How Scalia Answered My Question

Antonin Scalia once answered my question and drew a laugh from the audience. But that’s ok. The laughter was directed at someone else, and Justice Scalia was wrong.

Some years back, in need of money, I sacrificed part of my summer to teach AP American Government in the Junior State of America summer program in Washington, D.C. One of the highlights of the program was lectures by various government officials, and on one of those days we trekked down to the Supreme Court to listen to Justice Scalia.

At some point in his talk Scalia mentioned that everyone should read the Federalist Papers, because that’s how we know how to interpret the Constitution. Having talked about the federalists and anti-federalists in my class, I leaned over to one of my students and and whispered, “Ask him if we should read the Anti-federalist Papers.”

My student raised his hand, Scalia called on him, he asked the question, and Scalia responded, “The anti-federalists? They lost!” And everyone laughed at my poor student.

But Scalia was wrong, and wrong in a disturbing way for a man who claimed to be an originalist. The anti-federalists, it is true, did not stop the Constitution from being ratified, but they did help shape public understanding of the Constitution, and most importantly, they were the driving force behind the adoption of the Bill of Rights. A bill of rights was the price to pay for getting the Constitution ratified, and the federalists paid it. Herbert Storing, the great constitutional historian and editor of The Complete Anti-Federalist, said that the anti-federalists were equally deserving of being called Founders of the Republic.

The Federalist Papers, as critical as they are, were written to explain, defend, and promote a Constitution that lacked the current Bill of Rights. In fact in Federalist 84 Alexander Hamilton argues against a bill of rights.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta… It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

The Federalist Papers, then, are no real guide to interpreting the Bill of Rights, because they refer only to a Constitution that lacks one. It is the anti-federalists who make clear to us the purpose and meaning of the Bill of Rights.

There is one bit of guidance, though, in Hamilton’s argument, when he says that bills of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He sees this as a danger, and the clear implication is that properly understood, we should not see the Bill of Rights as an exclusive list of rights; that the absence of a mention in that list does not mean the absence of a right. Madison and the First Congress tried to mitigate this danger with the 9th Amendment, but Scalia famously disliked that Amendment, claiming it was outside the purview of the courts.

Scalia not only misunderstood the role of the anti-federalists, and not only misunderstood the limitations of the Federalist Papers, but given the one a clear statement in those Federalist Papers–which he claimed were how we understand the Constitution–about bills of rights, he ignored it.

There have been a number of articles written about Scalia’s interpretive incoherence. I generally agree with them all. Scalia’s textualist originalism was a pose, a persona, employed primarily as a marketing tool for the Scalia brand rather than as a serious tool for constrained legal analysis. Anyone who doubts this need look no further than Gonzales v. Raich, where Scalia ignored his own prior originalist arguments about the limits of the interstate commerce clause so he could uphold federal regulation of marijuana grown for personal consumption. But brand identity is often far more powerful than the underlying reality, in large part because it is more comforting and less challenging. I don’t expect conservatives to admit to, or even privately recognize, that Scalia is largely a myth, because conservatives are no more likely than anyone else to relish the discomfort of seeing past their favorite brand images.

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Sodomy and Strategy

Social media is agog with the claim that Michigan lawmakers are considering a bill to ban anal and oral sex, aka sodomy. Here I explain two things. 1. Why the claim is false, and Michigan lawmakers are doing no such thing because sodomy is already banned in Michigan but not really. 2. Why Michigan lawmakers aren’t removing the ban. Remember, I’m a professional political scientist; do not try this at home.

1. Michigan Is Not Trying to Ban Sodomy; It’s Already Banned (but not enforceable)
This headline from rawstory is typical of what’s been going around social media today.

rawstory
And it’s not just them. In addition to a number of ignorant bloggers, lots of “news” sources are reporting this false claim.
sodomypages

But, no, the sponsor of this bill, Rick Jones, is not trying to ban sodomy–he’s trying to keep people convicted of animal cruelty from adopting animals. The text of the bill is here.

In part of the bill Jones was defining to whom the law applied, and that part of the bill contained the language about “abominable and detestable crime against nature either with mankind
or with any animal.” But that language already exists in the law–it’s not new language. Here is a screen capture of the relevant part of the bill.

sodomybilltext
What you see here is the current language of the law marked up for the bill. The bolded text is proposed new language, the strikeout text is proposed deletions, and the text that’s neither bold nor struck out? That’s what the law already is.

So this bill would not criminalize sodomy. Jones was not making any proposals about sodomy at all. And while it would be good to eliminate that language, the truth is that it’s dead language anyway; it’s not enforceable. The Supreme Court ruled laws banning sodomy unconstitutional in Lawrence v. Texas back in 2003.

So all you Michigan sodomites can just relax; the cops won’t be breaking down your doors when you commit this abominable and detestable crime against nature.

