz notes:
People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal judicial power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" doesn't actually mean that the federal judicial power shall extend to all such cases.
The crux of Chafetz's preceding analysis is that the Constitution extends powers to the judiciary as a whole, such that "some federal court is given jurisdiction over those questions"; where appellate jurisdiction is impossible, it transforms into original jurisdiction. At the very least, one can opine that, had that reading been their intention, the Founders could have phrased the concept in much more direct terms. As it is, hinging on the phrase "shall extend," I don't think the language justifies such a sweeping interpretation.
As I see it, Article III, Section 2, is structured to describe the reach of the judiciary and then to specify how that reach applies. The jurisdiction of the only court created by the Constitution extends to Set A inalienably and to Set B subject to regulation and exception. Chafetz emphasizes that "shall extend" is different from "may extend," but as important a distinction as that may be, it does not mean that "shall" is equivalent to "under all circumstances and with no exceptions." That the Constitution lists all areas of reach need mean only that the Court's jurisdiction over them is meant to be the negatable default, not that it is sacrosanct.
It would certainly have obviated this debate had the authors included language saying, essentially, that appellate jurisdiction becomes effectively null when there are no lower courts or when the lower courts exist with limited authority. On the other hand, it would have been similarly helpful for the authors to have included language clarifying Josh's contention that the reduction of jurisdiction to appellate is contingent upon the existence of other federal courts. Even something as simple as "the supreme Court shall maintain original Jurisdiction" would have sufficed.
I'll concede that the matter is legitimately arguable, and it will be interesting to see what happens should the Supreme Court assert jurisdiction over a statute that claims to be free of its jurisdiction. But given the legitimacy of debate, which no honest disputants can deny, I'm inclined to err in the direction that favors the two branches of government manifested in hundreds of elected officials, rather than the one with nine life-tenured judges. Frankly, I continue to marvel at the general inclination — which I see as anathematic to the spirit of our representative democracy — to err in the other direction.
Too many points beg reply among the record-setting (for this blog) sixty-two comments to this post from last week for me to incorporate them into a single entry, so I'll address them discretely as I'm able throughout the evening and, if necessary, into tomorrow. With this first, although in response to a relatively late comment, I'd like to address an all-too-common misunderstanding of the way in which our government works.
Exhibiting the tendency of those who hold certain views to declare a radical libertarian opinion about the governmental ideal to be the system that we currently inhabit, Bill Ware writes the following:
Our nation was founded on the basis of life, liberty, and the pursuit of happiness. The government is only empowered to restrict our liberties to the extent our actions harm (take away the liberties of) others. When Judge Kennedy says that the Supreme Court cannot base it's decisions on traditional (religious) morality, this doesn't mean that all our morale principles are cast aside, that anything goes. All our laws based on civil morality remain in full effect. Laws based on religious beliefs that have no civil justification are unconstitutional.
As a summary of American representative democracy, Bill's schema of "religious morality" versus "civil morality" is incorrect at just about every level. To begin with, the sole principle that Bill ascribes to "civil morality" is that only actions that "harm our citizens" are legitimate targets of the law. Furthermore, Bill makes absolutely no distinctions between the various branches of government.
The first problem that arises out of these two factors — concisely describing exactly the loose rigging that threatens to knock our civil ship off course — is that very few actions are so simple as to fall easily into a straightforward harm/benefit model, and the elite, unaccountable judiciary is a poor mechanism to make the call. This is true even with issues that allow a reasonably clear picture of direct harm, such as that at hand, same-sex marriage.
We've all heard, ad nauseum, the rhetorical trope, "how does it affect your marriage if two guys tie the knot." But those who oppose the innovation are concerned about a different kind of harm — a social one that mightn't affect individuals until long after the barrier has been leveled. A country with future-visibility of the current generation will quickly find itself lost at sea, and the central complaint about the judiciary's power grabs has been its adherence to such whims.
It's become more than a little frustrating to have to explain such fundamental principles of our government, but it must be stated as often as necessary that our system is not so simple, and that the judiciary is not so powerfully endowed. Except in the reckless regime that Bill's ideological company would insert, it just is not true that the "government" is only empowered to regulate against harm, as defined by secularists. It is also not true that judges are charged with assessing harm and conforming the law to its avoidance.
