State of the Union

Rousseau’s American Heirs Fight the Final Prejudice

Joseph Bottom’s An Anxious Age has stirred up quite a debate over his thesis that progressivism has recently switched from setting reason and science as first principles toward eradicating prejudicial beliefs as its prime ideological imperative. The left has always had an attraction to both, however. Jean-Jacques Rousseau’s romanticism has always challenged Rene Descartes’ rationalism, but after the bureaucratization and failures of the rationalized welfare state in recent times, the former’s aesthetic critique has become the more attractive argument for modern progressives.

What both strains of leftism had in common was repulsion against tradition. A typical dictionary defines prejudice as “a preconceived opinion that is not based upon reason or actual experience.” Descartes and the rationalists objected to tradition’s irrationality, and Rousseau and the romantics objected to tradition’s experience. It is curious that both rationalist and emotive progressivism first validated prejudice in the movement’s early eugenicist days. The progress in progressivism was from traditional prejudicial socialization to future reason, or social accord, or hopefully to both. So it is not surprising that prejudice became their common political target.

In the postwar United States, legal segregation in public schools and accommodations was outlawed, and the civil rights acts of 1957, 1960, and 1964 promoted equal treatment and voting. Antidiscrimination regulations were extended to sex and ethnicity. Feminism won the right to vote in 1920, an Equal Pay Act in 1963, no-fault divorce in the 1970s, sexual harassment protection in 1986, and guaranteed free contraception in 2010. With the 2013 Supreme Court decisions, same sex marriages were granted equal federal benefits with traditional marriages and it appeared that the same thinking would also void traditional state marriage laws. The Violent Crime Control Act of 1994 set criminal penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person.

This year’s 50th anniversary of the 1964 Civil Rights Act illuminates the value of shifting to a focus on the elimination of prejudice. Yes, the left itself questions these laws’ success, complaining that racism, sexism, and gender discrimination are still rampant—but that is efficacious for the cause. Certainly, access to voting is now universally available and overt discrimination has decreased, although formal discrimination complaints have actually increased. There is a large African-American middle class. Women lag male average income but, when wages are controlled for time and type of work, they have mostly achieved equality of income. Never-married women actually out-earn single men.

But there is another side to the story. The ratio of black to white income in 1947 before the civil rights laws was 52 percent; this increased to 60 percent in 1969 by the end of legal segregation—but before the mass government antipoverty and affirmative action programs had effect. By 2012 the ratio was only 57 percent, no improvement in 40 years. Worse, black unemployment has been twice as high as that of whites ever since data has been collected. Racial workforce participation rates are equally dramatic. Some of these disparities were offset by government welfare programs, though in absolute numbers whites received more funds.

As Robert Rector has noted the greatest differences are in education and marriage, both of which are important social supports for earned income and employment. Most black urban education is dysfunctional, but marriage makes the biggest difference in poverty levels: the poverty rate for married blacks is only 7 percent compared to 36 percent for unmarried blacks and 22 percent for unmarried whites. Yet, to the left traditional marriage seems part of the problem. Indeed, fighting prejudice against lesbian, gay, bisexual, and transgendered citizens by traditionalists is at the top of progressivism’s present agenda. Read More…

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SCOTUS Debugs Software Patents

Today, the Supreme Court hears arguments in Alice Corporation Pty. Ltd. v. CLS Bank International, a case that could massively overhaul the rules for software patents.

First, a brief patent primer. Adding one number to another is blatantly unpatentable, but a specific calculator that carries out addition (and a good deal more) is eligible for a patent. The question at the heart of Alice v CLS is whether a company could patent the idea of writing a calculator program, provided no one else had staked a prior claim. Under this system, whether or not Alice Corp built a calculator or even wrote the code might be irrelevant. As long as they were the first to think of using software to carry out this everyday operation, they would retain an intellectual property claim.

Alice Corp didn’t patent something quite as old as addition, but what they did patent—escrow, the practice of reducing the risk of a transaction by having a third party hold the goods to be exchanged until both sides have paid up—considerably predates Alice Corp’s 1993 patent filing. Alice Corp didn’t try to patent the idea of escrow, but the idea of managing it through a computer. A general description of the idea was all that was needed to file the patent; Alice Corp wrote no code and built no prototype.

