Neither the recent French difficulty with Muslim burkas on the beach nor earlier German worries about Scientology as subversive pseudo-religion–neither of these as controversy make much sense to Americans. We obviously have our own and quite different approach to controversy about the place of religion(s) in society. And different than Britain, which yet has an established Protestant national church, and which lacks also the rather extreme freedoms of speech and of press (and peaceful assembly) which are included in the First Amendment to the American Constitution: “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;…”
To begin with a quick and easy argument using the words just quoted from the first amendment, nowadays we tend to think of “free speech” as being individual while we tend to read “free press” as being institutional, as with a magazine or newspaper. Thus even within this constitutional enumeration of freedoms (I might argue) the Constitution itself already recognizes that religion is not merely a personal thing, not merely a sort of private preference, just because the Constitution mixes both individual and institutional type freedoms somewhat haphazardly within this one listing. The over-simplistic notion, that religion is private while citizenship is public, this may make some sense in France but it does not work at all in the American context. Our constitution protects and thus seemingly also encourages as being of some sort of social and not just individual value, a “free exercise” of religion by American citizens.
My argument today is that we MUST make more explicit via additional constitutional language, via a new amendment, how Americans define this same “free exercise of religion.” But you ask, why now; why the dire emergency? But just as the French, it seems, must in the very near future solve their burka problem–by discerning how the burka jives or does jive with French culture or French values–so there are numerous hot and religiously-tinged controversies on the American plate. The French here seem strongly affected by religious symbolism, culture, clothing. I submit that the American disposition is much more towards clarification of written constitutional principle. Though Americans may not care to speak publicly about abstract principle, once words have been inserted in That Document, then such words or phrases function as a commonly-agreed-upon working-principle. By clarifying (more explicitly in constitutional language) the “place” of religion in American democracy, civic discourse is allowed to become freer, healthier, and untinged by “religious” supposition, innuendo.
So I am suggesting here that the U.S. constitution can and should more explicitly recognize the existence of religion as a sort of realm (–my preferred explanatory term) within the larger national society. That the U.S. government may value and promote education, the education realm–this has never been a problem. Education does benefit the state in producing competent future citizens, but education also has its own independent existence. It cannot be subsumed to state purposes; it remains its own thing or else it is ruined. It seeks well-rounded persons and not just political or economic cogs. It chooses democratically and at a local level (I guess) its local curriculums, including the values it teaches, the persons who will teach the values, etc. It includes both private and public schools…
Medicine is another sui generis realm which cannot be subsumed to economic or political control else it is distorted. I favor the US government valuing health proactively and as a positive, humane value, rather than only spending for the remedial health of its citizens, that is, spending on jogging facilities and not just hospitals, but I also do not want the US government to go very far here in defining health as positive value–just because health as humanistic value involves psychological, spiritual, lifestyle… A minimal and humane valuation of health is OK, but I don’t want government getting very specific about what is best psychologically or spiritually…
I might also wish for government to value and even promote the fine arts in America, but perhaps in this case with greater weight on the first term, value. I don’t want a democratic government selecting or paying for too much art, lest art become corrupted by following such money or official honor. (But neither do I wish government to allow the airwaves to be exclusively controlled by commercial motive…)
And analogously, I believe that a democratic government should be able to explicitly state that religion is a value, that it has societal worth, and even in somewhat indirect and/or general manner “support” religions, plural, without this violating the well established American principle that the American government shall never establish in the United States any one religion, Christian or otherwise. For example…”Recognizing with reverent regard the value which its citizens may give to the practice of their varied (and healthy) religions, Congress shall make no laws…etc.”
But such a vague constitutional declaration as I am suggesting may seem to many readers almost silly. And doesn’t this violate the wall of separation! I will be attacked from two directions. Many (–the intellectuals) will demand that “religion” even in general, ought not to be promoted by a modern-day American government. Many others (–the Christians) will say that adding constitutional respect for all religions must be a watering down of (implicit) respect for the practice of Christianity which is (or at least ought already to be) present and prevalent as religion within the modern American republic. So I must now somehow convince both of these dis-inclined and quite different constituencies that my proposal is in fact a very good idea.
To begin then (and with the more difficult argument which I am directing towards American intellectuals) many if not most of the founding fathers of the Republic were Deists. Fortunately perhaps, there existed no one dominant brand of Christianity in the Colonies. The Deist compromise, then, bad smelling as it may have seemed to many at the time, involved: (1) a very rudimentary recognition of the possibility of a naturally apprehended Deity-Creator, (2) a definite demarcation of religious practice as being something that government must respect, and (3) and most significantly of course, the rejection in principle of any future attempt at official establishment of any religion in the United States of America. Though European or Western civilization has since become much more secular, that is, non-religious and/or indifferent to religion, this does not mean that the so-called secular state with “wall” between it and religion–that this simplistic notion now summarizes our American consensus. Rather (in my opinion at least) the Deist compromise still stands… and at present should as well be made more explicit, and even extended a little bit further to explicitly include, in the plural, religions. This seems to me quite consistent with our American beginnings.
But the Deistic compromise which these individuals offered and which all the American citizenry at the time agreed to was (and yet remains) the basic American approach to the government v. religion controversy. The Deist professes a very minimal creed; a Creator God perhaps. But these same Deists did not accept as valid or binding for themselves the traditional Christian authorities of church or scripture, and thus most other ordinary Christians would have denigrated or dismissed such Deist “religion” as inadequate, less than Christian. But both historians as well less-well-educated present day patriots will likely agree that as things turned out–these Deists usually in fact were the better citizens. They at least found a workable principle which everyone could agree to: non-establishment; prohibit in principle official choice of any one practice of religion.
Even to the present day and decades after the last of those Deists have disappeared, negative meanings still tend to attach themselves very easily to this word. We (whether religious or not) actually would rather avoid the word completely, as if Deist beliefs are somehow strange, lacking, just because they were neither fully religious nor fully free of religious superstition and irrationality. They were in-between. But as a very quick argument here: Why is a Deistic sort of agnosticism not more respected by either religionists or modern scientifically inclined (atheistic) intellectuals? We live in a secular age people will say. But does this mean that there can only exist two types of persons, either secular or else non-secular/religious and and with no other category possible? Why do we define ourselves with the help of this word, secular? What does it even mean? Is secularism kick-back against a Protestantism that tends to relegate the political to a secondary status, a secondary sphere? Society is composed of two spheres: Previously the religious was more important but now the secular sphere is more important! Or is secularism the modern alternative to a very, very old Catholic European common culture, Christendom, with a very minimal scientific humanism now providing the basis for a new (and non-religious) definition of man and society? Deism at least seems to have been honestly respectful of–(while at the same time also somewhat agnostic towards)–both early-modern science and old religion. Wouldn’t a little bit of Deistic agnosticism be an improvement today for both sides!
I am surprised to find (and thank-you, Wikipedia) how recent the English words secular and agnostic actually are. Mr. George Holyoake in 1842, in our fellow-republic of England, spent six months in jail for blasphemy. Some time after getting out he coined the word secularism as descriptive of what he himself wished to publicly promote. He described secularism as being an alternative to state religion, but secularism, he said, is not intended as a term which includes any antipathy or antagonism towards religion. And quite soon after this, once a new word, agnostic, came to his attention, Holyoake said that he wished to describe himself as being an agnostic rather than an atheist. (The word agnostic had just been coined by the biologist Huxley, who requested that his new word have meanings associated with science, as in…science involves agnosticism, because science is always progressing.) Today we do not follow the intentions of either of these word-coiners: Agnostic is a friendlier word than atheist perhaps, but has lost its intended scientific associations. And the word secular, as in the phrase–modern “secular state,” has (it seems to me) become a quite problematic term, a word that seems to explain but often actually tends to obfuscate. Secular has come to mean not just a simple absence of religion (as in a national culture without an established official religion) but a more definite non-religions or religion-free zone of some sort or other. (Thus for Protestants, the secular is bad because it lacks religious faith. But for secularists, the secular is good and healthy and normal. Finally, the secularist might say, we have a (nice, modern) secular society where we are not bothered or coerced by this or that religion.
Thus while the word secular may have given George H. some mental clarification and perhaps even psychological refuge within what he found to be an oppressive social milieu, the word of itself explains nothing, it solves nothing. Britain has since changed some laws (though still has it’s national church) but today it is the minority Christians who may be feeling oppressed within a majority non-religious British populace. If so, then for these oppressed individuals to say that they are feeling anti-secular, or for these persons to advocate “anti-secularism” as social movement or corrective–this cannot improve their existential distress. It is not a comprehensive solution. As with the word separation, the word secular is (it seems quite clear to me…) a word only–and not a principle–though within the American context I am afraid that many intellectuals will assume otherwise, and thus find no problem with their holding a simplistic theory of the “separation” of church/religion and state. Religion must be kept out (–of political and social discussion) and perhaps sooner or later (the secularist hopes) religion might even go away, disappear. This is what separation or secularism have come to mean.
My point here is a theoretical point: that such a pragmatic hope is inadequate as theory, and dangerous as proported theoretical answer to the religion v government issue. As long as there are societies which include both religious persons and governments, this issue does not go away. To characterize the modern age as being secular does not change the Reality that there are yet now, and shall be in the future, two different sorts of things here: religion and government.
Who does not recognize that governments deal with important present-day realities, while religions (true or not) deal with important things which they claim involve realities that go beyond, transcend the everyday? These two will always be at odds with each other. The modern use of the word secular may seem to imply that secular modern governments, if only they avoid religion, have thereby largely solved the religion/government problem. But this is simplistic and faulty thinking. The religion/government problem is never fully “solved” such that the original issue no longer exists as existential problem.
Let me make a retreat at this point in my argument, which retreat should allow me to return even stronger. I am insisting that secularism is not an adequate theoretical position. But politics, someone might point out, is actually much more practical than theoretical. Modern (realist) political thinkers might argue that a secular approach to the state has been very helpful. After Westphalia, national governments must concentrate on other things, and must refuse to continue via politics the Protestant/Catholic religious conflicts instigated at the Reformation. Over the centuries, this political working-agreement has helped to develop the norms for the modern nation-state, and today Western leaders would like non-European nations to follow these same (secular-state) ideals as being successful and appropriate international norms.
And perhaps there are some very good norms here with the modern nation-state: respect for democracy, maybe some capitalist business and trade, self determination, and limited direct promotion of religion by the nation-state. But the mere word secular does not include all of these other things.
But isn’t an awareness the primary value of secularism, of government staying out of religion, is this not a very important modern achievement? Doesn’t this one word, secular, sum up the essential ideal of the modern nation-state? No, there are other characteristics more important than the pragmatic avoidance of religion. But since governments have done wrong in the name of religion, don’t they need to be warned away from such? Yes perhaps, but the massive harm done to peoples in the last century or two have been caused equally by governments espousing or supporting religion and by governments not identifying with any religion.
Technically speaking, the United States is more secular than the many European nations which often still maintain various manners of official religious establishment. But again, when the population is polled about religion, the US comes out as less secular than those European nations. I have just employed the word secular but in a practical or descriptive manner. And I still wish to insist that political science theorists should be wary of a theoretical reliance on the term.
But isn’t the simple notion of the “secular state” a modern achievement, a modern awareness? We now understand better what state and religion actually are… No. I expect that the old Babylonian king/emperor was already well enough aware of the actual difference between enacting religious prayer or sacrifice at the ziggurat and other more routine governmental activities. With his co-operation, the two were integrated in that one Babylonian system, and yet the two remained two. While theocratic in state mythology, most of this Babylonian leader’s time would have been given to managing the operations of the agricultural and commercial sectors of society–a political job. The Babylonian system may have “used” religion in a certain way, but this merging of the two was their approach to the religion v state issue. It is not inherently illegitimate if religion is quite closely associated with the political. Russia or China today, for example, may have a more co-operative or coordinative approach than the less intimate establishment or non-establishment notion operative in the West. But a theoretical stance must be taken by each society. As I myself imagine this ancient Babylonian king/emperor, he himself was quite aware that religion, government, military, business… were each distinctly different things.
If it is assumed to be an actual solution to the church/state issue, the word secular is a dangerous over-simplification. I mention an issue in the news: Turkey considers re-introducing capital punishment. But Turkey also has interests in joining the European Union which prohibits its countries (presumably on the basis of a humanistic ethic) from imposing the death penalty. Recent popes have come out also, as asking all countries not to use the death penalty. (Keeping a prisoner confined for decades is more humane.) But previously the Catholic church had taught that this was a specific prerogative of civil government; they wield the civil sword. Turkey also, as Muslim nation, is attempting to follow a “secularist” mode of government. All of this, it seems to me, directly involves the religion/government topic. But until I, or until you are clearer about what our own chosen American solution actually is, we had best not even try to evaluate or advise with regard to the European or Turkish situations. We need to remove the log in our own eye first.
Centuries ago, when Catholic Christian nations were employing the death penalty for some relatively minor offenses, why did the Catholic church not try ameliorate this situation? I might well argue with the pope about religion and politics and he might well read my argument and write something in reply. But I doubt that I could hope for such a discussion with the present administrators of the European Union–though I may be unduly pessimistic here. But I would guess that they (and I will call them secularists) would not see any need for constructive argument about capital punishment. If utmost valuation of human life is a religious value then religion is out of bounds for them as topic. If a supremely high valuation on human life is simply a humane sort of principle to be agreed upon by everyone, then also, discussion ought not to be necessary. Because the secularist does not (in practical terms at least) recognize the existence of one of the realms here, the religious entity, civic debate may be precluded as effectively as when a religious authority gives dogmatic declaration…
Frankly, I myself am somewhat confused by the pope’s position, but at least I can argue with him. But I have little hope of constructive political dialog with the EU administrators, because in effect they will deny that there is anything to discuss. (Candidly speaking, I don’t know much about the EU, and am only grabbing an example from the news…)
But the official EU position, I take it, is that local nations will each deal with religious matters. The EU, because it is a secular sort of governance arrangement, expects that it may completely bypass the religion/state issue. And my point with all of this is just to say that the secularist assumption does not work. All governments must select up front an approach of some kind to religion v government. Will it be this way or that way… Ultimate and religious-like values can be introduced into political discussion from any direction, not just from religious persons intent on promoting religion. The secularist fails to see that such ultimate values are not really any different than religion-derived values. The religion and politics boundary, if denied, becomes porous on the non-specifically-religious side. Even the non-religious persons needs to acknowledge (and respect) the existence of the religion entity within a society.
But enough about the word secular. I still need to direct my second argument for a new American amendment to the Christian patriots, and discuss the famous wall-of-separation phrase.
From a person on the religious side then, from the Christian perspective, here are some of the approaches that Christians have taken towards states or governments. Indifference, avoidance (as when religion is illegal or persecuted), antipathy (as the believer might hope that a corrupt society may make the life of the small religious community more appealing), Lutheran establishment, national establishment, Calvinistic interest in local governance, separatist emphasis on individual conscience, Orthodox support, Roman institutionalism, Quaker pacifism. Under threat of arrest Christians met in the catacombs; when given the opportunity, they encouraged the Roman government to give preference and exclusivity to the Christian religion such that all other religions then became illicit…
What is most surprising though, is that individual Christians continue to deny such obvious diversity and will insist, rather, that their own brand of Christianity is the only valid and genuine item. Different actual practices or versions of Christianity tend, of course, to each prefer quite different approaches to the religion/state frontier. The Puritans did not deny the validity of the protestant Anglican church, but they were dis-satisfied with it, and so left for the New World. In turn, some like Roger Williams who was a Salem minister for a while, became dissatisfied with Puritan social and ecclesial regulations. He had written a book pleading for separation of religion and state; for the state not enforcing uniformity in mere religious opinion or belief. He considered the Anglican church corrupt and he decided later to become a Baptist–rejecting infant baptism. He managed to obtain a royal charter for the colony of Rhode Island which stipulated that Williams would be governor for life. In his book of 1644 he refers to the hedge, or the wall of separation which Christians must maintain (for the sake of the religious community) between the wilderness of the world (and civil governments outside…) and the garden of the church. This was his Separatist approach to Christianity and the State.