Self-government means nothing if citizens cannot decide the appropriate bases by which to govern themselves and each other. Unless they conflict with explicit boundaries imposed at a higher level of government, referenda and legislation can do anything, for any reason, that the voters support. Unfortunately, for practical purposes, the judiciary has made itself the last stop for imposition from above, leaving the other branches less and less option than to legislate through Constitutional Amendment.
So, suppose the United States Congress were to pass, and the states were to ratify, a Constitutional Amendment granting the right to define marriage to each state. In that case, a state could define marriage as between a man and a woman, and the law would plainly not be unconstitutional. This would be true despite Bill's theory about harm and "civil morality." If it has any meaning, "civil morality" simply indicates those moral ideals that we all have in common — as proven through democratic political expression — within the civil sphere.
To the extent that I agree with Justice Kennedy, as Bill paraphrases him, it is on the point that the Supreme Court cannot base its decisions on traditional morality when the law requires conflicting action. It must, under those circumstances, refer litigants to the branch of government involving those people who acquire their positions through these things we call "campaigns" and "elections." The problem, rapidly advancing toward calamity, is that judges haven't been so neutrally disposed toward untraditional morality.
Perhaps it will take the judiciary's ruling in ways that finally breach the limits of such folks as Bill for those citizens to realize that they've been asserting theory as practice only because the theory better facilitates their preferences. Somebody coined an applicable phrase for this phenomenon, but so as not to run afoul of the rhetorical morality of Godwin's Law, I'll leave it unstated.
A brick wall into which one often runs when attempting to explain conservative policy prescriptions to semi-interested fellow citizens is explaining why government simply isn't well suited for every task that citizens might want, need, or think they need to want. Mostly the difficulty is in conveying the nature of the beast, which ultimately relates to the beasts inside us all. Michelle Malkin explains one example:
When private schools fail, they shut down. When private nursing homes fail, they shut down. But when negligent government social service agencies fail, they stay open, get more money, and claim more victims. The latest horror story out of Washington state involves Suzy Sclater, a woman with cerebal palsy and the developmental abilities of a toddler, who was raped in a state-operated group home for which her mother had helped raise $300,000.
And why is it so important to have groups in government who aren't most observable in their amity? Well, here's one reason:
In the closing rush of this year's legislative session, Rhode Island Chief Justice Frank Williams is seeking to boost his power by trying to cut out the governor from decisions about the judiciary's annual budget request. He calls this a "separation-of-powers" issue -- that the judiciary should be able to do what it wants without the governor having a say.
The unelected, office-for-life judiciary wants to slap away the hands of one of the branches of government — the most individually visible office — from its purse strings.
He wants his request for money to go straight to the General Assembly, without the filter of the governor. So a chief justice would have much more power to cut deals with legislative leaders. Some 28 percent of House members are lawyers, and many of them argue in front of state courts regularly. They could conceivably get a better deal for their clients if they funded the judiciary to a chief justice's specifications.Moreover, he or she would apparently set the salaries of judges, conceivably using that authority to reward and punish, without any check on that power, since state judicial appointments are for life.
As the Providence Journal editorial notes, this fall, Rhode Islanders will have the opportunity to vote for a popular amendment to increase the amount of weight the governor has in the balance of power. These last-minute grabs would not, presumably, sit well with the voters, and if more — and more vocal — representatives of the governor's party were in place to be presented with the hasty proposal, an editorial would not have to be the news breaker.
ADDENDUM:
I'd say "unbelievable," but it's really not surprising that there's more:
Some last-minute changes sprung on the public with little debate would put financial control of the public colleges directly in the hands of the General Assembly. A member of the Board of Governors for Higher Education since 1997, Michael Ryan, called the proposal "the most troubling document I've seen." Jack Warner, commissioner of higher education, said the change would undermine a "bedrock principle of education" and erode protections against its being "politicized."
One wonders what's slipping through...
In a Providence Journal column, Edward Achorn quotes one of the Democrat senators in the Rhode Island legislature, Stephen Alves:
After 14 years up at the state house I am getting tired of high wage earners complaining about taking care of others, over the last decade we have lowered our tax structure (which benefits high wage earners the most) and decreased services to our poorest and yet the complaints continue.I guess until we have a 2 class system of the haves and the have knots (at the rate we are going we are almost there) people will continue to complain.