And all those “news” sources that are reporting this falsely should be condemned for dishonesty and/or laziness in the strongest terms. We may need journalism, but that doesn’t stop 98% of journalists from being the worst kind of hacks.

2. So Why Not Get Rid of that Language? Because of Strategy
First of all, because Jones is focusing on something entirely different, and everyone’s just mad that he’s not focusing on their pet issue, which they wouldn’t even be aware was an issue if he wasn’t focusing on that other thing. Right? So give him a break.

More importantly, he’s trying to be a smart strategic lawmaker. In his own words,

“The minute I cross that line and I start talking about the other stuff, I won’t even get another hearing. It’ll be done.”

Let’s break down the sausage works of legislation here.
1. Jones needs a majority of lawmakers to vote in favor of his bill.

2. Some lawmakers will vote against the bill, because any bill that is not a purely symbolic statement of American greatness and the importance of mothers will have somebody voting against it.

3. So Jones doesn’t want to encourage extra votes against his bill by tacking on an issue that’s irrelevant to his main issue.

4. Some small number of legislators would vote against a bill deleting unconstitutional language from the law just because they’re uptight moralists who oppose sodomy (and probably rum, but not the lash) and want to keep it illegal even if the law can’t be enforced.

5. Some larger number of legislators don’t care much one way or the other but don’t want the folks back home–and a future campaign opponent–accusing them of favoring sodomy, so they might vote against changing that language because it just isn’t worth the trouble.

6. Add the lawmakers in items 2, 4 and 5 together, and maybe there’s a majority against a bill that deletes the sodomy language. Leave the unenforceable sodomy language, and you only have to worry about the lawmakers in group 2.

It’s that simple.

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Caplan and the Crank; or Don’t Touch My Meds, You Bastard

Some years back I met a guy who eagerly billed himself as “the angriest mayor in America.” He was coming to speak to some of our students. He eagerly told me that he hated economists, except this one economist, a guy who unlike all the other economists told it like it really is. He then proceeded to spin some bullshit that, of course, nearly every economist rejects. But he’d found that one guy with an Econ PhD who confirmed his economic beliefs, and that was the evidence he needed to support his claim that he was right and almost all economists were wrong.

Bryan Caplan would surely shake his head in amused or weary acknowledgement of the mayor’s foolishness. And yet Caplan has done the same, in choosing Thomas Szasz as his go-to psychologist. Szasz argued that the mental illness/disease model was wrong, and that “there is no such thing as ‘mental illness’” (source). Although rejected (at least in his more extreme pronouncements) by the majority of the psych profession,* Szasz confirms for Caplan what Caplan wants to be true about psychology. That is, Caplan wants to treat these issues as merely one of preferences. Continue reading

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The Horror of Not Breathing

A hard coughing fit, the kind where you cannot stop and you cannot draw breath, is an overwhelming emotional experience for me that leaves me mentally drained.

I had severe asthma as a child. It wasn’t the debilitating non-stop puff-the-inhaler-between-every-word stereotype you see on television. I’ve never met anyone like that, and doubt there are many. I was very physically active, taking long bike rides through the country, playing countless hours of basketball in our driveway with my brother, and enjoying hiking and camping. I played trumpet and french horn in the band, which requires a bit of wind.

I have the kind of asthma that comes suddenly and leaves you frantically gasping to suck in air, and that can last for days or weeks. I remember spending days at a time lying on our couch desperately trying to draw in enough oxygen and not being able to. I felt like I was suffocating…I was suffocating, and I felt certain I was going to die, and at times I wished it would just happen already. This is not my only memory from from what was a rather typical smalltown childhood, but it is a significant memory–the helplessness of a 10 year old experiencing the very edge of dying, for hours at a time, and not being able to do anything about it.

In high school I started getting monthly allergy shots, and the frequency, and for the most part the severity, of my attacks decreased. But they never went away completely.

I have almost died. In 1990 one of my roommates brought home a cat, one of my allergy triggers. I ended up in the emergency room for several hours, laying next to a 27 year old HIV positive heroin addict who looked like he was 60 and who was also dying. I did find out that asthma patients get shuttled to the head of the line at the emergency room. That guy who cut three fingers off with a table saw, or the person spitting up chunks of lung may look bad, but they’re not going to die in the next thirty minutes; the non-breather will.

After about two hours of treatment, they came to me with the release papers and the doctor was talking to me when suddenly my throat closed up completely. I wasn’t gasping for breath–I had no breath at all. None. The doctor looked closely at me, then called out to some others to get me to some other place “stat!” And as they ran me down the hall, literally putting a needle in my arm while we were moving, my oxygen-starved brain could only think, “I’m on Emergency.”