A century and a half later, Baptist ministers in Connecticut write a letter to the third American president, Jefferson, and the president writes back. (These can be found on the web; Danbury Baptists) They offer some flattering praise. Then they complain about state laws which they feel disadvantage them while favoring other religious groups, groups who probably helped to get such regulations enacted as local law. They mention individual conscience as being something that government must not interfere with. They seem to suggest that Jefferson might yet make this, individual conscience, an inalienable civic principle…. But their specific interest or primary request is not clearly presented. They recognize that he is an executive now, no longer a legislator who makes law. They hope that with the President’s assistance, “hierarchy and tyranny be destroyed from the earth,” (hierarchy presumably meaning priestly/religious rule, and tyranny being oppressive civil government.) But if Jefferson is to favor an end to all civil authority they he would need to step down from being president… They close with a Christian prayer: “may the Lord… bring you at last to his heavenly kingdom through Jesus Christ…”
So this is the context for a letter Jefferson writes in reply, which letter includes the wall-of-separation phrase. What does it all mean. Was the phrase in common circulation already from Roger Williams, and familiar to both the Baptists and the president? Or familiar to neither. In either case, the earlier use was only about protecting the garden of the church from external intrusion by political/civic entanglement. And the Danbury Baptists as well are most worried about their own religious communities being intruded upon by local state laws.
They are very polite but their specific Christian prayer, that he, the president, might some day become a Christian (and not just a Deist–) this might be somewhat awkward if the president could not reply in kind. A claim to religion is after all and in ordinary circumstances, a claim to a sort of civic virtue. But being a Deist in fact he need not be put off. He prays in return that both sides be blessed by “the common Father and Creator of man.”
This may be only momentary etiquette after all, but in asking what Jefferson’s phrase about the wall means, or what it means today, it is helpful to remember that a wall operates to inhibit traffic in two directions. It may be helpful to ask, who is using this phrase, and which side of the wall are they on. (Being a Deist as well as a government executive, Jefferson himself cannot have been so immediately or specifically interested in traffic from government towards church. He cares about citizens who are imposed upon in their religion, but we ought at least hypothetically to empathize with him as well. As government official he hopes that a wall will stop untoward intrusion by various religiously motivated persons; traffic in the other direction.)
The Baptists are actually complaining about other Christians who had gotten their state government to make regulations which as state regulations then disadvantage the Baptists. But this does not prevent these Baptists from attempting themselves via this letter to perhaps influence the government in their own favor!
Jefferson’s answer references the “reverence” which he himself feels towards the democratic process. Not he, but the people themselves had recently implemented the free exercise and non-establishment principles at the national level. This should be sufficient protection he implies. This should provide a “wall of separation” such that you as Connecticut Baptists don’t need to worry about excessive intrusion into your religious practice. These recently fixed national principles should eventually work themselves out at the local level as well.
But Democracy is what Jefferson says he reveres almost religiously. This is the higher principle he claims. The wall of separation phrase which he inserts I prefer to read as practical. Such an actual wall even now in existence, built by the people when they passed the First Amendment, should prevent regular traffic in either direction. At best it seems to me this wall of separation may be a practical criterion: If regular traffic is occurring here, this indicates that the wall is not fulfilling its practical purpose. Thus I cannot quite read the phrase as enunciating any new meaning as to how the two sides, religion, government, should be distinguished or related. It is not an explanatory principle nor intended as such. Their somewhat confusing request must give Jefferson some reason to ask whether he and these Baptists are on exactly the same page with respect to political suppositions or ideas. This is not the time for a civics lecture, nor might any such a lecture be condensed into a three word phrase. The wall metaphor is meant to reassure, I would say, and to provide an ongoing practical criterion for the future. If you observe regular traffic here, something is wrong.
Because in 1791, some 250 years after the Reformation, Christians could not agree on any one version of Christianity, and because another 250 years later, in 2016, they still do not agree, and because there is little prospect for Christian consensus being achieved within another 250 years, the Deist compromise with its official reverence for and/or official governmental acknowledgement of a very minimal Theistic content, with its advocacy of free exercise for all (well-behaved) religions, and with, of course, its basic policy of strict non-establishment, this remains the most sensible American modus operandi.
PK October, 2016
Three additions, amendments, were made to the US Constitution after the Civil War by the congress then in session. The 13th abolished slavery in the country, the 15th declares that opportunity to vote cannot be withheld from any of the slaves now become citizens, and the 14th describes a singular national citizenship to go along with continued citizenships which Americans would still have within their individual states. The 14th then goes on to attempt to protect the privileges of this large collection of national-citizens from any encroachments that might be made by the states. I myself would describe the 14th Amendment as protective and remedial in its primary objectives.
It is true that the 14th also has ideal (or substantive if you wish...) content. It defines explicitly a national citizenship which is given a certain (general ?) preference over state citizenship. Each American is described as having two citizenships with the national citizenship being at least literally, the larger. And certainly, because the original founding of the Republic included within its language the terrible compromise with slavery as institution, the Fourteenth corrects that original mistake and so describes the uncorrupt and democratic ideal of one equal citizenship status for all. The Fourteenth Amendment itself does thus fix the original constitution because the original constitution of the United States had allowed for the existence of the inequality of slavery as institution. But the Fourteenth itself does not seem to attempt in any manner to add to nor to redefine the already existing (if previously compromised) ideal, the normal privileges or rights possessed by (national) citizens. These have been already legally defined in the earliest amendments to the constitution, etc.
But beyond clearly specifying a single category of national citizenship for all, what does the 14th do as law?
The societies and economies of the Confederate states were in disruption, chaos, confusion. Slaveowners lose their properties, slaves are free to travel where they wish, to do what they wish, to find jobs where possible... State governments were not ultimately re-established till they had agreed to accept and abide by the newly passed Fourteenth Amendment.
Loosely speaking, the Fourteenth does quite obviously give a paternalistic, supervisory role to the Federal government vis a vi State governments. But let's look more carefully at the three clauses, beginning with the first:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (1)No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
That is, this amendment first describes a national citizenship and then in a first clause, the states are explicitly precluded from making any laws which might infringe upon this (general) and national citizenship. Clauses two and three are the controversial ones-which in the legal opinion of the last fifty years have become a sort of super- or mini-Constitution embedded within the larger constitution:
(2) nor shall any State deprive any person of life, liberty, or property, without due process of law;
(3) nor deny to any person within its jurisdiction the equal protection of the laws.
That the entity commanded or addressed here are individual States, this is obvious. The American constitution somewhat analogously had previously declared certain self-limiting requirements upon the Federal Government itself:
(The Federal) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; etc, etc.
But here it is the states which must not make any law abridging the (general) privileges of national citizens... But then more is included; the due process clause, the equal protection clause. Why these two clauses?
My contention is that these two clauses have been quite seriously misunderstood. The question is not how judges might like to use them. I admit that the Fourteenth does in a way complete or fix a serious fault within the original American Constitution. But I insist here that these two clauses need to be noted as having a primary meaning which is in fact practical, prohibitive. If a state unfairly deprives... or if a state does not protect according to existing state laws... then the Federal government is hereby authorized to take action against this state for such serious violation of fundamental or basic justice towards that one who is not just state citizen but also national citizen. I paraphrase here in my own words but I expect that most legal and historical scholars would agree with my loose summary. In effect, these two clauses are more of a threat or a prohibition than being the delineation of an ideal-delineation, that is, of what equality or citizenship actually might mean...
The Fourteenth Amendment text also ends with a practical/administrative specification:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
After in this manner authorizing itself to make further special ad hoc (temporary) laws to bring about the objectives of the amendment, the US congress did just that; it passed reconstruction laws which gave some financial assistance to the freedmen and freed women, it encouraged registration and initial voting by blacks, it effectively prosecuted the terror and murders perpetrated by persons of the KuKluxKlan who were intent on preventing social change which they did not favor. But my emphasis here is that these two clauses should be read as having a primary practical-judicial meaning. that is, states failing or willfully refusing to provide to individuals due process (with emphasis on process within the state judicial apparatus), and failing, willfully or not to give the protection of law, that is, willfully (withholding the protection) of state law to those who may recently have been criminally victimized, threatened, killed. Due process means unhindered process in obtaining relief... while equal protection, this phrase actually should first bring to mind the meaning of a state making efforts towards rectifying, investigating, prosecuting, bringing to justice the perpetrator for the sake of any victim of serious crime, not just favored victims. Protection for all, not equality in the abstract.
I claim the clauses are essentially or primarily protective and remedial. If any states do evidence gross bias and gross injustice within the operations of their legal/judicial systems, then the US congress may institute exceptional (temporary) methods to fix this problem within that particular state.
No doubt such interference by Congress and the federal executive would be messy, unusual, controversial, temporary, paternalistic, but this is (it seems to me) still a primary meaning of the amendment today. And obviously such heavy-handed activity must be provoked by serious and significant injustice.
The strictly legal-textual analysis of whether any particular state law does fundamental injustice to a certain group of its citizens, this is covered in the first clause. The Supreme Court certainly can order the removal of such maliciously-unequal state laws from a state law code. But this is easy. The man on the street should be able to decide whether a particular law is biased in such a manner. The messy problem, the substantial powers of the amendment I might say, comes with the second and third clauses.
In my opinion then, the primary purpose of the Fourteenth is to prevent and prohibit major aberrations, major injustice within the state judicial systems; it is not intended to be a statement of idealized equality by use of which any laws, state or federal, can be tested for their equality quotient. But I must also admit up front that it is fairly easy to read the Fourteenth is this way, to read it in the abstract, to read it primarily as statement of ideal principle.
American patriotism and identity is also bound with our emphasis on written law, our constitutionalism. But this special quality, this emphasis on law as written, can also become a fault–and stupidity perhaps–if it causes us to deny the reality of convention, if it causes us to deny that culture is actually more conventional than legal. Let me explain.
No society exists without convention. Written law we might say structures and supports convention and/or social culture, but written law but does not create culture or convention. People rather create these immediately. Convention and culture always include many more things, many details and items not described, stated explicitly in the written law code for that society.
The problem confronting the Radical Republicans who wrote the Fourteenth Amendment was a law-and-convention issue, not just a law-as-idea issue. Slave-culture must go away and be replaced by different cultures, different social conventions. This cannot happen within a week, even a month. Nor can it be done by the Feds from (in effect) "outside." Nor-and here comes a problem-can it be done by law. Law can provide a framework in which a more equal society has opportunity to grow, but law of itself cannot create that local culture, those local conventions.
Reconstruction is a poor choice in words because it suggests that all that is needed in the former Confederate states is taking the bricks from the rubble and putting the building back together. Buildings are easy to construct while cultures are not.
At this point in the discussion I would like to suggest that the word prejudice may be an appropriate and healthy and normal word when we are talking about cultures. I am biased in favor of the culture in which I was brought up in, that culture which is most familiar to me. This is normal and healthy. I can also learn and adapt and personally include aspects of other cultures, etc... So far this is loose talk. But the difficult intellectual point for Americans comes next: people often wish to control culture by way of law. And perhaps this desire is somewhat natural also. But more importantly, if culture/convention is recognized for what it is, then it should be recognized also that there are quite strict limits as to how far law can be employed in this–as an effective means towards controlling/creating culture.
Other societies may honor social convention to the point of denigrating explicitly written law. But whether as a result of too much Roman, Jewish, or Protestant input, Americans tend to denigrate the reality and the necessity of social convention in contradistinction to written law. (The citizens of ancient Greece would never have fallen into such a dichotomy-understanding that law as such within a community is always both written and conventional.)
It does seem to me that the framers of this amendment understood things clearly and fairly and that they did get their wording correct. That is, they did not expect to nor attempt to legislate culture/convention, as if to require states to have a specific culture/convention (–or even to have super-equal laws). They specifically wanted to prevent the use of (southern) state judicial systems, state law being used again again in those southern states to help to support or re-establish a disallowed racially-unequal culture. They crafted the law (on my interpretation) to prevent powerful groups from systematic use of local law to assist in re-imposing culture. But using law agains law is a dicey maneuver. If the Radical Republicans did get the wording correct and if the earliest decade of federally imposed/assisted reconstruction (such as the KKK Act) was OK, later interpreters of this law have not done so well. It is a sad and sorry observation to make, but in its later history, this law itself has been used to attempt to do the very thing which it had hoped to prohibit, to prohibit powerful social groups from using law to impose culture. (And this, I would insist, because of a failure to admit the simple distinctions about culture/convention which I have just made.)
In his book "The Fourteenth Amendment and the States" C.W. Collins (writing in 1912) describes in detail the law cases which had come up in the previous forty-some years. He notices that very few were about race and very few involved the southern states. Rather, most appeals to the Fourteenth Amendment seem to have been made to support what I myself will call the new American Market religion. Many of these were business-type cases asking the court to declare that a certain law was unfair. As quick example from page 91 I note the following case: a Denver citizen disagreed with the city's tax assessment and was not given a hearing. The US Supreme Court agreed with him: his due process rights under the 14th had been violated, Justices Fuller and Holmes dissenting.
I may be missing something here. I am not a lawyer but I can at least read for myself the texts of the Fourteenth Amendment. Is this what the amendment is for–to authorize the high court to review and correct even (relatively minor) errors in the operation of all of the low courts?
In one of Mr. Collins' chapter summaries:
For practical purposes this principle of intervention may be stated in the following words: No State can make or enforce any laws which shall upon proper proceedings be deemed unreasonable by a majority of the Supreme Court of the United States. This involves the interpretation in each case of the terms "due process of law" and "equal protection of the laws." The rule of reason alone governs. What are fair profits, what are excessive taxes, what are proper health laws, what is confiscation and what discrimination, -these are questions which cannot be answered in the abstract nor can they be adequately defined by precedents. If it becomes incumbent on the Supreme Court of the United States to pass judgment on them it must consider the reasonableness of each concrete case.
In my own words, Mr. Collins complains because in 1912 the justices were assuming that the Fourteenth gives them direct authority to decide commercial/business questions (!) using only their own notions of reasonableness: After cogitating on the subject for awhile the justices are able to say... The Fourteenth allows states to regulate business in this manner but not that.
I have blogged previously to the effect that the Commerce Clause does give the Federal Government authority to maintain/regulate one national economy. States separately are not allowed to set up local economies by imposing state tariffs at their borders. And quite a few persons today might wish to suggest that the Fourteenth and its description of national citizenship gives the Federal entity (in effect at least)-authority to describe/regulate a singular culture, one national culture.