Achorn calls this "garbled thinking," and worse than that, it's garbled thinking directed with arrogance toward a citizen who had written to Alves expressing concern about the direction in which Rhode Island has long been heading. One wonders if this state's rulers are so confident in their constituents' apathy and so full of their own power that they forget that the entity that they govern is only one of fifty in America. As Achorn points out (perhaps hoping that it just hasn't occurred to the poor deluded senator previously):
It's simple economics -- simple enough for many politicians to comprehend. Jobs create the tax revenues that help provide for the poor and other government services. Jobs nurture the middle class. And "hard-working low-income" people benefit from greater opportunities to get good educations and well-paying jobs. The government will never have enough money to help them live well simply by raising taxes through the roof and redistributing wealth.That is because people have options to locate businesses and live elsewhere -- which is exactly what they do. They aren't the ones "complaining," because they're not even here. The ones complaining are those who love Rhode Island enough to stick it out and fight for something better for themselves, their children and their state.
Achorn is surely correct that, at "some point, Rhode Island voters will wake up and realize the feudal model is not working for them or their children," and I'm inclined to think that point has nearly been reached. The avalanches that ultimately bring down long-accumulating mountains of political phlegm start with fissures along outcroppings. Although I'm entirely unacquainted with internal RI Republican dynamics, it was obvious to me last night that a rupture has begun there, and hopefully the momentum of that shake-up will carry through to the general politics of the state.
Referring to the power inherent in being the final word on the meaning of the Constitution, Cal Thomas objects to the action of San Francisco U.S. District judge Phyllis Hamilton, who declared the partial-birth abortion ban unconstitutional:
Numerous polls have shown that when the procedure is accurately explained, 70 percent or more of respondents oppose it, with some calling it manslaughter. But a single federal judge can change the will of a large majority of the people and their elected representatives. This is what dictators do.
Thomas notes that other districts are currently considering whether to do the same. If they do not, the Supreme Court will have to pick between the rulings, and it's hardly ensured that the justices will do the right thing and uphold the ban. Whether or not this is the specific issue that will force the final statement, the progress of the fight over abortion and the increasing scrutiny of the judiciary among the general public will eventually force the Court to declare the law clearly.
It's beginning to look like a number of these loose threads are finally reaching their end, and the time of vacillation and inconsistency with them. Vincent Phillip Muñoz argues that the creepy Michael Newdow may have forced just such a resolution with his "under God" in the Pledge case. If you share my general views, aversions to Muñoz's conclusion might take some thought to overcome, but I think, ultimately, I agree with his call for clarity:
This leaves the Court with only two intellectually honest options.If it insists on maintaining its precedents, it should strike down "under God" as an impermissible "endorsement" that "psychologically coerces" religious practices. The decision would create a political firestorm, but the Court has the duty to articulate a clear and consistent interpretation of the Constitution regardless of popular will.
Alternatively, the Court could "fess up" and admit that it has previously misconstrued the meaning of the First Amendment's ban on religious establishments. The Founders meant to prohibit things like the employment and appointment of clergy by the state, limiting public office to members of the established religion, and the licensing and regulation of dissenting religious ministers. Given this background, the Court could admit that its endorsement and coercion tests have long been off the mark. It then could adopt a more historically accurate test that would allow the Pledge.
I don't foresee much more public tolerance for intellectual dishonesty in the handling of these issues that strike to the core of who we are as a nation. Moreover, it's nigh time to determine whether the people of the United States will accept rule from the bench. If there's to be a civil war of sorts over the power of the judiciary, let's get to it before its raging troops wreak more fundamental damage to our societal foundations.
The "if" is tentative. Our system still has mechanisms that can defuse the hostilities: judicial appointments. And as Cal Thomas says, victories on that preliminary front are now of utmost importance.
Although his post is worth reading for points made within the range of its argument, Paul Craddick's thoughts on the inevitability of atrocities in wars extrapolates in an interesting way:
What I mean to say is this: it's a basic principle of explanation that what is common to two things cannot explain what is different about one of them. If both an in-the-main just(ified) war, such as World War II, and a more controversial one such as the one at present in Iraq can exhibit shameful behavior by its participants, then - to the extent that there's an isomorphism between the misdeeds in both cases - that behavior cannot render one unjust yet not shake our esteem of the other. ...The truth might be closer to Augustine's view in Civitas Dei, in which the gulf between the earthly city and its divine counterpart can never really be closed. Or, as a secular writer once put it, "war usually doesn't involve a clash of right with wrong, but of wrong with greater wrong."