In 2002, CLS built a working program to manage escrow-secured transactions in foreign currency markets, and Alice Corp, which had never put its patents into practice, sued for infringement. The case has been working through the courts ever since. When it reached the U.S. Court of Appeals for the Federal Circuit, it produced an exceptionally messy result. The ten judges hearing the case en banc produced seven different opinions.

The case law becomes very complicated, very fast, as, in order to decide if Alice Corp is patenting an “abstract idea” as CLS claims, the justices need to wade into very abstract questions. Alice’s lawyers contend that, by the logic of Mayo v. Prometheus the only kind of ideas that are too abstract to patent are “those preexisting fundamental truths, such as mathematical formulas, that are ‘equivalent’ to a law of nature and that ‘exist in principle apart from any human action.’”

By this logic, escrow may be a universal idea, but it’s not built into the nature of the physical world, so it’s fair game for patents. Certifying such a broad range of ideas open to patent could legitimize the actions of patent trolls, who file claims to a broad range of ideas they have no intention to develop, in order to shake down companies for settlements.

On the other hand, striking down Alice Corp’s claim might open the patent system to other forms of gamesmanship and abuse. If the courts take a very broad view of “laws of nature” most software patents could be on the chopping block. After all, who’s to say that Match.com’s dating algorithms aren’t simply a software implementation of certain universal heuristics for compatibility?

And a very limited ruling may just pave the way for more snarled rulings like the en banc hearing, which revealed the legal uncertainty that could deter companies from entering markets covered by ambiguous patents.

The opinion of the justices will need to thread a very delicate needle if they wish to keep software patents in existence but resilient in the face of abuse. And, unlike Alice Corp, the Supreme Court won’t be able to get away with simply asserting that a solution to this abstract problem exists.


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Hobby Lobby vs. the Order of Justice

The Crimson White / Flickr.com
The Crimson White / Flickr.com

Ross Douthat affectionately calls out me and Rod Dreher for applauding Patrick Deneen’s moral-economic brief against Hobby Lobby and other big-box retail chains. He laments that the paleo/crunchy-con mentality tends toward self-marginalization.

Speaking only for myself, I actually agree with Ross.

I’m not Catholic. I’m not a traditionalist (if I were, I’d have a lot of explaining to do regarding that infatuation with Keith Richards). When asked to describe my politics, lately I call myself a good-government Bush 41 conservative. (I maintain that H.W. was inferior to Reagan as a communicator and politician—obviously—but at least as great, and maybe even better, a president. I think his leadership during the meltdown of the Soviet empire was brilliant, and I’d take Dick Darman over Grover Norquist every day of the week. Sue me!)

All that said, I fear I’ve muddied the waters on where I agree with Deneen, and where I part ways with him (as well as, I’m going to presume, Dreher).

I am taken with Deneen’s argument that there is an uninterrupted continuum between the Founding (“progressive” in a Baconian sense) and the present; that classical liberals and modern liberals are both liberals. If there’s anything remotely distinctive about my blogging here and at U.S. News since ’10, I hope it’s been a counterweight to the despair of both moral traditionalists like Deneen and Dreher and market purists-slash-declinists like Kevin Williamson. My gravamen, my conceit, my shtick is this: Government has grown alongside our continental economy. There is not a hydraulic relationship (one goes up, the other goes down) between markets and government. If our capitalists were smart, they’d favor effective social insurance alongside free enterprise. Etc.

While I sympathize, somewhat, with Deneen’s aesthetic recoil from Hobby Lobby and strip malls and big boxes, I don’t get nearly as exercised about such things as he does. In any case, I don’t think there’s much that can be done practically to change it at the level of policymaking. I’m all for traditionalists and orthodox believers bringing their beliefs to bear in the marketplace. To the extent that I used the Hobby Lobby case as a springboard for my last post, it was only tangentially about contraception and religious liberty. My beef is not with religious conservatives participating in modern capitalism; it is with those who conflate modern capitalism and the Constitution with Judeo-Christianity. I have a beef with them because this conflation, I believe, is one of the main drivers of our current antigovernment ferocity, the rampant and irrational fears of inflation, and the counterproductive fear over short-term budget deficits.