And of course this is true in part. To describe in words what the privileges of national citizenship is, this is to describe certain important American cultural values, to actually describe a minimal and very important culture. But at this point I would wish to insist that this generalized image of (American) culture is somewhat unusual, even unnatural, un-sustainable. Culture is ordinarily and organically local I would say. True, today we tend to have only one national culture rather than significant regional or local cultures. But even while I am a Northerner, I have come more and more to see that a state as culture-entity is necessary, desirable, not optional within our arrangements. Just as failure to recognize the reality of convention in distinction to written law is essential, so the possible role of state law as describing the contours of a more local culture in distinction to the one national culture–this is also necessary.
And the Fourteenth maintains this possibility by recognizing that Americans, thought obtaining some of their identity by identification with the larger national citizenship, remain citizens individually of states, actively civic in these numerous local societies. If, as I believe, law codes do give minimal definition to a corresponding society, then the mere existence of fifty state governments and fifty state codes does give minimal definition to fifty different cultures. The potential that fifty flowers could bloom, this must be allowed.
An individual state then potentially may achieve a superior/better notion of liberty than that minimum which is delineated in the privileges of national citizenship, and such a state may implement some dimensions of that unique culture, that liberty, within its state laws. The only stipulation being that this state must not operate a system fundamentally unfair, fundamentally contrary to national citizenship norms, fundamentally inferior in its justice given to local citizens-(not in its absolute equality given to them).
States' Diversity might be the phrase for such a desirable situation; But how many Americans consider local cultures to be important enough… Most seem to want only one thing: to control the national culture entire by either adjusting, fixing, or using national law. Appealing to the Constitution of the United States in support of their injured ideas.. And economic conservatives as well as social liberals have in fact been very successful at using the 14th amendment to the US Constitution (with the active collusion of the Supreme Court) in exactly this manner.
But if the prohibitive and thus limited aims of the Fourteenth are recognized, admitted, then the supremes will recuse themselves from considering any but very serious systematic threats to national citizenship prerogatives. They do in point of fact control the (minimal) definition of a national citizenship and have the right to determine egregious state encroachments upon that general definition, but at the same time if they do not recognize the limits here, they themselves easily become guilty of imposing their preferred version of culture upon the states! Such activity, using the laws and legal system to favor any prevalent culture, this specifically is what the amendment gives Congress (and Supreme Court indirectly) authority to monitor as being undesirable.
Mr. Curtiss' suggestion in 1912 is that the Supreme Court justices be required to unanimously agree on Fourteenth Amendment challenges. And perhaps his suggestion would have been helpful if enacted, but as many may know, the last fifty years have created volume after volume of collected legal cases, a mass of judicial activity all purportedly required by and based upon rigorous analysis of those two clauses: due process jurisprudence, and equal protection jurisprudence. This accumulation itself is now become a large (bad) judicial culture/convention which like any culture will tend to resist change even as it begs reformation-by return to an original and better interpretation.
I have attempted to explain why I believe the third clause of the fourteenth has been significantly misinterpreted. Simplistically stated, the primary emphasis in the phrase needs to return the word protection, as in the practical workings of a state judicial system. Recent judicial analysis prefers to engage in somewhat abstract meditations on what equality itself as idea must mean. Does any particular law disadvantage any particular group? What state objectives are being served in the law, etc?
But after all of the discussion above, can you read the phrase "equal protection" differently?
(12/2015) My immediate judgement upon seeing the gazebo in the park video remains as substantially the same judgement now, today, and subsequent to some recent internet research and deep thought over the last few days, that judgement originally being that the officers ought to be fired–although they are not (quite) liable for any sort of (felony) crime. Apologies to persons immediately involved in this case (including the officers Loehmann and Garmback) if my discussion sometimes is flippant, but I want to offer my own version-my own scenario as to what actually happened and in a manner that I hope will be both interesting and appealing. And then I hope that readers will stay around for the less interesting but more important discussion which follows…What to do.
I note first that simply explaining and then justifying to myself my own ideas and opinion here has become a difficult exercise–much like removing layers from an onion. I feel I must first play the Hindu and cut through layers of illusion and false belief which have built up around this issue (of excess police force) before being able to identify the genuine topic. Race, for example, seems to me a seriously harmful diversion from the appropriate topic, though of course blacks are in fact disproportionately harmed by Police excess. And open carry, which I find to be an important, necessary and descriptive phrase, is avoided as phrase and topic not only by the media but by everyone. But surely if open carry is actually the legal reality in Ohio as legal context, then who are you or I to have our feelings offended by seeing a video of a large twelve-year-old (in another state) playing openly with his gun. It must be the job of the local residents to implement a gun-in-public etiquette which corresponds with their local (legal) realities–not according to our vague feelings at a distance.
Brandishing would mean moving a gun so as to intentionally intimidate, show off towards others, intentionally threaten. Tamir feels proud of his realistic looking toy, but he is playing by himself, not publicly;-not brandishing nor showing it off to others. He does occasionally aim off in the distance as if pointing at something but this is not brandishing. Were he in the middle of downtown or in a large used car lot it would be more difficult to claim that he is aiming disinterestedly. But this is a small natural park. When someone does once walk past, Tamir seems to point directly at the ground or put his gun away. He recognizes some sort of public gun-etiquette perhaps.
Unlike NY or California, there is no Ohio law against replica guns. There is actually no law against open cary of real guns for owners of real guns, and Tamir probably knows this fact, though like most other citizens in Cleveland and elsewhere he has very limited apprehensions of further legal or practical implications which might follow from the open carry legal situation. (Openly carrying in open holster (or in hand even I assume) is not a crime in Ohio as long as this is your gun and you can produce a title which proves ownership).
And is Tamir not at the right place for play, even though his private game may be suspect or a poor choice as game. This is an empty park adjacent to a community center where anyone can come for the volleyball, public swimming. It looks like he wastes twenty minutes or more here, walking around, sitting down as if to nap for a few minutes. At one point he flicks a piece of snow onto the sidewalk, goes over and looks down at the snow, then puts his foot on the small clump of snow. He is wasting time but this is what parks are for, and with consideration the city/county has provided seating for people who wish to waste some time: picnic benches and a gazebo type structure over the tables.
Some will say that children should never play with guns, but I would say that some children must play imaginatively with guns else society will never have capable soldiers or law officers. (Perhaps all young children should be required to play with guns just the once–to assist each one in deciding for themselves whether they might ever want to become a soldier or an officer!) An adult playing imaginatively with a gun might well be cause for alarm, or a child playing with a real gun because this child will lack an adult sense of responsibility. (But when police occasionally employ excessive force and then engage in full-scale defensive stonewall in order to avoid admitting minor fault, is this not playing with guns also, using guns and then not accepting full responsibility for results?)
If the man seen initially sitting at the gazebo, or the two or three people walking off in the distance see Tamir’s gun and are bothered, well, as long as it is not pointed at someone, their worries I would describe as excessive. Many might feel that a gun being waved around in any city park is especially bad, objectionable. I agree of course if there are other people present. Moving a gun around threatens such nearby people (with emphasis on nearby) because the toy gun or real gun is being brandished. But both gun haters and gun lovers should be able to enjoy parks as well as enjoy some degree of solitude that may be available there. Bringing a gun into a courtroom, a church, a private business, school precincts–these are already given special treatment in the law codes. This is regarded as intimidation of courtroom proceedings, sacrilege, trespass on private property, disruption of the educational environment for young children, etc.
I am assuming there is no specific prohibition of guns for Cleveland city parks, though many in the city or on the city council might wish to add such law/rule now that the possibility has been mentioned. But I am not in favor of adding parks as another category to the existing list given above simply because there are too many kinds of parks and too many sorts of communities. Communities need to be free to self-define, but not by making such kinds of laws. Such a gun-in-the-park law would become, it seems to me, symbolic and circular in function, rather than effective as law; a pawn move merely in the culture-and-convention battle between gun lovers and gun haters.
It may be that in Cleveland such a city or county ordinance would be effectively over-ruled by state open carry norms. Perhaps open carry norms themselves have not been adequately specified in law. Perhaps attempts by a state legislature to regulate guns will be over-ruled by the Second Amendment. But then the correct step to take is to ask for change to the US Constitution, and to specify exactly what sort of change. Or to coordinate local law-making with the state. A complete removal for example of any constitutional Federal norm (i.e., removing the second amendment rather than modifying it) might then allow states to individually and variously regulate as they so choose. So discussion here easily becomes somewhat technical and legal. Talking about careful if appropriate legal change in democratic discussion is very difficult to do. Even the written media seldom make the attempt to responsibly discuss specific law. Much easier (and more enjoyable to most perhaps) is to use moralistic or confused/bombastic rhetoric: the problem is guns, police in general, racism…And then the real problem which I believe to be legal, is hidden, denied, insoluble. Since I believe that the significant issues here are legal, people must begin to dare to talk about specific and actual laws, else there obviously can be no progress possible with legal problems…
But to return to the facts; Someone calls in to say that a person is displaying a gun, though this may be actually a juvenile and may be a toy gun. Who actually reports this we do not know. (Isn’t this concerned citizen a part of what has become a larger story?) But this report sets up an imaginatively created crisis which the police are only too ready to act upon, even (I will claim) to use as pretext. If the populace is confused about gun law, one side overly sensitive, another heavy on pro gun rhetoric, another side ready to blame any and all use of force by law enforcers, then the police also will be operating within this social confusion, this hypocrisy. And if they, the police, take advantage of this social hypocrisy to their own advantage this should not surprise anyone.
When a possible threat is reported, police in this and most cases like it will go into emergency investigative mode, which means that police feel that they can use force to investigate the reported threat, to commander citizens who may be suspects; to attack the problem aggressively even while investigating, checking. And in a real crisis we wish of course for such quick response and investigation, but not without circumspection.
In this case of Tamir at the Cudell Recreation Center park there is no actual danger. It is a toy gun which must be harmless; no brandishing, i.e., no specific threatening behaviors vis-a-vi other persons have been or will be identified in this instance by other citizens or by the police themselves as they arrive. But the police are in motion and empowered to use force (investigatively at least) in a possibly dire situation.
I make my guess from looking at the fuzzy images that Tamir, sitting at the picnic table, may notice the police car way in the distance, may put his gun away and then start walking in the other direction as if to avoid problematic confrontation. (We are claiming he has done nothing wrong and does not feel guilty about anything, nor should he.) Then he would quickly decide not to run away but courageously to confront the difficulties approaching. He may guess or have suspicions as to why the police are fast approaching but technically and actually he has nothing to hide. Owning a gun in Ohio and having it visible even in a city park is not illegal, much less owning or displaying a replica gun. And there is no person in the vicinity being disturbed or threatened.
If the police officers themselves from quite a distance visually detect the gun on the table or before it is put away, their better option is not to try to get the jump on this suspect because he, the suspect is would seem has already seen them. They should stay on the sidewalk/road and position the car between this suspect and the center. Then separately perhaps, not next to each other, both approach the solitary suspect in the gazebo. Rather, they decide to mount an assault on the gazebo. They drive onto the grass and snow with such speed that they come within a few feet of Tamnir who is walking forward to meet them… and intending to convey (we will say) that he has nothing to hide. If (as police are trained to give) there were commands given from within the speeding car to this suspect to show his hands or put hands up, well, such directives seem to me to be overly aggressive. The officers have not personally “accosted” the suspect. They are approaching at speed, attacking with their vehicle. They are using force to investigate. But any suspect must be given time to respond after being personally accosted and commanded. I must give my preferences to the six-sided gazebo.
Tamar is slowly exiting the gazebo and the picnic tables, but his presumption must still be that this is a park. Upstanding citizens presume that they will not be assaulted aggressively in a park. At a busy intersection or bus stop with others standing around, OK. But not alone in a gazebo in a park with absolutely no-one else in the immediate vicinity.
Tamir’s parents had both been beneficiary/arrestee of law enforcement by police officers. Domestic violence type situations must be very difficult, dangerous, and trying for police officers. But here no crime nor specific threat against a person has been substantiated. Officers are investigating a possible danger to people. They see a gun perhaps but certainly see no one else nearby who would be threatened by suspect’s gun. And they must know this is a community center, which to me means that they should be more and not less circumspect, more careful and methodical in their investigation. They should be careful here to promote community-civic interaction (if possible) rather than disrupting it. They are reckless. Instead they evidence worse etiquette than Tamir and will drive onto the grass at accelerated speed and then slide to an abrupt and forced stop on the grass and the snow, in effect sliding beyond the gazebo.
Ohio seems to have a negligent homicide law in which negligence means that perpetrator was initially committing a misdemeanor and then inadvertently causes the death. Were officers here not committing a traffic misdemeanor of some kind? But of course the argument goes around in a circle. They were doing their job, investigating, in performance of which they are allowed, expected to be able to employ force, to use their car to approach quickly. They are presumably allowed, justified in attacking a possible breach of public peace and security with use of this police automobile.
All students (seriously this time…) probably should be taught and practiced in the routine of responding to commands of police officers to put their hands up, get down on the ground, keep you hand out… If such quick compliance is important, as it is to our police officers, then the public at large shouldn’t be bothered by the inconvenience of learning such a simple convention. That concealed weapons are what police are most troubled by is obvious by way in most states have laws requiring permits for concealed carry of weapons.
But it is mostly in the hands… Tamir cannot be drawing his gun in order to shoot because he himself knows he has no real ammunition. Does he not know that drawing in this particular circumstance, in the presence of fast-advancing officials is very dangerous to say the least? If he has decided to bravely or even somewhat aggressively face the fast approaching official investigation, does he not have a right, as I believe he does, of presuming that some degree of sanctity or respect will (should) be shown for his own position; in a gazebo in a public park and not recently having been the cause of any immediate disturbances?
I prefer to think that he was still daydreaming, still in reverie whether it was creative reverie or not. And if so, then he drew as we all would like to draw a gun if we have a real one–reflexively and with natural ease, probably without deliberate decision. To protect himself from aggressive advance. But if still in creative reverie as I might like to imagine or believe, then Tamir might have become a writer or actor rather than someone who uses a gun as part of their job. In any case and in final effect, he falls into the officer’s hands. They know very well the rules about hands and partially concealed objects which look like guns…
And so my first point will be about state laws, about lack of sophistication in state laws. All states recognize that police cannot be held to the same standard of judgement when evaluating use of force against other citizens. Their job involves and requires a differently justified force. So why is it expected that their excesses, if or when they do on occasion occur, can be brought within the normal standards of judgement used for the general population. Since police use of force is a special type of thing, state laws must exist which are specifically for police, laws defining gross enforcement negligence and perhaps a more serious enforcement recklessness/willfulness. I am not suggesting lines here but I am asking why states believe that they do not need to specify a few such special lines for persons who employ force in their job and on behalf of the state. Americans may not like the word sophistication, but this would be a needed sophistication which fundamentally already exists in the state code. Police are already treated differently and should be.
My second suggestion is quite a bit more difficult to appropriately implement and frankly, not likely to come to pass. But it seems to me that the basic public complaint around similar events has to do with policing the police, and not in extreme and glaring examples but on a regular basis. Tamir’s situation or case would fall under this more regular and ordinary category. He is not victim of racism or malicious machoism, but “victim” of a certain degree, I myself would say, of police negligence and carelessness–if not recklessness. But if this is so in fact, who officially makes such a judicial determination and what sorts of penalty short of criminal penalty are appropriate.
I believe that there should be a judicially supervised structure independent of the police department which would review such events and “suggest” remedy. Soldiers know that they cannot shoot indiscriminately even within the extreme crisis of war. If they carelessly and willfully shoot non-combatants they can face serious penalty in a special military court according to special military rules. Why is an official advisory court for review of miscellaneous uses of force by police officers, why is this not feasible, necessary.