After another hour–during which my fiancee was in a state of befuddled concern, because they’d told her I was about to be released and because she’d seen a man with his jaw shot off and watched a door fly open and a man yell, “My name is Snake, and I shot him dead,” while police tried to control him–I was finally released. The doctor said, “We thought we’d lost you.” I asked him what he meant, and he looked at me like I was an imbecile and said, “You couldn’t breathe.” Ohhhhh. I’d assumed that being in the hospital meant that of course they would keep me from dying. I realized then that my condition was so severe that even emergency medical help in a first-world hospital might fail.

I get these attacks occasionally. I’m quicker to go for medical help than I used to be.

Several years ago my college was renovating part of my building complex. The dust–most probably the specific chemicals in the dust–caused a series of severe attacks that my regular medications were barely controlling. One day I stayed home from work and tried to get an appointment with my doctor. Her office didn’t return my calls, and by the time my wife got home I was desperate. I don’t mean concerned or needy, I mean desperate, as in I can’t breathe and that horror of being a child, helpless and dying, was engulfing me. The black pit of despair is a well-coined phrase–at those moments I sense a vast emptiness before me, a snuffing out of my own self, the end, with nothing to follow. Again to the emergency room, and again they resurrect me. And I found a new doctor and my boss moved me to another building for the duration of the construction.

Several years ago I was teaching a summer AP Government class at Georgetown University, where they were constructing several buildings. The dust was bothering me, but it was under control. But one of my students did not have it under control. She ran out of my class one day, and I followed her outside where she sat on a bench struggling to breathe. As I called our office to have them send help, her eyes rolled back, she lost consciousness, and stopped breathing. This scene replayed itself several times over the next week, with repeated trips to the emergency room. On another occasion she had just returned from the emergency room and one of the RAs and I took her to eat at the Georgetown dining hall. As we began to walk out, I noticed that she had suddenly lagged behind. I turned, saw the look of horror in her eyes before they began to roll back, and caught her just as she fell. Yelling for someone to call 911, the RA and I tried to wake her and get her breathing again. We did, the medics arrived, and she went right back to the hospital. Two days later her parents arrived to take her home.

Just before writing this, I was taking a sip of coffee and it went down my windpipe. You probably know the coughing fit that ensues all too well. What you may not be familiar with is a 50 year old man experiencing a rush of terror that strips away all his adult dignity and composure, reducing him to a lost and frightened child on the verge of tears.

Childhood associations are amazingly strong. The sound of a wooden screen door slamming shut invariably brings a visual memory of the cabins at our church camp, and the scent of honeysuckle takes me back to my grandmother’s house. It’s visceral, and I couldn’t shake those associations even if I wanted to. Now imagine that unshakable visceral association is one of horror.

That’s what a mere coughing fit means to me.

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Wrong, Do It Again!

And today, the only possible agent of political reform is the President.

Lawrence Lessig, explaining why he ran for president, and reminding me yet again that most lawyers are lousy political scientists.

Posted in Executive Power | Tagged , ,

A Non-partisan Argument Against Justice Obama

Hillary Clinton, never one to miss an opportunity to pander, told a prospective Iowa voter that he had “a great idea,” in suggesting she appoint Obama to the Supreme Court.

It’s a terrible idea, and that has nothing to do with how I feel about Obama’s presidency, his character, or his qualifications for the job.

My friend Ed Brayton, who blogs at Dispatches from the Culture Wars, noted on Facebook that “Obama’s record on civil liberties and in cases before the Supreme Court is pretty terrible. I would have no faith in him as a justice.” He has been bad on civil liberties, but sometimes people change their perspective when they’re in a different position (c.f., Earl Warren). I’m not positive Obama would be a horrible civil liberties justice (although I’d be happier with the appointment of someone with a better track record, for sure).

Others might worry that Obama is too much of a leftist, because apparently there are people who still believe that. I don’t find that a serious concern. More pointedly, some might note that he doesn’t have any judicial experience, and that having been a part-time teacher of constitutional law isn’t the most impressive resume for a SCOTUS appointee. But of course it’s a fairly recent tradition that all appointees must have lengthy judicial experience, and one that appears to me to be largely driven by the American Bar Association’s inappropriate assumption of the role or arbiter of qualifications for a public office (and we worry about the Koch brothers!). Personally, I I think there are umpteen thousand Americans who are qualified for the job, and presidents’ talk about selecting “the best” person is 100% FDA Prime bullshit. And a little less technical lawyering and a little more understanding of the Constitution as more than a legal document–I’m looking at you, Tony Scals–wold be good.

But my overriding concern is the growth of presidential power. And one of the factors promoting that has been a Supreme Court that has been less eager to check presidents, and that–according to political scientists Matt Crenson and Ben Ginsberg in their book Presidential Power: Unchecked and Unbalanced–is at least in part because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere. They become enculterated in the concerns and needs of the executive, and more willing to give presidents some leeway, rather than trying to keep them in check.