I could be wrong about that.

In any case, I don’t think I made this point clear in my post on Hobby Lobby (which, for the record, I had never heard of before it became news).

While I’m at it, I might as well spell out what I think about the particulars of said case. On that score, I’ll associate myself with Yuval Levin’s recent post in NRO’s Corner. He writes that conservatives:

take the arrangement of rights and liberties at the core of the liberal-democratic understanding of society to exist in the service of sustaining the space in which society thrives, rather than of taking society “forward” and away from its roots. There is room in that space for different parts of society to sustain quite different ways of living, and room for people to debate our broader society’s social and political course – which can take different directions at different times in response to different circumstances. Liberty is not the yearned-for endpoint of that story, when we will be free at last from the burdens of the past. Liberty is what exists in that space now, what allows for different people (and groups of people) to pursue different paths and debate different options, and what allows society to address its problems in various ways as they arise. Liberty is not what we’re progressing toward but what we are conserving.

Here, Levin calls to mind Garry Wills’s distinction between the progressive-liberal “order of justice” and the “order of convenience.” To sum up a complex essay, Wills believed it should not be the aim of the state to dispense “raw justice” (Chesterton’s phrase), but rather to facilitate convenience (in the John Calhoun sense of the word—to “convene” or “concur” or bring about social peace). Sounding a lot like Burke and Nisbet, Wills wrote:

For if the state arises out of man’s social instinct, then the state destroys its own roots when it denies free scope to the other forms of social life. The state, when it is made the source of justice, must be equally and instantly available to all citizens; and, in achieving this, in sweeping away the confusion of claims raised by families, economic orders, educational conventions, codes of conduct, natural gradations of privilege, the Liberal leaves society atomized, each man isolated, with all the weight of political power coming unintercepted upon him. The higher forms of organization do not grow out of and strengthen the lower, but counter and erase them. This is what happened under the Order of Justice from the time when Plato pitted the state against the family to the modern breakdown of divided jurisdiction in the centralized state. …

The state, as extending throughout all other levels of social solidarity, must have a certain neutrality towards them all, and as the order-enforcing agent, it must take upon itself a certain negative, punitive function. This neutral and negative aspect of the state will be perverted, and become a positive push—as life-giving, rather than life-preserving—if the other forms of spontaneous activity wither; or if the state officials try to use their power to call up a positive vision of their own; or if politics is considered the all-inclusive area of man’s achievement of excellence. …

A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections. On this matter and others, the Obama administration seeks an order of justice. I hope, in this case, that it loses.

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The Greatest Trick the Devil Ever Played

Every Sunday, the rector of my church appends a brief note of spiritual guidance to the weekly bulletin. Recently, he noted that whereas “the world” encourages individuals to satisfy their desires, the Scriptures teach that we’re often to deny those desires.

That generality—“the world.”

I get it. I appreciate the New Testament connotation of the “world” as distinct from the church and its principles and disciplines. Still, I don’t think it’s quite right. “The world,” depending on where you live and which tradition you may or may not have been raised in, says a lot of different things. American consumerist culture, on the other hand, very definitely does encourage us—entice us, seduce us—to satisfy our desires. That culture is now global and, on balance, I think material human welfare is vastly better for it.

Thinking holistically of the human person, however, consumerism, with its valorization of individual choice and autonomy, is spiritually problematic.

And so it’s a great and terrible irony that the church—I should specify, a large segment of the conservative Protestant church—has invited “the world” into the church. It has embedded its economic imperatives into its doctrines. Indeed, it has elevated the marketplace into a thing affirmed and designed by God himself.

With characteristic brilliance, Patrick Deneen shone a klieg light on this “delicious irony,” with his post on the Hobby Lobby contraception case currently before the Supreme Court. A self-styled “religious corporation” seeks

to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. It defends its religious views as a matter of individual conscience, of course, because there is no moral, social, or religious context to which it can appeal beyond the autonomy of its own religious belief. Lacking any connecting moral basis on which to stake a social claim, all it can do in the context of a society of “disembeddedness” is seek an exemption from the general practice of advancing radical autonomy. Yet, the effort to secure an exemption is itself already a concession to the very culture and economy of autonomy.

