State of the Union
Nullification Meets State Religion in Raleigh?
In response to an ACLU lawsuit against a North Carolina county maintaining that the prayers said at the opening of county commissioners’ meetings violate the Constitution’s establishment clause, state legislators have introduced a bill claiming the federal government has no authority over the subject. Its two substantive provisions:
SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion.
The difference between the commissioners’ prayers and the ones delivered at the beginning of sessions of Congress is the presence of sectarian identifiers like Jesus and the virgin birth. The lawsuit claims that since November 2007, 139 out of 143 meetings have included these insufficiently nondenominational prayers, though it only actually lists thirteen. Since there’s some grey area that might be cause for suspicion, here’s one of the early and more obvious examples listed, from December 2007:
Father, we thank you for your grace and your glory. We ask you to be with us this evening as we conduct the business of Rowan County. We’d also like to ask you to have your will as it relates to all the burdens and problems the citizens of Rowan County have today. As we get ready to celebrate the Christmas season, we’d like to thank you for the Virgin Birth, we’d like to thank you for the Cross at Calvary, and we’d like to thank you for the resurrection. Because we do believe that there is only one way to salvation, and that is Jesus Christ. I ask all these things in the name of Jesus. Amen
At least one of them appears to have gone beyond routine statements of Christian belief. The Christian Science Monitor reports that one prayer went, “I pray that the citizens of Rowan County will love you Lord, and that they will put you first.” That seems less appropriate than most of the others.
Gay Marriage: Conservatives For, Libertarians Against, & More
As the Supreme Court considers the constitutionality of same-sex marriage bans, consider these classic TAC essays on this polarizing subject:
Justin Raimondo — “The Libertarian Case Against Gay Marriage”
Jon Huntsman — “Marriage Equality Is a Conservative Cause”
Margaret Liu McConnell — “Less Perfect Unions”
Daniel McCarthy — “Why the Right Can’t Win the Gay-Marriage Fight”
Austin Bramwell — “Pleading the Fourteenth”
Andre Archie — “What Same-Sex Marriage Means”
Proposition 8 and Federalism
The Supreme Court heard oral argument today on the constitutionality of California’s Proposition 8, which exclusively recognized marriages between a man and a woman in the state constitution. The consensus from Twitter and the networks seems to be that the court is unlikely to have five votes and probably won’t make a strong ruling either way. From SCOTUSblog:
The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional. …
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule. But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
Reason has a debate between Ilya Shapiro and Jonathan Adler over the federalist aspects of the ruling. Shapiro’s normally a big fan of federalism, but an overreaching federal government is not what’s at issue here:
… if it’s unconstitutional for California to discriminate based on sexual orientation when doling out marriage licenses, then a ruling against Prop 8 would simply vindicate individual constitutional rights. If, however, there’s a compelling reason for making the distinction—because, say, it promotes child-rearing—then California can keep doing what it’s doing. Either way, California’s power to regulate marriage isn’t implicated—just like its power over criminal law wasn’t in doubt in 2011 when the Court found the state’s ban on violent videogames to violate the First Amendment.
In sum, those who argue that federal courts have no business policing state marriage laws are forgetting that the Civil War Amendments, particularly the 14th, fundamentally changed—perfected—our federalism. Since 1868, when states violate individual rights, they have to answer to federal courts.
Adler counters:
The arguments for holding Proposition 8 unconstitutional do not seek to vindicate a “right to marry” so much as they seek to alter the definition of what constitutes a marriage in the first place. Marriage has been understood to constitute the union of one man and one woman through most of human history. Indeed, this definition long predates the Constitution. Some cultures have recognized polygamous marriage, but sexual difference has been a core component of what constitutes a marriage in nearly every case.
As a consequence, there are plenty of judicially cognizable reasons why the people of a state may prefer not to define a marriage as anything other than the union of one man and one woman. Such a union is the only one capable of naturally producing offspring within the bounds of marriage. This is why the traditional definition of marriage has persevered throughout most of human history throughout most of the world. Many of us find this to be an unpersuasive justification for denying state recognition of same-sex couples, but this is not a sufficient basis to render such policies unconstitutional. Federalism requires that state governments are allowed to adopt unsound policies.
Today’s hearing is the first of two; tomorrow the court will consider the Defense of Marriage Act’s constitutionality.
The Balanced Budget Amendment Rears Its Farcical Head Again
After the unsatisfying conclusion of the fiscal cliff saga, House GOP leaders resolved to reestablish regular order in the consideration of fiscal policy. No more secret negotiations with the White House. No more eleventh-hour crisis-averting votes. This was the impetus behind the bill to force the Senate to pass a budget for the first time in years, possibly paving the way for the first joint budget resolution since 2009.