A large hospital ought to have a “quality control” board reviewing the quality of health care which is being given. If doctors, patients or parsimonious administrators are causing serious problem, such a board ought to have the skill and authority to bring about improvement: warn, fire, disbar a bad doctor, counsel patients directly, allow doctors a specific vote on specific costs… Such a hospital board has to be professional and independent, meaning that it may have to discipline in turn doctors, patients or accountants. It must not be captured by one of these partial interest groups.
So a local police-review court would have two citizen activists, two retired officers, a judge and a lawyer. The board or court evaluates minor and of course all major use-of-force incidents and they can make recommendations to the police department, to the community, to the city government, to the county attorney general. They can also publicly release some of the information about the police cases studied by them. And of course this system under the purview of the court system, should be afforded primary prestige/prerogative in such reviews. If they suggest a certain sort of occupational penalty for officers, the chief should not resist such attempts. But for a majority of the cases covered the recommendation would not suggest criminal inditement, but rather some sort of penalty, fine, reprimand, suggestion…
Setting up such entities within a state and having them operate professionally and as a benefit to the local community will be very difficult certainly, but the results could be exactly what people seem to demand: community and civil cooperation, community policing.
To clarify, this entity is local because policing and police problems are local, but it needs to be put in place by the state and under supervision of the state judicial system. And it somehow needs to be more than advisory…The Feds even now are "working with" the Cleveland Police Department to consider certain improvements, and we all wish them the best in such an enterprise, but this remains an extraneous solution. There ought to be a local system already in place...
My personal contention (though quite likely not exactly on the mark…) has been that medical malpractice would not have become such a major problem had the AMA been more assiduous in getting rid of their own bad apples, bad doctors. If there had been adequate self-policing the litigation balloon would not have been able to take off. Trying to reduce the incidence of medical malpractice by way of outrageous payouts through the court system–this is not a good system. A reliable method of professional self-policing is much preferable…
Americans may be leery of boards with power, even citizen boards given adjudication authority. But someone has to judge locally and then take responsibility for doing so. What we have here is an avoidance of local judicial responsibility.
Instead, as we see today from recent local news "coverage," in most problematic cases of use-of-force killings the police themselves (and the city) go into defensive paralysis mode, waiting for civil or federal court cases to clear after a couple of years. The public and the media hype up the need for felony grand jury indictment, as if such would really solve anything, change anything significantly… There may be an ad hoc committee appointed by the mayor. But this is not a healthy system for dealing with the regular and necessary review of what (hopefully) is a relatively small number of use-of-deadly-force cases. A judicial board as I have imagined would be much better, but it would need to be given priority. It would request all the information, would expeditiously and professionally review, suggest the city offer so much in compensation, suggest the officers be penalized like so, suggest the police department do such, suggest the community fix such… Then if people are still not satisfied, they can additionally try the civil or federal litigation routes.
Presumably because IF the US sharply restricted the use of credit default derivatives other nations, London, HK?, would take over the profits from this same business–so there is practical reason not to seriously call into question these financial instruments, these financial contracts which are most explicitly insurance for bondholders…
But my problems with Credit Default Swaps are theoretical and philosophical, not merely practical. Derivatives contracts are the very reason why AIG was on the verge of bankruptcy in 2008. Their own lawyers wrote these contracts, and then when the company credit rating was downgraded, their own contracts required that they must have further collateral funds on hand. This is a huge company… and this is before there was any need for the company to actually pay out on the credit insurance that they had sold. If the government had allowed the crisis to proceed and if AIG had stayed on its own feet a while longer (with cash from China, etc.) then AIG would have blown up twenty times over once the first few of these many CDS contracts came up for payout after the bankruptcy of various other companies had taken place… The culprit, certainly for AIG, was their foray into credit insurance, CDS contracts. The rest of their insurance business may have been quite reputable, profitable, safe.
But surrounding this lawsuit there is no discussion at all of whether or not there may be theoretical issue taken with the CDS as financial contract! The ex-AIG director (and his investment fund..) are suing the government and claiming major damages because this major insurance company was treated as lackey and as conduit for monies… Perhaps AIG did have a life-threatening liquidity crisis, yes, but it was the major banks, the investment banks, the mortgage companies, who were in dire need of longer-term as well as emergency intervention. Unfair.
On the CDS topic, I expect as well that Bernanke, Paulson and Geithner will find little theoretical issue to be taken with credit insurance, but this to me evidences a lack of legal-philosophical grasp on each of their parts… Obviously, and first of all, other sorts of insurance in the United States have been quite closely regulated right up through to the present. Companies selling insurance must maintain a pool of money, and persons who do not have a direct interest cannot buy insurance… else I could go around and speculate–by buying insurance on old buildings which I think and hope might soon burn down, or collapse in the next storm. But apparently financiers are above such mundane and simplistic guidelines. CDS contracts had/have (even after Dodd-Frank, I take it...) no such regulations for seller or buyer.
But the more significant complaint which I present is that this type of insurance imposes a new and additional and unnecessary layer of sophistication on the US system of commercial contract, and it seems to me, quite simply put, that this layer has not been legislated. I question whether (without explicit new law–) such contracts are appropriate; valid. That is, it seems fairly clear to me that to accept insurance on bond lending as normative and legally enforceable contract, changes the economic game in a quite significant and fundamental manner. (This is a claim about economic theory, a philosophical sort of claim...)
I of course broadly assume also (since this is democratic-style thinking…) that it is by somewhat explicit social consent that commercial contract has whatever legal validity and force that it may actually enjoy. There are laws, yes, but these laws are not just rules which must be obeyed as such, but they are in existence as US laws quite explicitly because the people at large approve of their existence as system. Ordinary laws of purchase, rent, bonds, stock are publicly accepted and have been functioning as such in the United States for many decades. But insurance on bond default is a contractual concoction which was not in existence until 1995… Thus I take it as open question whether we (we the people) wish to add this to commercial law–or not. That a majority of economists, in or out of government, cannot (or else wish not.. to) see this as something which may be questioned (at least theoretically) is in my opinion, foolish. As I say, these sorts of contract are quite recent, and unless one is a quite-simple-minded pragmatist, they are also a different sort of commercial law. The operative phrase here would be “managing risk”–contractually.
Perhaps by default this question has already been decided in favor of credit derivatives: Of course (many will say) financial risk can be managed by free and arbitrary choice of the private parties involved in such economic interaction; Of course we can’t let others nations beat us out in the finance game… But if this is so, then it seems to me, philosophically and economically speaking, that an added degree of control has been acceded to the financiers, to those who manage money. The society is now and into the future, locked-in to an acceptance of this legal-economic sophistication, and this in effect by default, by the public’s not questioning at this point in history whether or not to regulate, and how…
AIG–they were only trying to get in on some of the gains to be made, as were all of the U.S citizens who bought that second house or that larger house than they could reasonably afford. If the financiers can speculate and yet get thrown their lifeline just in time, why can’t AIG or the individual home owner hope to profit from the economic euphoria as well? Shouldn’t socialism benefit everyone–not just the capitalists at the top.
Mr. Greenberg winning such a bizarre lawsuit would, in my opinion, demonstrate nothing legally, nor prove anything significant except, perhaps, that the American public (though augmented yearly with large numbers of new business graduates..) is still incapable of thinking more than superficially about their own economy; about what it can possibly be, what it should be, about what kinds of laws and regulations are needed to make it that way. That this lawsuit has gone so far can be taken as proof itself that inadequate legal and economic-theoretical competence is widespread.
AIG believes that CDS contracts are not its problem; the government, in crisis mode, finds these contracts to be fully valid and enforceable, and buys out the AIG contracts at 100% as means of giving other major (and even foreign) economic players short term liquidity; and of course the large financial institutions will continue to make use of any or all similar sorts of contract, by transaction of each of which they may earn a small fee.
One American political party sees no wrongdoing as possible on the part of enterprising agents, while the other does not have the courage to implement a better analysis. If only the American public might wake up and find a third political party which could explain in clear and simple terms what needs to be done…
If the five-year modern BAS (or else, BSA) degree ever became common, the usual four-year BA or BS degree would seem streamlined and less comprehensive... Discuss.
Qu Yuan (屈原) who lived in the Chu District (楚) around 300 BCE，was for a while advisor to the king, but was victim of political intrigue. Returning to his home region he applied himself to writing and compiling poetry, including composition of a personalistic poem: "On Encountering Difficulty" (离骚)。 In personal distress over a lack of political and poetic appreciation he ended his life in the local river. Since those early times a yearly festival is kept to commemorate such bravery. From the villagers who threw clumped rice into the river to keep the fish away from his body has come the custom of eating zongzi. From the villagers who rushed out in their boats to try to save the poet has come the tradition of dragon-boat races. The crew of the boat which comes in first in the race will each benefit from a year of good fortune-perhaps more than a year if they also read some Qu Yuan poetry.
Perhaps the British plan is long term..
2. Free Trade
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The West becomes communist, the East Greek, the Russians complain, The Middle East waits to see how it will all turn out..
Is it now a good time for formation of a third American political party?-(Not that I myself wish to be directly implicated or involved might this happen in some way...) But if it were do-able, such a (progressive) party should define itself (in minimal terms at the least) by its strict rejection of two ideologies: laissez faire economics, and the modern narrow and knee-jerk conventions of liberalism... Freed of such ideologies, a progressive party could choose its separate principles and then pragmatically try to bring about the same. But how does this anti-ideology-stance work itself out...
South Korea and Japan I presume (and with smaller land areas-) have already provisioned their people with high quality and economical internet access. But what sort of political approach to this same issue might we take in the USA? A progressive party would insist first of all, and most importantly, that this is exactly the kind of issue which is germane within a public and political discussion-if not also appropriate for ultimate political decision and legal implementation. A P. party would not necessarily itself take any position either way-beyond insisting that this is a vital and public and political issue. It may be the case that now is not a good time in the USA for the addition of sensible regulation affecting the way in which the US cable industry operates... because the technology may be changing.., etc, or else because the public interest here may not be so compelling... But a progressive politician would not allow ideologies to preclude appropriate discussion of this matter. And should the party's decision be that some "regulation" is a good and appropriate idea, then it will marshall its legal resources to support sensible legal regulation for public benefit.
Someone who chooses to go into the arena of chemical manufacturing must expect that there will be some legal regulation as to how dangerous chemicals are to be handled-for the sake of larger public benefit. And as well, someone who is an entrepreneur in the area of providing internet, TV infrastructure... may assume that there might at some point be regulation of this business-because it is at once similar to a utility-monopoly, and as well because "information" has some (if less direct) bearing on exercise of democratic citizenship. Neither economic ideology nor liberal-ideal-ideology ought to be allowed to effectively obfuscate such discussions. The progressive will be the only sane and principled participant in such conversations... the only sensible advocate...
To be appalled by the use of chemical weapons is hopefully not just a Western-liberal sentiment or value. But the question for the moment in regards to Syria would be whether or not this sentiment is appropriately also specifically political. Other Western-liberal nations find strong political rationale in this situation... for intervention. But isn't there available a more sane American democratic-progressive political mode of approach which would insist that though this value/sentiment is one which is included in our collection of core civilizational values, it is not at all necessarily one (by some sort of ideal logic) which we must enforce (as political/police power) within the larger world. For the American context then, the problem-causing-ideology in this second example is not economic but intellectual-ideal. There seems to exist only one set of (knee-jerk) ideals. Liberalism as ideology.
Loosely speaking, the alternative here must be a more thoroughgoing notion of what democratic must actually mean: local, not mere voting, states-rights..., non-uniformism, as well as non-ideological. In this Syria example, the offered ideal is so attentuated-so distant from the ordinary American citizen, that one wonders how it can be made to motivate... With myself as example of dem-prog political thinking I would like here to insist that this very distinction is necessary and important: Our revulsion at chemical warfare as this has occurred recently in Syria is not political as such. It is, though, an affront to our (non-political) sensibilities. Western governments may engage in propaganda short of military action...
I myself may not have formed an opinion for or against intervention. But my assessment might still be valid: chemical atrocity should best not be offered as an ultimate or primary reason for intervention-lest we position ourselves as crusaders of some archaic sort. This recent atrocity is another fact/element added to other facts within a complex situation. Other recent facts, for example, are the US failure to implement a successful fix for Iraq as evidenced by daily sectarian atrocities in that country; or the World Wars of the last century as facts as well, being wars which may have been largely fought fairly, but which destroyed millions of lives. I am not competent to evaluate except superficially such military-political matters as Syria.., but this does not mean that my desire to think independently of American two-party conventions might not have validity; I might be right to insist that falling into an ideological response/rationale to this Syrian example-is not a good idea. This is not to say that crusading is necessarily bad, but rather that if we are going to go on crusade we had best be very clear and self-aware as to what those all-important values would be. Ideologies are not worth fighting for. This is the point a progressive American politician might wish to make.
pkragt(Aug. 31, 2013)
News:US Supreme Court pulls its own DOMA.. Not so helpful... (6/26/2013)
This civil rights act of 1965 strictly prohibits attempts to create voting laws so as to inhibit minority groups from actively or effectively voting. But the VRA also set up at that time an ongoing system of paternalistic supervision. The Federal Attorney General must pass off on any changes made to local voting laws within suspect areas-areas which had then very serious patterns of such bad lawmaking behavior...
And the Voting Rights Law has been effective in preventing preventing egregious attempts to use voting laws in order to keep minorities from voting. But after 40 plus years, this has also become long-term therapy. Should the patients, the six states still covered, whether they are completely cured of discrimination or whether not quite cured-should they be released from this special program? Along with the court majority I say yes, and further, if serious mis-behavior occurs in the near future then it will be up to Congress to write other statutes (and/or programs with teeth...) to treat those continuing cases of bad-lawriting at the local level.
But Justice Ginsberg in dissent finds no time frame operative here. Since (apparently) there is discrimination still in the hearts of certain (Southern) individuals of prejudice, it is appropriate to keep the therapy going and for as long as it takes. In the recent renewal of the act and its supervisory system Congress states that second generation discrimination, such as re-drawing of election boundaries to disadvantage minorities, is still a pressing issue. Gains have been made against bad practices but these gains are not yet complete, and regression must not be allowed. Thus the supervisory program should continue for 25 more years much as it was originally set up by Congress back in 1965.
But while the recent Congress may be avoiding hard work or even scapegoating... it seems to me that what Justice Ginsberg is doing in her judicial dissent may be fighting an un-winnable /impossible battle; that is, wishing to eradicate prejudice (voting discrimination as mere motive...) solely via law. Many many psychologists bussed in to these problem areas might have some succes but I really can't see that a statutory program such as this will finally eradicate; get at the root.
It may be that we just haven't gone quite deep enough. At the justice says in her dissent: "...the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights..." When you make laws to stop certain things-well, people (of a bad disposition) just try and find other means or methods.
But it seems to me that some things also are just not amenable to judicial fix, to legal fix. I am not here wishing to minimize what may be a serious and continuing problem. But it seems to me that while discrimination as action might be subject to law, discrimination as attitude is not. To fail to recognize this sort of a distinction can as well (theoretically) cause serious problems...