Deneen of course is a conservative Catholic. I’ve yet to come across a rejoinder from a conservative Protestant arguing against Deneen’s contention that there is, or should be, a “separation of church and economy.” If no one has written it yet, someone will soon. For this is an unfortunate, ahistorical, heretical bedrock belief of the conservative base: the American economy is God’s economy. Any attempt to regulate it is contrary to the God-breathed Constitution. It is atheistic, humanistic, and tyrannical.

This could be the greatest trick the devil ever played.

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Bill Kristol’s Tea Party Constitution

Jonathan Chait amusingly shoots at the fish in the barrel that is Bill Kristol’s recent column urging Republicans to “get off the sidelines” and prevent another rout in 2016.

Of Kristol’s evocation of the “original Constitution”—and, by implication, modern liberalism’s trashing of it—Chait writes, “The ‘original Constitution’? The one that permitted slavery? Does Kristol want to do away away with the 11th through 27th amendments to the Constitution? I’m sure he does not. But if Kristol obviously does not mean what he actually wrote, what does he mean?”

We all know the drill by now: the “original,” pre-Progressive era Constitution was not designed for the expansive power to regulate interstate commerce that Congress now enjoys; for “transfer payments” or the redistribution of wealth; or, generally speaking, for any interference between the consensual acts of individuals in the marketplace.

I return to it from time to time, because it’s such a perfect distillation of the kind of jurisprudence that infuses the tea party and liberty movements, and Kristol’s musing furnishes me another excuse: Ken Cuccinelli’s legal brief against Obamacare’s individual mandate in the Texas Review of Law & Politics.

In it, Cuccinelli answers Oliver Wendell Holmes’s famous Lochner dissent that “a constitution is not intended to embody a particular economic theory … The Fourteenth Amendment does not enact Mr. Herbert Spencer’s social statics.” (Hence Chait, lazily switching between upper- and lower-case “c”: “The Constitution is not a vague set of ideals; it’s a clear set of rules. That’s the whole point of a Constitution.”)

Cuccinelli says Holmes was arguing with a straw man. Of course it’s nonsense to claim the Constitution or the 14th Amendment embody Social Statics. But could Holmes plausibly deny that it embodies John Locke? “This would have been regarded as puzzling at best and at worst demonstrably false.” So there, fine: Forget Herbert Spencer. We can appeal to Locke (and Blackstone, and Hooker) and basically arrive at the same libertarian defense of economic rights. Sic utere tuo ut alienum non laedas: so use your own as not to injure another’s property.

For now, let’s table this aspect of the debate. Readers know I’d rather live under Chait’s Constitution than Cuccinelli’s. My point here is this: Bill Kristol is a terrible, horrible, no good, very bad ambassador for the Tea Party Constitution!

A constitution whose notion of executive power is expansive enough to satisfy the likes of Bill Kristol and John Yoo should have no trouble accommodating social insurance programs or public assistance for the needy.

I’m sorry: you don’t get to have your kickass policy suite of torture, democratism, intergalactic swamp-draining, World War XXIV, and “We’re all Everybody-ians now,” and also complain about food stamps or federal insurance exchanges.

Tea Party and liberty movement conservatives have every right to argue for an originalist interpretation of individual economic rights.

Bill Kristol does not.

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Protecting the Constitution from Executive Order

Official White House Photo by Chuck Kennedy
Official White House Photo by Chuck Kennedy

President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.

A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.

Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.

Isn’t the Supreme Court supposed to have the last word on these matters? In challenging President Bush’s attempt to replace regional U.S. Attorneys against Congressional opposition in 2006, Democratic Rep. Henry Waxman said such differences between the executive and legislature must be umpired by the courts. He and his classmates were taught in law school that “the Constitution was what the Court said it was.” Bush replied he would not allow his Attorney General to enforce a judicial contempt order even if the court issued one and that was that. More recently, President Obama announced he would not enforce federal anti-drug laws against states with marijuana legalization laws and refused to deport certain illegal immigrants. Back in 1988, Congress passed a Civil Rights Restoration Act specifically nullifying the Grove City Court decision and in 1991 passed a civil rights bill overruling five Supreme Court decisions by name.