Presumably, presidents have always appointed judges whom they found politically congenial. What has changed is that preisdnets no longer choose judicial appointees with legislative backgrounds, and the political milieu in which judges originate presumably affects their institutional affinities and sympathies. During the nineteenth century, federal judges typically emerged from the country’s electoral and representative systems. …

The fact that many federal judges had served, continued to serve, and often would serve again as legislators helped to reinforce legislative primacy by ensuring that the federal bench would hvae a certain respect and partiality for legislative institutions. …

Judicial deference to legislative power has practically disappeared today …

What has changed in recent decades is the character of judges’ political and governmental experience. Few recent or contemporary federal judges have ever served in a legislative body, but many have served in executive agencies or in federal or state judicial institutions…Today’s judges are recruited primarily from executive and judicial positions, not from legislatures. [pp.305-314]

Crenson and Ginsberg have a table showing the decline of federal judges with judicial legislative experience from a high of almost 81% in 1830, to 38% in 1900–around the time presidential power began its upward trend–to 4% in 20005. We need fewer judges with executive backgrounds, not more, and certainly not one so deeply steeped in sympathy for the office of the presidency itself.

LBJ adviser George Reedy, in The Twilight of the Presidency regretted that the President has become so sheltered that there is no one to tell him “go soak your head” How likely is it that a Justice Obama would tell future presidents–not just a President Hillary Clinton, but a President Rubio, Cruz or Trump, too–to go soak their head?

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Trump’s Democrats

[cross-posted at Hit Coffee]

While many Democrats are eager to deny that Trump is drawing support from their party, the data show a different story. That data also reveals the falsity of the pretense that Republican party leaders could somehow have prevented their party from being largely captured by an ugly populist contingent.

It’s important to remember that both parties have traditionally had their reactionary factions. While the GOP had the John Birchers, the Democrats had their boll weevils—socially conservative and racist southern Democrats, but who often supported populist initiatives, such as rural electrification. Not only did the Democrats have that group, that group was the foundational core of the Democratic Party, with its Jeffersonian origins in anti-nationalism and defense of a racially stratified society.

The boll weevils are mostly forgotten now, but not wholly gone. The South has shifted from being overwhelmingly Democratic to being highly contested territory where Republicans win regularly. In 1960, 100% of the U.S. Senate seats from the Confederate states were held by Democrats. In 1980 they still held 55% of those seats. Today, the Democrats only hold 18%. But Democrats are often more successful on the local level, where politics is more personal and party label less significant…and where people can know that Candidate Smith isn’t a liberal, but an old time Democrat. Many of these voters still identify as Democrat, even as they vote Republican at the state and national levels. Think, for example, of Kim Davis, the Tennessee County Clerk who refused to give out marriage licenses to same sex couple—a Democrat, not a Republican.

And those folks are often Trump supporters. Other than his home state of New York, Trump’s best states are in a bundle of the old South states plus West Virginia, another state where the old southern Dems long dominated. Out west in the intermountain states, which have always been predominantly Republican, )his support fades.

OK, one might say, they’re not real Democrats (although they are what Democrats predominantly once were), because they’re really conservatives. But as reported by RealClearPolitics, 20% of the Trumpenproletariate identify as liberal. True, a strong majority of 65% describe themselves as conservatives, but only 13% say they are very conservative, and less than 1/3 say they are Tea Partiers. Trump’s supporters are not the radical right-wing revanchists liberals claim are taking over the Republican Party.

All of this helps explain why over 2/3 of Trump’s supporters say they would vote for him if he left the GOP. A lot of them aren’t strongly committed to the party—they are in fact not the mythical Republican base.

Liberal and establishment Democrats don’t want to admit that many of these people are still Democrats. But many of them are, or they are about as much Democrats as they are Republican, willing to vote for either party depending on the candidate.

And this is the reason it’s ridiculous to talk about how the GOP establishment should have kept these people from taking over the party. First, they haven’t; that’s largely a different group of people. Second, parties don’t choose their supporters as much as supporters choose the party. If we think in spatial terms, on a left to right continuum, many of these people find themselves to the right of the median Democrat, so they’re going to take a look at the party that’s also to the right of the median Democrat. If they find that they’re also to the right of the median Republican, they’ll be more attracted to the Republican Party, not necessarily because it is welcoming to their extremist views, but because it’s median is less far away from their views than the Democratic median. Those folks will pull the party away from its establishment, but there’s precious little the establishment can do to stop that.

But those aren’t the Trumpa Loompahs (hattip Steve Horwitz). Those folks tend to support Cruz or Rubio, because they recognize the liberal elements in Trump’s message.

So suck it up, Dems. Trump’s your party’s phenomenon, too.