This has a broader parallel in an aphorism my father must have recited to me a thousand times: "representative democracy is the least bad form of government." The point, at least as I take it, is that the ideal would be for people to have no need of being ruled by other people. Since matters ranging from practical to idealistic preclude such an outcome in this world, the emphasis is to be placed on "small government." Here, a definitional complication arises: a government can be "small" in multiple ways.
For most people, "small" in this context is a measure of expense or reach. A small government is restricted in the amount that it takes from us and/or in the amount that it imposes on us. In a way of looking at it, more of those tasks that might be considered matters of governance are left to individual sovereignty; each of us is our own siloed participant in the collective government.
Another way of looking at government smallness is to measure it by the number of people wielding its official power — its concentration. Using the yardsticks of cost and reach, if the central government is too restricted (too small) in its power to impose its will on the sovereign individuals, the "government" actually consists of everybody (too big), and the threat becomes tyranny of the majority. Using the yardstick of concentration, if the range of people wielding official power is too small, they will seek to expand that power in order to siphon off resources and impose more of their will on everybody else.
This is simplistic, of course. However, I think it offers a passable summary — albeit within deliberately narrow terms — of the premise of representative democracy. Remaining simplistic, one could say that, in their capacity as active participants in government, the self-sovereign citizens wield their power only periodically, and only in circumscribed ways. Meanwhile, those directing the centralized power can only do so for a limited time, and with accountability to everybody else. In other words, representative democracy is least bad because mankind must be governed, and this system attempts to balance all of the ways of adjusting the relationship of rulers and ruled.
(Obviously, the American system seeks to divide power in many other ways — by branches of government, by levels of government, by facets of the broader society. I'm just attempting to get at the basic idea to which those specifics are added.)
Getting back to Paul's above quotation, what seemed interesting enough to justify all of this rambling (at least before I began) was that many of the people intent on lashing the nation that represents the "lesser wrong" in terms of war atrocities are also the people who wish to move away from the "least bad" form of government. Those flattening the range of government torture — from naked pyramids to paper shredders, from being intimidated by a dog to watching your child's body be eaten by one — are also those intent on expanding the breadth of government.
I've only been thinking about this today (and it's been very hot in my office), but I wonder if there might be something to this line of thinking that runs across the differences that Paul cites between reactions to WWII and to Iraq. The government of the United States has expanded dramatically since the '40s, both in size and in the areas of life into which it reaches, and the political party that is currently in the hotseat is the one at least ostensibly interested in reversing that trend.
Why would socialists (expensive, long reach) find common cause with fascists (few rulers, expensive, long reach) when trying to stifle a domestic push back toward a more limited representative democracy (many rulers, less expensive, short reach)? Well, I'd say it has something to do with the government yardstick that I left out of the socialist parenthetical.
Tom Coyne's piece about the Rhode Island welfare state, which I noted a couple of weeks ago, has drawn an op-ed response from Nancy Gewirtz and Linda Katz (no relation), of the Poverty Institute at the Rhode Island College School of Social Work. Because I share Coyne's assumptions, I thought it worth seeing whether the objections were valid, and what I found was evidence of how difficult it is to dig through the "rhetoric" and "facts" to figure out the truth.
Most glaringly, Gewitz and Katz only address some of the issues that Coyne raises, swinging into gear here:
Rhetoric: We have an expensive welfare system, which attracts more poor people than do other states' systems.Facts: In 2003 the percentage of the Family Independence Program (FIP) caseload that moved to Rhode Island from another state was the lowest it had been in nine years (5.3 percent of the caseload). Families also leave FIP at a much higher rate than the rate at which they come to Rhode Island: In 2003, 1,130 cases closed because of "out migration," while 747 opened from another state.
The FIP is Rhode Island's version of the federal Temporary Assistance for Needy Families (TANF) program, which each state administers according to its own policies. It is not the entirety of what might be considered to be Rhode Island's "welfare system."