The solution to Islamic-World problems for the USA is as it was before the DHS (Department of Homeland Security) was created- reciprocal understanding between large portions of their respective populations, that is, religious understanding. Other European countries may not actually have such an option. They may not be able to say: A large proportion of our people are religious (and not extremist) and we respect you-and your religious belief and practice as well (-if it is moderate and not extremist). Unfortunately, the United States itself seems to be shrinking at its own (religiously) moderate middle while growing at the liberal and fundamentalist extremes.
Hypothetically, siphoning off a small portion of the DHS budget into a Get-out-of-the-homeland-and-meet-other-religious-people-Department could have significant long term benefits! Such a department would fund (at some detriment to the CO2 burden...) a program to regularly fly US clergy persons to meet their counterparts in the Islamic world, and visa-versa. These would meet, hug, and have coffee, tea, snacks, etc. They (over there) would see that we do not wish to put down their religion, while we might recognize that Christianity is a prophetic religion just as Islam claims to be. Next we might tell them about our own Western wars of religion and/or the Western failure to find a single solution to the government-and-religion issue. We both return with more understanding (of a religious kind).
The NSA approach by comparison is relatively superficial and indirect: collect many, many little bits of information and hope to identify patterns which might indicate incipient, potential problems; dangerous/problematic persons of interest. While the proposed religious-exchange program might run into constitutional problems because of its religious basis-NSA data-mining also, it seems, crosses legal lines-if it becomes a warrantless search for information.
Duly authorized aircraft may take pictures when flying overhead, but with internet communications the convention and presumption has been that these communications are not available to public/general view. Even if a benevolent government (such as our own) wishes to collect information directly from the communication networks they are first legally required to specify what they are trying to find and why-rather than mining indiscriminately. Even as technology makes such mining much easier or cheaper a clear legal-philosophical distinction/line remains.
It is not just that mining as method seems excessive-but that collection itself is only half of this equation. It takes intelligence, human intelligence ultimately-to see pattern as well as to evaluate which patterns might be significant. Hopefully the NSA has employed many capable persons who are able to sift raw data and find genuine security issues. But even if we allow and trust such an information gathering framework now, will there not be other pragmatic Americans of the near future with other ideas for what sorts of patterns might be culled from these data archives? Who, in other words, is going to be watching the analyzers? Should such an expensive NSA framework be only for security? What about science uses?
Gandhi says somewhere that religious people should get along with each other, but that they should also freely use the scriptures of other religions to call out other religious people for the hypocrisies which they see. That is, You claim these words as scripture but you are not following your own scripture. It seems to me that civil-war-like atrocities in the Middle East have become so common or so extreme that they cannot be justified any longer as being religiously motivated. These are strictly political. But on the home-front as well, the inability, for example, of American politicians or American media to talk sensibly (at all) about religion or about issues connected to religion must mean that discussion and politics remain merely secular (or else fundamentalist); The religion of most, of the majority, must actually have little genuine linkage with American life.
I have been trying to provide as antidote to a common preoccupation with Equality the alternative notion of a Liberty which would be able to live with actual difference rather that seek or presume a national and social uniformity. And in the first Supreme Court case regarding Proposition 8, and somewhat irreverently, I might advise that the highest court ought to apply/incorporate the Fourteenth Amendment to the Federal government itself as governmental entity. That Amendment was added in order to give the Federal entity oversight over the lawmaking of individual States, but the narrow and technical mode of approach it has regularized in Federal jurisprudence has itself, in my opinion, become presumptuous. It has not yet been decided whether fair or equal within the marriage context must mean dual gender or one gender... The Federal court rejection of populist but democratic activity on this issue by the people of California does seem to me to present a serious matter for adjudication. Lest the Feds be guilty of an ongoing hypocrisy, the court should limit this sort of usage of the Fourteenth Amendment.
DOMA as legal issue seems to me to be very different. But the difficulty here is that the public at large seems unable to understand a distinction which I would wish to make. I don't find the DOMA statutes objectionable IF one is able to separate out the bare content from its (inavoidable) symbolism, and from the (political) hypocrisy operative here as well..
But abuse of Fourteenth Amendment principle seems to me at least partly to blame for the Act itself. Sans DOMA, once one state has re-defined marriage, there must arise numerous Federal court cases asking under the Fourteenth or under "full faith and credit" that the Federal entity require other states to the accept the definitions of the first.. At minimum, DOMA would set the rules of discussion/argument/competition for the States...
The DOMA statutes state that states do not have to accept the one-gender marriage definitions of other States; and then, Section 3, that the ordinary and two gender language of Federal laws may not be legally re-interpreted as being gender non-specific. So DOMA is defensive as such within such limited aims.
But most apparently because this is too complex for Joe Citizen to understand, this Federal/State situation, as well as the "symbolic" role of the Federal entity in this situation-is obfuscated. The Press make no attempt to educate nor to insist upon such distinctions. They spin. They see no entertainment opportunities...
But I insist that sometimes the Feds must be a sort of 51st entity. Here, they must for quite practical reasons take a position on how their ideal of a uniform treatment of the states will work itself out in regard to the the rules and regulations of the Armed Forces, federal income tax, etc.. This same stance of the Feds is determined (chosen) by Congressional legislators, and often, as here I believe, is inavoidable. Thus, the Feds must also take, in effect, a working position on this controversial issue of the ultimate appropriateness of gay marriage itself. And because the Federal government is one comprehensive entity versus 50, the federal stance must become somewhat "symbolic."
As well, this 51st entity does take (and ought to have) an interest in marriage, even if it doesn't itself make defining definitions here. And elected National politicians must as well declare themselves here-which is where, no surprise, the political hypocrisy enters... We're all supporters of marriage..
In a recent opinion piece former President Clinton admits that he put his pen to the DOMA statutes because he saw that a movement for a national constitutional amendment specifying two-gender marriage was yet politically do-able. Now that such is not politically feasible, he admits to some (political) hypocrisy and we all admire his astuteness at that earlier moment in history... But most recently it is President Obama who finds the content of DOMA so objectionable that he can barely enforce the statutes. He finds them very objectionable, and also discriminatory, as does President Clinton. He asks the highest court now (to do the dirty work which politicians prefer to avoid if at all possible)-Please, declare DOMA Unconstitutional!
I would guess that the public at large can understand what is happening here, and are able to accommodate as well such h---y of a political sort (and certainly coming from both directions)... Why then do we assume that the public at large are incapable of understanding the State/Federal situation with regard to this issue? And here, to answer my own rhetorical question, I would suggest that all sides are attempting to recruit rather than to educate or to persuade. This is not healthy.
The strongest argument in favor of a same-sex definition of marriage would be that with divorce laws, and with easy divorce and re-marriage laws, marriage has already been greatly debased, watered-down. If re-married persons can claim the full social honors of "marriage" then why shouldn't homosexuals obtain some such honor as well... But this argument from diminishment is not often seriously presented.
The West is also in love with its peculiar honoring of Romantic love. This semi-religious obsession was born during the European Middle Ages in an intense but playful contra-distinction to the strictly defined and universally enforced monogamy of the Roman Catholic Church. Since we don't become obsessed in this same manner with pets or job, this shows that there is a natural (marriage) basis of some sort in fact prompting persons in love (including same-sex persons) to marry. But then, the promptings of married persons who fall in love with others... does this mean that divorce and re-marriage is the natural and right thing also-for such already-married individuals?
Since (post-Lawrence) moral opining is largely precluded from legal and increasingly, from public debate, how may one argue against same-gender marriage-honor? Or, how might an exclusive and dual-gender marriage justify itself with regard to state interests? And here I stop to ask, where does this rationalistic silliness come from?
My suggestion here (even if somewhat rhetorical) may be more controversial than the gay-marriage issue itself: PC correctness is not so different really than the Western religious (i.e. Christian and denominational) approach to truth. That is;
Join us. We do have all of the answers. Others are actually quite wrong, but for pragmatic and ordinary reasons we require only that you accept our system of beliefs and live within our system... We are not going to argue ideas but only seek to gain adherents. We do care about everyone; and within our little rationalistic system we have an explanation for everything!
I have been reading court decisions and blogging on gay marriage and other legal topics for at least ten years, so before this one issue goes away as the media has been predicting recently, I need to blog at least one more time..
The Massachusetts situation of 2003 is not so different from the circumstances more recently in California. Liberally inclined majorities in court and legislature wish to change, modernize marriage definitions and the people have difficulty getting a say in what is going on. Because of continuing shenanigans by the Massachusetts legislature, I guess that the Massachusetts populace never did get their vote. But Californians with their simple-majority-constitution-amending-petition system did get a vote with Prop. 8 and did favor it by 51%. The question for the Supreme Court is whether two (enlightened but very rationalistic and narrow minded...) Federal Courts may remove the results of Prop. 8 from the California constitution on the basis a rarified, abstract and technical interpretation (see President Obama's brief) of the Fourteenth Amendment to the Federal Constitution. Are the ideas of Federal Judges when at work upon the precise meanings of the Fourteenth Amendment more powerful than the words in a state constitution? Are there three branches of government, or are there four?
Chief Justice Margaret Marshall writes in the 2003 Massachusetts opinion which required the legislature to re-write their marriage laws...
"We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage...a wholly secular institution, etc."
I suggest first of all that this sort of phrasing in such circumstances is grossly inadequate. In other words, whatever marriage is (-and who after all will define it definitively...) it is certainly not simply put the creation of a state. It must be a more primitive sort of thing which pre-exists states. I expect that some of the people who came over on the ships must have been married even before the State of Massachusetts had gotten itself up and running! There is obviously something very social about marriage which requires/demands social certification and legal definition, but this necessity it seems to me does not define marriage nor give the state prerogative to make of it whatever it may. The marriage license is necessary, but few people go around showing off their license as if it was something special. Rather, newlyweds might feel that they themselves are re-creating and re-defining marriage as institution, just as Judges and legislators might also be excited with their legal achievements. This couple will soon enough meet other couples, daily realities... but where might public officials encounter their reality principle..?
I was at first quite upset when reading quickly through the reasoning in the president's brief and his repetition of the narrow (and in my opinion certainly very faulty) technical talk of the two Federal Courts about strict scrutiny, rational basis, etc. Gays are a special tribe who must not be treated as a minority. Because (--and apparently not purely technical argument here---) the California Supreme Court declared at one point in the history of this California tussle that gays must be allowed to marry, therefore the petition drive which was a reaction to this declaration is per etium factum, unconstitutional, and invalid. It sounded to me so very anti-democratic. Until I realized that belief (a sort of enlightenment of some kind) was motive, and not malice towards petition writers. Judges, the president as well, and apparently numerous others believe that they have arrived at a more enlightened grasp of the notion of equality...
But what is the Fourteenth Amendment all about. Let's take another run at it; shall we. My paraphrase of Section 1 would be: No State shall make any law..abridging...(then existent) citizen (liberties), nor deprive ... without due process of law, nor deny the equal (that is equitable) protection of law... That is, and quite simply put, I cannot put the emphasis in my reading upon some abstract notion of equality within the last clause, but must insist that its pragmatic meaning must be prominent if not primary. The danger to be precluded by this last of three phrases is that a State might choose by its willful negligence not to bring the benefits/protection of existing law to certain of its member-citizens. This should not after all be such a strange or surprising possibility; we are all acquainted with the (image at least) of the local sheriff who is too much the law in person because he claims to have authority to enforce or prosecute as he wishes. What about the AG office or the Justice Department more recently which fails to make good-faith efforts on behalf of the executive to "defend" existing laws in court..
Because quite obviously the Fourteenth Amendment was born out of some fairly extreme exigency if not also some fairly precise conditions, these I would suggest must have given it a pragmatic or else specific direction, tendency... Southern states at the moment were not in existence as states but only as Federal protectorates till they acceded to sign on to the Fourteenth, till they agreed to its conditions. It is (though Americans might hate to admit this or to allow the phrasing..) a super-law, at least a paternalistic law in some degree. No State may... It clearly declared a universal Federal citizenship as simple remedy to previous difficulty... but quite obviously also did not attempt to further delineate the liberties of such a general US citizen. Nor did it expect that its words would be used exactly for such purpose. Its clauses are preventative according to the above explanation. It was trying to prevent re-imposition or re-introduction of a culture to the extent that a Federal constitution my be able to do such... The immediate and real concern was (southern) States doing things via law making, law process, law enforcement or negligence of law enforcement-so as to restore aspects of a past slavery-oriented culture/society. One cannot legislate culture, but one can legislate directly about lawmaking, etc.
Convention is supported by law. Convention can be unhealthy, as well as lacking-(which would be bad) but it can also be healthy. Do Americans have no notion of what convention is or awareness of how it operates or why it is necessary? Is this a blind spot for a nation which too much believes in its Laws? Is this because the proclivity towards rationalistic excess on the part of both modern-Liberal and contemporary-Protestant sides is mutually reinforcing? Can law (plus Constitution of course) solve everything? Allow me to try to describe "convention" as well as explain why the Fourteenth Amendment cannot be understood unless it is understood as being aimed (indirectly) at Convention.
After the Roe decision and as a young person I remember coming to two conclusions about what I guessed was happening in US society at the time. When abortion went from criminal everywhere to suddenly OK, and when large numbers of abortions supposedly ensued soon after, it struck me that this was a rationalistic problem; black or white with nothing in between. I see it now as a convention problem: there did not exist any healthy convention within US society which might discourage or ameliorate abortion as action, behavior. The point is not that abortion is morally wrong, but the point is that it is not exactly good either. Only convention can make this point. A healthy convention operative in society might allow but also discourage...
The second notion was this-that what must have led to the passing of the decision was a felt need for uniformity. We as a whole society, by some sort of social principle, were required to all go one way or else go the other. I was not then cognizant of the fact that states individually might theoretically decide such things separately. I simply ascertained, (and seriously, was I or wasn't I right in this?-) that this unity principle was believed to be quite necessary within the reasoning of the Court-else the nation would fall apart.
Knowing now the legal issues somewhat better I still like my psychological explanation of Roe. I see the moral-majority mentality very much alive and well in the United States on both conservative and liberal sides. But is there really no option other than such an effort at control of society and its conventions via control of laws (or their interpretation)?
Mill in his essay On Liberty also believes that some few are, will be, more enlightened that others. His vision of social liberty, Western Liberalism as it could be, is defined for the mature citizen and not merely each and every citizen. The individual's liberty is threatened in a popular democracy not only by governments but by social impositions, bad conventions, envy. He gives a convincing description of individual human fulfillment, maturity, diversity. But the essay is also clear (on my reading of it...) that written law cannot bring about such a free society within which individuals are able to live differently. Social liberty is a conventional construct, it is quite strictly a social achievement which requires that a majority of people (there is that word again-) agree to a live by the convention of allowing difference, recognizing the neighbor as a different and maybe more enlightened person than oneself. (And no rationalistic shortcuts here by all agreeing to the same words or laws about such: tolerance, prejudice, discrimination, diversity). But the conundrum which Mill articulates also is that those who seek advancement or security primarily by a sort of conformity with others (and thus are likely less mature) are those who will see little benefit in a society which operates according to Mill's desired social-liberty convention.
If I could believe that gay and non-gay States would lead to a USA in which there were a healthier talk about conventions and values and if it might mean elimination of that uniformity-majority notion/assumption then I could go for it. A nation disjoint at state lines but conjoined by conventional contention and conflict has appeal as an image of the future because such couldn't exist unless it actually were more pluralistic and had healthy conventions in place holding it together. But instead I fear that the one side at present still hopes somehow to make Mill's liberty into actual law, while the other side cannot yet trust the individualism which is Mill's ideal. But until Mill rules, I see no easy eventuality.