Even with their relative decline in recent years, the states are not without redress either, as the marijuana legalization laws demonstrate. States have created constitutional amendments, laws, and attorneys general suits to circumvent national laws and opinions on marriage, abortion, racial preferences, gun restrictions, the Real ID Act, Obamacare (by more than half the states), and many others. Indeed, many federal laws and court decisions are administered by state bureaucracies that differ in their interpretation and enforcement greatly, as Alabama and Massachusetts in fact do. Amendments to the Constitution have been passed on many critical subjects over the years and on several occasions the mere threat has changed federal policy.

Taxes would seem one area where the legislature must predominate. No taxation without local representation was the principle complaint justifying the American war for independence. Today the effective imposition of taxes by creative executive regulatory interpretation—such as the recent increase in fuel emission standards—is the rule rather than the exception. Judges have required state legislatures to increase taxes to upgrade schools for minorities or to redress other presumed shortcomings for all kinds of special interest purposes. A St. Louis federal court in effect ran the local school for decades. Since the Supreme Court has ruled that the Obamacare penalties were taxes, exemptions and changed regulatory requirements are in effect taxes passed by the health and treasury secretaries alone.

President Obama is by no means the first to govern by Executive Order. Read More…

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A Culture of Life

The Supreme Court. Orhan Cam / Shutterstock.com
The Supreme Court. Orhan Cam / Shutterstock.com

Today marks the 41st anniversary of the national legalization of abortion in the United States. Thousands will march on the Mall and in the streets of Washington D.C. in protest of this decision, braving frigid temperatures and a blanket of snow to express their profound moral objection to Roe v. Wade and lamenting the estimated 55 million young lives that were legally extinguished since January 22, 1973.

The March for Life has become a rallying point for the pro-life movement, an annual pilgrimage of sorts, especially for young people who gather together to affirm a bedrock belief: the sanctity of human life from conception to natural death. Even amid the overwhelming sense of tragedy and loss that draws them to D.C., in order, it is hoped, to effect a change, there is also a sense of affirmation and even celebration in the company of many others who are also so firmly committed, who gather to defend a belief that is today dismissed and mocked by cultural elites and cognoscenti (including the governor of New York, purportedly a Catholic), who find joy in the fellowship of so many companions who stand for life. As one friend posted on Facebook, “the Tribe is together.”

Amid the widespread sense of shared purpose, there is perhaps little time or inclination to reflect on a question: why gather, as Marchers do, in Washington D.C.? It is perhaps a question whose answer is self-evident: the March ends outside the Supreme Court, which continues to affirm Roe v. Wade as controlling precedent. It is the location of the president and the Senate, which ultimately has the power to make or confirm appointments to the Court. It is the nation’s media center, where such a protest has the best chance of being amplified to the nation. It is physically laid out to accommodate large protests, with its Mall almost seeming to have been designed for that purpose. It is the nation’s capital, where our elites congregate to make policy and steer the nation. Naturally, if people from all parts of the nation gather in protest of a national issue, it is not only the best place, but the only place.

However, the March’s annual presence in D.C. obscures a number of issues, above all, whether abortion is ultimately a political and even legal matter. On one level, inescapably so: it has been a political matter for decades, even a “wedge” issue that has become a defining difference between the two political parties. It is obviously a legal issue, generating countless pages of legal theory and philosophical argument, as well as scores of subsequent High Court and even more lower court decisions that have responded to ongoing challenges and debates over the issue. So perhaps no further thought is necessary—destination D.C.

However, by other considerations, treating it exclusively as a political and legal matter obscures the extent to which it is most fully a question of culture. And, if conservatives would generally tend to agree on one thing—aside from the immorality of abortion—it is that culture does not originate in Washington, D.C., or at least that it shouldn’t. Read More…

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How the Right and Left Are Revising “Tough on Crime”

America has 5 percent of the world’s population but one-fourth of its prisoners. Nearly one-third of Americans are under correctional facilities’ control at a yearly cost of $60 billion. Imprisonment has grown 400 percent over the past twenty years, the great majority for non-violent crimes. And two-thirds of criminals are back in jail for similar crimes three years after they are released. Our current correctional policy is a national shame and it simply does not work.