Posted in Executive Power, The Democratic Process | Tagged , , , , , , , , , ,

Prostitution, Amnesty International, and the Consequences of Prohibition

Amnesty International has found itself in a controversy over its new draft policy on sex work, that calls for “the highest possible protection of the human rights of sex workers, through measures that include the decriminalisation of sex work.” A group of well-known celebrities has penned a letter denouncing the draft policy, and journalists are voicing their dissent.

At times the misrepresentations of Amnesty International’s claims are blatantly dishonest. Jessica Neuwirth, for example, suggest Amnesty has “been hijacked by proponents of the global sex trade,” and falsely implies that they called prostitution a human right. At no point in the draft policy does Amnesty say prostitution itself is a human right, but that their concern is protecting against human rights abuses against sex workers, including: stigma and discrimination; physical and sexual violence; and criminalization that prevents access to health care.

Others have come to Amnesty’s defense, arguing that we should be listening to the voices* of the sex workers themselves, rather than to Hollywood celebrities. The left often asks us to listen to the voices of the subaltern, but this issue tests their commitment to that principle. They also support treating women as competent adults, except in this issue.

Amnesty’s critics are foolishly putting their idealism above the opportunity to make positive gains for women in the sex trade.

Let’s talk seriously about public policy.

1. The first thing we need to ask is, is the sex trade harmful in ways that justifies a policy response? I say the answer is yes, and that it would be hard to argue against that position. Prostitution can harm the wives of johns, causing them to be infected with sexually transmitted diseases. Prostitutes are at risk for violence, slavery, and sexually transmitted diseases, and this is not a complete list.

2. Can prostitution effectively be eliminated or at least reduced to a rare activity? Some think so, but I believe there is no evidence to suggest it is possible. Sex for remuneration is found, as far as I know, in every human society anthropologists and sociologists have studied, and in the non-human world as well.

3. If we cannot effectively eliminate an activity that has harms justifying a policy response, we have to look to how we can minimize those harms. And the overwhelming evidence from a broad range of prohibited activities demonstrates that prohibition, particularly with strict enforcement, exacerbates rather than reduces the harms. A superior solution is to decriminalize and regulate with an eye towards the health and safety of the participants.

I’m not going to dive into the weeds of what that regulation should look like. There are no doubt better and worse models, but they are models we can learn from and adapt beneficially. But I support Amnesty’s direction on this, and I think anyone who cares about ensuring the safety of sex workers, and cares seriously enough to think seriously about how that can realistically be accomplished will come to the same conclusions.

______________________
*Astute readers will have noticed that all of the news sources to this point have been from the Guardian. There are others, of course, but kudos to the Guardian for publishing essays by voices on each side of this debate. Note that the final link in that sentence actually predates the current contretemps, having been published last year.

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The Battle of Indiana Didn’t Have To Happen

[Note: A Guest Post by Hit Coffee’s Will Truman]

There really is an odd feeling of the ground shuffling from under my feet. Fifteen years ago, I was on the far left of the same-sex marriage movement, and pretty far to the left on gay rights in general. Around ten years ago, most of my peers were coming from the same place. This appears to be the moment where, at least in respectable company, my views have gone from liberal to bigoted. While I do not grant the Indiana legislature the benefit of the doubt when it comes to the RFRA law they passed, I thought that the reaction was overwrought compared to the likely consequences of the law, and I am actually reasonably sympathetic the right of individuals and businesses not to provide services for gay weddings. Some of that is nascent libertarianism on my part, and a lot of it is that it was one of the things I said over and over again when trying to sell people on gay marriage: This won’t affect you.

The theoretical implications of the Indiana RFRA law could go beyond gay weddings and into public accommodations. Here I am often (though not always) less sympathetic to anti-gay business people. When it comes to emergency (health care, auto towing) and essential (food, shelter, employment) services, I don’t believe that discrimination against gays should be legal. But attending a gay wedding even if just to cater? I believe a degree of discretion is called for. It’s become quite clear that puts me well to the right of the gay marriage movement that I have belonged to my entire life.

The right is freaking out. The thing is, though, it’s not just those who are anti-gay or anti-gay marriage. A lot of erstwhile supporters of gay marriage have become very uncomfortable. Not because of disagreement about the wedding caterers, but over the apparent unacceptability of any disagreement. As well as the conduct of some (just some!) opponents of the Indiana law, from the TV news crew that went trolling to find some business that wouldn’t cater a gay wedding, to the harassment and threats the company got afterwards.

This may prove to be a watershed moment for gay rights, and in the final analysis the ends may justify the means. If given a binary choice between gay acceptance to the point of requiring businesses to cater gay wedding, and the status quo of fifteen years ago, I’ll take the former.

But on the whole, it’s not a good situation. And it didn’t have to be this way. And ultimately, I believe the fact that the blame for where things are lies not with the left but the right.

Ross Douthat has made repeated mentions that the right is “negotiating its surrender.” He makes a point similar to the one I am about to make, but he seems to view it in the context of “the left changed” while I see it as “the right refused to until it was far too late.”