Jesuits take a special vow of obedience to their pope. Since Mr. Bergoglio, cardinal but now Pope Francis, took such a personal vow-must he follow the advice of Benedict, now retired, (should he happen to receive such advice) or was the previous vow, in effect-a vow of obedience to the Papacy rather than more strictly to the pope as person? Can we obtain legal/judicial determination or explanation here?
Will a new pope continue Benedict XVI's overture to people of the prophetic religion, Islam? Will a new pope remain on good terms with the liberal Western media? Will a new pope relativize teaching on the Papacy itself, resulting in better relations with other Christian Churches?
A Fundamentalist is someone who insists that the Ten Commandments were written upon one stone tablet even while the Bible specifically mentions two..
Variation on Cranham tune/Four verses of "In the Bleak Midwinter.."(mp3 download)
Anthem and Variations for the 2012 Olympics (mp3 4Mb)©pk
If I were director of a non-profit hospital would I not find it offensive to repeatedly hear everything in this debate as being only about "market this, market that..."
It's obvious to me that the anti-trust-law motive is not at all reducible to one mantra-word, the word competition. And just as obviously to me the issue with this health care legislation is found by paying attention to a word such as comprehensive, and not by talking on and on about markets. I don't believe that from the perspectives of the legal bench there can really be any such thing as an economic expert; every legal mind must remain at best the common sense economist needing to be convinced.
The commerce clause of the constitution, in very existential and very actual terms, created our one national economy-giving it no further definition. Later legislative choices regarding corporations, contract, etc, effectively shape the specifics of the presently functioning economy. But to the degree that that one economy must still be maintained as a practical and ongoing matter, this is a national task and not a state responsibility.
Americans may be afraid of talk which makes use of words such as comprehensive (not because like the ancient Greeks they are wary of the supra-human or the infinite... but more likely) because they are afraid of abandoning the confines of a familiar Pragmatism. But at present everyone must be aware that what many feel necessary is (or may be) a comprehensive approach, a comprehensive framework, a comprehensive or single system. The question which must not be put into words is, Is it within Congress's powers to set up such an exclusive or single system? (By exclusive or single system I don't mean here anything more than.. comprehensive.)
I would try argue in the affirmative, but certainly not by using terms such as commerce or market, because it seems to me that to talk at such a level must result in our seriously misconstruing this issue. What do these words have do to with health care after all.
As a quick detour from my main argument, I would insist, for example, that the repeated use of the word "insurance" as a stand-in for "health care plan" is almost bizarre in its ability to confuse. Does insurance actually make sense in the health care context? A mixed product, whole life insurance, sells better at present than the essential term-life insurance policy. Comprehensive auto coverage is regularly sold as an addition to state required minimum liability and/or collision coverage. The seller's motive in this is understandable. But if the catastrophic meaning in insurance is no longer primary then the word becomes, it seems to me, just a loose stand-in for "service provider" or other loose and vague notions of some kind.
Was it thought necessary to frame this law in terms of insurance just because Insurers will remain major agents in the expected arrangements? If so, why not re-label all such Insurers as being providers, intermediary providers. This would make a lot of sense to me. I want health care, not insurance. How intermediaries are arranged in a health-care-provision system, regulated... this I find a very clear and workable question at least.
[And literalistically speaking, if or when everyone finally has "health insurance" then this must mean that there can exist no more existential risk to anyone from catastrophic bills or the unavailability of serious care when needed. Where there is no longer risk then there can no longer be "insurance" against risk. All may not be able to afford treatments at a spa on the Black Sea, but that would be an extra, not insurance... If insurance is to mean extras, or if it means protecting my money from minor depletions only, then this must be someone's confused terminology which is being foisted upon us. Are sellers setting the terms of this debate? For institutional Insurers there will still be a type of "insurance" situation because their profit will depend on what happens with their enrolled clients. But to regularly use the word "insurance" in this manner must finally destroy an otherwise healthy English word as well as seriously obfuscating what is being talked about; insurance here is more specifically someone's carefully made list of basic minimally covered medical expenses...]
But to return to the main argument, and an over-literal apprehension of another word, commerce. The lower court decision (Florida v. US gov/11th Circuit Court of Appeals) does what most others courts on the subject probably have been doing also, and that is to discuss the so called commerce clause as meaning a quite literal flow of items, such as via truck via interstate highway. Look at that flow if you want to see the commerce. But just as "relations" connect people within some larger context, so commerce always may be conceptualized as including those individuals at either end. It is not just the relation between that has significance. But the Florida court's reasoning is incapable of this, as exemplified for example by my lifting from it just a phrase: "The question before us is whether Congress may regulate individuals outside the stream of commerce..." Not only is commerce not broadly conceptualized, but a large-scale (health) law is reduced, it must be here, to it's detail-what the law means for legal purposes is only to be taken from its literal economic effects, economic goods in literal movement between states... Another sentence: Thus, the Act contains no language “which might limit its reach to a discrete set of [activities] that additionally have an explicit connection with or effect on interstate commerce.” This new health law will have huge economic consequences, but the court wants any qualifying law to explain how it will limit itself to a definably "discrete set of activities" within the (economic) flow of interstate commerce.
Buying medical supplies is economic, but since medical supplies can have only one purpose it would seem, why should billing, receiving and the movement of those supplies be more important (conceptually) than the larger health context/nexus in which they can have only one actual aim, that is, delivery to the one patient at the one end of the health care-economy flow. Is this "point of consumption" (using a commerce-clause jurisprudential phrase)-is such a point clearly reducible to "economic consumption?" Is the literally economic dimension all that really matters within the context of the constitution as law-and its objectives?
If congress may regulate to maintain our one national economy following upon what seem to me to be the implied directives of that commerce clause, it may as well regulate also to prevent this same economy from engaging in economic encroachments upon areas of (significant) public welfare. Doesn't the recent decision against home-grown marijuana fit here... a use of the commerce clause to justify regulation of one item for the sake, purportedly, of general public health! (But there cannot be much of (literal) economic significance, of (literal) commercial traffic, if this activity is only at the household scale.. ) The social welfare purpose was obviously paramount here...
In assessing constitutionality I recognize that the court deals with a law as written, and not just the possibility of whether a comprehensive law establishing one health care game for all participants could be constitutional, but if I have accurately explained some of the theory, then any law, such as this one, would need to work in the same sort of argument-framework as I have outlined.
I. The Inc. Argument (as in Incorporation)... and surprisingly this might be the strongest argument of the three:
Before health care legislation was passed I thought it important to begin with an attempt at a more comprehensive definition of health. But for present purposes (deciding whether large scale legislation is acceptable-) a minimal definition of health is used. Minimal health care is easy to define and describe. It is always one individual seeking help with some physical problem, and this help usually requires medical experts, buildings perhaps, special ingredients, other technical machinery. This minimal objective is in actual fact quite straightforward. It is not preventative, psychological, cosmetic, nor include a Viagra prescription. It may be difficult to draw limits with regard to technological possibilities and thus further costs, but the thing itself is very obvious.
Next, in the provision of this assistance, if only individuals were serving or contracting with patients here, or if there existed only partnerships where individuals might go into business together to provide such things to individual patients... the argument would not fly. But health care is not feasible within present social circumstances apart from the existence of profit and non-profit corporations, which entities are each one of them separate individuals, true, but not natural individuals, not primitive citizen-individuals. This then is not just an observation; it is offered as legal, metaphysical, existential point.
Next I add the point that not only is health care clearly describable as a certain type of social something, but that it is also something sui generis, like education.
The state then may not actually withhold citizenship rights to its native newborns but the states obviously and certainly may (and I am speaking on a theoretical and hypothetical level) choose to withhold or qualify its grant (gift) of citizenship to corporations. It is entirely within a state's prerogative to define and delimit the social existence of such-like incorporated entities.
If the argument makes enough sense to this point, then the state, according to such common-sense argument, may as well regulate those particular corporations which are immediately active in providing/selling health care to citizens, in accordance with a unitary-social-welfare objective- minimally defined health care provided its individual (and voting) citizens.
It seems to me that this could be exactly where the rubber actually does meet the road in this larger matter, not just economically, but legally. If health is a unique sort of thing which need not (that is, ought not) be given over to the jurisdiction of market forces then the state (as well) as arbiter of corporate existence may delineate (in other words regulate) the existence and activities of such health-providing entities.
For a government to set up a single large-scale health care framework is undeniably to take upon itself a degree of paternalistic management, but doing such, the government need not in addition directly manage or administer activities of the system in detail. The players in this same game are non-profits, for profits, and government itself (already with Medicare, Medicaid, FDA...), and government additionally becomes umpire for this mixed game. But is this constitutional?
It could be better noticed (again on a common-sense level...) that the Commerce Clause is economic in purpose, that is, in its quite pragmatic enforcement of the existence of a single rather than multiple economies. To create one's own money and to impose import/export taxes at one's borders would be the most effective means one might employ in order to separate off one's own economy from surrounding economies. But the commerce clause insists on one nationally administered (economic) system. And analogously, (and if you accept that the health business/industry is clearly definable-strictly speaking- as neither business nor industry merely), then the hypothetical possibility of one national umpire requiring everyone to play in the same game... is as rational on pragmatic grounds as must have been the motivation behind the commerce clause; the need for one entire or whole system rather than multiple systems.
III. The Argument from Default
If the colonies had agreed ahead of time that they would permanently cap their import/export taxes at a certain level, and agreed on exchange rates, etc., maybe the commerce clause wouldn't have been necessary. But they didn't, and neither have modern economists (in the country) come up with any plausibly theoretical suggestions for adjusting the economic activities of these three different sorts of institutional players in the health care provision business. Less, there have been no such efforts at all.
To imagine that market competition alone can implement all ongoing choices in such an industry, and for the sake of larger social benefit, while medical science and technology and adjunct business entities as well are proliferating at an increasing rate as they recently are-this is almost as silly as to suggest centralized planning for the whole system. Business (and economists in its employ-?) has shown itself un-interested or incompetent towards envisioning a system which includes other players/factors/realities.
Thus, I consider that dire necessity operates as its own argument; better in my opinion the danger from malicious or misguided administrators and technocrats than the dangers of implosion and failure resulting from unchecked economic forces (misguided economic expansion, technological-marketing-huxterism from this side, mere profit-driven exploitation). For example, the FDA it seems to me has done a poor job in recent years not because of an inadequate testing of drugs which later had unstated effects, but simply for allowing the pharmacological industry to acquire to itself too much prestige within this realm; the Realm of health as social good and not just sale-able product. This might not actually be within the FDA's job description. But most people must agree with the assertion that if the FDA did not exist at all, the possibility of some such societal exploitation in this area of medical ingredients would certainly be much more serious, dire.
Legally, maybe this is a very simplistic argument according to the need for a general public welfare oversight for all patients- (not for the sake of indigent patients who now have Medicaid). Maybe I am not afraid of faulty product as much as business and technology combining to sell false hope. A manager in place could lessen that possibility by limiting monetary incentive...
I would like to express my disapproval with the pending settlement. I am a renter, and not an expert in mortgage finance, but I have been a regular reader of the blog Naked Capitalism... ever since the financial crisis of a few years ago. The criticism which I read there of this major recent effort is quite technical and also quite convincing. These bloggers are people who work in this industry, and understand how the mortgage business has gotten into difficulties...
My own simplified take on the larger issue is that investigations must be carried out. It is not sufficient to give forclosed-upon persons $1-2K in liu of fraud which might have occurred when moving a secured home loan from one owner to another. If chain of title must be carefully recorded then chain of home-loan must be carefully recorded also, and unbroken. This quite technically I expect is the original law even if it may be inconvenient to the speed of modern commerce.
For AGs to let major players off the hook without first investigating and proving what was done recently, and how serious that may have been... this is not acceptable.
Individual homebuyers do not have the resources to build such cases, as you must realize.
The Federal government also has a major cheerleading interest in sweeping problems aside to get home buying and selling busy again. So for States to allow such a major effort to conclude without results and findings is just not helpful by any significant criterion of success which I can see..
That is, if there have been significant numbers of "improper" foreclosures by loan holders against home buyers/owners, then AGs should now explain (and expose) just how this occurred - else the same must too easily repeat itself in future activities of the mortgage finance industry.
Mortgage laws were written to favor retail, rather than wholesalers...
Thank you and
It is obvious to anyone who can think in general and commonsense terms that what motivates a petition type drive such as that of Proposition 8 in California, is (or was) exactly the wish to maintain a certain status quo. This certainly could be a worthwhile interest. The living arrangements and social customs and institutions as these exist and as they are valued in some positive way by the populace, are worth preserving, and thus we have armies and police forces to help towards that preservation.
That is to say, and very simply, that such petition drives show at least that the people do not wish a small number of legislators, nor a smaller number of judges, to be responsible for quite literally (as they see it, and appropriately so in this case it seems to me...) changing social policy, changing social customs or institutions. If there is going to be any modification of the basic rules of the game, they, some larger and vague collection of individuals, wish to be responsible for and to have the right and authority to make such (controversial even, sorts of ..) changes by popular voting mechanisms.
So for the Federal Circuit judges to begin arguing as in this recent dismissal of the Prop 8 petition, that there is in this court's view no possible social interest that could be served by a Prop 8 type petition, well this betrays to me, as did Judge Walker's opinion, a definite superficiality, incompetence. And I do understand some of the technical and legal reasoning given here, but this cannot exactly excuse such...
Of course I allow myself to become a little upset here-with a specific court judgement which I may not care for, but as I blogged some few years ago, it is not quite courts or judgements that I am upset with. As I mentioned in that blog, while I was a seminary student at a moderately conservative denominational seminary (Western/RCA), there had been a couple of previous and more general votes on changing the rules/customs (as you wish) to allow females as well as males to become clergypersons-but voting had not yet been in favor of the change. Since this matter was clearly somewhat contentious, and since apparently the leadership saw which way the winds were blowing, they decided at that same moment in history and via administrative and judicial decision, and without further generally representative vote, to simply declare change: Females may be clergypersons; this is what those rules, those denominational rules on the denominational books, actually mean.
So I view this as a more general problem, and not at all a religiously motivated opinion on my part. If we are now to be like the French, and are to value ongoing societal norms as in some manner definitive then we have given up Lockean republicanism. We are more accurately (closet) Russeauvians. But such a characterization is not accurate with regard to our historic past... which includes necessarily better regard for a past tradition of ideas, concepts. If social notions and concepts change, as they will, this does not mean that jurisprudent thinking must follow along subserviently, in those recently made tracks..
There is some chicken and egg business going on here, no doubt, with the courts responsible perhaps for maintaining and augmenting this confusion because they deny this problem...by going to one side or the other as may be convenient.(?) If there is a sovereignty issue here (as it seems to me there may very well be) then the court ought to admit such clearly and explicitly. Perhaps as a matter of everyday factuality, legislative and legal change to fundamental law has more reach in this republic than mere popular petition (within those states at least which do allow laws and constitutional change to be made via popular petition). Perhaps this is how our Republic was designed.
If not, and on the other side, one of the valid uses of petition writing and law making must be to fix notions, definitions, and ideas. The two circuit judges recount here (pages 7,8) the history of attempts in California as well as with the national Defense of Marriage act to fix more specifically those (traditional, as they agree) meanings and definitions. They recount how the California Supreme Court admits that same-sex marriage would be a new right of sorts, but refer to the phrase "fundamental rights, once recognized, cannot be..." This same state supreme court decision was quite broad and new in stating that family rights cannot be withheld from same-sex families... even if this new statement of right may be somewhat new.