Both Edwin Meese and Eric Holder, the attorneys general for presidents as different as Ronald Reagan and Barack Obama, have criticized this status quo. So have uber-liberal E.J. Dionne Jr. and New Right founder Richard Viguerie. The American Civil Liberties Union and Right on Crime agree. Holder’s plea to limit sentencing for non-violent offenders can be questioned coming from one who is otherwise criminalizing new civil procedures and is blunt that his motivation comes primarily from the “shameful” fact that black male perpetrators receive longer sentences than whites. Likewise, while calling for bipartisan agreement, Dionne also emphasized the need for gun control and ending “stop and frisk” laws, a sure means to derail agreement. Caution is called for but the fact that both left and right have expressed doubts is significant.

Even Dionne concedes the crisis began in the 1960s when an “anything goes” leftist counterculture romanticized illegal behavior as glorious acts of self-fulfillment and independence, all beamed to the public by a sympathetic media and popular culture. A liberal Supreme Court responded with decisions expanding criminal rights, limiting confinement and the death penalty, and restricting police response. Crime exploded with murder and willful manslaughter doubling from 5.1 per 100,000 population in 1960 to 10.2 by 1980. The people responded by demanding a narrowing of rights and tougher penalties. The politicians complied.

The right became identified with “tough on crime” even though the leading voice of this frustration was President Richard Nixon who was anything but conservative in most of what he did, overseeing large increases in welfare spending, environmental regulation, racial preferences, and even wage and price controls. More principled conservatives supported Nixon’s program out of outrage that the Supreme Court had acted so arbitrarily by overriding Congress, the Executive, and the states without the least consideration of public opinion. As the right gained politically for supporting tougher policing and punishment, the more pragmatic left led by then Senator Joe Biden claimed equal toughness on crime by applying the death penalty and longer sentencing to many less violent matters. Tough-on-crime turned bipartisan.

Conservatives began having second thoughts as laws exploded to criminalize vast new areas of social life. Today there are 4,000 federal laws elaborated by 300,000 national regulations with thousands more at the state and local levels. Even lawyers do not know the law outside their own narrow field. Most of the additions were for nonviolent offenses, now representing 90 percent of federal prisoners. Violent crimes such as murder, assault, robbery, rape, and battery are widely acknowledged as the most serious, with the guilty being rightly placed where they cannot hurt society again. But imprisonment for non-violent crime is another matter—especially considering that a 2009 Associated Press study found that 60,000 inmates were sexually assaulted that year. Read More…

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Death Penalty Continues Decade-Long Decline

Since Jimmy Carter reinstated Georgia’s death penalty to Supreme Court satisfaction in 1976, capital punishment has been the subject of constant public debate, pitching tough-on-crime conservatives against bleeding-heart liberals against Catholics advancing a seamless pro-life garment. According to the 2013 year end report by the Death Penalty Information Center (DPIC), though, death by execution has undergone a decade-long decline. Executions peaked at 98 in 1999, and death sentences peaked slightly earlier from 1994-1996.

This in part reflects a decrease in violent crime from the dark days of the early 1990s, as the homicide rate has also dropped over the same period. DPIC points, however, that there is a technical reason at least for the decline in actual executions: states can’t get the goods. Because many of the cocktails used in lethal injection are manufactured in Europe, where the death penalty enjoys substantially less favor than here in the United States, Europeans have instituted export bans on drugs for executions. The American Medical Association has also long ruled that “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”

With fewer avenues to access the drugs that provide the latest attempt at “humane” state killing, and no access to the otherwise most capable technicians for administering those drugs, the very act of executing a prisoner convicted of a capital crime is almost hopelessly complicated. One wonders, however, if the perpetual pursuit of a more perfect lethal cocktail, a more humane fashion of killing, is ultimately in conflict with the nature of capital punishment itself. As we have moved from hangings and firing squads to the electric chair to lethal injection, we see the attempt to use technology to intercede between us and the death act, to rationalize it, to sterilize it. It bears remembering that the guillotine was conceived as an enlightened method of execution more fitting for the Age of Reason.