The problem here is that they are coming from such a place of weakness that there isn’t much to negotiate. The have to play off latent sympathy from the other side, to which they have shown none. Actions have consequences. Rather than relating this to a war that is winding down, though, I think the more applicable comparison is to trying to negotiate a settlement after the verdict is in. You had your chance to get a much better settlement. You were unreasonably cocky, and these are the consequences.

The writing was on the wall a decade ago. Gay marriage was going to become legal. It was just a question of when. We’re slightly ahead of schedule by my predictions. But the right had plenty of time to “evolve” on the issue and make a swift and orderly accommodation of the fact that gays, too, would like to be married, and the perspective that there aren’t many logical reasons why they shouldn’t that don’t involve an open bias that was likely to become increasingly unsavory.

The retort to this is, in the words of Dave Pinsen, “you can’t negotiate with a steamroller.” Not when it’s right at your doorstep you can’t, perhaps, but it took a long time for it to get here. And coming at it from the pro-SSM side, there was a really long time that the SSM would have traded a lot to get the fight over with. When the climb is uphill, they’re still willing to compromise, as they did in Utah. But you made them (us) fight for every yard. And victory is so close as to be a foregone conclusion.

There are limits to this, of course. Jacob Levy argues that they could have avoided this if they’d offered Civil Unions in the 90’s, but I can say pretty firmly that such could never have been a stable compromise. The distinction between marriage and union is just too artificial. Rather than the 90’s, I look to the late-ish aughts all the way to 2013, before it became clear that the courts were going to do what the legislature wouldn’t. Gay marriage still seemed at least a dozen years off in 2007, and this is not the sort of law that they really wanted to wait on.

Had they come to the table and asked, in return for gay marriage, rock solid protections for the religious consciences of the marriage industry (exempting them from existing anti-discrimination laws and future ones unless explicitly stated otherwise), and there is no doubt in my mind they would have taken the deal. Would they have returned ten years later to try to force the caterers to act? It’s possible, but there again I think the impetus would have been on getting general anti-discrimination law passed and trying to insist that wedding caterers lose their exemption would have gummed up the works for something that is a really, really small (and non-emergency, non-essential) segment of the economy. It probably wouldn’t have been worth going back to.

But now? Now they can just incorporate it with everything else. And its opponents have spent so much on delaying the inevitable, they are in an exceptionally weak position. By delaying the inevitable, they allowed the other side to marshal all conceivable forces, from Apple to the NCAA to NASCAR to Walmart, to join their army. This is, first and foremost, the result of their own strategy.

Posted in Politics in General | Tagged , , | 12 Comments

Indiana’s RFRA Is Almost Certainly Not Actually What You Think It Is (Because You’re Talking Out of Your Ass)

Note: This post is really long, and violates the laws of blogging by not making an implicit claim of being absolutely true, correct, and inarguable, so you’re better off not reading it. And if you have the common-sense not to actually read it, I hope you have the common sense to not comment on what you haven’t read.

Last week, as Indiana’s Religious Freedom Restoration Act (RFRA) was being passed, one thing was clear in all the hoopla–almost nobody who was chattering about it, friend or foe (including, I regret, myself) had actually read it. Nor had nearly anyone really taken time to compare it to other states’ RFRAs, digest the actual legal meanings, and ruminate upon what they meant. As is normal now in our 24/7-news-cycle-social-media-driven culture, the prime directive was to make an authoritative-sounding statement right now.

But these issues are more complex than we chattering classes like to let on. Even we really smart people need more information than is immediately available, and particularly we need the various bits and pieces that come dribbling out over a matter of days from various sources. For example it took a few days of people saying “so what, lots of states have RFRAs” to get critics of Indiana’s RFRA to point out that the particularities that (allegedly) make it different from the others, and then a couple more days for people to start actually looking at those others to see if it’s true, and for someone to point out that arguably at least one state’s RFRA (Connecticut) actually protects the right to discriminate even more strongly than Indiana’s does.

So for all those, whether pro or con on Indiana’s RFRA, who asserted a confident opinion right off the bat, I say just shut the fuck up already because you only think you knew what you were talking about, and were actually responding ideologically rather than will anything like a complete understanding of the facts.

As for myself, I drifted across that line a few times myself (shut the fuck up, Hanley), but mostly tried to focus not on the meaning of the law itself, but on the politics of the issue. Given the tone of the general debate and my own pussyfooting around, though, I doubt that was clear to anyone. So, about a week down the line, I’m ready now to make some tentative comments about the law itself.