Additional efforts on both sides followed: Prop 8 was next framed with an intent of changing a state constitution's text and not merely state statute. But the court next ruled that Prop 8, if passed, would not make meaningless some of the substantial rights given/established by the Cal. Supreme Court's previous and recent decision, etc. The Federal Court cases most recently are bound (technically speaking...) by the California Supreme Court, other CA courts, CA statutes, CA constitution in deciding for California plaintiffs whether their state may at this present moment in history be infringing on the rights of such (pro gay plaintiff) citizens, who also happen to be Federal citizens. Is then the California State law, Constitution, or court decision become law, (as well as California Supreme Court decision on the subject)–does any of this offend against basic individual rights, so as to contravene the Fourteenth Amendment which was passed after the Civil War, intending to prevent states from creating laws which were unfair, oppressive (-is the word I would include). Or, is it exactly the larger populace and their citizen rights, (that is, traditionalist California citizens) who are being oppressed in some manner, exactly, by the State laws which would now describe marriage differently than such laws defined marriage previously.
Who gets to decide meanings? Who gets to declare what equality shall denote. Which comes first... the prudence of governors or the preference of a populace... with respect to what is or isn't a fair custom, institution?
A previous Federal decision for California plaintiffs insisted there must be compelling state interest or rational basis for confining the notion of marriage to different-sex persons-else the 14th of our Federal Constitution must show/instruct that such a definition is an oppressive definition of marriage. And this latest Circuit decision affirms that Judge Vaughn was correct in such reasoning... One might then ask for the meaning and purpose of the 14th to be clarified.
Was that amendment instituted so as to support in the future such assertions of generalized Equality (making future-regarding judges proponents of an increasingly popular but not yet majority notion such as same-sex marriage). Or does the 14th Amendment in fact understand and embody a much more sensible notion of conventional change, positive change in social convention. Were the national framers of the 14th Amendment after the Civil War not actually quite cognizant of this very same sort of law v. social convention conflict, and did they not craft the amendment specifically with the possibility of such conflict in mind? A century and a half ago it could have become specifically applicable to (Southern) lawmakers wishing to restore a more familiar culture; today it may as well be applicable to lawmakers wishing to bring about a future culture congruent with lawmaker's idealized egalitarian notions of social betterment.
Lawmakers, of course, are always wishing to legislate towards a better future culture; but in a democracy there needs to be some general support for, or check on such attempts also. To appeal to the 14th Amendment as if this might solve anything, seems to me to refuse to notice the chicken-egg situation as it exists also at a Federal level.
Should the courts be adjusting meanings in order to follow trends in popular opinion. Should those who either favor or dis-favor a certain kind of marriage law be required to pass a national constitutional amendment in support of either. Does each state separately get to make such definitions? Could hypothetically the states operate well with differing abortion laws and with differing definitions of marriage? Does allowing females to become Protestant ministers not change the ground-rules of the denominational religion towards a more prophetic and democratic conception of the organization, and does re-stating/redefining marriage conceptions not change some rather basic ground rules of a society also... Should there be an amended constitution making Federal Judges liable to, shall we say, a 2/3 national recall vote. Or is allowing (by default) unelected judges to solve such social differences a pragmatic approach to avoiding the additional contention and conflict which would distract social efforts away from economic production?
For a society to entrust the formation of its culture only to the chaos of the marketplace must be to allow/accept a certain degree of disappointment in results. It seems obvious enough to me–for one–that fine arts and education, to give only two examples, can never thrive as market driven product merely. Or maybe an egalitarian society simply is less interesting than a class society, i.e., Downton Abbey during the present TV season.
As well, to entrust marriage (primal institution, or whatever it is...) to the chaos of a gender nondistinctivity (and this for future generations also...) must be to accept diminished expectations, to allow up front that there may be a degree of disappointment in the results.
It is not that order itself merely might build any better city, but neither can dissolution of sclerotic, hardened convention, of itself, ever accomplish such a task. Instead, such an achievement is somehow essentially creative, existential; That is, neither order nor the rebel-subversive mode are at all capable of making historical and actual–a better city. [Unless there is (ultimately?) a certain quality of mad genius to be found in the American trust in both market chaos as well as social chaos.]
Washington State Democratic legislators in their wisdom consider now that the local society is best served by an indefinite-gender sort of marriage-institution. Democrats, far away in the greater Washington, decide a few years past, that certain economic regulations of the market are necessary subsequent to the economic "crisis,"–but not too strict-lest the business-inclined populace become upset–thus demonstrating, to me at least, that they (the national Democrats) either lacked faith in their own understanding of how the economy should/does work, or else, (and this would be worse) lacked the courage of their own convictions.
What is actually lacking in all of this political wrangling is any genuine acknowledgement of the existence of another marketplace, a marketplace of ideas. Should not politicians (as well as others such as business managers/owners) hie themselves to this marketplace in order to assess value, and then, subsequently, buy–if and when they find ideas of superior value?
The pragmatist may be immune to ideological excess; but this same Joe/Jane–pragmatist must be limited, hypothetically at least, by the inadequacies of those very ideas which they do hold.
To re-instate a “minister” of some sort by court order does seem directly to go against a religious group’s self-determination of who will be its own ministers. But is it not possible for the civil court, having accepted a case as having some plausible grounds, to order that the “minister” and organization first engage in good faith negotiations, that they complete this stage as far as possible? Would such an order be an unacceptable imposition on the organization? If so, then this seems to me to result in a jurisdictional situation involving two and only two entities–the religious “court” and the state court. And then the would-be plaintiff, actually both citizen and believer, seems to lack standing or right in either of these tribunals.
But if the term minister may be used by both organization and court, then the individual certainly may own that term as well. The teacher’s “call” is not exactly a call to employment, it must be, but call to a higher service. If it is a higher call, how can plaintiff be asked (at a distance) by her organization to simply resign it, when they themselves previously confirmed it? Doesn’t the ministerial terminology imply that such an individual is operating with respect to a third and higher tribunal, and imply as well that if such an issue is to be decided on largely religious terms via civil court, then the religious liberty of the individual is as important if not more important than the religious liberty considerations of the group-as group?
By this recent decision, the civil court now must defer to the religious institution in problematic cases such as this one-in which plaintiff is both an elementary school teacher, and a “minister.” The Supreme Court decides in this instance that this individual is in fact a “minister,” and holds that:
The purpose of the [ministerial] exception is not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church's alone.
[To me, the words authority and faithful are the significant words to note in the sentence just given.] The court enlarges the exception to cover not just tenets of the faith, but adds some idea of authority over the faithful.
In his concurrence opinion Justice Alito takes a slightly different approach, which he himself describes as functional. Functional considerations can and must be used to decide what the word minister may mean with regard to allowing the ministerial exception, that is, allowing the entity/institution to select its own ministers/office-holders.
I wish to try to argue against both authority and/or function as approaches to the religious entity...
Because I believe that education and medicine are both, for example, sui generis, and distinct realms for which the state ought not give up its public welfare interests, I would expect that religious schools and religious hospitals must also continue to present line-drawing problems for the courts, and thus, likely, no simpler rule is available to cover such difficulties...
But my approach would be along these lines:
We the people; this is rhetoric but must not be dismissed as rhetoric. That is, popular sovereignty is stated, if only theoretically, as principle. One might be pedantic and say that there was in fact in 1787 no such amorphous people existing apart from specific colonial authorities, offices, etc. Each colony already had its offices, voting procedures, a small number of delegates arrived, a few writers, etc. And yet We the people as phrase takes no consideration of structure, office, authority, but asserts that such a vague democratic mass can be originator of what results.
Analogously, as existential reality (I would insist–and most might agree..) no group or association can exist long without leadership, authority, structure of some sort. Religious associations also must come to rely as well on authority and ordering. Religious groups may themselves claim different sorts of authority and structure, but it would seem that a democratic notion is an acceptable place to begin when conceptualizing for legal purposes such entities also within the American republic.
Is a religious entity to be defined most prominently then in terms of its authority, or in terms of a functional prerogative to define and install its own ministers? No; religion should be conceptualized democratically if possible.
The Lutheran doctrine of Christian internal dispute resolution thus still seems very inappropriate to me as religious reason allowed to this group for their firing of plaintiff. (I am referring again to Justice Alito’s argument..) The Apostle Paul first writes (see I Corinthians 6) to say that he has already decided at a distance-about a notorious sexual case of some kind. But in coming to explain, next, some sort of principle, he insists there should be capable persons within the association who are able to resolve disputes-and to resolve these well. If Christians will judge angels, as he says, they should be able to come up among themselves with the expertise to decide internal personal problems. Else, it is better that you (plural) suffer wrong, that you allow yourselves (plural) to be deprived, rather than relying on the civil courts. But Mr. Alito does not consider that this as doctrinal issue given by the group in their defense-may be pretext? Is it because the group is presumed to be incapable of being disloyal to the individual minister; only the individual minister could be disloyal..?
But beginning with a democratic conception of associations, the presumption will fall the other way. I can read this Biblical passage as being democratic; can the blog reader do so as well? The Apostle and letter writer certainly has his religious office or authority of some sort, but I do not read this rhetoric as being an application of nor delegation of authority. One may read authority into the persuasion, perhaps, but rather, I prefer to note only an actual and democratic principle being enunciated. The addressees should already have adequate democratic authority as democratic association to resolve such matters on their own.
Continuing then, and arguing technically, if any group is to request the ministerial exception in civil court of law, must they not first demonstrate–along quite democratic lines–that the minister, the individual in question, has in fact already been included in relevant group determinations as full or equal participant. Should the democratic association presumption be operative on first approach to the problem? This religious group might then argue further that they don’t believe in democracy, that they have an authoritarian structure of offices within which such a minister may be dismissed at will just like the ordinary economic employee, and then the court may decide whether to believe as accurate the religious entity’s description of its preferred polity and offices. If it does, then the religious entity can do what it wishes with its own ministers. But can such an entity claim that such an individual is in fact, and not just in terminology, a minister, without demonstrating some degree of solicitude towards that individual as proof of the same claim?
The function does not define the entity, it seems to me, but the association as it delineates itself, declares what different functions it will be presenting.. Thus Justice Alito’s functional approach seems to me to consider only the group and its choices and effectively to neglect consideration of the individual. But the reason (whatever that may be) for association would be more fundamental to any association than the manner of ordering.
I find myself in agreement with the Appellate Court’s opinion, and thus in disagreement with the majority opinion of the Supreme Court. This case should have been remanded for trial on the facts. Whether subsequently any result greatly favoring the plaintiff, a religious-school teacher, would have resulted, is another question.
As private citizen and expressing an opinion, I certainly do not wish any small religious school to be subject to exorbitant payments just because they might have violated some federal law regarding disabled employees; but in my opinion this particular case remains essentially and primarily an education and employment issue rather than a religious issue.
Thus I also find Justice Alito’s written concurrence to be specious.
Justice Alito argues first, part A, that Cheryl Perich the elementary school teacher, is in fact a minister under the “ministerial exemption.” Then he argues , part B, and quoting...
Hosanna-Tabor [the school] discharged respondent because she threatened to file suit against the church in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna- Tabor's view, respondent's disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church's faith.
Judge Alito here asserts that the plaintiff may be fired because she threatened to sue her school via civil courts. Such an attitude or belief, being as such against Lutheran doctrine, she could appropriately then be fired for strictly religious (!?) reason.
This same doctrine is probably derived from I Corinthians (is it, or II Cor) where the apostle Paul advises that Christians ought not to resort to civil means to resolve (internal, local) Christian disputes. Such would be a diminishment. Christians should remain a superior society of a certain sort. The religious principle enunciated here, and the ideal, is that they solve internally their own particular disputes. And I expect that this same approach might be some sort of ideal also, for many other non-governmental associations, religions, groups, as well.
But from my reading of the facts in this case (which I allow here also to be certainly inadequate and incomplete...)–there does not seem to have been any initiative or any determined attempt on the part of the church/school-entity to activate such an “internal dispute resolution.” It seems rather that, in absentia, the school/church decided to ask the disabled teacher to resign, to resign her commission/call, and in effect, her “right” to be a religious teacher. This female teacher had spent considerable effort in order to become a “minister” according to the terms of this Lutheran system, as well as having obtained her qualification as a primary school teacher. But they (the church/school) did not in fact in this instance go to her personally in order to discuss with her–her impediment, her recent disability, but decided that they would offer her monetary compensation–if she was willing to resign from her religious call/commission. This offer at a distance–it must be obvious to all–is not an appropriate mode of “internal dispute resolution.” Even if this may have been (objectively speaking) a reasonable offer (–and I admit also to being ignorant as to whether resignation means–only from this job, or from the list of possible Lutheran teachers, or from future jobs...) –but if this offer which asks for her resignation is the doctrinal basis on which she is to to be condemned, that is, denied a civil hearing, then this in certainly, in my opinion, inappropriate. That is, if this Church claims that she herself did not believe in internal dispute resolution while they, the Church themselves, did not actually make any effort to initiate or perform such, then they are hypocrites, not she...
If this matter is most significantly (as it seems to me quite strictly speaking) an employment matter, then an employer must provide better reason than this. If, hypothetically, my pink slip from headquarters is in the mail, and if my lead-supervisor preemptively informs me that I have been fired, and if I express certain insubordinate statements at this same moment towards my employer, is this in itself reason for termination? Certainly not. Such “threats” are an appropriate expression of how I feel about my immediate situation. Just so, Justice Alito’s contention in his concurrence that this teacher’s “threat” to go to civil court was–as such and in itself–religious and also doctrinal cause for her dismissal, seems to me analogously specious.
If the technical order and details of the teacher’s firing do retain significance, then a trial court must decide this...
Justice Alito describes in his part A that he can well enough determine legally what “minister” (a religious term at that) would mean with regard to this particular legal controversy; But why can he then not also as judiciary determine in part B where there may be a boundary-line between employment (of educators–as employees) and religion–as–such?
Chief Justice Roberts, in enunciating the decision of the court, declares that:
Any suggestion that Hosanna-Tabor's asserted religious reason for firing Perich was pretextual [that is, just an excuse] misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church's alone.
And a few lines earlier he states:
An order reinstating Perich as a called teacher would have plainly violated the Church's freedom under the Religion Clauses to select its own ministers.
But in my opinion, the religious (and educational) prerogatives of an individual are given short shrift here, vis a vi consideration which is being here given to the more abstract, it must be–––religious freedom of “church” as institution. As simplistic advocates of religious freedom have previously enunciated, the primary locus of religious freedom is the individual. That is, the religious efforts and the religious freedom of the individual plaintiff would need to be given credence here also, even vis a vi that of the religious institution. This plaintiff has religious rights. She certainly exerted significant efforts, it seems, towards becoming a ‘called’ and qualified religious teacher. Should she be arbitrarily dismissed in these circumstances? Ought not the religious institution recognize in principle, and if it does not conflict with their own values, the value of giving consideration to the disabled employee..?