A return to normalcy: what a splendid idea!
Which is why I’m scratching my head at the news that Republicans plan to make a balanced budget amendment to the Constitution the centerpiece of their fiscal agenda. The proposal would cap federal spending at 18 percent of GDP as well as require supermajorities for tax hikes and debt ceiling increases.
AEI’s James Pethokoukis deconstructs the practicality of the spending cap:
[L]et’s quickly examine whether capping federal spending at 18% of GDP is realistic. I am not sure it is. If the bill excludes interest spending? Maybe. If so, then the BBA would be capping spending at roughly the historical average of around 20% to 21% of GDP. But even doing that for the long term will be tough (especially without slashing defense spending to Europe’s minimalist levels). Recall that the Bowles-Simpson plan has a long-term spending target of 21%.
Just as problematic is the institutional folly that the BBA represents. Instead of reasserting democratic control over fiscal policy, as had been the plan until five minutes ago, a BBA regime would take us in the opposite direction – toward newly empowered judges. The literature on how a BBA would invite judicial interference into fiscal policy is vast — for a taste, see Ed Meese, Walter Dellinger, and Peter H. Schuck – and, to my lights, dispositive. But that’s not all. The executive branch, too, would potentially gain new authority over spending — which the Goldwater Institute, strangely, sees as a feature rather than a bug.
Then there’s the question of “optics.” Come the State of the Union Address, President Obama plans to grasp the mantle of restoring middle-class prosperity. Republicans are set to counter with the dry language of fiscal rectitude, behind which lurk accounting gimmicks and berobed men armed with calculators.
Is there a more self-defeating political strategy than this?
The Boy Scouts, Gays, and Civil Society Minding Its Own Business
In the entry on judicial activism found in the classic Prejudices: A Philosophical Dictionary, Robert Nisbet wrote of the “whole web of authority that naturally exists in any society, a web spun by family, locality, voluntary association, business enterprise, profession, and civil law.” Conservatives properly cherish the autonomy of this “web of authority,” while recognizing that it can, at times, be a haven for terrible injustice.
Having read that last sentence, the Jim Crow regime of the old South is probably on the tip of your tongue: wasn’t it necessary, in that case, for the federal government to intrude into that that web and impose its will?
I agree that it was.
But not every injustice rises to the level of Jim Crow.
Take the question of the Boy Scouts of America’s policy of barring membership to gays. Even if one believes that gays fundamentally have the right to marry, it’s less obvious to me that they have a right to join the Boy Scouts. As the Supreme Court, narrowly but correctly, decided in a 2000 case involving an expelled scoutmaster in New Jersey, the BSA is not a motel, restaurant, or “public accommodation” of any kind; it is a private organization whose First Amendment-guaranteed freedom of association trumps your desire, however blameless, to serve in it.
But if the Supreme Court is the court of final appeal in our legal system, it is not the final word of civil society. Thirteen years later, the BSA has signaled, with a microcosmic nod to the principles of federalism, that it will let local chapters decide whether to admit gay scouts and scout leaders.
So instead of a controversial legal remedy, followed by years of embittered acquiescence, the BSA is changing voluntarily. The Family Research Council’s Tony Perkins would insist, not without reason, that we should use the word “voluntarily” advisedly. “If the board capitulates to the bullying of homosexual activists, the Boy Scouts’ legacy of producing great leaders will become yet another casualty of moral compromise. The Boy Scouts should stand firm,” he said in a statement.
Time will tell if the Boy Scouts’ compromise renders their mission, well, compromised. But it strikes me that private actors adjudicated this conflict on their own. It required no diktat from the executive branch or the federal bench. Social peace has been preserved.
Reform, sometimes, is organic.
Says civil society: “Yes we can.”
Garry Wills Is Wrong About Guns, and So Is the Constitution
I’m grateful to Scott Galupo for reviving Gary Wills’s provocative interpretation of the Second Amendment. As one might expect from encounters with Wills’s other work, this interpretation is learned, brilliant…and wrong.
Wills insists that the Second Amendment is a cunning legal maneuver that gives the government the authority to set limits on the possession and use of guns by linking the right to “keep and bear arms” to the regulation of militias–an enumerated power of Congress in Article I, Section 8.
As Sanford Levinson points out in this response, that interpretation is logically coherent but historically implausible. Given America’s mythologized origins in citizen revolt, Levinson suggests, a more convincing reading of the amendment can be found in Joseph Story’s classic Commentaries on the Constitution. Here is what Story has to say:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers…. [L]arge military establishments and standing armies in time of peace…afford to ambitious and unprincipled rulers [means] to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms…offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them…
If Story is right about the thinking behind the Second Amendment, as I believe he is, the claim that private ownership of guns is “necessary to the security of a free State” rests on two arguments that correspond to different strands of modern political philosophy.