First, though, here’s where I’m coming from, politically:

  1. I believe there is an individual right to free association that allows people to discriminate, up to a point. At the absolutely a protected right end, I’d say if a person is looking for a roommate, they can discriminate on any grounds they want, because they’re looking for someone to share their living quarters, their most personal private spaces. At the absolutely unprotected end, we can’t use the power of government to create legally mandated discrimination against any group. That far, I think most people agree. Where I draw the line, then, is between sole-proprietorships and joint-stock corporations. I would allow owners of business organized along sole-proprietorship lines to discriminate, because the person is the business and the business is the person, or near enough to count. (Not all my friends agree, and I understand and respect their reasons.) I would not allow joint-stock businesses to discriminate because the owners are not the business and the business is not the owners. That distinction is formed in our law, as joint-stock corporations’ owners have limited liability–they are not responsible for the debts of the firm, so they are not the firm in the same way a sole-proprietorship is.*
  2. I despise people who would discriminate on grounds of race, gender, sexual orientation, religion, etc. I may defend the right to discriminate, but that doesn’t mean I defend the fact of discrimination, or the decency of the discriminator. Not everything I find vile is thereby legitimately banned, a crucial distinction that I think is lost on most people, left and right.
  3. I’ve been commenting a lot on the politics because 1) I despise discrimination, 2) even if they have the right to discriminate, I think Christians are being hypocrites by expending so much effort on protecting themselves from having any connection with this particular sin, 3) I’m amused that their determination to be so hypocritical is likely to blow up in their faces by costing them millions of dollars, and 4) I’m irritated by my fellow-haters of discrimination who are acting like this law is the great crisis of our times, as though not having that particular baker make you a wedding cake is in any way as destructive to the gay community as the war on drugs is to the African-American community. Yes, it’s nasty, and yes, it can be painful, but it’s a goddam first-world problem, folks. The law won’t give Christians or Muslims the right to stone gay people as an exercise of their political beliefs.

Now, on to what Indiana’s RFRA really says. The text is here. If you want to argue about it without taking the time to read it, just shut the fuck up right now and go away. This is my bawdyhouse and I reserve the right to discriminate against people who are too lazy to read.

  1. First, it’s worth pointing out that the bill does not explicitly give a right to discriminate. It does not say, for example, “a business may refuse service to homosexuals.” And the significance of the absence of such explicit language means that ultimately it will be up to the courts (both Indiana and federal) to determine if the law actually allows that. I’ll come back to that.
  2. Second, some quick background is useful. The original RFRA is a federal law. It was designed to apply also to the states, but the Supreme Court ruled that element of it exceeded Congress’s authority. Since the federal RFRA could not apply to the states, some states has passed their own RFRA laws. Indiana makes, depending on which count I believe, the 20th or 22nd state to pass one.Additionally, the original RFRA was broadly supported by both liberals and conservatives. The predominant motivating event for the federal RFRA was the Supreme Court’s ruling in <i>Employment Division v. Smith, in which the Supreme Court approved the denial of unemployment benefits to a Native American who used the illegal drug peyote as a sacrament in Native American Church ceremonies. Across the aisle people saw this as a bad decision, one that should have granted more respect to Smith’s free exercise rights.

    And now 2/5 of the states have their own RFRAs, so why, suddenly, are liberals backing off from their support? Two reasons, I think. First, because of the Hobby Lobby, in which the Supreme Court used RFRA to uphold Hobby Lobby’s right to not cover contraceptives. Second, because of conservative Christians’ objection to same-sex marriage. In brief, liberals no longer see RFRA primarily as a tool to protect the rights of politically weak religious minorities, but one to protect the rights of more mainstream and more politically powerful religious groups to take actions that negatively affect liberal interests.

    Live by the sword, die by the sword.

  3. In at least one important way, Indiana’s RFRA is similar to the federal RFRA (and maybe to most state RFRAs, but I haven’t reviewed them all): It requires the state courts to use a strict scrutiny standard when judging any action that violates a person’s free exercise of religion. This means there has to be a compelling interest of the state in burdening a person’s religious freedom rights. To take the extreme example, we can use murder laws to punish volcano worshippers who sacrifice virgins to appease the volcano gods–preventing murder is a compelling state interest.The federal RFRA’s attempt to tell the U.S. Supreme Court what standard to use is risible. Congress doesn’t have that authority over the federal judiciary. But what about at the state level? Beats me–I don’t know enough about state-level law to know if a state legislature can dictate the state courts’ interpretive standards (that is, I don’t know if at the state level courts are truly co-equal branches; state and local government isn’t really my area of study), and I haven’t yet seen anyone address this question. So, possibly, the state’s courts could thumb their nose at the legislative insistence upon a standard of review. Or possibly not.

    However telling the courts what standard to use and telling them what result to reach are not the same thing. Eliminating discrimination is arguably a compelling state interest, because in the end a compelling state interest is what the courts say it is. And Indiana’s justices are certainly knowledgeable enough to write legally reasonable opinions arguing that non-discrimination is a compelling state interest, if they are of a mind to do so. Are, or will they be, of a mind to? We need a specialist on the Indiana Supreme Court to tell us that, and there are damn few political or legal scholars specializing in close analysis of their state’s Supreme Court. Were we California, I’d have some real hope of an answer. But Indiana isn’t California.