Death’s horror cannot be rationalized, however, as it points to our finitude, and signals the limits of what our reason can reach. By wrapping it in ever more institutions and legalisms, the liberal project tries to do more than prevent “cruel and unusual punishment.” It seeks to conquer our darkest discomforts with bureaucratic procedure, anonymous responsibility, and sterilizing technology.

The well-known scripture, John 8:7 calls for he who is without sin to cast the first stone. Attention is usually concentrated on the first half, the impossible condition and qualification, but there may be some wisdom to be gleaned from the latter, the call to action. The Nazarene preacher demanded that one who should take up the action of execution should weigh the momentousness and savagery of the act and be willing to expose himself to the accompanying burdens.

Insofar as American states continue to maintain and enforce capital punishment, perhaps we too should be willing to face the nature of state-sanctioned killing, rather than first administering muscle-paralyzing drugs that shield us from the sight of any discomfort that death may bring.


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White House Panel Rebukes NSA Spying

Six months after Edward Snowden’s first powerpoint slides went public, it’s official: all three branches of government have weighed in against the NSA’s surveillance overreach.

Yesterday, President Obama’s own hand-picked panel issued a 308-page report recommending a series of reforms to the National Security Agency and overall national surveillance structure. The five-member panel had previously been criticized for not being independent enough of the presidency, and included such members as Cass Sunstein, President Obama’s former “nudge” and regulatory czar who is also married to current UN Ambassador Samantha Power; Michael Morrell, the recently resigned deputy director of the CIA; and Peter Swire, a former Obama economic aide.

Nevertheless, the panel released 46 sweeping recommendations, highlighted by the recommendation to end the bulk phone record collection program that made up Snowden’s very first revelation. It urged congress to pass legislation ending the NSA’s ability to collect and maintain records of Americans’ phone metadata for years on the presumption that it may at some point be pertinent and subject to a legitimate search. Instead, the panel recommended that the NSA be barred from such pre-emptive collection, and instead need to obtain a specific Foreign Intelligence Surveillance Court order for each set of records. Instead of being preserved in government archives in perpetuity, the records would be subject to the company’s own data retention policies, so a court order served for two-year-old records at Cricket, which only retains records for six months, would come up blank. Verizon, the first company whose cooperation with the NSA was exposed, keeps records for one year, and AT&T, five years.

Earlier this week, a George W. Bush-appointed judge ruled the program likely unconstitutional and issued a (stayed pending appeal) injunction against it, writing “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” The same program was the target of Justin Amash and John Conyers’ joint effort to defund NSA bulk collection this spring, and is banned under a proposed law by Patriot Act author Jim Sensenbrenner (R-Wis.) and Senate Judiciary Chairman Patrick Leahy (D-Vt.). President Obama is not bound by the recommendations of his panel, and the White House has said that it will announce which suggestions it will itself adopt in January.

What is particularly important, and special, about this case is the unison with parts of the executive, legislative, and judicial branches are speaking in rebuking the NSA’s activities as unconstitutional. Often in our nation’s history, particularly post-Warren Court, we have acted as if the only legitimate judges of the Constitution sit on the Supreme Court. After last summer’s Obamacare ruling, for instance, Democrats and many in the media reported that the law was authoritatively stamped “constitutional” forever. That is an impoverished formalism, however, unworthy of our democratic system.

Instead, thanks to the wisdom of the Founders, we have three branches of government through which to pursue the political determination of constitutionality. The Constitution does not defend itself, nor does it belong to a single branch to define. Instead, our checking and balancing institutions of government compete in the political arena to give heightened voice to the public debate and uphold their sworn oath to protect and defend the Constitution of the United States. So they are now engaged in a great civil discussion to determine what invasions of privacy the Constitution permits, and what invasions prudence counsels to be forbidden, even within its limits.

Perhaps Edward Snowden’s greatest achievement, beyond the pushback of the surveillance state, beyond the awakening of the public to any particular debate, is the awakening of our Constitutional order to demonstrate its continued potency in the face of new and unexpected challenges.


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