The first is the familiar Lockean argument that the people retain a right of revolution against rulers who become despotic, even if they were at one time legitimate. Since this right doesn’t mean much if it can’t be enforced, the people must also have the right to possess and use the means of self-defense against tyranny, i.e. arms. The American people saw themselves as having exercised that right in 1776. And many continued to believe, as Story indicates, that the continuing possibility of its exercise was a valuable safeguard against an overweening government.
A Natural—But Not a Second Amendment-Guaranteed—Right to Own a Gun?
Almost immediately after the the Newtown massacre, National Review’s Charles C.W. Cooke mounted a vigorous defense of gun rights. “American liberties, including the right to bear arms, pre-exist the federal government, and are defined and protected in the same document from which the state derives its authority and its structure,” he wrote. “In a free republic, the people cannot be disarmed by the government, for they are its employers, and they did not give up their individual rights when they consented to its creation.”
With a renewed push for gun control on the top of Washington’s mind this week, I thought it’d be worthwhile to recall historian Garry Wills’s perhaps idiosyncratic view of the Second Amendment. In short, he is inclined to agree with the first half of Cooke’s apologia—individuals have a right to own a gun that pre-exists the Federal Constitution—but disagrees that this right is specifically enumerated in the Bill of Rights.
Wills departs from the standard liberal hedging on this question. Jeffrey Toobin, for example, reads the language of the Second Amendment in two distinct clauses—one having to do with the regulation of militias and the other with the individual’s right to “bear arms”:
The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.
Wills interprets the language of the amendment quite differently (and I believe more persuasively); he sees it as a coherent whole that is entirely in reference to the regulation of militias. Wills developed this argument most fully in a long 1995 essay for the New York Review of Books, and later included a condensed version of it in his 1999 book A Necessary Evil: A History of American Distrust of Government.
Here he is on the meaning of the phrase “bear arms”:
To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English (“arms”). One does not “bear arm.” Latin arma is, etymologically, war “equipment,” and it has no singular forms. By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war “just-borne arms” and a civil war “self-borne arms.” Even outside the phrase “bear arms,” much of the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). “Arms” is a profession that one brother chooses as another chooses law or the church. An issue undergoes the arbitrament of arms. In the singular, English “arm” often means a component of military force (the artillery arm, the cavalry arm).
Thus “arms” in English, as in Latin, is not restricted to the meaning “guns.” The Romans had no guns; and they did not limit arma to projectile weapons (spears, arrows). It meant weaponry in general, everything from swords to siege instruments—but especially shields. That is why the heraldic use of “arms” in English (the very case Stephen Halbrook invokes) refers to shields “coated” (covered) with blazonry.
And here he is on the verb “to keep”:
Gun advocates read “to keep and bear” disjunctively, and think the verbs refer to entirely separate activities. “Keep,” for them, means “possess personally at home”—a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias. It is precisely in that literature that to-keep-and-bear is a description of one connected process. To understand what “keep” means in a military context, we must recognize how the description of a local militia‘s function was always read in contrast to the role of a standing army. Armies, in the ideology of the time, should not be allowed to keep their equipment in readiness.
“History, philology, and logic furnish no solid basis for thinking the Second Amendment has anything to do with the private ownership of guns,” Wills wrote in A Necessary Evil. But hold on, he continues: this hardly means federal or state governments are therefore justified in confiscating all privately owned guns. The Constitution is not the summa of individual rights. The Ninth Amendment helpfully reminds us of this fact. One may reasonably argue, as Cooke does, that we have a natural right to own a gun, to defend our selves and our property, by lethal force if necessary. Indeed, this right may have seemed so self-evidently obvious that Madison did not deem it necessary to explicitly guarantee (enumerate) its protection in the Constitution.
Wills:
Why, then, did Madison propose the Second Amendment? For the same reason that he proposed the Third, against quartering troops on the civilian population. That was a remnant of old royal attempts to create a standing army by requisition of civilian facilities. It had no real meaning in a government that is authorized to build barracks, forts, and camps. But it was part of the anti-royal rhetoric of freedom that had shown up, like the militia language, in state requests for amendments to the Constitution.
If Wills is right, it means that conservatives may debate the gun issue on the basis of reason, custom, and commonsense—but without dispositive recourse to the verbiage of the Second Amendment.
Is There a Second Amendment Right to Own a Machine Gun?