  4. So what about the ways Indiana’s RFRA is allegedly different? One notable characteristic is that Indiana’s law applies not just to sole proprietorships–where I would be sympathetic to it–but also to publicly traded corporations.

    Sec. 7. As used in this chapter, “person” includes the following: … (3) A partnership, a limited liability company, a corporation, … a joint-stock company,

    For reasons I explained above, I find that very problematic. However in this day and age I’m dubious that there are many joint-stock corporations that are going to bother with using religion as a justification for discrimination. Their discrimination is going to happen the standard way for this day and age–through bad management that is oblivious to what they’re actually doing.

  5. The law is arguably too loose on what counts as religious exercise.

    Sec. 5. As used in this chapter, “exercise of religion “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

    I’m not sure how this compares to other state RFRAs, and I have mixed thoughts on it. One the one hand, a lot of what we think are “religious” beliefs are really more culturally based, and we confusedly bind them up with religion (Christmas celebrations, for example), and I’m dubious that these fringe elements of religious practice deserve the same protection as practices that are more fundamental, or central to the belief. On the other hand, I don’t like the idea that the courts would get involved in determining what practices are central to a religious belief, because ultimately that is between an individual and their (perspective of) God.

    Further, if, like me, you accept a right to private discrimination by sole proprietorship-type companies, then this doesn’t matter, because it’s not their justification of their right that matters, but the right itself. However if you don’t accept that there is a right to private discrimination in any business enterprise, then this potential looseness in the law could be cause for concern.

  6. Garrett Epps at The Atlantic argues that Indiana’s law differs in that it allows the religious freedom defense to work in private causes of action–e.g., the gay couple suing the baker who won’t make them a wedding cake–as opposed to applying only to defenses against the application of laws by government agencies. This part of the law clearly is directed at creating a defense for that kind of discrimination, and so to that extent this is the clause that justifies the claims that the law is targeting gay people.It’s not clear to me why that would matter, though. It seems to me that if religious freedom is a defense against government action, then it is also a defense against government either forcing you to provide a service or forcing you to pay compensation for not providing that service. So it’s a new wrinkle, but not obviously (to me) a hugely significant one. But I’m open to someone more expert in this area of the law explaining why I might be wrong.

    And further, the law appears to explicitly allow a government agency to intervene in such cases.

    Sec. 9. … If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

    It appears, then, that any non-governmental action can, without conditions, effectively become one, so the lines of distinction upon which the critique relies are blurred.

  7. And then there is the new revelation that Connecticut’s RFRA may provide even greater protection for discrimination on religious grounds than Indiana’s. This has come forth in the context of mocking Connecticut’s governor Dan Malloy for his criticism of Indiana’s RFRA. Malloy is a possible Democratic presidential contender next year, so both his criticism and the gleeful response that he’s ignorant of his own state’s law are overburdened with political posturing.Nevertheless the underlying argument is correct. Indiana’s law refers to laws that create a “substantial burden” on religious freedom, while Connecticut’s only specifies a “burden” on such freedom. In practice, as interpreted by the Courts this distinction could mean nothing, or it could mean a great deal because that word “substantial” has great legal meaning (if the justices are inclined to pay attention to it). The word “burden,” absent any modifier, would include–if the judges so decide to interpret it–merely incidental burdens. In contrast, Indiana’s law would apply onto to laws that create a more than incidental burden, a substantial one. And it’s quite legally plausible that the state’s courts could determine that having to bake a cake (or a flower display, or take pictures at) a same-sex wedding is a merely incidental burden on religious freedom, not a substantial one.

    How do you know whether the court would interpret substantial that way or not? Find out what they ate for breakfast.

    In conclusion, yes, the law does appear to be clearly designed to allow businesses to discriminate for religious reasons. However it’s not certain that the Indiana courts will interpret the requirements of strict scrutiny, compelling government interests, and substantial burdens in a way that allows that to actually happen. Maybe they will. But you don’t know that they will, so shut up already.

    And, yes, I think there’s a right to private discrimination, at least within particular bounds. But if you’re more dedicated to vindicating your right to religious discriminate so you don’t have to linger around someone else’s sins than you are dedicated to getting your own sins under control, then you’re not really understanding what Jesus said, so shut up already.

    Seriously, all of y’all, just shut. the. fuck. up.

    ______________
    *I find the Hobby Lobby case tricky because its form of ownership fell between these two models, being joint-stock, but closely held rather than publicly traded. Is Hobby Lobby the Green family, and the Green family Hobby Lobby? Well, less so than Joes’ Garage is Joe and Joe is Joe’s Garage, but more so than GM is GM’s stockholders and GM’s stockholders are GM.

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