The second and third grade pupils whom this teacher ministers to are not exactly a church, and therefore the ministerial exemption is not necessarily applicable. Church-assembly, school, hospital–these each may be religious institutions/corporations. But while common sense would suggest that the government not interfere at all with the first, there is a differing degree of public-welfare interest in the later two. Education it seems to me cannot be placed within the exclusive jurisdiction of either religion or the state. Medicine, or the not-for-profit hospital, (and the way medicine ideally should be organized, it would seem) should not be able to claim the strictest religious exclusion either merely because it is managed by religious persons-just because it is in fact a hospital, not a church-assembly.
If the broad outlines of the ADA provoke such bizarre controversy, might the law itself be the culprit? Why did George H. W. Bush sign the same... Because it was a good idea?
Should the courts then be in the business of teaching (private) religious organizations a lesson about how to treat disabled employees via the superior wisdom en-coded in ADA legislation? Perhaps. Or should legislators admit that good ideas might better remain as suggestion/incentive... rather than law.
When equally as many persons consider “fire at will” policy to be enlightened–as view (vague and over-reaching !) federal employment discrimination rules/laws to be enlightened, then the ordinary citizen must surmise that there is a certain schizophrenia operative here. In other words; When the ordinary employer may fire at will, does it really make sense that employers must in the same instance also be very careful lest they discriminate.. in their hiring and firing!!?
The Attorney General of the USA already has authorization and means to go after any local internet site warehousing or selling copyright infringing or dangerous product. These bills are misleading because they are not properly labeled. They target the foreign site which is using the internet for criminal purpose. Further, the law is quite simple and straightforward. It allows the Attorney General to select one or more foreign sites to be placed on a blacklist; incommunicado. Since our Attorney General is not exactly welcome in other countries, it is US companies which will then be prohibited from handling money transactions, handling advertising, and perhaps prohibited as well from “listing” such offending sites. At a minimum, the phone book companies who operate DNS servers may be required to de-list such offenders and put up a web page stating that the AG does not allow access-if not also filter as well to prevent such addresses (or content) from going through.
Misc. points can be made:
-The provision which prohibits software which bypasses the normal DNS procedure–is Draconian.
-Prohibition of streaming should be part of copyright laws... and not attached to this bill...
-Determination of dangerous product being sold from overseas via the internet is very broad and problematic...
-Is the blacklist to be made public..?
-I expect that most individual artists in film and music as well as most individual programmers, are not clamoring for such regulation. They might be in favor of a bill requiring that companies pay them 50% of gross (as the NBA athletes seem to have obtained recently) but this bill aims to fix a leaky distribution side which primarily and most immediately benefits corporations. The existential solution would be to incentivize the creative side, the creative individuals, and not impose such a broad regulatory censorship structure just to deal with a rogue entity such as the Pirate Bay in Sweden. Sweden itself has tried to follow America’s lead in maintaining the rights of free speech. Come to think of it–they probably consider American movies to fall within the category of free speech. (We tend to think of US movies as being entertainment only...) But this bill sets a poor precedent; It asks us to set a poor example internationally. (Italy it seems[?] has voluntary DNS blacklisting, mostly of pornographic sites.) But if pornography production and purchase abides by international copyright norm, this bill has no complaint with such...
The internet is international and this must cause certain difficulties for individual nation-states. But to limit our own freedoms just to blacklist/ostracize a few foreign sites which are trafficking with American citizens... is not a very sensible approach to such problems.
If pragmatism is all that counts here, and if placebos are proven to be almost as effective as anti-depression drugs, shouldn't doctors, patients, be doing a lot more experimentation... with strange diets, sports, arts activity, temporary visits to Siberian resorts, because some of these may be provably better than placebo pills also! Can we implement placebo-treatments..? Should milder drugs be more accessible for those who wish to self-treat? Should each citizen receive a customized assortment of pills each morning, (placebo and real) assured that such a mixture is the best possible way to assure health for the day..? Should patients who are not Pragmatists avoid psychologists who are also MDs?
For some technical information see this paper; but this seems to me a top-heavy and top-down approach to blocking internet addresses–which as such cannot be a very helpful or longer-term way of dealing with problem sites or illegal sites. DNS servers are the public phone books, and the bill would allow the US Gov. to to require phone-book publishers to de-list certain names...
Having no immediate concern with the university or the persons involved, the recent scandal-news from the Penn State football program provides me rather with impetus to talk about an issue which I am concerned about, higher education v. college athletics. But a little Wikipedia research in this instance surprises me with some significant ironies.
Penn State is not like other X-State schools because it is Ivy League. But this term itself, it seems, is more of a sports term, as in league, than a phrase with academic meanings, as in venerable brick and ivy surrounded classrooms. The schools within the Ivy (Intercollegiate-Sports) League itself are mostly pre-Revolutionary, but the league itself as well as general use of the phrase, is post WWII.
Penn State had its origins with some concerned citizens in the city of Philadelphia, including Benjamin Franklin. Franklin himself is enigmatically celebrated for his scientific status as well as for his workingman’s ethic, for his French appeal as well as for his simplicity. (Did Mr. Paterno as star-coach claim, or else was he being expected to represent similarly impossible opposites?) (Does Penn State present as public persona the working class student’s aspirations within an elite academic group, or does it present itself as an elite academy towards other more ordinary schools?)
In the early years most of the the Ivy League schools did each take their turns as football powerhouses. But more recently the Ivy League chooses not to join in the national championship rounds. (Is this a marketing decision? Having fixed via a common phrase or within the public’s simplistic notions-their ivy credentials, league athletics are less appropriate now as means to school promotion?)
My own opinion is that the general public is too much in thrall to claimed, proported, presumed academic status (as in the phrase ivy league) and at the same time the general public is also self-hypnotized as to the significance of athletic prowess at this undergraduate level, during these four or five years set aside for higher learning. (Where is the interest in comparing, noting, academic achievement..?) The first of these is a more serious acquiescence in stupidity, an ill-informed opinion that levels of academic ability cannot really be evaluated, ranked; the second of these is merely the behavior of the fan.
Fans will mix their own Kool-Aid(tm) and then consume it. Joe alumnus at a football game would ideally take some few minutes to meditate on the fact that even though he was given a diploma from school A, a majority of those graduates from school B may in reality be better educated that he is. They likely recently have been more involved as well in maintaining and improving those individual levels of education than he, Joe alumnus, has been. Watching his A team win, Joe can feel good for a while about his own school as well as about his own academic attainments–almost as if this score proves the superior academic quality of school A and a quality in which he now shares...
But an actual difficulty arises if/when the school administration drinks the Kool-Aid offered to it by the public at large, by the alumni. That this has been happening is shown by the easy excuses now given for outrageous coaching salaries; Marketing excuses. Coaches that make money deserve money. (Why are there no great professor-stars, such that students and alumni become upset if the administration mistreats or dishonors these? Don’t fine professors add much more to the effective education of students as well as to the true status of schools than any athletic coach..?)
If the college athletic program is essentially to be justified by its money-making, then can it continue to re-present a university, which must place academic aims to the fore. Fans will enjoy symbolic wins, but after a certain degree of attenuation has been reached, this funded program, this expensive team with its hard-working student-athletes, this same program must necessarily come to lack proportionate and vital connection with its academic home base. It becomes a marketing subsidiary, more of a business and PR entity than of direct benefit to any group of students.
The physical doesn’t just complement the academic, but ideally completes it. The all-around person would be academically and physically talented, etc. But with Universities, the academic properly speaking must be given a priority. At least such is my opinion. Success in college athletics may be the gravy, but the meat and potatoes are the academic offerings. If a University administration is working too hard on providing gravy, then it is likely also that they are maintaining their students on an unhealthy diet. Too much gravy.
Or perhaps the manner in which I wish to use the word academic is too idealistic. Maybe the academic is passe. Universities are technical training institutes supplying individuals to business... with some general learning thrown in. But if we are so cynical, why be so offended by the abuse to youngsters–except that the thwarting of the opportunity of a youngster specifically to learn, to be properly educated, to grow, has serious consequences. Sexual abuse is bad because it may cause educational impairment.
From a short clip in which the accused coach was speaking, it seemed to me that this coach views himself as a nurturing and educative type of person–for young boys... which apart from education v. sports, raises the further issue of gender. How is socialization of boys different from socialization of girls? Are sports more conducive to the boy’s education? (But Athena, patroness of Athens, is depicted as intelligent as well as an athletic warrior..)
A women’s rugby team does exist at Penn State but of course this team is not of significant public or symbolic use at present to the University. But if a University were to become known and widely followed primarily as a powerhouse of women’s basketball, for example, and if similar facts began to come out, would there be less (or else an equal tendency) to protect status, to make excuse v. the primarily academic objectives of such a hypothetical institution. How helpful are sports in the girl’s education? ... which must remain a question for those individuals who claim to know about male/female socialization.
Is enacting the condition of a street person or homeless person (using tent and sleeping bags) an expression of free speech?
How does the person who is in fact homeless enact such a demonstration of free speech? If a city has vagrancy ordinances, can't any who might be arrested claim that they are also engaging in free speech?
May one pay another to engage in free speech demonstration on their behalf? If not, why is special interest lobbying of legislators allowed, while the more general and popular and un-paid lobbying for general redress is not allowed?
Does a civic entity have minimal responsibility to provide place or locale for possible larger-scale petition...
Is protest official only after obtaining a permit... or official if/when NBC, etc., decide to cover it...or official (i.e. historical) once it disrupts or disturbs the ordinary activities of ordinary citizens...
The kid who steals a car without further plan, or who puts a brick through a business window–may not admit the same, but knows something wrong was done here. The white–collar embezzler seems to lack this immediate conscience. Money is more abstract than property. And there obviously also remains a certain (false) glamor about perpetrating a ponzi arrangement even if one is caught. The ponzi schemer "beat the system" for a while at least, which is something most of us might like to imagine being able to accomplish also. (Why don't we rush to interview the minor-property-vandal who gets in trouble with the law, curious as to what this one individual's life is in fact all about...) But the white–colar criminal subverts the whole system (in both monetary and systemic terms) perhaps significantly, perhaps making advancement more difficult for many others. Minor property damage perpetrated by the juvenile is minor property damage–unless the juvenile gets away with it and does some additional minor property damage later. But we ourselves remain the ones who must work within the system as it exists now–post major white-collar criminality. A bad investment manager such as Bernie must in some manner also taint the investment industry itself, taint (to some small degree) the basic credibility of American business, just as bad cops necessarily taint (in the short term at least) the repute-ablity of a police department. The Madoff "story" is not essentially a story in the personal dimension.., is it?
Let me start with something insignificant, color names. It was at MIT I guess, as they were building the graphical X system for Unix, that a collection of about a hundred colors was “standardized.” Some of these names were silly, none claim to be scientific in any way, but I think the motivation was sound; accessibility, popularization. Darkseagreen is not very dark or very green actually, but is more fun than the hex rbg which it defines. [These hundred colors can be seen on the Wikipedia page, web colors.] This same set of color names are actually supported by the latest browser engines, they are included in the SVG standards also, but they are not often made use of in actual web pages. Why?
The source of most web pages is an unreadable mess, un-punctuated even by the occasional color name. The web has become pervasive, web browsing is common, and so writing for the web, creating html pages–this should be a fairly ordinary skill, at least for the college trained. But hand-coding an html page is still a complete hack. And for this the standards people must (at least technically speaking–) be held responsible. They haven’t even had as their objective, it seems–making html page-creation popular, accessible.
My second point would suggest that rationalistic thinking is partially to blame. That is, one can only plan, rationally, so far ahead into the future. Technology itself, as well as other decisions taken, must also shake and change the landscape in which one is operating. Improved hardware now makes video and audio delivery feasible for a majority of browser users, so it is of course appropriate that these items should now be included in newer html standards. But such was not a rationally-driven but rather a pragmatically-driven development. Standards planners may need to learn short-term thinking... And page-viewers accept that viewing may not be exactly uniform...
The early move to separate presentation from content shows (perhaps) a similar rationalistic inclination. (I do recognize that there are/were numerous forces, factors needing to be balanced, assuage... and I certainly do not prefer commercial forces..) But to continue, while it was certainly a great idea as such to separate out styling or presentation into css, in those earlier standards (and now, some ten years later with html5) inadequate attention is/was given to the structure side! We are told to begin with structure, but div, p, header– these are inadequate for structuring anything, and the section, aside, article, added with the latest html5 standards seem to me inadequate also. Why not provide us with twenty (forty) structure tags with loose logical interconnections... toc, chapter, section, p, credits, for the bookish document; spacer, left-side, main-content, logo, ad-box, frill-box, for the magazine layout; and then new element tags for the media-type layout?? I do know enough about parsing to claim that adding color-name capability to a browser engine is probably quite trivial. Twenty structure tags; structure frameworks within which there may be some functional overlap among tag-elements, is this so difficult to imagine or to implement..? Standards define various arrangements possible among structure tag-elements; Engines add css and then render such allowable arrangements...
As the web began there was of course no way to see where it was going. But now its general success and its contours are much more obvious. One rational (html) framework for all may not be appropriate any longer. Why not (for example) three modes: text mode, graphical (that is, present-day mode), and media mode?
The web “page” with links, which was the great initial concept, this paradigm will remain fundamental, but what might need to be given up is the expectation that presentation can be (always) controlled. This last idea may be unpalatable (or is it just our assumption that this is so...) to the commercial forces which now pay most of the bills and thus predominately control what may happen to the web, but there are certainly other interests, the academic, the popular, the progressive... that also should have influence..
Text mode as I envision it would allow the user to quickly set their text viewing and font choices, etc., and images and media and extraneous links could remain strictly secondary, and contingent to the device used. I mouse over a tiny graphic or links symbol or info symbol to get the extras. On a small device I don’t need to have the stuff on the side... But the content provider will not be expecting a uniform pretty-layout-experience on the part of their content consumers. Improved academic-type source citation should also be built in, but the emphasis would remain with the simple viewing of text (or computer code).
The graphical or artsy mode, the animated magazine layout -this will not be phased out in any foreseeable future. But even here (and my technical expertise may be inadequate here, or maybe not...) it seems to me that standards-makers have not tried to pragmatically adjust to hardware and software capabilities. If a flow of text (and text tags) with inserted images was the original paradigm, now everything is driven by an impossible dream, a quest for standardized graphical positioning. You can’t just have your magazine page or your PR front or storefront... where elements are are going to be jumbled, imprecisely placed, slide around, be different for different customers. Oh no.
But isn’t this positioning goal technically almost feasible now as addition to html 4? Couldn’t html standards incorporate an improved absolute-plus-relative positioning mode rather than (i.e., in addition to) the traditional flow-type rendering? Within such a new approach should further be added programmable switches which depend not on pre-defined concepts (hand-held, monitor, braille) but more prosaically–size, capacity. The iphone4 has a small viewing area but almost the same number of available pixels as web pages on computer monitors of ten years ago, making it perfect now for viewing those old less-graphics-heavy web pages! A pragmatic criterion would determine which page is to be delivered, standard or compact version, not a pre-existing conceptual scheme..
My question would be whether such a better and sane and even ordinary-person-accessible positioning language is feasible and practical now. Could standards-planners, if they were to begin this month, not work with the engine-makers to come up with a better positioning sub-language which would be simpler as well as precise enough to meet present-day presentation expectations?
When that majority of web viewers who are using a pre-IE9 browser switch to IE9, then HTML5 (I guess) will have officially arrived. By then also perhaps web-page software (including editors) will fully support html5, and at such a future moment my efforts to implement the modern skill of hand-coding an html web site in up-to-date html...will be do-able.