Robert Wright of Bloggingheads.tv debates Jacob Sullum of Reason:
Conor Friedersdorf’s Bad Arguments
In response to Rod, Conor Friedersdorf weighs in on the the matter of Carlos Romero, lover of animals, and Doodle the miniature donkey. Recalling Justice Scalia’s dissent in Lawrence v. Texas, Rod asks:
Now, why does the state have the right to tell young Romero that he may not pleasure himself in the presence of his miniature donkey? It appears that he never actually violated Doodle’s, uh, person…The stable swain never laid a hand on that donkey, yet the state is prosecuting him for his amour impropre. According to liberal and libertarian ideas of sexual autonomy and the law, why should Romero and Doodle’s outlaw love be illegal?
Friedersdorf responds:
The defendant’s own attorney all but provided the answer. “If the statute were to require sexual conduct with animals to be nonconsensual or to cause injury in order to be a crime,” he noted, “then perhaps the State would have a rational basis and legitimate state interest in enforcement.” I’d insist, along with a lot of libertarians, that any sex with animals is in fact nonconsensual, and that outlawing it should be entirely unobjectionable to right-thinking liberals and libertarians. (I’d add that if self-pleasure in the mere presence of animals is a crime, we’d better start building prisons to house all the dog and cat owners whose pets witness their otherwise private moments.)
This doesn’t answer Rod’s question. Or if it does, it’s by demonstrating his suggestion that libertarians can offer no principled defense of laws prohibiting bestiality–or any other practice whose risks are born by the human individuals that engage in them. (I exempt “liberals” from this discussion because the term is too vague to identify a specific philosophical position.)
First, Friedersdorf acknowledges that he regards prosecution for Romero’s actual offense as absurd. We don’t punish people who keep more conventional pets from having sex (with themselves or others) around animals. So why should Romero face harsh penalties, including registration as a sex offender? The real reason Romero faces punishment for masturbating in Doodle’s presence, as his attorneys point out, is that this act is “considered deviant or downright ‘disgusting’”, while engaging in the same act in the presence of one’s cat might be merely embarrassing. According to Friedersdorf, however, that’s not good enough: there has to be a “rational argument” for outlawing bestiality, or any other sexual practice.
But what if Romero actually had sex with Doodle? Here, Friedersdorf think he’s on stronger ground. Animals cannot consent. Since it is legitimate to punish non-consensual acts, ”outlawing [sex with animals] should be entirely unobjectionable to right-thinking liberals and libertarians.”
Yet this argument isn’t very powerful either. To begin with, it’s not self-evident that animals can’t consent. At the very least, we’d need empirical reasons to believe that this is the case, particularly when it comes to higher animals such as great apes. All we have here, however, is Friedersdorf’s insistence that “any sex with animals is in fact nonconsensual.” That’s a stipulated premise, not an argument.
Whistle While You Work, Congress
Perhaps the signing yesterday of the Whistleblower Protection Enhancement Act (WPEA) is a sign of good things to come for our quarreling Congress. Or, if not, perhaps we should let them know we expect it to be.
The bill, which took 13 years to obtain unanimous consent in both the House and the Senate and encountered its share of thwarting from members of both parties along the way, expands protections of federal workers’ right to report government corruption and wrongdoing safely. Congress last revised the Whistleblower Protection Act in 1994. You may remember hearing of federal air marshal Robert McClean, who, in 2003, leaked an unclassified, TSA-internal directive outlining cuts in marshal coverage for long-distance passenger flights during a terrorist alert and subsequently lost his job, and his petition for review. The Court of Appeals for the Federal Circuit, the only court empowered to hear appeals of whistleblower cases decided by the Merit Systems Directive Board (which adjudicates whistleblower complaints), has ruled for whistleblowers in only three of 203 cases in the roughly ten years that followed.
The WPEA initiative has been led by the Government Accountability Project (GAP), a non-profit that attests to the peeks and troughs the legislation traveled as it struggled to maintain its coalition of hundreds of groups demanding upgrades in protections. Besides closing loopholes in the courts process, like the one that said an employee was protected only if he/she was the first to report misconduct, there are also key expansions provided by the bill.
After 13 years of teeth pulling, transparency seems like something we can all agree on. There’s no reverting the process – say what you will about technology, but one undeniable benefit of its omnipresence is the accelerated rate with which it is demanding accountability from both governments and business. Although it approaches a different scale, one wonders what S. 743 can do for the Bradley Manning case, not to mention in motivating states to look at their own legal systems, and ask to what degree they encourage public sector employees to blow the whistle on wrongdoing and abuse. Stephen Kohn at the National Whistleblowers Center notes that the new provisions still dim in comparison to the basic rights whistleblowers enjoy in the private sector. However, surveys like this one conducted by the first law firm to advocate for whistleblowers who report possible violations of the federal securities laws, indicate that 54 percent of Americans have knowledge of corporate misconduct and nearly one in four still fear retaliation in reporting it.
Dana Liebelson has more on President Obama’s about-face on the issue.