In Rhode Island, FIP participants can collect cash handouts for five years. (Some states only allow two.) I can't find data on migration of poor people from state to state, so I can't comment on those numbers. And I'll assume that the TANF program is not such that families can just move to new states and restart the clock as their benefits run out. However, I will note that it is conceivable that some of the "out migration" (whatever that means), during the year that the U.S. economy began to turn around, is attributable to folks who went elsewhere to work, either when the free money was about to run out or earlier, but transferred their TANF info just in case.
Mr. Coyne's reliance on the National Association of State Budget Officers' (NASBO) report, which ranks Rhode Island third in total cash payments, is problematic. In this category, the report erroneously includes Rhode Island's expenditures for child care and Food Stamps -- costs not included for other states. Thus, Rhode Island's ranking is artificially high. The 2003 Rhode Island Temporary Assistance to Needy Families Act/FIP expenditure cited in the NASBO report is only 1.4 percent of total expenditures: lower than those in Connecticut, Maine and Massachusetts, and tied for 10th in America.
From what I gather from the NASBO report (PDF), the attempt being made is to compare the widely varying programs of the fifty states. Clearly, "erroneous" is opinion; it appears that some costs aren't included for other states because those other states don't offer comparable services. Rhode Island, for example, adds money to the federal Supplemental Security Income (SSI) program. Now, one could say that this extra money isn't included for other states, or one could say that other states' expense for extra money is $0.
If I'm reading it right, according to the NASBO, 19 states give "cash" payments solely within the TANF program. Of those states, only seven pay more through this program than does Rhode Island (which spends more elsewhere), thus moving Rhode Island from third to tenth. Remembering that there are fifty states, that seems a whole lot of waxing to create a moderate shine.
So, first Gewitz and Katz cut out all assistance not included in the FIP. Now, they've whittled away assistance not specifically associated with the TANF. Next, they draw attention away from categories of recipients in order to proclaim the following:
Rhetoric: Rhode Island has the most generous welfare benefits in the nation.Facts: One could hardly call the FIP cash payment generous: A mother and two children receive $554 a month -- a benefit level that has not been raised in 15 years, reducing purchasing power by 40 percent. This family would receive more in four other New England states: $609 in Vermont, $618 in Massachusetts, $625 in New Hampshire, and $636 in Connecticut.
The folks not included in this analysis are those who have some form of other income. To understand why this matters, consider what looks to be the comparable program in Massachusetts. (The $618 figure doesn't match the number provided at that link, but Gewitz and Katz might have attempted combine payments to those who do and don't live in subsidized housing.) That single mother of two will, indeed, receive $633 per month in Massachusetts if she doesn't live in subsidized housing. However, her income (after certain deductions) is directly subtracted. So, suppose she gets $200 from some other source. In Massachusetts, her monthly cash gift would be $433, with $633 remaining her monthly income.
In Rhode Island, on the other hand, her base benefit would be $554, and the first $170 of additional income isn't counted. Moreover, the cash benefit is only reduced $1 for every additional $2 of income. For the woman making $200, that would result in a $15 reduction. So, this same woman who was capped at $633 in Massachusetts would take home in Rhode Island: 554 + 200 - 15 = $739. And in fact, the percentage of those who benefit from FIP who are working rose from 13.7% in 1997 to 21.3% in 2003 (PDF), which has been at least part of the reason for this change:
Since the Family Independence Program began, in 1997, there has been a steady decrease in Rhode Island expenditures for cash assistance: from $51.5 million, in 1997, to $18.9 million, in 2004. The average cost per case has decreased from $480 in May 1997 to $422 in December 2003.
First, note from the previously linked PDF that the expenditure for cash assistance is apparently up, this year, from $15.5 million in 2003. More significantly, over the 1997–2003 time period, the state's expenditures for its Child Care Assistance Program increased from $18.6 million to $75.2 million. Adding the two programs together, we get $70.1 million for 1997 and $90.7 million for 2003. An increase of just under 30%. This brings us back to my initial objection about the narrow view, because the vast majority of the increase in child care subsidies has gone to low-income families who aren't even participating in the FIP.
In fact, all Rhode Island households earning no more than 225% of the federal poverty level are eligible for child care subsidies, with copays ranging from $0 to $48 per child per week. For a family of four — which mine is about to be — that means annual income of $42,413. According to the U.S. census, the median household income in Rhode Island for 2000 was $42,305. Rhode Island apparently considers half of its families to be "low income."
From a taxpayer point of view, it's also interesting to note that, to encourage child care providers to accept poor children, they get fully paid healthcare. And healthcare opens a whole 'nother stack of taxpayer bills. Every family receiving cash payments from the government is eligible for it. Every family with income up to 185% of the federal poverty level ($34,873 for a family of four) is eligible. And every child under 19 and pregnant woman with household income of 250% FPL is eligible. If the household makes less than 150% FPL, the insurance is free, otherwise there are relatively tiny monthly payments of $61, $77, $92.
This is the hidden bloat. I'm not averse to helping people out when they're facing hard times, and I do believe that some degree of temporary help from the government is a worthwhile investment within a social system that doesn't have assistance built in through other, more cultural, means. But when the poorest of the poor become job insurance for bureaucrats pushing middle-class health- and day-care subsidies, a little more clarity is needed. If Rhode Island's nascent socialism is the right approach, the state ought to proclaim it rather than hide it under selective statistics... although then we'll really be able to watch the influx of poor — and not-so-poor — people.
My wife and I would like to buy a house in Rhode Island in the not-too-distant future, but honestly, if she didn't have a large family all within a fifteen mile radius, here, I can't say I'd be inclined to choose Rhode Island over some other shoreline state. Tom Coyne of North Kingstown expresses a central reason:
For too many years, Rhode Island's elected "leaders" have focused on the redistribution of income, rather than on its production by the private sector. The bill for this is now coming due. Unless more radical budget reforms are soon undertaken, the state's decline will accelerate, and all of us -- poor and rich, young and old, public and private, Democratic and Republican -- will suffer.
As Coyne details, Rhode Island is attracting poor people, has a high percentage of elderly citizens, supports a disproportionately large public sector, gives public employees excessive benefits, and through high taxes and business-unfriendly policies is driving out the private sector. Throw into the mix the ridiculous prices of middle-class-grade housing, and it isn't a very hospitable place to begin a family. Between the definingly liberal politics of the state and the region, the corruption encouraged by monolithic institutions, and the huge voting blocks looking for handouts, there is very little reason for optimism.
A large family, a nearby ocean, and an interesting landscape only have so much pull, even for a stubborn fella like me.
Andrew Morse has written a primer column about Victor Chavez and his democratically tinted takeover of the Venezuelan government:
Since his election in 1998, Hugo Chavez has engaged in a methodical campaign to eliminate dissenting voices from Venezuelan politics. He has provided the world with a clinic on how to set up totalitarian rule. First, get control of one branch of government. Then, eliminate all opposition within the government by making all other branches subordinate to the one branch you control. Next, use the power of government to prevent any other segment of society from organizing. He has attacked the labor unions, the independent media, the church -- any source of people organizing that is an alternative to the state.
Sounds familiar (though of course much further along).
This is almost too much to believe — certainly too much to want to believe:
The Department of Energy program to compensate sick nuclear weapons plant workers has cost $74 million of taxpayers' funds - and only one worker has been paid.That one person in Washington state has received $15,000.
The $74 million has gone to paperwork involved in deciding whether workers were sickened by radiation or toxic chemicals on the job. ...
The DOE and its contractors are obliged to track down scarce documents, some decades old, on individual workers' exposure to deadly materials used in bomb-making. A panel of physicians makes the final decision on whether an illness or death was job-related.
Of 23,000 applications in nearly four years, DOE has rejected about 5 percent and moved ahead on 1 percent, according to testimony Tuesday from the General Accounting Office.
The kicker is that the DOE is asking for another $76 million dollars. That would be a nice round total of $150 million. Consider that the agency could give all 23,000 applicants $15,000 for $345 million, and it would seem that a less stringent process might be in order. Almost 5,000 people could have been paid $15,000 from the sum already spent, while the 6% of cases that the money managed to review only amounts to 1,380 folks.
Not knowing the background, I'm not going to comment on the merits of the program, but when dollar amounts in the millions are spent considering whether to hand out dollar amounts in the thousands, something's wrong. As John Hawkins suggests at the above link, perhaps the media ought to pay a little less attention to Big Energy and a little bit more to Big Government.
